Evidence Outline

Evidence Lyon, Spring 2009
INTRODUCTION & OVERVIEW
What is “Evidence”?
• Concerns the “process of proof at trial”
• Restraints on what attys can do in ct.
o Learn control b/c evidence can help or harm you
• Credibility: Believability of the witness (4 aspects)
o Perception
 Are the witness’ perceptions skewed?
o Memory
 Is the witness’ memory accurate?
o Narration
 Does the listener misunderstand what is being said? (e.g. irony, sarcasm)
o Sincerity
 Is the witness lying?
 BIGGEST CONCERN of FRE
• Evidence Code – Federal Rules of Evidence
o Based on our ambivalence about the adversarial system
 Mutual distrust – attys & juries
• Atty’s don’t trust juries: Fear that the fact-finder will be poisoned or cannot
adequately handle facts of case
• Juries do not trust attys: Need proof of what attys are saying
o Use rules of evidence to stop/forbid OP from bringing evidence in — manipulation of rules
Evolution of FRE
• Previous codes by Wigmore (1908) & Morgan (1945) not adopted by any states
o However influential in states’ individual codes
• FRE (1972) adopted by 42 states
o Not NY, PA, CA
 Persuasive that, by and large, still in states that have not passed the FRE
General Rules
• Rule 102 : Purpose and Construction:
o These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense
and delay, and promotion of growth and development of the law of evidence to the end that the truth
may be ascertained and proceedings justly determined.
 NOTE: We exclude things that are truthful when there is an independent value to avoiding
harassment & preserving fairness.
 Why not just speak truth?
• Always a fairness component – must balance w. equity
• Efficiency – don’t want to encourage time delay or expense
• Preserve sanctity of relationship b.w atty. & client.
• Need to balance fairness w. accuracy
• Rule 606 - Competency of Juror as Witness:
o (b) Inquiry into validity of verdict or indictment. - A juror may not testify as to any matter or
statement occurring during the course of the jury’s deliberations or to the effect of anything upon that
or any other jurors’ mind or emotions.
 Prohibits inquiry into any matter or statement occurring during jury deliberations, even if jury
disobeyed instructions
• Why?
o Serves interest of time, finality, certainty
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o Not only interested in truth – want impeachable outcome
o Prevention of juror harassment
• Basic rule: We not question the juries’ judgment
• Rule 611: Mode and Order Of Interrogation & Presentation
o (a) Control by Ct.- Court controls questioning to avoid wasting time, and to prevent harassment
o (b) Scope of cross-examination:
 Scope of C-X limited to direct and credibility.
• Why limit:
o Parties are given control over presentation of their case
o Taking the stand should not subject the criminal ∆ to free-wheeling inquiry on
CX & potentially violate ∆’s right against self-incrimination
 Judge, at his/her discretion, can allow questions outside scope
• May be difficult & impractical to be bringing witnesses back
o “In the interest of time…”
o (c) Leading questions
 Leading questions not O.K. on direct unless necessary
• Warning sign of leading question:
o Conveys desired response
o Can be answered with a yes/no
o Includes a tag question (e.g. Didn’t you…? Aren’t you…?)
• Why?
o Witness should speak to jury is his own words
o Leading questions impair the witness’ memory &/or narration
o Changes/alters what witness is saying from something they want to say to
something atty wants him to say
• When leading ? is OK on direct:
o Witness who is hostile, unwilling or biased
o Child witness or adult w. communication problems
o Witness whose recollection is exhausted
o Undisputed preliminary matter
 Leading ordinarily OK on C-X
• May not use leading on CX when it is a friendly witness
 Leading OK on D-X w. adverse party (or id’ed as adverse), hostile witness
• Rule 103: Rulings on Evidence
o (a) Effect of erroneous ruling: Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and
 (1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to
strike appears of record, stating the specific ground of objection, if the specific ground was not
apparent from the context; or
 (2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent from the context within which questions
were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
• Rule 105: Limited Admissibility
o Can request ct. to give the jury a limiting instruction – to tell the jury not to use evidence for
inadmissible purposes
 The ct., upon request, shall restrict the evidence…
• Sometimes it’s better not to alert the jury to thoughts they should not have
Objections
• Make timely objection (state grounds unless obvious record) or lose right to object/appeal
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o Purpose: Prevent question/answer form getting in the record; breaking up the rhythm of the atty’s
questioning
o Use objections to slow things down
 To regain control of W examination
• Objections:
o Leading questions  611(c)
 Leading questions NOT OK on D-X unless necessary to develop witness’ testimony
 Justify leading question
• Establish a hostile W
• Could begin examination w. establishing a friendship/good relationship w. ∆
o Asked & answered
 Atty asks similar/same question already answered.
 Badgering  harassing W
o Assumes fact not in evidence
 Asks questions based on supposition not supported be evidence
 Avoids the risk that jury will hold true that which unsupported
o Misleading
 Assumes facts that have been clearly proven wrong
o Argumentative
 Asks questions that aren’t questions/rhetorical
• Atty does not really expects an answer
 Less powerful objection
o Compound
 Asks more than one question.
 Can’t tall which questions yes/no answer should apply to
 Remedy does not help you  atty just rephrase & break it up
• Usually compound ?s are argumentative b.c atty is not too concerned w. the answer
o Calls for speculation of conclusion
 “inferred” means implied
 W are allowed to speculate to a certain extent
• Experts may speculate
• Lay witnesses limited to things they have personal knowledge about
o Non-responsive (w. motion to strike)
 Objecting to the W’s answer, not the questions
• (usually after the answer is given)
o Outside the scope of direct
RELEVANCE
-Q1: What are you trying to prove?

-Q2: Is it relevant
o Material? Logically relevant? Conditionally relevant? Authentic?
OVERVIEW: How to evaluate evidence (E), offered to prove (X,Y)
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Tra
What is e
• Material
offered to prove?
o Is X or Y an issue in the case or part of substantive rule we’re trying to apply?
o If it is an issue  it’s a consequential fact
o Does it matter?
Call this x.
 If not, E is not material
(e
 If something goes to motive  shows materiality
• Logically Relevant
o Definition of Logical Relevance
 Makes x more likely than it would be without the evidence
o Does E increase the likelihood of X or Y (material fact)?
 If “it depends”  Conditional Relevance
•  E is relevant if some other fact is true
• Prejudicial
o Will E’s materiality or logical relevance be properly evaluated by the jury?
 If “No”  E is not prejudicial
 If “Yes”  E is prejudicial
 Does it have some other negative effect on the jury?
• Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o If something material & logically relevant it is generally admissible
California v. Barton: Is x an issue in

• ∆: Tic Barton is accused of murdering Johnny Starr
the case?
o Motive: ∆ believed Starr was having an affair w. his wife. ∆ also believed that Starr was involved in
drugging his horse, causing the horse to do poorly at the Pacific Derby
• Admit or Exclude?
- E: Barton had killed before
o Offered to prove that B Killed Starr (X) or that B is a bad man (Y)
 Material: X is material – main issue of the case
 Logical Relevance: less clear
• Killing before makes it more likely the B killed now
 Prejudice: Likely that jury will use this information for improper purpose
• The jury may use this E to conclude the B is a bad man and not worry so much
about his guilt in this case
 Conditional Relevance
• One might say that Barton’s prior murder is relevant IF the prior murder was due
to jealousy
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• The ct. can require additional proof to show that the evidence is logically relevant
- Can require additional proof of the conditional fact before allowing the
original fact
Logical Relevance
• Rule 401: Definition of “Relevant Evidence”
o Evidence having any tendency to make the existence of any fact
 (a) that is of consequence to the determination of the action
 (b) more probable or less probable that it would be without the evidence
• Translating 401
o What is the evidence offered to prove (x)
o 401(A): Is X a “fact that is of consequence to the determination of the action”
 Materiality: whether x is “consequential”  issue in the case?
o 401(B): Does the evidence have “any tendency to make” X “ more probable or less probable than it
would be without the evidence”
 Logical relevance  does evidence increase the likelihood of X?
o NOTE: Something can be logically relevant but not material, or vice versa
Lawson v. Fleming:
• Π was a passenger in the car w. the ∆
• Evidence at issue:
o (E) Testimony by Rager (W) that ∆ was going 90 m.p.h. 33 miles from accident
• Practice in determining relevance
o 1st decide what the evidence is supposed to prove:
 X: ∆ speeding 33 miles away from the accident
• Is X an issue in the case?
o No (it does not matter that he was speeding after the accident
  IMMATERIAL
o To get past materiality, the evidence has to prove something else
 What is E offered to prove?
• (X) That ∆ was speeding at the time of the action
o IS an issue in the case
o Determine logical relevance of X
 Ask: Does E increase the likelihood of X
• What facts would allow us to go from E to X?
o Specific: ∆ maintained his excessive speed for 33 miles
 Is there evidence ∆ maintained his speed?
o General: Speeders maintain excessive speed
 Is this a matter of common knowledge?
o If yes to either, evidence is logically relevant.
 The ∆ was speeding 33 miles away increase likelihood just a little that he was speeding at point
B  Relevance is fulfilled
• Inferential Leaps
o Can be related to common sense
  refers to an assumption of human behavior
• Jury comes in off the street w. this knowledge
 Using Lawson v. Fleming as an example
o E: W saw ∆ speeding 33 miles out.
 Inferential leap: Maintenance of excessive speed
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• Establishes ∆’s speed at the accident
o If inferential leap is required for relevance  logical relevance is at issue
 This does not answer the ? on W reliability – still need an inferential leap as to whether the
W’s testimony is accurate
• When the only inference required is that the W is accurate  evidence is direct
• When an additional inferential leap is required  evidence is circumstantial
• Direct v. Circumstantial
o Direct evidence: when the only leap is that the W’s testimony is accurate
 Direct perception of what atty is seeking to prove
 Usually considered to be superior b.c no inferential leap required.
• Not always so – Can have bad direct evidence (infirmities of D-X, mistakes, lies) or
good circumstantial evidence (DNA)
 “I saw T speeding at time of the accident.”
o Circumstantial evidence: When an inferential leap is required
 “I saw T speeding 30 miles later”
• Leap  T maintained speed
 Better than direct evidence when inferential leap is strongly supported
• Logical leap is proven scientific procedure (DNA)
• General v. Specific Facts
o Used to establish logical relevance of a piece of evidence
 General facts: Used to prove logical relevance.
• Questions of common knowledge
• i.e.: People that speed more likely to speed later
 Specific facts: Not used as often to prove logical relevance
• Requires more proof
o e.g.: Must prove he maintained speed, road conditions are the same, no stop
signs, etc.
o Note: Party seeking to prove X generally tries to do so w. general facts; party seeking to disprove X
does do w. specific facts
• How certain must a stmt be to be logically relevant to general stmts?
o Example: Speeders at point A speed at point B
 Correct: Speeders at A speed at B more often than non-speeders at point A
 Wrong: Speeders at A always/sometimes/usually speed at B
• “Always” is too stringent
• “Usually” or “Sometimes” relate to only frequently  not likelihood
Pennsylvania v. Dunkle:
• Evidence: Child sexually victimizes other children
o Is this logically relevant to prove that the child was sexually abused?
• Ct. allowed
o Reasoning: “The expert testimony about the behavior patterns exhibited by sexually abused children does
not meet this threshold determination [of logical relevance]. While it may ‘bear upon a matter in issue,’ it
does not render the desired inference more probable than not.”
 Materiality is easily satisfied
 This is not the proper std. for relevance – ct. made a mistake
• Correct Std.: Whether E has “any tendency to make” X “more probable” than it would be
without the evidence
o Study the court relied:
 3% of abused children victimize others
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 “For every symptom that was exhibited by any percentage, an even larger # do not exhibit that
symptom; and (3) not one single symptom was exhibited by a majority of sexually abused children.
Clearly, these types of percentages cannot constitute probative evidence.”
• Ct.’s reasoning incorrect.  Ct. is saying that anything below 50% is not a good statistic
• If 3% of abused children victimize others, the probability that a child who victimizes others
was abused is unknown!
o A symptom can be a minority and still be relevant evidence
 E.g. If less than 3% of non-abused sexually abused children sexually
victimize other children.--> this makes the offered statistic highly relevant
 Shows that you need other statistics to determine logical relevance
o A symptom can be a majority and NOT be relevant evidence
 E.g.: Assume that 80% of sexually abused children report being afraid of the
dark.
• PA S.Ct. would assume this is evidence of sexual abuse
 If 80% (or more) on non-abused children report being afraid of the dark.
• If this is true it makes the previous stat irrelevant
o No longer has probative value
o Correct Standard
 When the percentage of abused children who exhibit the symptom is higher than the percentage of
non-abused children who exhibit the symptom
• PA S.Ct. only looked at ½ of the situation  “When the % of abused children who exhibit
the symptom is higher than the % of abused children who do not exhibit the symptom”
o How certain does the stmt have to be to be logically relevant?
 Sexually abused children more often than non-abused children victimize others
• Note: Don’t confuse these twists
o “The % of abused children who victimize others”
 To be relevant, this must be higher than the % of non-abused children who
victimize.
o “The % of victimizing children who are abused”
 To be relevant, this must be higher than the overall % of children who were
abused
Conditional Relevance
• Rule 104: Preliminary Questions
o (a) Witness qualification, privilege, admissibility is determined by the court unless the preliminary
question is conditional relevance, in which case (b) applies. Court can consider any unprivileged
information in deciding whether the evidence is admissible.
o (b) When evidence is conditionally relevant, there must be “evidence sufficient to support a finding” of
the precondition.
• Defining Conditional Relevance
o When does the “relevancy of evidence depend upon the fulfillment of a condition of fact”?
 When moving from E to X requires an inferential leap, which must be filled by facts specific to
the case
• CR is based on specific fact in the case that must be proven
o Unlike logical relevance  based on a general stmt about the world
• CR is part of LR
o Ct. can consider any unprivileged information in deciding whether evidence is admissible
 i.e. Hearsay example
• Cannot tell b.c. its hearsay but judges need to determine if it is really hearsay
•  Atty/∆/W must tell in order to determine admissibility
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 Ct. is only bound by “privilege”
• Cannot consider privileged evidence in determining privileged status of particular stmt.
Romano v. Ann & Hope Factory Outlet:

• Rayna, young girl, fractures skull in bike accident  parents claim defective brakes.
• Parents hire an engineer to testify about the bike after it had been tested 40 times 2 weeks following the
accident and then be stored in a basement for the 2 years before the expert examined brakes. Ct. excludes the
expert evidence under 104(b).
o E = expert found brake defective
o X = brake was defective when the accident occurs
 Need Inferential Leap
o Does E increase the likelihood of X?
 What facts would allow you to go from E to X?
• Specific: Brake remained in the same condition for 2 yrs
o Is there evidence the condition of the bike has not changed?
 Yes  evidence passes CR
• Case specific evidence
 No  fails CR cannot admit evidence
• Judge would not allow expert to testify/evidence to get to jury b.c it could not be proven that it remained in the
same condition. Parents could not satisfy inferential leap given the specific facts of the case
• What does the rule say…

o The ct. shall admit the evidence “upon or subject to” evidence supporting the precondition
 104(a)
o Ct. can allow testimony subject to precondition being met by subsequent evidence  if not met later ct.
can strike the testimony
 Judge will do this if he thinks it is likely the precondition will be satisfied
• What does the rule say…
o The introduction of evidence sufficient to support a finding
 The ct. does not have to be convince but only believe a jury could reasonably conclude that the
precondition is true
• 104(a): General issues of admissibility – judge decides  tougher std.
• 104(b): Issues of CR – judge decides then jury decides  more lenient std. b.c it is for
the jury to make the ultimate decision
• Is it a 104(a) or 104(b) issue?
o If the rule explicitly refers to some precondition then it is a 104(a) issue
o If the precondition is not explicitly referred but you argue for rules as application as a matter of logic
 104(b) issue
PREJUDICE
- Q10: Does prejudicial effect substantially outweigh probative value?
Rules
• Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time
o Probative value substantially outweighed by:
o prejudice, confusion of the issues, misleading the jury
o waste of time
• Rule 105: Limited Admissibility
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o Can request court to give jury a limiting instruction
 To tell the jury not to use evidence for inadmissible purpose
General
• Probative value must be substantially outweighed
o Probative Value: Extent to which something is logically relevant & material
 Can be so low it is deemed a waste of time
o If equal  should allow
o Burden of proof is on proponent
Unfair Prejudice
• What is unfair prejudice?
o “A genuine risk that the emotion of jury will be excited to irrational behavior”
o When the evidence is “of a nature to incite passion or inflame the jury”
People v. Chapple:
• Facts: Drug deal that led (intentionally) to murder, 3 men involved – the identity of 1 is at issue in this case. ∆
is claiming mistaken identity.
• Evidence trying to be admitted: Four pictures depicting the body post mortem.
o (1) decedent’s charred body, face, skull; (2) decedent’s head at entry wound of bullet; (3) decedent’s
head with bone flap removed, showing brain damaged by bullet; (4) decedent’s brain as bullet is being
removed.
• What makes pictures prejudicial?
o Encourages jury’s desire to “get somebody”/ make somebody responsible  making jury care less
about whether or ∆ is actually guilty
 These pictures do not point at issue in case  not establishing identity of ∆
• Photos are relevant for establishing (1) corpus delecti – someone died; (2) identity of victim; (3) nature and
location of fatal injury; (4) determine degree of atrociousness of crime – seriousness of killing; (5) corroborate
state Ws; (6) illustrate or explain testimony; (7) corroborate state’s theory of how & why the homicide was
committed
• Must apply a balancing test to determine if photos in the case fulfill these criteria
o “Where the offered exhibit is of a nature to incite passion or inflame the jury (satisfied by pictures at
bar), the ct. must go beyond the question of relevancy & consider whether the probative value of the
exhibit outweighs the danger of prejudice created by admission of the exhibit.”
 No correct stmt of the 403 test.
• Misstatement: Strong assumption for admittance  Must REALLY outweigh
probative value.
• Result: Pictures were not admitted at trial.
• Reasoning:
o ∆ did not contest the testimony (only challenged identification)
 Increases prejudice on balancing test
o Pictures are needless since ∆ stipulated to cause of death
o There was already the cumulative testimony of the medical examiner.
 ARG: Allowing pictures helps communicate things in a much clearer & compelling way that
testimony may not be able to do.
• “A picture’s worth a 1000 words”
• Summary: Photos are inadmissible. Ct.’s mistake was to use the wrong std.  did not say prejudice must
substantially outweigh probative value.
o Jury will care less about whether a ∆ is guilty when there is evidence that puts a party in good/bad
light. Parties affected:
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 ∆
 π
 Witness associated w. a party
o Cf: Brockovich (good mother v. life-saving ER doctor)
o Comparison to materiality & logical relevance
 Prejudice as a materiality problem: (Evidence being used incorrectly)
• Jury decides on a basis that should not matter (for immaterial purpose)
• Jury decides that whether the case is proven does not matter
o “I don’t care if ∆ is guilty, I am going to vote against ∆”
 Prejudice as a logical relevance problem:
• Jury gives the evidence more or less weight than it deserves
Waste of Time
• Seen this consideration in other places
o 611: Trial ct.’s control over presentation of evidence
o Objections: Asked & answered
Balancing test
• Consider weight of evidence against the probative impact when determining admissibility.
o Factors used in deciding if prejudice justifies exclusion:
 Issue is uncontested
• Does not make evidence irrelevant: If evidence is contested than it is less prejudicial.
• No contest reduces the probative value of the evidence  there is less need to prove
evidence so only effect will be to prejudice the jury
 Is the opponent willing to stipulate?
• Yes  increases likelihood for prejudice, but may still be relevant
• Stipulation does not automatically render evidence prejudicial
o Accept Stipulation
 When it does not tern eventful narrative into abstract proposition AND
evidence is more prejudicial
o Don’t Accept Stipulation”
 When it prevents other party from presenting a vivid case & playing
on jurors’ (appropriate) emotions.
 Also, jury expects proof to be presented in a certain manner
 Availability of other means of proof
• BUT pictures may convey things that testimony cannot
• Foundation – Ask W if they can describe scene or if it would help to see photos
 Is the issue collateral
• e.g: Previous battery conviction in murder case
o Old Chief: Specifics of crime held prejudicial b.c stipulation was all that was
needed
California v. Menendez:
• Prosecutor’s evidence:
o Menendezes’ parents lying in pools of blood with multiple gun shot wounds.
 Pictures prove intent  brother laying in wait for parents
 Relevance
• Corpus delecti
• Rebut self-defense claim
• Defense evidence:
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o Naked photos of the brothers when they were taken, apparently taken by the father
 Wanted to substantiate claim of sexual abuse  self-defense claim
• Theory: “Brothers threatened to expose father as an abuser, believed father and mother
were plotting to kill boys”
 Relevance
• Probative value is higher b.c people who sexually abuse children are more likely to
have naked photos than non-abusers.
• Holding: Photos admitted
• Reasoning (not Chapple issue)
o Menendez pictures depict how crime occurred and went to intent, which was the issue of the trial
(materiality)
o Chapple pictures did not go to issue of Chapple’s misidentification
 The crime scene photos are more relevant from assessing self-defense than assessing wrongful
identification
 Pictures in Chapple reflect a changed circumstances & not atrocity of crime.
• Stipulation is not always enough

o “We recognize that the state cannot be compelled to try its case in a sterile setting. Exhibits which have
the tendency to cause prejudice may often be admissible despite offers to stipulate or the absence of
controverting evidence” - Chapple
 Emotion from jury (or the ability to incite it) is OK, it must just be kept at appropriate levels
 Emotion is an important part of any trial
Old Chief v. United States:

• Charge: Convicted felon in possession of a firearm
o Status offense
• Prosecutor wanted to prove:
o ∆ was convicted of assault causing serious bodily injury, which is punishable by imprisonment
exceeding 1 year
 Getting in prior crime is an essential element of the case
• Defense wanted to stipulate:
o ∆ was convicted of a crime punishable by imprisonment exceeding 1 yr.
 Stipulate it was a crime that fell w.in the definition but not articulate it was assault
• Holding: Stipulation was proper b.c past felony is unrelated to the current crime
• Reasoning: Evidence of previous conviction does not turn eventful narrative into abstract proposition
o “Proof of the ∆’s status goes to an element entirely outside the natural sequence of what the ∆ is
charged w. thinking & doing to commit the current offense”
• Consistency with Chapple?
• ARGs for not allowing stipulation to substitute (absent any prejudice):

o “The prosecution may fairly seek to place its evidence before the jurors…to convince them that a guilty
verdict would be morally reasonable as much as to point to the discrete elements of ∆’s legal fault”
 Cases cannot be tried in a sterile setting absent any emotion
o “There lies the need for evidence in all its particularity to satisfy the jurors’ expectations about what
proof should be”
 Jurors are often suspicious of stipulations & why things were stipulated instead of prove in
court leads to jury speculation
• Lack of stipulation can prejudice the prosecution
o Stipulation is an example of “cold” evidence
 Makes jurors indifferent or cause them to pity ∆  more empathic to ∆ than victim
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o Prosecution wants “hot” evidence (i.e pictures, damning criminal records)
 Causes jurors to remember victims & become more emotionally involved in the case 
empathize with victim and/or victim’s family
o (Verbal testimony is considered “neutral” or “middle” ground)
California v. Adamson:
• Facts: ∆ was charged w. murder & burglary. The E tried to be admitted was women’s stocking tops found in
∆’s possession. ∆’s claim was that the introduction of the stocking tops prejudiced him b.c they suggested he
was a sexual degenerate.
• Relevance:
o Stocking top had been taken from decedent. (but not a match to any found in house)
o Is a person w. stocking tops more likely than a person w.out to have raped & killed woman whose
stocking top was taken?
 Is the relevance substantially outweighed by the prejudicial impact?
• Holding: No – probative value is not outweighed by their prejudicial impact.
• Reasoning
o Common sense tells us that “normal” men do not keep women’s stocking tops
• 403 objections besides sexual degenerate:
o Evidence might be weaker than jury believes
o There may be innocent explanations that reduce relevance
 i.e. black men use stockings to keep their hair down
PROBABILISTIC PROOF
Tribe Article
• Collins Case (Premise of case to disprove the reliability of probability & statistics)
o Ws not very strong eyewitnesses  could describe characteristics
o Prosecutor used stats to prove it was very unlikely ∆ couple was NOT a different couple
 1 in 12 million chance that were drawn at random
• Based upon population frequencies
Descriptions available Random Match Probabilities Provided
Partly yellow automobile 1/10
Girl w. ponytail 1/10
Girl w. blonde hair 1/3
Man w. moustache ¼
African-American w. beard 1/10
Interracial couple in car 1/1000
• Problems noted by ct.
(1) Prosecutor made up the stats – encouraged jury to speculate
o Assume that the prosecutor could have provided random-match probabilities. Are they useful?
 To assess significance of the match b.w the ∆s characteristics & those of the
robbers  need to know how often innocent people (here, the general public) have such
characteristics
(2) Even if the assumed probabilities were correct, their multiplication under the product rule
presupposes the independence of the facts they measure.
o The Product Rule
 The probability of a joint occurrence of a number of mutually independent
events equals the product of the individual probabilities of each of the events.
 The probability of a joint occurrence
• e.g.: The probability, when you flip a coin choice, that you will get heads
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st nd
on the 1 flip & heads on the 2 flip
 … of a number of mutually independent events
• The 2 flips of the coin are “mutually independent” b.c getting heads on the
1st flip doesn’t affect the likelihood you’ll get heads on the 2nd flip
- The chances for every flip are 50/50
• What happens in the past does not matter to what will happen in the future
• However, if you can prove that black men have facial hair more often than
white men  then the characteristics are NOT mutually independent.
 … equals the product of the individual probabilities of each of the events
• the chance of getting heads on the 1st flip is 50% & the chance of getting
heads on the 2nd flip is 50%. Therefore, the probability of getting two heads in tow
tosses of a coin is 50% x 50% or 25%.
 So, the probability of the joint occurrence of these 6 facts is 1/10 x ¼ x 1/10 x 1/3
x 1/10 x 1/1000 = 1/12,000,000
• NOTE: Should be 1 in 12 million, if the “product rule applies”
o BUT are the characteristics “mutually independent”
 NO!!!
 Consider:
• Man w. moustache ¼
• African-American man w. beard 1/10
 Does the fact someone is an African-American man with a beard affect the
likelihood he has a moustache?
• Yes  It increases the probability
- The effect of applying the product rule is to underestimate the
frequency of the joint characteristics.
(3) Random-Match probabilities ignore error or falsification
o “There would remain a substantial possibility that…the
prosecution’s Ws were mistaken or lying, or that the guilty couple was somehow disguised.”
(4) Inverse fallacy was not taken into consideration The probability someone matches the criminal,
assuming he/she is innocent (e.g. 1 in 12 million) is NOT THE SAME as the probability you are
innocent, assuming you match the criminal
o The prosecutor erroneously equated the probability that
a randomly chosen couple would possess the incriminating characteristics [1 in 12 million] with the
probability that any given couple possessing those characteristics would be innocent.
 These are not the same!
o Likelihood of innocence is not = to likelihood of guilt
 Example: Murderer left an extra large sized glove
• The prosecutor establishes that the ∆ wears an XL glove, & proves that
there is only 1 chance in 5 that the gloves would fit the person chosen at random
 That does not mean there is only 1 chance in 5 that the match is innocent
 Just b.c O.J. has an 80% chance of innocence it does not mean that every other XL
glove wearer has an 80% of guilt
• Summation
• Problem 1: No evidence to support that the statistics are accurate
• Problem 2: Product Rule – prosecutor assumes all of these characteristics mutually independent
• Problem 3: Probabilities don’t factor in that witness might be mistaken or lying, or criminals were
wearing disguises
• Problem 4: Prosecutor erroneously equated incriminating characteristics [1 in 12 million chance]
w. the probability that any given couple possessing those characteristics would be innocent
Smith v. Deppish:
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• Charge of rape and murder
• Evidence against ∆:
o Ws heard Motorcycle/3-wheeler at time of crime  ∆ owns motorcycle
o Shell casing from ∆’s .22 matches shell casing found near decedent
o 2 “Negroid” body hairs found in the carpet samples
o ∆’s DNA type matches DNA in semen taken from vaginal swab
• Stats:
o There is only 1 in 500 chance that the DNA would match a person at random
• INVERSE ERROR: Does not mean there is a less than 1% chance Smith is innocent
o If the city has 500K people  there are 1K potential suspects  only .1% chance he is
guilty
• Other Potential Collins Errors
o The evidential basis for the population frequencies of DNA fragments
o Whether the frequencies of DNA fragments are mutually independent
o Possibility of error or falsification in the lab results
 Suppose the random match possibility is 1/10 of 1%
 And the ∆ presents evidence that the lab error is 1%
• BUT cannot introduce evidence of lab error
Dershowitz’s Fallacy
• “Gloria Allred will tell you that there are more than 2 million, maybe as many as 5 million cases of spousal
abuse every single year. But there are only about 1,500 cases of spousal murder every year, which means that
99.9% of all people who engage in spousal abuse don’t then turn to murder.”
• Stephen J. Gould – “The most fundamental fallacy of social science research assumes that just b.c killers have
engaged in battery, that it follows that batterers will kill.”
o Wrong question! Should ask
• “Given the abused wife is murdered what is the probability that abusive husband is the
murderer?”
o Looking for post-diction  not prediction
• We know that when she is dead that she has been abused.
• Based on those 2 things  chance OJ killed Nicole is 80%
o There is still a 50% spouse is killer even if there is no abuse
• “It’s like that old marijuana-heroin fallacy; namely, just that many people who start w. pot will turn to
heroin…”
• Prediction v. Post-diction
o Prediction
• Given that a woman is abused by her husband, what is the likelihood that he would kill her?
o .1%
o Post-diction
• Given that a murdered woman was abused by her husband, what is the likelihood that he killed
her?
o 80%
o In prediction we are predicting murder (which is rare), if they are already dead, say given that someone
was murdered (we know this rare event has occurred), then the % are very different!
• The relevant question is the “post-diction” question, not the prediction
AUTHENTICATION
Basic Questions:
- Q3: Does the witness have personal knowledge?
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- Q4: Are you quoting someone?
o Is it hearsay?
OVERVIEW: Authentication
• Is the item what the propend claims it is?
o e.g. O.J. Simpson’s glove.
 Offered to prove the murderer’s glove belonged to the ∆
 Relevant?  It depends
• Is this the ∆’s glove?
• Was this the murderer’s glove?
• Authentication rules are type of conditional relevance
Rules
• Rule 901: Requirement of Authentication or Identification
o Authentication is when you prove something is what you claim it is. Authentication is a conditional
relevance problem
• Rule 902: Self-Authentication
Requirements/Concerns
• Conditional Relevance problem  relies on specific fact that the evidence is what you say it is
o Evidence used to authenticate must be admissible
o The judge need not personally be convinced – but must find that reasonable jury could find that it is
what it is claimed to be.
 Jury has the final call on authenticity
o Must prove specific fact necessary to establish something is what is it claimed to be
 See logical & conditional relevance tests above
o Issue of tampering / changed condition  authentication issue
o Authentication = foundation testimony
 Documents, records, other physical things described or offered into testimony.
 Also applies to references to people as having been seen by or spoken to a W
o Oral stmts often require authentication as to speaker’s identity
• Example: π offers K signed by ∆
o Does E (K signed by ∆) increase the likelihood of X (this K was b.w π & ∆)
 ASK
• What facts would allow you to go from E to X?
o Specific: The signature is ∆’s
• Is there evidence that the signature is ∆’s?
o Yes  K is “authenticated”
Ways to Authenticate
• General ways to authenticate (901 not exhaustive – don’t give up!)
o W need only to have perceived what is pictured or recorded – need not have taken picture
o Someone who was there or who has circumstantial knowledge
o Eyewitness to a K need not have been present at time of signature
• Distinctive Characteristics – appearance, substance, internal patterns, taken in conjunction w. circumstances –
901(b)(4)
o Testimony about uniqueness of object’s appearance & circumstances of how it was found
 e.g. authenticate letter sent out that contained knowledge or content only π/∆ had
o Reply technique: If there is a letter known to be authentic that refers to the letter in dispute, then the
letter in dispute is authenticated. Also works when dispute letter refers to authenticated letter.
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• Describe process & show it produced the accurate results – 901(b)(9)
o Testimony describing process by which an item of evidence was created can authenticate it
 e.g. ATM cameras / X-Ray technology – W explains recording system & how it works
 e.g. Atty asks cop if he took pictures from abuse complaint and whether they accurately portray
Nicole’s injuries
• Voice Identification & Authentication – 901(b)(5) & 901(b)(6)
o 901(b)(5) – Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances
connecting it w. alleged speaker
o 901(b)(6) – Telephone Conversations – authenticating call to X
 W must have person’s # (outgoing calls only) & show either
• (i) For person  circumstances show person answering was the one called
o Includes self-identification
• (ii) For business  conversation related to normal business show Mike worked for X
 No incoming calls – outgoing calls establish that the number was the right one.
 NOTE: The (b) list is non-exhaustive  do not give up.
• Authenticating Documents – Self-Authentication 902
o Newspapers & Periodicals 902(6)
o Publication published by public authority 902(5)
o Commercial Paper 902(9)
o Trade inscription 902(7)
o Public record 901(b)(7)
 Produce W who knows source of exhibit (chain of custody)
o Public Record under seal, certified 902(1)-(4), (8), (11)
 Includes notarized documents
o Justification
 All forms of proof that are easily disproved.  ie go get a real newspaper
o Other documents
 Ancient documents or data compilation 901(b)(8)
• 20 yrs +
• Must be in the “right” place (where you would assume to find that doc)
• Right condition so no suspicion about authenticity
• NOTE: If handwritten or a signature may need to satisfy
o 901(b)(2) or 901(b)(3)
• Hearsay exception covers stmts made in these documents
• 3 ways to Authenticate Handwriting or a Signature
o 901(b)(3) - Have expert identify it by comparing to authenticated exemplar
o 901(b)(3) – Have jury identify it by comparing to authenticated exemplar
o 901(b)(2) – Have lay W who is familiar w. the handwriting independent or litigation testify that it
belongs to a particular person
• Seen v. Unseen; Heard v. Unheard
o If W perceived what is pictured or recorded, can authenticate under (b)(1)
 (“Does this picture look right to you?”)
o Otherwise, must look elsewhere – e.g. distinctive characteristics (b)(4); process (b)(9)
 Movie but no eyewitness  must rely on distinctive characteristics of people in the film. Or
process – think ATM camera – produce a W who can testify about date stamp, set-up, records,
and picture can speak for itself.
• Chain of custody problem
o Arises when something is fungible or may change over time (party may argue that object offered in ct.
is different or has changed since time of crime)
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o To authenticate, police place marks on all evidence to avoid this problem, & then you have testimony
that they did this.
 Combo of (b)(1) & (b)(4) to authenticate
o Various Ws state some object was the same obtained from another person in the chain – how, at what
time, & from whom each one obtained the item. Establishes chain of custody from time it is discovered
through testing to trial.
• Photographs are demonstrative evidence (fair characteristics of what W saw) BUT ALSO independently
admissible as real evidence
o Contra: animation is demonstrative evidence that CANNOT be taken into a jury room b/c of concern
they will give it too much weight.
 Can only be used to illustrate a W’s testimony
California v. Chapman:
• An anonymous caller has been calling Mason to check on the status of Mason’s representation of Chapman.
Mason wants to determine the identity of the caller.
o How can one authenticate this caller?  If man calling Mason identified himself as Chief Scott this
would NOT be sufficient.
• Unless they knew who Chief Scott was and what he sounded like
o Street calls the Aloha Café, asks for Scott, man answers.
• Is this sufficient?
o Depends.
 Factors for No:
• Did not call Scott’s residence
• Did not call business to discuss business
 Factors for Yes:
• Calls bar & asks for Scott  bartender got Scott
o If you brought in the bartender it would seem like decent case
that it was Scoot who called since the bartender is now a W of
sorts.
New York v. Salva:

• Maureen Rankin is carjacked and murdered under an overpass.
• Evidence: Detectives discover the victim had a tape recorder in her bag the recorded the events leading up to
the murder. Apparently, the victim, who recorded the night classes she taught, continued taping after the classes
ended (when she was abducted)
• How can tape be authenticated?
o The judge must determine that a reasonable juror could conclude it was his voice (standard)
• 1st objection: “The voice can’t be conclusively established as my client’s (∆)”
• 2nd arg: “mere self-serving stmt of identity by a person who is unknown to the listener is
insufficient authentication”
o Correct but the evidence here is more than a mere self-serving stmt of identity
 Another person (victim) identifies ∆ & is not denied
 Not self-serving
• Characteristics describing ∆
• How can prosecutor authenticate victim’s voice?
o Use distinctive characteristics
 Found in victim’s car
 Same voice as the lecture
o Ear W
 Anyone that ever heard the ∆ talk can say that’s the ∆’s voice on tape
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New York v. Di Biasi:

• ∆ is charged w. shooting of 2 youths who accosted her on the subway – she claims self-defense
• Prosecutor discovers letter from ∆ to NY Herald negatively discussing previous subway attacks – specifically
public’s need to carry weapons.
o Wants to use to rebut self-defense claim (letter  premeditation)
• Is the letter self-authenticating?
o Yes but only to prove it was published in a real newspaper.
• What do they hope to find in ∆’s apt.?
o Original or
o Other letters referring to the NY post
o Probative value v. prejudicial impact of other letters to the editor introduced to argue distinctive
characteristics
State v. Thomas:
• Different Maureens claiming to be the decedent’s daughter in order to get inheritance
• 1 Maureen on trial b.c prosecutor believes that she killed her uncle b.c he was about to reveal her fraud
• only evidence of who could be real is a picture of the child at a very young age w. her favorite stuffed animal
• Can the mother authenticate the photo by saying “This is an accurate depiction of my daughter & her toy?”
o Yes for photos all you need is distinctive characteristics
• Does not need 1st hand experience of picture being taken
• Must have seen the toy & identify it as her daughter’s
• Can the “other” Maureen authenticate the box by saying “Yes, that is the box that had my toys.”?
o NO
o There must be something more – more is essential to establish a stronger foundation that it was in fact
the same box
• i.e. testify to distinctive characteristics of the box
• Prosec probably needs to prove that the box hasn’t been tampered with (“chain of custody”)
HEARSAY
What is hearsay?
• HEARSAY IS AN OUT-OF-COURT ASSERTION OFFERED TO PROVE THE TRUTH OF THE MATTER
ASSERTED
• Something that someone said that was not a witness
• Technically, outside of this proceeding
o Why does it matter if it was made outside the proceeding?
 Jury cannot observe the “declarant” make the stmt.
• Declarant - typically refers to the person who uttered the hearsay
 Cannot confront the declarant
• Cannot test its truth – CX
 Declarant does not take oath
• NOTE: It is non-hearsay if stmt is offered not to prove the truth of the matter asserted, but asserted to prove the
credibility or the fact that some stmt was made
o i.e. if not an assertion
• Hidden hearsay
o When action is offered to prove the belief underlying the action
 Ex: Detective – “I arrived, questioned A, & based on A’s answers, I went after B”
• If axns offered to prove what A said was true (B did it )  hidden hearsay
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• Why hearsay must be omitted:
o Trial procedures (especially C-X) can test the declarants:
 Perception
 Memory
 Narration
 Sincerity
• Prof. Lyon: All of our hearsay rules turn on sincerity
o Test the infirmities of the W’s story through
 Oath
 C-X
 Demeanor (face the jury; face the accused)
• Hearsay exceptions (more in depth in the next section)
o Declarant testifying 801(d)(1)
o Party opponent 801(d)(2), 805
o Unrestricted exceptions 803(1)-(4)
o Documents 106, 612, 803(5)-(10), 803(17)-(18)
o Declarant unavailable 804
o The catch-all exception 807
• Logic of exceptions
o The stmt is reliable
o Or admitting the stmt is fair
o Making the trial process unnecessary
Rules
• Rule 602: Lack of Personal Knowledge
o W must have personal knowledge
 Notes from Advisory Committee: W must have perceived what they testify to
o There must be evidence “sufficient to support a finding.”
o The w can provide the foundation for her personal knowledge
 e.g. “I know it because I saw it”
o NOTE: 602 objections do no apply to admissions
• 801: Definitions
o (c): Hearsay is an out-of-ct assertion offered to prove the truth of the matter asserted
o (d)(1) - Stmts which are not hearsay: D testifies & is subject to C-X concerning the stmt
o (d)(1)(A) - Prior inconsistent stmts: Stmt that is inconsistent w. the trial testimony and was given
under oath at a proceeding
o (d)(1)(B) - PIS: Stmt consistent w. the trial testimony & rebuts (implied or express) charge of
fabrication, improper influence, or motive
o (d)(1)(C) – Identification:
o (d)(2)(A) - Party’s own stmt: Offered against party & the party said it
o (d)(2)(B) - Adoptive admission: Offered against party & the party adopted it
o (d)(2)(C) - Admission by speaking agents: Offered against party & stmt by person authorized to speak
for the party
o (d)(2)(D) - Agents/employees: Offered against party and is stmt by employee, made while employed,
concerning matter w.in the scope of employment
o (d)(2)(E) - Co-conspirator: Declarant & party conspired; the stmt was made during the conspiracy, &
the stmt was made to further the conspiracy
• Rule 805: Hearsay within Hearsay
o Multiple hearsay is OK if each layer fits w.in an exception
Clarifying Definitions
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• W testifies “D(eclarant) said ‘A killed B’.”
o What is the out-of-ct assertion
 A killed B
o What is it offered to prove
 A killed B
• In-ct Ds v. Out-of-court Ds
o W testifies “D said ‘A killed B’.”
 What is W?
• She is an in-ct D, a.k.a. witness,
• She is under oath
 What is D?
• He is an out-of-ct. declarant
o Out-of-ct Ds
 “Hearsay is a stmt, other than one made by the D while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.”
 Key questions to ask:
• Is “A killed B” a stmt offered to prove the truth of the matter asserted?
• Is that a stmt made by the D while testifying at the trial or hearing?
• Asserted by whom?
o Stmt “offered to prove the truth of the matter asserted”
 Asserted by whom?
• D(eclarant)
 Offered by whom?
• The party seeking to admit the stmt
 So the D may assert one thing, but the stmt may be offered to prove something else.
• What is an “assertion”?
o Intended communications or expression
o Includes what D implies or intended to communicate
o Includes “oral or written” assertions (801(a)(1))
 Includes “nonverbal conduct of a person, if it is intended by the person as an assertion”
o E.g. nodding your head, shrugging you shoulders, pointing
• What would be hearsay?
(A) W testifies “I asked D if A
killed B and she nodded”
o Hearsay  intended as hearsay
(B) W testifies “I asked D who
killed B and she pointed at A”
o Hearsay  intended as hearsay
(C) W testifies “I asked if A killed
B, & she went into violent convulsions”
o NOT hearsay  so long as not intended as an assertion
 Involuntary actions are not hearsay
• This seems “screwy”
o D might react as she did b.c she falsely believes A
killed B
 Misperception, misremembering
o Reaction can be misinterpreted as signifying a belief
that A killed B
o The risk of insincerity is non-existent
 Assuming she really did not intend to assert
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anything by her action
• Voluntary actions
o It all depends on whether the person was intentionally communicating
o Consider if insincerity is a problem
o Would the person have behaved the same had no one been watching?
 No  the action is an assertion and, therefore, hearsay
• Politician emerges from church holding his wife w. 1 hand and a bible with the other
 attempting offer to prove he is not an adulterer
 Yes  this is not an assertion, not meant to communicate anything  NOT hearsay
• Ship captain examined ship before embarking on it w. his family  can offer to prove
that ship is seaworthy
• Hypothetical – non-assertive conduct
o Ambiguous, voluntary conduct is not hearsay, even though some of same concerns are present
 Ex.: W testifies truck driver drove into intersection; offered to prove light was green
• Doubtful that he would risk safety to try to get others to think light turned green
• BUT still could have misperceived, misinterpreted
o However, likely that this is not hearsay & is admissible
 Ex.: π testifies “The truck driver yelled “The light is green.”
• Offered to prove that the light hade turned green
o Hearsay  inadmissible
o This hypo shows how sometimes hearsay evidence may be more probative or trustworthy than other
non-hearsay evidence
Hearsay Problems
• W testifies that “D(eclarant) said ‘A killed B.’
• Evidence offered to prove that A killed B
• Reasons A does not want this testimony in
o D not under oath
o D not subject to C-X
o D’s demeanor not observable
o D might have misperceived
o D might have misremembered
o D might be misinterpreted
o D might be insincere
• W expressed belief  need to find out what the basis of the belief is:
o Logically relevant
 Step 1 – Personal Knowledge Exception
• “How do you know this”
 Step 2 – If W responds he heard it  Hearsay objection
• Repeating one’s out-of-ct. stmts.
o Ex.: W testifies “I told the police ‘A killed B.’”
 Offered to prove A killed B
• Is that a stmt made by the D while testifying?
• Cf.: W testifies “A killed B”
o QUOTING YOURSELF IS HEARSAY
 A W quoting a D  quoting yourself
• HEARSAY
 This seems “screwy”
• You are under oath, subject to C-X, & demeanor is meaning examined
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o BUT: The stmt should be subject to the trial process
• Repeating testimony
o Ex.: W testifies, “I previously testified, “A killed B”
 Offered to prove that A killed B
• Is that a stmt made by the D while testifying at the trial or hearing?
o NoStmt made by the D while testifying at a previous hearing
o QUOTING TESTIMONY (YOUR’S OR SOMEONE ELSE’S) IS HEARSAY
 A quoting a D  quoting yourself, even it is at another hearing or trial
• HEARSAY
 This seems “screwy”
• The person you are quoting was under oath, subject to C-X, & had her demeanor
examined
o BUT: The person and stmt should be examined by this tribunal
Statements not offered to Prove the Truth

• Impeachment by prior statements
o D testifies, "I saw C kill B."
o Prosecutor presents W, who testifies, "D said, A killed B.'"
o Prosecutor argues: "Not offered to prove the truth of the matter asserted, but to impeach D"?
 Not hearsay  proves that D is inconsistent.
 Prosecutor can offer a stmt that is inconsistent with witness' current statement
• Impeachment vs. Substantive Evidence
o If prosecutor offered W to prove truth of the matter asserted you would have a hearsay problem, but if
an exception applies and prosecutor won, it would be substantive evidence.
• Impeachment and Sincerity
o If D was secretly insincere (when she made the out-of-court statement)
 Is the stmt still relevant?
• Yes, because if D was secretly insincere, it proves inconsistency, which undermines
her credibility
• Effect on listener
o Ex.: π sues Drug Co. for damage to his kidneys when he took drug. Drug company offers package
insert that said "Drug can cause kidney failure" (out of court statement)
 Offered to prove that π had notice of potential danger - to prove that π knew when he took the
drug that it might cause kidney failure
 NOT hearsay
• Can offer out of court stmts to prove notice to anyone who reads the stmts
o e.g. bottle said "poison," giving you notice it contained poison
o e.g., slip and fall case: store clerk told manager that there was a spill to prove
manager heard spill, NOT that there WAS a spill (not offered to prove the
truth of the matter asserted)
o NOTE: even if you do think its true, is not offered for the truth of the matter asserted - not trying
to prove through this evidence that the stmt was true, just that someone heard the D say it.
o Assume the label writer was secretly insincere (he might have been overcautious). Is the label still
probative?
 Stmt offered not to prove D sincerity, but to prove listener knowledge, would react in some
way, etc.
o Other examples of effect on listener
 Detective testifies, "I was told that B had committed the crime."
• Offered to prove that Detective had reason to go after B
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o not offered to prove that B committed the crime, but reasonableness of
Detective's actions
• Mental state of listener is what matters - not whether D is sincere or insincere
 π testifies, "∆ said 'π is a liar and a thief,'"
• Offered to prove that ∆ defamed π.
• The fact that the words were said is what gives statement its probative value
• Assume ∆ was secretly insincere  this would not mean the stmts were no longer
defamatory
 π testifies, "X said, 'I am from the gas company'"
• Offered to prove that π reasonably believed X was acting on behalf of the gas company
• If x was secretly insincere, the evidence still has probative value - the effect on the
listener
• Effect on listener and sincerity
o Sincerity isn't assumed, b.c the fact that the listener heard the stmt gives it its probative value.
o Whose mental state are you proving when you offer stmts for their "effect on the listener"?
 Any person who HEARD the D
 NOT the D
o If you're trying to prove something about the D’s state of mind, you will consider "state of mind"
arguments
• Verbal Acts
o Gift, promise, threat ---> think not hearsay
 π testifies, "∆ handed me the ring and said 'This is a gift,'" offered to prove the ring was a gift.
• If ∆ was secretly insincere
o Stmt will still have relevance because led you to believe ring was yours
 π testifies, "∆ wrote 'If you're not happy, return it and we'll refund your money," offered to
prove return triggers refund.
 π is saying if you say this, that makes it true
• Same logic as effect on listener - the point is that ∆ made statement that had effect on
listener
• Verbal Acts and Sincerity
o Sincerity isn't assumed, b.c the fact that the D made the stmt gives it its probative value.
• Verbal objects
o When you use words as distinctive characteristics of a person, place or thing
o Would be able to prove even if you couldn't read the language in which it was written.
 Not relying on anything assertive - not relying on any meaning of those words
• e.g., ∆ had a book of matches that said "AAA Auto Repair," offered to prove that ∆
was at AAA Auto Repair
o Hearsay. Matchbook writer said "AAA" offered to prove "comes from AAA"
(assertive)
 BUT: Not hearsay if you provide independent evidence that AAA
Auto Repair has matchbooks with their name on it. Not relying on the
assertion the matchbook comes from AAA, but using words on
matchbook as linkage to evidence that they have matchbooks with
their name on it.
o Verbal objects = identification
 "AAA Auto Repair" matchbook proves came from AAA Auto Repair = unique chemical in
matches proves came from AAA Auto Repair
• As long as linkage is based on more than the assumed truth of the written assertion.
o Independent evidence that AAA makes matchbooks w. their name on it
 So, Only AAA Auto Repair has matchbooks with their name on it = Only AAA Auto Repair
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has matchbooks with unique chemical
• Verbal Objects and Sincerity
o Independent evidence of linkage makes the D’s potential insincerity unimportant
 e.g. Prof. Lyon could be identified as owner of luggage labeled "Perry Mason"
• If there was independent evidence that my luggage said "Perry Mason"
• Matter asserted vs. Matter inferred
o Recall that "matter asserted' includes what the D intended to communicate, or implied.
o Does "matter asserted' include what someone hearing the statement infers?
 No.
 The speaker implies, and the listener infers.
• Advisory Committee Note to Rule 801
o "Verbal conduct which is assertive but offered as a basis for inferring something other than the matter
asserted [is] also excluded from the definition of hearsay by the language of subdivision (c)."
 The D asserts
 And the party offering the statement infers
o Using statements to prove matters inferred but maybe not asserted:
 What you didn't say
• Non-declarative sentences (commands, questions)
• Unspoken thoughts
• Police arrest who they believe to be the co-conspirator of the defendant, and he turns to
the defendant and says "I didn't tell them anything about you"
o When you say this, you are expressing you could have said lots of things about
this person and implying that you have a connection to this person
• Gov't offers to prove that he was a co-conspirator
 The question is whether the D intended to communicate more than what was said.
 PROBLEM: it is very hard to determine what the declarant intended, and the danger of secret
insincerity is severe
• Lyon thinks these should be considered hearsay, but courts will vary
• Proving Knowledge
o Officer testifies that child described ∆'s room offered to prove that she knew what was in his room
 Offered to prove the truth of the matter asserted - sounds like hearsay
 When you say something, you are implying that you know it
 Most of the time, D’s statements offered to prove what the D believed, are hearsay
o Assume the child is secretly insincere (she doesn't really believe she was in the room)
o Any way to make her knowledge like a verbal object?
 Prosecutor could present independent evidence of what is in D's room.
 She must have been in ∆'s room because that's how come she has knowledge of what is in ∆'s
room.
o Officer testifies that 5-year-old V described sexual acts in explicit detail, offered to prove precocious
sexual knowledge
o Assume that V is secretly insincere (she doesn't really believe what she said.) Is her statement still
relevant to prove molestation?
• Performative Statements
o Stmt that "are conduct in the sense that they do something independent of what they assert"
 assertions plus non-assertive conduct
o Hear-say vs. saw-do
 Sometimes doing something says something -- nonverbal conduct can be assertive. Hearsay.
 Sometimes saying something also does something (recall verbal acts - but this goes further).
Performative
• Consider if the statement is more than merely words
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U.S. v. Singer:
• E: "an envelope addressed to Carlos Almaden & Joseph Sazenski. 600 Wilshire, containing notice to terminate
their tenancy"
• Offered to prove that A and S lived together.
o If this letter were submitted to assert the implied truth of its written contents -- that A lived at 600
Wilshire -- it would be hearsay and inadmissible.
o It is, however, admissible non-hearsay because its purpose is to infer from the landlord's behavior --
his mailing a letter to A, 600 Wilshire, that A lived there.
• Is mailing a letter nonassertive?
o Suppose an undercover agent gave the owner a package for A, then secretly followed him, and saw the
owner deliver it at 600 Wilshire. Hearsay?
o Note that the danger of insincerity is minimized in this example
• Why does behavior make a difference?

o In part, it is non-assertive: you are not as clearly intending to communicate
o In part, behavior is more reliable than mere words
 Actions speak louder than words
• Why isn't the letter hearsay?
o If this letter were submitted to assert the implied truth of its written contents - that A lived at 600
Wilshire - it would be hearsay and inadmissible
o It is, however, admissible non-hearsay because its purpose is to infer from the landlord's behavior - his
mailing a latter to A, 600 Wilshire, that A lived there.
• Lying:
o Ex.: Officer testifies, Wife said, "My husband is in Denver." ∆ was not in Denver, but found hiding out
in neighboring town. Wife's statement is offered by the prosecutor to prove she made false statements
to the police.
o Is lying hearsay?
 Simple approach: you are not offering the statement to prove the truth of the matter asserted,
because you think the stmt is not true.
• Lying and Sincerity
o Assume that the wife is secretly sincere (she really believed that he was in Denver). Is the fact that she
made false statements still relevant?
Prior Inconsistent Statements (exception #1)

• Stmts are introduced at trial to substantiate or discredit a W’s testimony
• Substantive Evidence  Stmts admitted for their truth
• Difference between impeachment & substantive evidence
o Impeach – offering prior stmt, hoping all D’s testimony will get tossed out
 Makes no assumptions about D’s credibility
o Substantive Evidence – want to show D’s original stmt was true
 Makes assumptions that original stmt was true
o Ex.: Only evidence is:
 D testifies “C killed B”
 W testifies “D said ‘A killed B’”
• If W’s testimony was offered only to impeach D
o Earlier inconsistent stmt can be used to impeach D
 The judge would direct an acquittal for A
• If W’s stmt offered as substantive evidence
o Jury could convict A
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• Reliability of prior inconsistent stmts
o Subject to testing by adversarial process?
 Yes  W can be questioned under oath regarding prior stmt
o Reliable?
 Yes  made closer in time to the event, often before distortions of ct. appearance
• Stmts must be made under oath
o Increases the likelihood that (1) the stmt is true and (2) the stmt was in fact made
• 801(d)(1):
o Declarant testifies and is subject to C-X concerning the stmt.
• 801(d)(1)(A)
o Prior Inconsistent Stmt: Stmt that is inconsistent w. trial testimony. And was given under oath or a
proceeding
• Seen this before?
o Prior inconsistent stmts can be admitted as non-hearsay impeachment - even if not given under oath
• Function of 801(d)(1)(A)
o Introduce substantive evidence. It admits the stmt for their truth
• Steps in applying 801(d)(1)(A)
o Did the D testify at this hearing?
o Was the prior stmt inconsistent w. current testimony?
o Was the prior stmt under oath in a proceeding?
o Is the D subject to C-X concerning the stmt?
• “Proceeding”
o The stmt given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition
 Grand Jury  Yes
 Police investigation  Usually NO
• Only in certain situations
• “Inconsistent”
o The [prior] stmt is inconsistent with the declarant’s testimony [at trial]
o The trial testimony does not have to literally contradict the prior stmt
 Inconsistency may be found in evasive answers, silence, or changes in position. In addition, a
purported change in memory can produce inconsistent answers
• Why under oath?
o Increases likelihood that:
 Stmt is true
 Stmt was in face made (Congress added this requirement.)
• Why do some cts. require forgetfulness to be feigned?
o Emphasis in sincerity
• Objection to admission if witness claims complete lack of memory
o Remember the requirement  the D testifies at the trial or hearing & is subject to C-X concerning the
stmt
 One could argue that the D is not really “subject to C-X concerning the stmt”
 BUT: Recent case law suggests that the D is subject to C-X as long as she willingly answers
questions on C-X.
• NOTE: that C-X may still reveal bias & other problems w. witness credibility
Washington v. Smith
• Facts:
o 7/10 – Conlin is brutally beaten & identifies Smith as her assailant. Later goes to station & writes &
signs stmt identifying Conlin. Smith then chases Conlin around her apt. blding.
o Trial – Conlin identifies Gomez as her assailant & claims Smith came to her aid
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 Acknowledges making prior inconsistent stmt  Says she was angry at Smith re fight
• Reliability?
o Stmts near in times  less likely distorted by fear.
o “She understood that by giving a voluntary sworn stmt criminal action against ∆ was likely”
o She wrote stmt in her own words. She signed each pg witnesses by the detective.
o She read the stmt, the affidavit and oath and signed – all in front of a notary
• “Each case depends on its facts w. reliability the key. Here the complaining witness-victim voluntarily wrote
the stmt herself, swore it under oath w. penalty of perjury before the notary, admitted at trial she had made the
stmt & given an inconsistent stmt at trial where she was subject to C-X. 801(d)(1)(ii) is satisfied under totality
of the circumstances”
o Prior inconsistent stmt is admissible for its truth
Prior Consistent Statements

• 801(d)(1)(B): Stmt consistent w. trial testimony & rebuts (implied or express) charge of fabrication, improper
influence, or motive.
o Rehabilitation by prior consistent stmts: Giving someone more credibility b.c they say consistent
things. Shows that the person is worthy of belief b.c he is saying the same thing on different occasions.
You are not offering the prior consistent stmt to prove it was true  rather to prove the person was
truthful
 Distinguish from Prior Inconsistent Statement– when you are trying to prove truth of the stmt.
• Steps in Applying 801(d)(1)(B)
o Did the D testify?
o Was there an implied or express charge of fabrication, improper influence, or motive?
o Does the prior stmt rebut the charge?
• Examples of questions that imply fabrication, influence, or motive
o Implication
 You are the brother of the ∆, aren’t you? (a motive to lie for the D if you have close
relationship)
 Didn’t you speak to the ∆’s atty this morning? (implying improper influence)
o Not implication
 You forget things quite often, don’t you?
• Need more information. Should presume nothing wrong unless there is some evidence
that might show otherwise. Memory failure is not a reason to offer PCS. If this an
honest question about forgetfulness  OK
• Honest forgetting is not improper influence, etc. But can make an argument that
Prosec’s tone implied these things?
 You weren’t wearing your glasses that day?
• A honest mistake does not give reason to attack the witness. Not suggesting that the
person has had any influence considered improper. Recognize that the reason for this
req’t, the prior consistent stmts wouldn’t have any probative value.
 Didn’t you testify at the prelim hearing that his hair was brown & not black?
o Depends here. Maybe more closer to no unless Prosec used tone to suggest otherwise.
• Prior stmts that rebut the charge. Hypo:

o Day 1: A said “ D killed the dog”
o Day 10: D’s enemy F gives A a new car, telling her that her stmts against D will be “very helpful”
(improper influence)
o Day 20: A said “ D killed the dog”
o Trial: A testifies “D killed the dog” but admits on C-X said that F gave her a car (F is an improper
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source of influence, so there is attack on A’s testimony)
 A’s prior consistent stmts are offered to prove that trial testimony is true & improper influence
doesn’t matter b/c it’s true.
 Pre-motive stmts rebut charge of improper influence or motive. Anything she got before Day
10 when she got the car can still be used to rebut the improper influence. But her statement on
Day 20 has no value now and can’t be admitted. See holding in Tome.
• Day 1 is OK but Day 20 is not OK b.c that stmt occurred after improper influence
which occurred on Day 10.
o TIMING IS KEY
Tome v. United States
• Issue: Admitting testimony of the mother, nanny, and doctors regarding a child’s sexual abuse.
o Dad tried to say mom was fabricating story in order to gain custody of the child
• Holding: Out-of-court consistent stmts made after the allege fabrication or after the alleged improper influence
or motive arose are not admissible
• S.Ct. acknowledges there may arise instances where out of ct. stmts that postdate the alleged fabrication have
some probative force in rebutting the charge.
• PCS may get to the jury as a nonhearsay rebuttal
o 801(d)(1)(B) only restricts their use as substantive evidence
• Unanswered questions after Tome
o Can PCS be used to rebut other kinds of credibility attacks, such as memory problems?
 Probably -- but Tome makes clear they are not admissible as substantive evidence under 801(d)
(1)(B)
o Can post-motive stmts still be admitted as non-hearsay rebuttal?
 Maybe – ct. suggests they may be irrelevant
• PCS Flowchart
o Witness testimony attacked?
 NO  prior stmt is not admissible
 YES  Was the attack regarding fabrication, influence or motive?
• NO  Does prior stmt rebut the attack?
o NO prior stmt is not admissible
o YES  Maybe admissible as rebuttal only
• YES  Stmt made pre-motive?
o NO  May be admissible as rebuttal only
o YES  Admissible under 801(d)(1)(B)
• Terminology regarding rebuttal use of evidence
o Also called rehabilitative or sometime corroborative
Identification
• 801(d)(1)(C):
o The stmt is one of identification of a person made after perceiving the person
• Steps in applying 801(d)(1)(C)
o Did the D testify?
o Is the stmt identification of a person after perceiving the person?
• Questions
o Can the stmts be admitted through a W other than the D? Yes, might even need someone else to come
into ct to say that W said “A killed B.” W who quotes the hearsay doesn’t have to be the Dec.
o Does the identification have to be made immediately or shortly after perceiving the person? No,
nothing in the rule says that it has to be made immediately after.
o Is it necessary that the D see the person identified? No, can be ear-W.
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o Is the identification still admissible if the D changes her story at trial? Yes, ok if it’s an inconsistent
stmt is still admissible. Prior statement wasn’t under oath, you can still arg this as identification and
apply another exception.
o If W did change her story, why wouldn’t one simply use the prior inconsittent stmt exception to
introduce her prior identification? b/c Identification exception doesn’t require that she be under oath
but prior inconsistent exception does. But ID exception is more
Party’s Own Statement

• 801(d)(2)(A)
o Stmt offered against a party & the party said it
• Rationale for admissions?
o Consistent w. the philosophy of the adversarial system (you’re responsible for your own stmts)
 Cannot complain of failure to C-X
 “You made this stmt, you are not in ct., you have to explain it”
o This is about fairness not about reliability
• Liberality of admitting admissions
o Stmt does not have to be against the party’s interest
 Anything you say, no matter how self-serving
o Stmt does not have to be reliable or trustworthy
o Party does not need to have personal knowledge
Bruton
• Facts: Bruton & Evans tried jointly for postal robbery. Evans did not take the stand. Evans’ confession
admitted against him jury told to disregard re Bruton
• Holding: Violates Bruton’s confrontation rights
o Assume jury will hold confession against him and will not adhere to limiting instruction
 Although cts have the power of limiting instructions  it is really a legal fiction that we expect
juries not to use inadmissible evidence.
o Bruton cannot force Evans to testify  therefore Bruton cannot C-X the D and he is therefore denied
his right to confront W against him.
Adoptive Admission
• 801(d)(2)(B)
o The stmt is offered against the party & the party adopted it
• What is Adoptive Admission?
o W testifies, “I asked ∆ ‘Did you kill B?’ and he said yes.”
o W testifies, “I asked ∆ ‘Did you kill B?’ and he said nothing.”
• Silence as an adoptive admission
o If “the stmt and situation are such that a party would probably object or dissent if he were not in
agreement.”
 You wouldn’t stay silent if it weren’t so
• Silence as evidence of guilty
o ∆ arrested, given Miranda warnings, refuses to talk
 State cannot use silence to prove guilt
• Violates the right against self-incrimination
 State cannot use silence to impeach
• This is a due-process concern – irrelevant
o ∆ has not been arrested
 OK to use for impeachment
• And maybe substantive use
o ∆ has been arrested, but hasn’t received his Miranda warnings
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 OK to use for impeachment
• And maybe substantive use
Admissions by Speaking Agents

• 801(d)(2)(C)
o The stmt is offered against the party & the person authorized to speak for the party
• Examples of speaking agents
o A board of directors speaks for the corporation (Mahlandt)
o Atty speaks for client
o Brokers, press secretaries
o Someone that you tell “You can speak for me”
 Person ah to be authorized to say/assert things on your behalf
Admissions by Agents/Employees
• 801(d)(2)(D) Agents/Employees
o The stmt is offered against a party and is stmt by employee, made while employed, concerning the
matter within the scope of employment.
• Ex-employees are not covered here
o Reliability is at issue here
Mahlandt v. Wild Canid Survival & Research Center, Inc.
• Background
o Issue: Was Daniel Mahlandt (3-yrs-old) bitten by Sophie (11 month old wolf)?
o Problem: No witness saw or knew how Daniel was injured & Daniel is 3yo (not old enough to qualify
to testify). Daniel’s parents sue Sophie’s owner, Mr. Poos & Wild Canid Research Comp.
o Dispo: D’s win.
o Trial Ct. refused to admit 3 pieces of evidence
1. Note from Mr. Poos (owner of wolf – behalf of the research company he works for) to Mr.
Sexton, Pres. of Wild Canid
2. Mr. Poos told Mr. Sexton, “Sophie bit a child today.”
3. Minutes of Directors’ meeting referring to “the incident of Sophie biting the child.”
• 1) Admissibility against Poos?
o Note from Poos to Sexton: “Sophie bit a child that came in our backyard”
o Poos told Sexton, “Sophie bit a child today”
 Should’ve been Admissible b/c Admission of a party-opponent 801(d)(2)(A)—trial ct got this
wrong
o Minutes of Director’s meeting referring to the incident
 No. “There was no servant, or agency, relationship which justified admitting the evidence…
against Poos.”
• Connections do not work bilaterally – A speaking agent that speaks for the employer
does NOT speak for the employee
o Agent/employee runs one-way. Agency can say things against the employer.
But the employer cannot say things that may be used against the employee
• 1) Admissibility against Wild Canid?
o Note from Poos to Sexton
o Poos told Sexton, “Sophie bit a child today.”
 Stmt made by agent/employee 801(d)(2)(A)
o Minutes of Director’s meeting referring to the incident
 Stmt by speaking agent 801(d)(2)(C)
o Should’ve been admissible under Agent-Ee exception – trial ct got this wrong
o Agent-employee
o Poos was an agent/employee of Wild Canid – Director of Research
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o Made stmt while employed
o It was concerning a matter w.in scope of employment
 Had physical custody of Sophie, Canid’s wolf
o What about agst BofD’s? (minutes of meeting)
o
• Issues
o Poos & Board had no personal knowledge of whether Sophie bit Daniel  why this all seems
backwards
• Weinstein’s arguments re agent/employees

o “Although an express requirement of personal knowledge on the part of the D of the facts underlying
his stmt is not written into the rule, it should be. It is mandated by Rules 805 & 403”
 403  Prejudice – will jury give evidence too much weight?
 805  Multiple hearsay – OK if each layer fits w. an exception
• If each layer has a proper exception the stmt is admitted
o If any layer is inadmissible the stmt fails
• In the Mahlandt case we have hidden hearsay.
o Most of the time indirect hearsay is subject to a 602 objection (no personal
knowledge) which will either keep the evidence out or force the witness to
reveal the hearsay source.
 B.c we are dealing w. an admission here, 602 is not a valid objection
& therefore whether the D explicitly quotes another person makes a
difference.
Co-Conspirator
• 801(d)(2)(E)
o D & 3rd party conspired, the stmt was made during the conspiracy, and the stmt was made to further the
conspiracy.
• Remember non-hearsay possibilities
o What is a conspiracy
 An agreement to commit a crime
• A says to B, "Let’s import coke.”
o Is this hearsay, if offered to prove A is guilty of conspiring to import coke?
 No it is a verbal act
• When saying something has legal consequences, its relevant
that you said it
• Cf. Solicitation of prostitution (“I’ll show you a good time)
o Offered to prove the stmt was made, that the stmt was
made proves there was an offer. Not offered to prove
he had a good time.
• Pre-requisites
o During & in furtherance of
 Examples
• A, B, & C are charged w. conspiring to import & sell cocaine
o B&C agree to import and sell coke. Friend (A) takes B&C to airport. Waiting
for a plane A,B,&C all have a beer together. A asks, “Where are you going?”
B responds, “We intend to buy coke.”
o NOT meet
• D, an undercover DEA agent, approaches A after A returns from Columbia.
o D: “I would like to buy coke.”
o A: “I expect a shipment tomorrow.”
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o D: “I need a guarantee”
o A: “ My co-conspirator, named B, is transporting it now.”
 YES – in furtherance of (from Al’s perspective – believes he is talking
to a buyer)
• C was arrested by DEA agents, and given Miranda warning. She says, “I was only a
courier, B purchased the coke.”
o NO – Not during and not in furtherance of conspiracy
 Conspiracy ends at arrest
o Totally self-serving and not designed to further conspiracy
o Fairness concern  merely trying to shift the burden
• Pre-arrest stmts to cover up acts are generally not covered by this exception
Norton v. California
• Motive: Norton, who was mining his land for gold, believed Baskum was threatening him in order to scare him
off the land
• Witnesses
o Roy Dawson: Testifies to threatening the Norton’s at the behest of Baskum who wanted to acquire the
mine
o Crawford Wright: An assayer who had repeatedly tested samples from the Norton’s mine & find no
traces of gold
• Evidence
o (1) Dawson shouted at Nortons
 Offered to prove the Nortons were threatened by Baskum
• This is NOT hearsay
o Effect on the listener
 Truth of the matter asserted is not at issue – do not know if threats
were sincere
 The fact stmts were made (& heard by Nortons)
• Proves effect on the listener
o Performative act is not a bad argument
 Judge could exclude words, allow gunshots
 Partially assertive, partially non-assertive  judge will try & eliminate
assertive elements
o (2) Baskum said to Dawson “I will pay $500 to drive the Nortons away”
 This IS hearsay
• Inadmissible under exceptions thus far
o NOTE: Attempting to prove something about what Baskum (the deceased) was
thinking – that he wanted to the mine
o Turns out this will fit comfortably under “State of Mind” exception
 This MAY NOT be hearsay (depends on ct.)
• Effect on listener/verbal act
o Acceptable to most cts. as a verbal act – it was an offer (verbal K)
o Atty would argue that we don’t know if Baskum was sincere
 Then it does not prove what we want it to prove
o (3) Dawson testified Baskum said he wanted to get the mine
 Offered to prove Baskum wanted the mine
• This IS hearsay
o It is inadmissible under an exception thus far
o Verbal stmt offered to prove D’s state of mind (going to be admissible under
another exception)
o (4) Crawford Wright’s reports
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 If reports were offered to prove that the mine was worthless  clearly hearsay
 BUT: Fine if asked “Is there anything in those reports that would have cause Baskum to cove
the mine”
 This is NOT hearsay
• Not offering the stmt to prove the report is true. Offering to prove the reports claim
there was nothing valuable in the land.
 In general
• Hearsay exceptions apply to documents as well as verbal testimony. Quoting a
documents does not add a layer of hearsay
o Cannot say quoting a doc. is always hearsay
• B.c quoting yourself is hearsay  quoting a document you wrote also present a
hearsay problem
• Judge decides if
o The D was “authorized” to speak
o The D was an employee
o There was a conspiracy
 See 104(a)
• Preliminary questions concerning…the admissibility of evidence shall be determined
by the ct.
o Standard of Proof required: Preponderance of the evidence
 Boujaily
 Jury weighs evidence
• 104(a) issues – or not
o Trying to introduce silence as an adoptive admission
 W testified, “I asked A if he killed b, and he said nothing.”
 Prerequisites?
• Would he have denied if it if it weren’t true?
• Did A hear W?
 NOTE: These are not prerequisites built into the language of the exception
 They may not be 104(a) issues
 Consider if they are logical relevance or conditional relevance issues
• 104(b)
• Bootstrapping
o A prerequisite cannot be proven by the stmt itself
 The stmt may help to prove the prerequisite  but it cannot establish it by itself.
• 801(d)(2) (last part)
o The contents of the stmt shall be considered but are not alone sufficient to
establish the D’s authority under (C), the agency or employment relationship
& scope thereof under subdivision (D), or the existence of the conspiracy and
the participation therein of the D and the party against whom the stmt is
offered under subdivision (E)
Hearsay Mini Review

Party Opponent Exceptions Party’s Own Statements 801(d)(2)(A)
Adoptive Admissions 801(d)(2)(B)
Speaking Agents 801(d)(2)(C)
Agent/Employees 801(d)(2)(D)
-During & related to employment
Co-Conspirators 801(2)(2)(E
-During & in furtherance of
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All require that the stmt be offered against the party
Hearsay/Non-hearsay Offered to prove v. Matter asserted
Stmts not offered to prove the truth (probative value comes from the fact
that the stmt was made; not based on the sincerity of D)
1. Impeachment by prior stmts
2. Effect on the listener
3. Verbal acts
4. Verbal objects
5. Knowledge
6. Performative stmts
7. Lying
Declarant Testifying Exceptions Prior inconsistent stmts 801(d)(1)(A)
-Under oath proceeding
Prior consistent stmts 801(d)(1)(B)
-Rebuts charge, fabrication, influence, motive
-Pre-motive
Identification 801(d)(1)(C)
All require D testifies and is subject to C-X regarding stmt
Hearsay Exceptions
• 803: Availability of the declarant immaterial
o For exemptions under 803, it does not matter if the D is available or not
• Rationale
o Stmts are admitted even if the party offering them did not make the D available for C-X because C-X is
not need to test their accuracy
803(1): Present Sense Impression- The D described or explained an even while perceiving the even or
immediately after the event.
• Reduction of Dangers
o Yes – Danger is minimized
 Rationale for this rule  Sincerity is maximized (likelihood of sincerity diminished)
 Minimized danger of faulty memory.
o No – Danger is just as high
 Dangers of misperception
 Narration dangers are just as great – can misspeak
Halley v. CA
• Mr. Albirght, who is in love w. Ms. Halley, is found murdered. Mr. Frye, Ms. Halley’s husband, spoke to Mrs.
Albright re situation
• Multiple Hearsay Concern
o Mrs. A testified “Frye said Ms. H said Mr. A said “I love you; let’s go to Mexico.”
 Mr. A’s stmt: Effect on listener exception
 Ms. H’s stmt: Party-Opponent (if offered by the prosecution)
 Frye’s stmt is not present-sense impression b.c too much time had elapsed before he said
what he knew.
o Frye testified, “ Ms. H said Mr. A said, “I love you; let’s go to Mexico”
 Did Ms. H describe or explain Mr. A’s words immediately after he spoke them?
• If YES  her stmt can be admitted as a present-sense impression
 If F testified that he heard Ms. H on the phone and she then explained the call  time gap b.w
event & description of event was infinitesimal.
(10/6/09)
803(2): Excited Utterance - While excited by a startling event, the D made a stmt relating to that event
• Consideration
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o B.c it was a startling event there is an extended period of time in which stmt can be made
 Not required to be immediate like in present-sense impression
 R Rationale for this rule  Sincerity is maximized (likelihood of sincerity diminished)
• Ability to lie is impaired by intense trauma (stress causes honesty)
• When you are traumatized you are more likely to be honest
o Maybe – Dangers are reduced if the event is not too startling
 Perception
 Memory
 Narration
Present Sense Impression v. Excited Utterance
Present Sense Impression Excited Utterance
Type of Event Any Event Startling event
Stmt topic Must describe or explain event Must relate to event
Stmt made when? While or immediately after event While excited by event
(can be excited when even is redefined (i.e. picture
in paper) “rekindled excitement.”)
• Bootstrapping & excited utterance
o The prerequisite that a startling event occurred can be prove by the stmt itself
 E.g. “He attacked me” offered as excited utterance
• The stmt itself is proof there was a startling event
o NOTE: This rules does not contain limiting language, as was found in 801(d)(2)
803(3): Then existing mental, emotional or physical condition – Exception for stmts regarding D’s State of mind
(what D currently thought, wanted, intended or felt)
• You cannot prove that the D believed some fact in order to prove that the fact was true, unless the fact concerns
the D’s will.
 (Without this language, the state of mind exception could swallow up the rule against hearsay)
• ex.: W testifies, “D said, ‘A killed B’”
o If admissible as D’s state of mind:
 Proves the D believed/remembered A killed B
 D’s belief/memory is circumstantial evidence that A killed B
o So – Any hearsay stmt could get in under the state of mind exception
• When state of mind is relevant
o Extortion
o Loss of business good will
o Motive
• Much like a necessity argument here
 Perception  you have special insight
• You stmts explain your state of mind better than just about anything else
 Memory  current state of mind
o No – Danger is just as high
 Sincerity
 Memory
• Hillmon
o Π (widow) sued to collect on several life insurance policies. ∆ insurance co claimed body was not
Hillmon.
o Evidence offered by defense was letters to follow traveler’s sister: “I expect to leave”
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 Letter is hearsay --- could make a state of mind exception b.c they describe his intent to leave
 Letter was actually circumstantial evidence that he did leave.
• Ct. holds this is OK
 Letter stating: “I just left”
• Evidence of memory offered to prove the doing of act remembered
• Ct.  this is not OK under 803
o Rules uphold Hillmon doctrine.
 “The rule of Hillmon allowing evidence of intention as tending to prove the doing of the act
intended is left undisturbed.”
803(4): Statements for the purpose of medical diagnosis or treatment

• Rule: Stmts made in order to obtain medical diagnosis or treatment, including medical history, past or present
symptoms and the cause of the symptoms if it was relevant for diagnosis or treatment.
• Stmt does not have to be made to a doctor
o “Stmts to hospital attendants, ambulance drivers, or even members of the family might be included.”
o Do not have to be talking about your own symptoms. As long as the purpose of each speaker was in
furtherance of medical diagnosis or treatment each stmt is allowed under this exception.
• Reduction in Dangers
 Sincerity – motive is to receive proper treatment
• You are not going to be insincere when your medical treatment is at stake
o Maybe – Dangers are not always reduced (but can be)
 Perception
 Memory
o No – Dangers are just as high
 Narration
Excited Utterances v. Medical Diagnosis
Excited Utterance Medical Diagnosis
Stmt made when While excited by the event Anytime
Spontaneity Important factor Not important
Motive for speaking Not important For diagnosis or treatment
Cause of Symptoms gets Special Treatment

Consider patient’s motive Consider Doctor’s use
Medical History If for purposes of diagnosis or treatment Presumed pertinent
Symptoms If for purposes of diagnosis or treatment Presumed pertinent
Cause of Symptoms If for purposes of diagnosis or treatment If pertinent of diagnosis or treatment
• Child abuse cases

o Cts. have expanded exception in certain situations for allowing testimony from doctors re cause & fault
 Can be pertinent to medical diagnosis & treatment
o In child abuse cases, where hard to get the testimony from child; dr. can talk about symptoms, cause,
and identity if ct. says pertinent
 i.e. if abused by household member  changes care dr. gives
o Example
 Pain  Symptoms admissible as long as patient thinks its relevant
 Tried to take pants off  Cause Dr. has to believe it is relevant
 Name of attacker  Fault – seldom if ever pertinent (advisory committee takes this off
the table.
• Psychologists are treated less generally than doctor’s
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o This is social intervention – NOT medical treatment & diagnosis
Present Recollection Refreshed

• If a W does not remember some fact, an atty can show her anything that might refresh her recollection
• Whatever is sown to the W is not thereby evidence in the case & the ct. must protect against its use in
prejudicing the jury.
• 612 – Writing Used to Refresh Memory
o If a W uses a writing to refresh recollection, opponent can inspect it, C-X on it, and admit into evidence
those portions related to testimony.
 612 applies if the W uses the writing while testifying. If the W used the writing before
testifying  612 applies if the ct. finds the “interests of justice” make it necessary.
• 803(5) – Recorded Recollection
o The following are not excluded by the hearsay rule, even though the D is not available as a W
1) W cannot remember enough to testify
“fully & accurately” but
2) She made or adopted a record
i. (Adopting the record  someone else wrote it but you agree w. it)
3) While the matter was fresh in her memory
which
4) Correctly reflected her knowledge
o The jury only hears the recorded recollection, but can take it to the jury room if the opponent offers it
into evidence
 Rationale: Don’t want strategic planning of docs into the jury room
Ohio v. Scott
• Evidence trying to get admitted: Testimony from W (friend of the ∆). Signed, handwritten she gave to police 48
hrs after speaking to ∆, stating “Randy told me he shot a guy”
• Recorded Recollection Foundation
o Remembers less the fully & accurately
 “I cannot remember exactly what [his words] were”
o Made or adopted a records?
 Wrote & signed a stmt
o Matter fresh in her memory
 48 hrs after heard; memory better than now (at time of trial)
o Correctly reflected her knowledge?
 Wrote it herself; stated it was true
• Does 803(5) require that the examiner first attempt to refresh the W’s recollection?
o Not necessarily.
 In the typical case  When the W is friendly, it is strategically wise
• How far can the rule extend?
o Made or adopted a record?
 Not have to write; can have read at time
o Matter fresh in her memory?
 No time limit; consider importance, gaps, care w. which the report was prepared
o Correctly reflected knowledge?
 “I would not sign a false stmt”  would you lie to police?
• 803(6) – Records of Regularly Conducted Activity
o A memorandum, report, or data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, made at or neat the time, by, or form information transmitted by, a person with knowledge,
if kept in the course of regularly conducted business activity, and if it was the regular practice of the
business activity to make the memorandum…all shown by the testimony of the custodian or other
qualified W, or by certification…unless the source of the info or the method or circumstances of
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preparation indicate lack of trustworthiness
 Record made in the course of business or regularly conducted activity?
 Regular practice to make the record?
 Source knowledgeable?
 Record made near the time of the event?
 Lack of trustworthiness?
o What is a business?
 The term includes business, institution, ass’n, profession, occupation, and calling of every kind,
whether or not conducted for profit,
• Schools, churches, hospitals, self-employed individuals, illegal activities (bookies)
o Sources knowledgeable
 Must the person who made the record have personal knowledge?
• NO
o Can be made from information transmitted by a person w. knowledge (to
someone who makes the record OK)
o Ex: Computer printout of windows washing in office building. Prepared by
secretaries from forms submitted by floor managers. Floor managers compiled
summaries from window washers’ assistants’ reports
 Printout admissible.
 What rules does this evade?
• 602 – personal knowledge requirement
• 805 – multiple hearsay
Petrocelli v. Gallison
• Facts: π alleges ∆ severed a nerve while performing a hernia operation
• Evidence: Report prepared by Dr. Schwartz, who performed a 2nd operation, which says “During the 1st
operation, the nerve was severed.”
• Problem: What is the stmt based on?”
• Business Record exception
o Record made in the course of business?
 Yes
o Regular practice to make the record?
 Yes
o Source knowledgeable?
 Unclear
 Was it Petrocelli relating the ailment or was it the dr.’s professional assessment?
o Record made near the time of the event?
 Depends on the source
 Depends on how you define event
• If when nerve was severed then it has been a couple of months  No
• When doc heard stmt  Yes
o Lack of trustworthiness?
 Depends on the source
• Is it objectionable that the evidence refers to an opinion or diagnosis rather than a fact?
o No. Does not need to be a fact  rule is very liberal as to what it accepts.
• 803(6) encompasses only D’s – like nurses or drs. in the case of hospitals – who report to the recordkeeper as
part of a regular business routine in which they are participants.
o A patient relating his own history is NOT included.
 Sounds like a medical diagnosis exception b.c it is something patient said  becomes a
multiple hearsay issue
• Inner layer: Patient’s stmt to dr.  potentially admissible under 803(4)
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• Outer layer: Business record
 NOTE: The outer layer is the dr. and the event is the patient’s stmt.
o Would have been admissible if admitted under 803(4) and 803(6)  instead of just 803(6)
 Did not do this for strategic reasons  wanted jury to believe stmt was dr.’s professional
opinion
• 803(7) – Absence of Entry in Records

o Providing that something isn’t in the business record & therefore didn’t happened/isn’t true.
• 803(8) - Public Records and Reports
o (A) Activities of public agencies
o (B) Observations of public officials if duty to observe and duty to report, except for law enforcement’s
observations in criminal cases
o (C) Factual findings made by public official in legally authorized by public official in legally
authorized investigation. Not admissible against the ∆ in criminal case.
o Rule does not apply if lacks trustworthiness
o ABC
 Activities
 oBservations
 faCtual findings
10/13/09
Baker v. Elcona Homes

• Facts: Slabach’s comp truck collided w. π and 5 friends – killing five
o Issue: Who had green light?
• Evidence: Police accident report prepared by OHP officer
o Report included measurements and descriptions taken at scene of accident
o Officer’s conclusion that π ran the red light
 Conclusion = subjective finding
• Different from objective measurements
o ∆’s stmts regarding the accident
• Measurements & descriptions?
o Admissible under 803(8)(B) as observations of a public official w. duty to observe and duty to report
 Would not be admissible if this was a criminal case
 Not 803(8)(A): It is not merely stating activities
• Would have been if the report stated “I went out and observed & measured the accident
scene”
• Officer’s conclusion
o Admissible under 803(8)(C) as factual findings made by public official in a legally authorized
investigation.
 Inadmissible if a criminal case
 Π’s could make the potential objection that this report lacks trustworthiness
• Πs carries BoP
• ∆’s stmts regarding the accident
o NOT admissible as observations or factual finding
o Ct. admitted these stmts as prior consistent stmts, rebutting vigorous C-X regarding ∆’s recollection of
the stmt.
 Problems w. this reasoning
• ∆ had motivation to lie in hospital (when the officer interviewed him) and under Tome
the stmt needs to be made pre-motive to be admissible.
• Factors to consider in asserting trustworthiness
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o Timeliness
 Elcona: Stated investigation immediately
o Skill & experience of official
 Elcona: officer w. 28 yrs experience, expert in vector analysis
o Whether hearing was heard
o Motivational problems
 Elcona: Ct. sees none
• 803(8)(B): Law Enforcement Official
o How subjective is the information in the report?
 The MORE subjective (therefore closer to factual findings)  then define enforcement broadly
• Since C includes all public officials
 The LESS subjective (therefore squarely simple observations)  define law enforcement more
narrowly
• Reason: Findings more likely the observations to be tainted by bias
• 803(9) – Records of vital statistics
o Records of births, marriages, and deaths legally required to be submitted to public offices
• 803(10) – Absence of Public Record or Entry
o Proving that something isn’t in a public record and therefore didn’t happen/isn’t true
• 803(17) – Commercial Publications
o Published compilations of information relied upon by the public or specialists
 (almanacs)
• 803(18) – Learned Treatises
o Published work is admissible, if an expert W either relied on the work on direct examination, or was
asked about the work on C-X, as long as the W, another expert, or judicial notice establishes the work
as a “reliable authority”. The jury only hears the work, & cannot be taken into the jury room.
Black v. Great Benefit Insurance
• Facts: Bad faith refusal to reimburse for medical treatments  insurance co says the leukemia was diagnosed
as “untreatable”
• Π on C-X was forced to admit her family dr. diagnosed her son was suffering from untreatable leukemia
• Objections
o Hearsay
 There was no exception  letter was inadmissible
o Would not go to proving leukemia was untreatable  only use when proving
truth of stmt
• Medical diagnosis
o This exception does not work when the dr. is the D and speaking to the patient
• Business record
o Ad hoc letter  not kept in the regular course of business
o “He was not a specialist”
o 612
 There are common law limitations to admitting in order to refresh memory
 W did not testify to lacking memory
• No foundation for refreshing her memory
o Jury should not hear what the letter is
 Prejudice v. probative value.
Rule 804 Hearsay Exceptions: D Unavailable

• 804 requires unavailability of testimony
o Unavailability is not itself a hearsay exception only a precondition
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• Rationale for hearsay exceptions
o 801(d)(1) exceptions, the D has to testify & be subject to C-X
o Hearsay dangers need to be tested, & deferred testing is enough
o Under 801(d)(2) exceptions, the D is associated w. the opponent
o Hearsay dangers need to be tested, but the opponent is available to explain the stmt
o Under 803 exceptions, it doesn’t matter if the D is available or not
o Hearsay dangers don’t need to tested
• Rationale for 804 exceptions
o Under 804, the D must not available
o Hearsay dangers need to be tested, but if they can’t be, the stmts have sufficient reliability come in.
 Best evidence rule  principle of necessity (requirement)
• 804 – D unavailable
o (a) Definition of unavailability: includes situation in which the D
 (1) is exempted by ruling of the ct. on the ground of privilege from testifying concerning the
subject matter of the D’s stmts
 (2) persists in refusing to testify concerning the subject matter of the D’s stmts despite an order
of the ct. to do so;
 (3) testifies to a lack of memory of the subject matter of the D’s stmt
 (4) is unable to be present or to testify at hearing b.c of death or then existing physical or
mental illness or infirmity
 (5) is absent from hearing and the proponent of his stmt has been unable to procure the D’s
attendance…by process or other reasonable means (gone & cannot get him to ct.)
 and unless this is the prior testimony exception, you could not depose her)
• (depo is the next best thing  If you have prior testimony just admit that)
• A W can be unavailable due to forgetfulness under 804(a)(3) but be subject to C-X under 801(d)(1) – prior
inconsistent, prior consistent, identification
o You cannot remember what happened but you’re willing to answer questions about it on C-X
• 804(b)(1) – Former Testimony
o Former Testimony (including a deposition), if an opponent (in a civil action: opponent or predecessor)
had an “opportunity & similar motive to develop the testimony.”
o Rationale:
 Live testimony is superior – observation of demeanor
 Former testimony offers everything but demeanor, and was tested by the trial process
o Who is a predecessor in interest?
 Broad interpretation:
• Someone making the same factual claim
 Narrow interpretation:
• Someone with a common property interest
 Textbook
• Substantial identity of interests
• 804(b)(2) – Dying Declaration
o In a prosecution for homicide or in a civil action or proceeding, a stmt made by a D while believing
that the D’s death was imminent, concerning the cause or circumstances of what the D believed to be
his impending death
o Ask:
 Civil action or homicide?
 D believed her death was imminent?
 Stmt concerned cause or circumstances of anticipated death
o Concerns
 D did not have to die  only be unavailable
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 D did not have to have reasonably believed death was imminent  subjective std.
 Certainty of death  “settled hopeless expectation that death is near at hand”
10/15/09
• 804(b)(3) – Stmt Against Interest
o Stmt that, at the time made, put D at risk of: losing money or property interest, civil or criminal
liability, or losing legal claim. Reasonable person in D’s position would not say it unless she believed.
Must corroborate trustworthiness when stmt criminally inculpates the D
 Trustworthiness has to be proven by the proponent
o Rationale
 Sincerity
o How do you corroborate trustworthiness
 Independent evidence of facts in the stmt
 Evidence D is trustworthy
• 804(b)(6) – Forfeiture by Wrongdoing
o A stmt offered against a party that has engaged or acquiesced in wrongdoing, that was intended to, and
did, procure the unavailability of the D as a W
o Wrongdoing
 Does not have to be criminal
 Std. of proof
• Preponderance of evidence
 Can be used against the govt.
• 807 – Residual exception
o 1. The stmt must have “equivalent circumstantial guarantees of trustworthiness” as the other exceptions
o (A) the stmt is offered as evidence of material fact
o (B) the stmt is the best the proponent can reasonably obtain
o (C) the general purposes of these rules & the interests of justice will best be served by admission of the
stmt into evidence
o Notice is required
• Grand Jury testimony
o W testifies before the Grand Jury against a ∆ but then becomes uncooperative at trial
 Prior testimony?
• NO  no opportunity of C-X before Grand Jury
 Prior inconsistent stmt?
• NO  no C-X now (if he won’t answer ?s )
 Forfeiture by wrongdoing?
• Hard to prove
• 106
o The rule of completeness: If one side introduces a writing or stmt, the other side can introduce other
parts if “fairness requires”
SUMMARY
• Is it hearsay?
o An out-of-ct. assertion offered to prove the truth of the matter asserted
 Intentional communication by a person?
• Involuntary actions  not hearsay
• Non-assertive conduct
• Silence
• Performative aspects
o Look for a combo of assertive stmts & non-assertive conduct – doing
something as well as saying something; giving context to what you are doing.
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 Judge will let in non-assertive conduct
 Not offered to prove the truth?
• Impeachment by prior inconsistent stmt
• Rehabilitation by prior consistent stmt
• Effect on listener/verbal act
o If what matters is that the stmt was made (don’t care about secret sincerity)
• Verbal object
o Using words as forms of identification  not for their content
 Not the matter asserted?
• Proving mental state – knowledge
o Prove someone knows something; independent of what they know is true
• Lying
o Easiest way to get around hearsay
o It’s not offered to prove the truth of the matter asserted  judge will let in
o In search of a hearsay objection, ask
 Who MADE the stmt? – Who is the D?
• A PARTY or someone RELATED to the party?
o Must be offered AGAINST party and party:
 SAID 801(d)(2)(A)
 ADOPTED 801(d)(2)(B)
 AUTHORIZED 801(d)(2)(C)
 EMPLOYED 801(d)(2)(D)
• By an employee
• Made while employed
• And concerning a matter w.in scope of employment
• NOTE: Employees may bind employers, but employer cannot
bind employees.
• NOTE: For govt. – frequently argue that stmt not concerning
matter w.in scope of employment. Problem is that govt. ahs a
lot of employees and there is a concern that they will be bound
by a lot of stmts they did not authorize
 CO-CONSPIRED 801(d)(2)(E)
• During and in furtherance of
• The WITNESS at a PREVIOUS TIME?
o RECORDED recollection 803(5)
 Forget partial, it was fresh then, made or adopted record, accurate
o W SUBJECT to C-S and
o Prior INCONSISTENT 801(d)(1)(A)
 Under oath at PROCEEDING
o Prior CONSISTENT 801(d)(1)(B)
 REBUT fabrication, BEFORE motive
o INDENTIFICATION of person 801(d)(1)(C)
• Someone UNAVAILABLE? 804
o D must be DEAD, SICK, GONE (despite process), REFUSES, FORGOT, or is
PRIVILEGED 804(a)
o Former TESTIMONY 804(b)(1)
 Crim: party
 Civ: predecessor, C-X opportunity, motive =
o AGAINST INTEREST 804(b)(3)
 At time made, money, property, liable, lose claim
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Crim: liable – corroborate
o DYING declaration 804(b)(2)
 Crim: homicide, believe imminent, cause or circumstance
o FORFEITURE by wrongdoing
 Party engaged in/acquiesced, intended to & did procure unavailability
• A PATIENT?
o Medical DIAGNOSIS or TREATMENT 803(4)
 Cause  reasonably pertinent
• It’s a RECORD and the author is
o A PUBLIC EMPLOYEE 803(8), (9), (10)
 ABC – except for lack of trustworthiness
• Activities 803(8)(A)
• Matters oBserved 803(8)(B)
o Duty to see & report
o Crim: No law enforcement
• faCtual findings 803(8)(C)
o Authorized
o Crim: cannot be against ∆
o A BUSINESS 803(6), (7)
 Regularly conducted activity
 Perceived/received
 Close in time
 Regular practice to make
 EXCEPT lacking trustworthiness
o LEARNED TREATISE 803(18)
 Expert W
 C-X or relied on direct
 Establish as reliable
o A PUBLISHED COMPILER 803(17)
 Market report
 Relied on by public or occupation
 When: Was the event CLOSE IN TIME?
• PRESENT SENSE impression 803(1)
o Describe/explain, event during/immediately after
• EXCITED UTTERANCE 803(2)
o Relate to event while stressed out
• STATE OF MIND 803(3)
o Mental feeling, pain, health, intent
o Prove action  OK
10/20/09
Hearsay & the Constitution

• Confrontation Clause
o In all criminal prosecutions, the accused shall enjoy the right to be confronted w. the witness against
him
Ohio v. Roberts
• When a hearsay D is not present for C-X at trial, the Confrontation Clause normally requires a showing that he
is unavailable. Even then, his stmt is admissible only if it bears adequate “indicia of reliability”
• Reliability can be inferred w.o more in a case where the evidence falls w.in a firmly rooted hearsay exception
• Deconstructed
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Availability doesn’t matter if the “utility of trial confrontation is remote
o
 Which was held true for: excited utterance, co-conspirator, medical diagnosis exceptions
 Everything except former testimony
o Firmly rooted exceptions include: public records & business records
NO LONGER LAW!!!!
Crawford v. Washington
• The Supreme Court revised the test for determining whether offering an out-of-court statement violates the
right to confrontation guaranteed by the 6th Amdt to the US Constitution
• FACTS: The state asserted that United States Supreme Court precedent allowed the use of the wife's statement,
which arguably controverted defendant's assertion of self-defense, since the wife was unavailable as a trial
witness due to marital privilege and her statement to an interrogating police officer had sufficient indicia of
reliability.
• HOLDING: The wife's statement during interrogation was testimonial in nature, rather than non-testimonial
hearsay which would be properly subject to evidentiary rules concerning reliability, and defendant's right to
confront the wife thus clearly included the right to cross-examine the statement, especially in view of the
ambiguity in the statement. The right to confrontation was not a substantive guarantee that evidence be reliable,
but rather a procedural guarantee that the reliability of the wife's statement be tested by cross-examination.
• Unless the ∆ testifies & is subject to C-X, non C-X’ed testimonial hearsay violates the CC.
• Exceptions
o Testimonial by dying Ds
o Forfeiture by wrongdoing
o Rationale
 Not fair to make the victim testify in theses situations
• What is testimonial?
o At least
 Affidavits
 Prior testimony
 Police interrogations
o Interrogations
 Recorded stmt knowingly given in response to structured questioning
Davis v. Washington
• The two cases required a determination of when statements made to law enforcement personnel during a 911
call or at a crime scene were "testimonial" and thus subject to the requirements of the 6th Amdt. CC stmt
identifying defendant during the 911 call was not "testimonial." A 911 call was not designed to establish or
prove past facts, but to describe circumstances requiring police assistance. The caller spoke about events as
they were actually occurring while facing an ongoing emergency, rather than describing past events. The
elicited stmts were necessary to resolve the emergency rather than to investigate events. In the other case, the
statements of the alleged victim were made in response to an officer's questions in a room away from defendant
when there was no immediate threat to her person. The purpose of the interrogation was investigatory. The
stmts recounted past events; they did precisely what a witness did on direct examination and were inherently
“testimonial.” The Court declined to relax the requirements in domestic violence cases but pointed out that the
right to confrontation could be forfeited by wrongdoing.
• Davis & 911 Calls
o Davis: Stmts are nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency
 i.e. 911 cal saying “He is jumping on me again”
• present tense
o Davis v. Crawford
 A call for help against bona fide physical threat VS. Narrative report of a crime absent any
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imminent danger
 Events as they were actually happening VS. Hours after the event had occurred
 Frantic answers provided over the phone, in an environment that was not tranquil, or even safe
VS. Responding calmly, at the station house, to a series of questions, w. the officer-interrogator
taping and making notes
o Identity of the assailant
 Allows the “operator to established the identity of the assailant, so that the dispatched officers
might know whether they would be encountering a violent felon.
 Police officers justify questioning as a motivation to protect themselves
o Non-interrogation?
 The Framers were no more willing to exempt from C-X volunteered testimony or answers to
open-ended ?s than they were to exempt answers to detailed interrogation
o Police not the recipients
 If 911 operators are not themselves law enforcement officers, they may at least be agents of
law enforcement when they conduct interrogations of 911 callers
• For purposes of this opinion, ct. considers 911 acts to be acts of police
o Entire 911 call?
o Operator can obtain information “needed to address the exigency of the moment”
Giles v. California
• FACTS: Petitioner was convicted of first-degree murder after the victim's prior out-of-court statements were
admitted under Cal. Evid. Code § 1370.
• ISSUE: Whether a ∆ forfeited his 6th Amdt. right to confront a W against him when a judge determined that a
wrongful act by the ∆ made the W unavailable to testify at trial.
• HOLDING: Hearsay exception requires intent & causation
o It is not sufficient that the ∆ caused the unavailability. ∆ must have had an intent to make them
unavailable.
 Needed motivation to keep them from testifying against the ∆
• DISSENT: You can infer intent from domestic violence cases
California v. Green
• D is Melvin Porter (16 yrs old) who claimed he bought pot from ∆. He flipped at trial and claimed he was under
the influence of LSD when he testified and preliminary hearing.
• Prosecution wants to get (1) prior inconsistent stmts  identity of parties, (2) D’s stmts to undercover officer.
o (1) is clearly admissible as prior testimony exception
 OK b.c he was C-X at preliminary hearing
o (2) D was not under oath at that proceeding
 BUT CA doesn’t require the stmt to be under oath at a proceeding
• Not same as FRE
o BUT here the Confrontation Clause was not violated b.c D was willing to
answer ?s now
Owens
• FACTS: Prison guard was brutally beaten and lost his memory BUT not before he identified Owens as his
attacker at the hospital
• HOLDING: If you are willing to answer ?s  there is no violation of the Confrontation Clause
BEST EVIDENCE RULE

- Q5: Are you quoting some thing?
1002 – Requirement of Original

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• Must introduce the original of a writing, recording, or photography if you are proving content
(1) defines writings and recordings as “letters, words, or number, or their equivalent” in some physical form
(2) defines photographs as still photographs, x-ray films, videotapes, & motion pictures
(3) defines an original as the writing itself or “any counterpart intended to have the same effect by a person
executing or issuing it”
• 1004 – When is an original unnecessary?
(1) lost or destroyed
(2) unobtainable
(3) in control of opponent
(4) issue is collateral or incidental
o 1005 - public record or certified copy
o 1006 – original is voluminous & summaries are offered
o 1007 – opponent admits in writing or in testimony
• 1003 – Admissibility of Duplicates
o Duplicates are as good as originals unless there is a genuine issues as to the original’s authenticity or it
would be unfair to admit the duplicate
• 1001(4) – defines duplicated as a “counterpart produced by the same impression as the original or by means of
photography or by other equivalent technique which accurately reproduce the original
o Duplicates include photocopies, and other accurate reproduction techniques
o NOT a copy produced manually
• 1008
o If there is an issue as to the authenticity of the original, the jury should make the determination whether
the copy should be admitted
General
• There is no 2nd best evidence rule
o Once you are excused from producing the original, any other evidence of an originals’ content is
admissible
o Not required to the get the next best thing. Once the original is tainted  fair game for everything else.
 Ex.: If photo is lost (not in bad faith), you can use oral testimony to prove photo’s content,
even if a photocopy is available.
• The photocopy is not a “duplicate” b.c it is not from the negative
• Justification for 1002
o When a W quotes or offers content of a document, we do not trust his accuracy & would prefer the doc.
itself.
 Nature of memory
• Slight variation in wording can make a major legal difference
 Manual copying is often inaccurate
 Testimony particularly subject to error when recounting writings
• What is a writing, recording, or photograph?
o See (1) and (2)
o Chattels – writing on item of moveable/immovable property
 When an item is both a writing & a chattel  ct. has discretion to treat it as either
o Where there are simplistic writings the concerns of the BE rule are not implicated & the rule is not
applicable
 Memory is not a concern where writing is simplistic
o If issues is incidental or collateral (issue NOT central or other evidence available to prove point), BE is
not applicable
 Duffy
• FBI agent testifies suitcase found in stolen car had shirt imprinted w. “DUF”
• Duffy, the ∆, objected on BE grounds
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• Holding: When an item is both a writing and a chattel  ct. has discretion to treat as
either. Not applicable under BE rule b.c remembering “DUF” on shirt is easier than
remembering the exact wording of a more complex document.
• What is an original?
o See (3)
o Photograph
 Original includes negative or any print thereform
o Computer data
 Any accurate printout
o Copies “intended to have the same effect”
 Copy of a K executed in duplicate
 Copy of sales receipt given to customer
 Copy of receipts submitted to employer for reimbursement
• What is proving content?
o Occurs when:
 Officer testifies to obscenity of movies
 Bank officers testifies to ATM surveillance photo
 Doctor testifies to x-ray finings
o NOT
 W personally observed an event that has been recorded
 W testifies a writing does not contain certain info
 Person testifies & X listens. X then testifies that person falsely testified
• Questions about original’s authenticity  3 things to do
o 1008 arg.
 When there are ?s about the authenticity of the original  it is for the jury to decide  should
be admitted as of now
o Treatise arg
 Once the original has been introduce, there is no best evidence rule anymore
o Lost or destroyed originals
• NOTE: If someone wrote the document themselves, they have personal knowledge and they can testify about
the doc.’s contents
Kaye v. Towler
• Claim for medical malpractice – Did dr.s not read the admitting form?
• ∆ introduces original admitting form  which stats the patient had not eaten 9 hrs before surgery
• Asking what deceased had to say  Hearsay concern
o Objections?
 Medical diagnosis exception
 NOT:
o While technically right, very weak. Trying to get this stmt to prove truth of
matter asserted
• Best Evidence Rule
o Independent recollection – incidental recording
• “Did you put the numeral on this admission sheet?”
• Objections:
• Business record exception
o Intermediate communication b.w patient and dr. for future treatment
• Also medical diagnosis exception too.
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• Is there Best Evidence objection?
o Yes—the best evidence of what she wrote is written in the record. No
Independent event. What she wrote is the event and what she wrote is
the document.
• Nurse’s photocopy
o Should the photocopy be inadmissible b/c hthere are doubts about the authenticity of the
original?
o Ans: No, the true original no longer exists (ssince it was altered, allowing any secondary evidence
o Ans: No, the party introducing the photocopy can challenge the authenticity of the “original” admitted
into evidence.
o Falls under duplicate rule
o 1008 – leave to jury to decide
10/27/09
WITNESSES
- Q6: Is it an opinion
Rules
• 701 - Opinion Testimony by Lay Witnesses
o If the witness is not an expert, opinions or inferences must be rationally based on the perception of the
witness and helpful to the jury.
o You can’t avoid the requirements of Rule 702 by offering expert testimony as lay testimony.
o Note: No limitation on W when testifying about facts.
o Facts v. Opinions
Facts Opinions
Immediate sensory input interpretation of input in light of knowledge
Specific General
Mores certain Less certain
o Why Prefer Facts?
 More likely to be correct.
 Lets the jury draw inferences.
o Why Prefer Opinions?
 More efficient.
 Some facts are difficult to describe.
o So the compromise solution  FRE 701
 Is to allow lay opinions as long as they are:
 Rationally based on the perception of the witness and helpful to the jury.
• 702 - Testimony by Experts
o Expert testimony (based on scientific, technical, or specialized knowledge) is admissible if it
(a) will assist the jury and if
(b) the witness is qualified as an expert by knowledge, skill, experience, training or education, and
if
(c) the testimony is
(1) based upon reliable data,
(2) the product of reliable principles and methods,
(3) the witness reliably applied the principles and methods.
o Tip: Make sure method/theory are being applied correctly! Does the theory
you use FIT the facts you based it on? Conditional relevance issue, but b/c
it's explicitly in the rule, the judge decides.
o Expert witnesses may state opinions (cf. 701).
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 Assist the jury?
• Helps if lies beyond common experience
o But it doesn’t HAVE to
• If it is within common experience
o Consider risk that opinion will take over the jury’s function
 invade the jury’s province
 Qualified
• An expert need not be a specialist, renowned, or have experience  education can be
sufficient. Experience alone is also enough! (but the other things help).
• Also: any special expertise, not just special expertise.
 Knowledge, skill, experience, training, education?
• Does not to be a specialist, renowned, or have no experience
• Only experience is OK
 Rule 702 eliminates/incorporates the common law Frye test
• Frye test: In order to admit evidence deduced from a scientific theory, that theory must
“have gained general acceptance in the particular field to which it belongs.”
o CA still uses this test & it applies ONLY to scientific experts, not all experts
• FRE overruled Frye because it is inconsistent w/ FRE...(Daubert)
o 402 establishes a liberal standard for relevance
o 701-705 relax traditional barriers to opinion testimony
o 702 says nothing about "general acceptance" as a prerequisite
o Drafting history does not mention Frye
• 703 - Bases of Opinion Testimony by Experts
• Expert witnesses’ need not have personal knowledge of the facts upon which they base their opinion.
• Expert witnesses’ can base opinions upon inadmissible evidence if that evidence is reasonably relied upon by
experts in the same field on the same subject.
• When the expert bases her testimony on inadmissible evidence, the jury can hear about that evidence only to
assess the expert’s opinion, and, if that evidence is offered by the proponent of the testimony, only if probative
value outweighs prejudicial impact.
o Acceptable sources of information for experts:
 Personal observation (e.g., doctor examines patient)
 Information gathered in court
• Presence at trial (e.g., consulting expert watching people testify)
• Hypothetical question (less popular now that FRE have liberalized what experts can
rely on)
 Information gathered outside of court
• not hearsay or outside personal knowledge, b/c these rules do not apply to expert
opinion
o Potential Limits to Expert reliance on out-of-court sources
 Experts relying on other experts
• solution: produce 1 expert to make opinion, and the other to testify about it
 Expert relies on constitutionally inadmissible evidence
 Inadmissible evidence may violate defendant’s confrontation rights and/or have an overly
prejudicial impact
• defendant's right to cross is infringed to the extent expert is relying on evidence you
can't ask about.
• 704 - Opinion on Ultimate Issue
o Under 704(a) testimony may embrace ultimate issues if otherwise admissible.
 What’s an ultimate issue?
• An issue that can make or break the case.
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o E.g. “Blood alcohol level was .05”
o E.g. whether defendant had requisite mental state to commit the crime.
 BUT 704(b):
 Potential Limits
• Legal opinions – this is the province of the judge
• Credibility judgments – this is the province of the jury
o Under 704b experts may not testify whether a criminal defendant had the mental state or condition
constituting an element of the crime or a defense.
 e.g., intent, insanity, entrapment
 A discussion of motivations is OK, you can come close to ultimate issue, but as you move
closer to mental state, judge may stop you.
• Strategy: move expert closer and closer to ultimate issues until judge stops you.
o Can’t draw ultimate conclusion on intent or insanity in regards to culpability,
however, the expert may discuss particular disorders defendant may have or
comment on whether defendant is able to understand particular things.
 E.g., "D is paranoid schizo b/c he doesn't understand import of acts" –
OK. "D didn't have requisite mental state" – NOT OK
o Example:
 Diagnoses  OK
 Discussion of motivations  OK – can come close to “ultimate issue”
 Ultimate issue testimony is still potentially inadmissible when…
• Legal opinions
• Credibility judgments
• 705 - Disclosure of Facts or Data Underlying Expert Opinion
o Experts can give opinions without first testifying to underlying data.
 At least initially avoids objection based on inadmissible evidence OK
o Experts can be cross-examined about the underlying data for their opinions.
 Acceptable sources of information for experts
• Personal observation (e.g. doctor who has examined patient)
• Information gathered in court
o presence at the trial
o hypothetical question
• Information gathered outside court
 Potential limits to expert reliance on out-of-court sources
• Expert quotes/relies on other experts.
• Expert quotes/relies on constitutionally inadmissible evidence
• Expert relies on inadmissible evidence, vs. defendant’s confrontation rights, and/or
prejudicial impact.
Daubert v. Merrell-Dow
• Issue: Did the Frye test for admissibility of novel scientific evidence survive the FRE?
o NO
• What is the Frye test?
o In order to admit evidence deduced from a scientific theory, that theory must:
 “have gained general acceptance in the particular field to which it belongs.”
• Frye v. United States (D.C. Cir. 1923)
o Still good law in CALIFORNIA
• What is required under 702?
o Expert testimony (based on scientific, technical, or specialized knowledge) is admissible if…Daubert
used 702 to conclude that courts could exclude testimony that wouldn’t qualify as “scientific
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knowledge”
• What is scientific knowledge?
o Is the theory testable/falsifiable?
 Has it been tested?
o Has the theory been subjected to peer review and publication?
o What is the rate of error?
o Are there standards for the technique’s use?
o Is the theory generally accepted?
o List is not exclusive; other factors may be considered.
o Note: Daubert factors apply to all expert testimony (not just scientific), but application of factors is
flexible and at discretion of the trial court (Kumho). Trial judge should determine how to assess
reliability based on nature of expert testimony—can consider any factors.
 Originally a victory for large corporations b/c it made it harder to get in expert testimony,
Daubert was used by criminal defendants to keep out prosecution experts. Also: requires
lawyers to be more sophisticated and to hire an expert to keep another expert out.
10/29/09
CHARACTER EVIDENCE
- Q7: Does it concern prior acts or propensity?
o Character/Credibility
General
• Two types of character evidence
o Character to prove conduct;
o Other acts to prove character to prove conduct
• Character Evidence
o Did D do X?
 Is D the kind of person who does things like X?
• Has D done X before?
o Did D do X?
 Character to prove conduct
• Has D done things like X before?
o Other acts to prove character, to prove conduct
o Highly prejudicial for 2 reason:
 Jury may use evidence for an improper purpose: (main concern!) jury may decide to convict
b/c of past bad act OR simply b/c he is bad. Don't follow proper logic that b/c he did this thing
makes it more likely he did the current thing.
 Jury may overweigh evidence: e.g., in a molestation case where D was previously convicted,
jury may assume recidivism and convict (Once a molester, always a molester)
Rules
• 404 - Character Evidence.
o What’s inadmissible
 (a) You can’t prove character in order to prove someone acted in conformity with his or her
character. Except,
• (1) Character of accused. Evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same
o What’s admissible
 In criminal cases, the ∆ can offer her pertinent character traits, and the prosecution can rebut
the same, the ∆ can offer the pertinent character traits of a victim, and the prosecutor can rebut
with traits of the victim or the ∆, and in a murder case the prosecutor can prove the victim was
peaceful to rebut self-defense.
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• (3) Character of W: Evidence of character of W, as provided in 607, 608, 609
o Combine character and attacks on credibility
o SO
 Did D do X?
• Character to prove conduct
o EXCEPT
 Criminal ∆ regarding her conduct
 Criminal ∆ regarding victim character
 Prosecutor to rebut ∆ character evidence or to rebut homicide self-
defense.
o Notes
 By claiming self-defense, ∆ does not automatically put victim’s character at issue thus opening
the door for prosecutor to offer character evidence of ∆. ∆ is arguing that in this one instance
the victim was the aggressor (not that he is generally aggressive)
 Prosecutor can put victim's character "in issue" and to prove victim's peacefulness
 Policy: naturally solicitous to criminal ∆s
• Often they have little evidence available to prove their innocence, so we let them put
character "in issue"
• But fairness dictates prosecutor should be able to rebut this evidence by bringing in
evidence of bad character that couldn't be brought in during case in chief ("opening the
door")
• Usually this exception is not taken advantage of by ∆ b/c they don't want criminal
records introduced
• Hypothetical
o Parties
 ∆ charged with assault and battery of V. Pleads self-defense.
 A thinks ∆ is a violent person
 B thinks ∆ is a peaceful person
 C thinks V is a violent person
o Can the prosecutor call A in its case in chief to testify that ∆ is a violent person?
 No. Character to prove conduct violates 404a.
o ∆ calls B, who will testify that D is a peaceful person.
 Admissible  ∆ can introduce evidence of his own pertinent character traits under 404(a)(1).
• What can the prosecutor do now?
o Call A in rebuttal to testify that ∆ is a violent person.
o Assume ∆ does NOT call B, BUT calls C, who will testify that V was a violent person.
 Admissible ∆ can introduce evidence of his victim’s pertinent character traits under 404(a)
(2).
• Can the prosecutor now call A to testify that ∆ is violent  YES!
o Limitation: must be a “pertinent” trait of character
 Assume ∆ is charged with possession of heroin with intent to sell...
Truthfulness No
General good character No
Law-abiding Yes
• 405 – Methods of Proving Character
o (a) Reputation or Opinion: If character evidence admissible, can prove by reputation or opinion. C-X
can ask character W about specific instances of conduct
o (b) Specific instances of conduct: If character is an essential element of claim or defense, can prove by
reputation, opinion or specific instances of conduct.
o Notes
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 ∆s rarely introduce character evidence b.c they're limited to Ws who can present only
reputation or opinion. (No specific acts—cf. essential element.)
 On c-x, can ask about specific acts only for purpose of testing knowledge of W, to
undermine/cast doubt on testimony. "Have you heard that XX." Need reasonable basis for prior
bad act. Acts are NOT admissible to prove character to prove conduct. STILL, questions might
prejudice the jury
 If brought up in c-x, on redirect, ∆ can use specific acts as rebuttal but, again, only going to
whether W has foundation for opinion.
• 404(b) - Character Evidence.
 Other acts to prove character to prove conduct are inadmissible.
• Why would you be allowed to prove prior bad acts less often than reputation/opinion
o Other Acts  most convincing evidence of character
o Other Acts  most time consuming and prejudicial
• When character an essential element of claim or defense
Theft  ∆’s character as a thief No
Negligent entrustment Character of person entrusted to
Defamation; “π’s an adulterer” Π’s character as an adulterer
Child custody Parent’s characters as fit parents
• 405 - How can you prove character?
Reputation If character evidence is admissible
Opinion If character evidence is admissible
Other Acts If character is an essential element
C-X re character
• Isn’t reputation hearsay?
o It’s what you have heard people say about the individual, offered to prove that what they say is true? 
YES
 But see 803(21)
• When you can ask about it on c-x, but cannot offer independent evidence  bar on extrinsic proof
o You must take whatever answer the W gives you and may not present extrinsic evidence
United States v. Queeg (Mayrk Case)

• Charge: Mayrk mutiny
• ∆se: Extraordinary circumstances justify Mayrk of relieving Queeg of his command
• W’s
o Keith -- asked by ∆se whether Cpt. Q had nickname of “Old Yellowstain”
 Implied cowardice  character evidence objection
 Reputation evidence – admissible as evidence of a V’s character
o Crewman – Pros. questioning if Cpt. Q was just “attempting to make good sailors out of the men.”
 Prosecutor is asking about specific acts on direct  allowed?
 Character is not an essential element of the defense (extraordinary events indicate a one time
event)
 Problem: Pros cannot rebut w. specific acts so long as crewman is not using specific acts to
show bad character
• When pros. rebuts it has to rebut in the same form
o Queeg -- tried use prior specific acts to show the Q acted rashly
 Was questioned on his own specific acts
 If Q’s character is not an “essential element” of the ∆se, then the C-X must hope that Q testifies
as to his own good character
o What if Mayrk does not argue that Q was unstable but that he reasonably believed Q was unstable?
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 Q’s specific acts that were known to Mayrk would be admissible to establish his reasonable
belief
 Prior acts to prove Mayrk’s belief  not objectionable under 404
• 404 – Character Evidence

o (b) You can introduce other acts to prove MIMIKCOP to prove conduct.
 MIMIKCOP
• Motive
o Other act provides reason why ∆ committed charged crime.
 Charge: Robbery.
 Other act: Expensive drug use.
• Intent
o Other act proves current intent
 Charge: possession with intent to sell.
 Other act: ∆ sold drugs before.
• Mistake Accident
o Other act rebuts claim of mistake or accident
 Charge: child abuse
 Other act: Child had suffered unusual # of previous injuries.
• Identity
o Other act proves modus operandi also used in charged crime.
 Charge: robbery.
 Other act: robberies with similar m.o.
• Knowledge
o Other act shows knowledge necessary for charged crime.
 Charge: knowing possession of counterfeit money.
 Other act: Prior knowing possession of counterfeit money.
• Common Plan or Scheme
o Other act suggests overall grand design, or logical step
 Charge: tax evasion.
 Other act: evaded taxes in the year before and year after.
• Opportunity
o Other act shows specialized ability necessary for charged crime.
 Charge: robbery of safe.
 Other act: had stolen money from the same safe before.
• Preparation
o Other act was in preparation of charged crime.
 Charge: robbery.
 Other act: Stole a car used in the robbery.
• Even if MIMIKCOP  consider 403 (probative value vs. prejudicial impact)
o Does defendant actively contest MIMIKCOP? Evidence is more probative
 If stipulates is less probative
o Can MIMIKCOP be inferred from the alleged action itself? Evidence is less probative
 Yes don't need prior acts, and evidence is less probative. (e.g., caught w/ 4 pounds of
cocaine—amount establishes intent)
o If prior act applies to a lot of people  low probative value
o If prior act applies to narrower class  more probative value
 Ask: Is there something about this evidence that is more than generalized character?
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Examples
• He is a bank robber
o Character
• He is a bank robber with a specific MO
o Identity
• The child’s been hurt before
o Marginally relevant
• The child’s suffered abusive fractures before
o Highly relevant
• 406 - Habit; Routine Practice

o You can prove habit (of a person) or routine practice (of an organization) in order to prove conduct in
conformity w. habit or practice.
o Character or Habit?
 Character:
• Generalized description of general trait
 Habit:
• Regular practice of meeting particular situation with certain type of conduct
(specific, semi-automatic, continuous)
 Added features:
• If less thoughtful, more “automatic” then habit.
• If few moral implications, then habit.
Example
• He is a bad driver
o Character
 Cf. Character: generalized description of a general trait
• He always ran the stop sign at that intersection
o Habit
• Drug habit and alcoholism
o Not admissible as habits
 But, for example, if you drink every year on Super Bowl Sunday
• Admissible as a habit (b/c it’s a certain type of behavior at a very particular time)
• NOTE: Reputation
o "Everybody thought ∆ was a maniac"—Reputation
o Reputation = hearsay exception (Rule 803(21))
• Rule 412 - Sex Offense Cases.

 (a) If sexual misconduct is alleged, evidence that alleged V engaged in other sexual behavior or
has any sexual predisposition is inadmissible
 (b) Exceptions: (1)(A) In criminal cases specific sexual incidents are admissible to prove that
someone other then the accused was the source of semen, injury, or other physical evidence.
 (B) In criminal cases specific sexual incidents with the accused are admissible to prove
consent, or if offered by the prosecution
 (C) In criminal cases the ∆ may have a due process right to introduce other sexual conduct.
 If a question implies sex or connotes sexual activity, it is inadmissible (mode of dress, fantasies
or dreams, carrying contraceptives)
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• Justification: protect victims from harassment and prevents impermissible use of
character evidence (rape not so bad for unchaste women)
 Sexual behavior/sexual predisposition
• Use of Contraceptives
• Fantasies or dreams
• Mode of dress
• What’s the rule
o Implies sex or may have a sexual connotation
 Justifications for offering prior incidents with the accuses
• OK, so long as defense is consent
o Allows ∆ to introduce fact he’s married (otherwise no, b.c marriage, at least a
happy one implies sex)
o Allows prosecutor to introduce previous instances of abusive sex w. ∆
o Due process right to introduce...what?
 Father accused of incest, wants to prove that his daughter was having affair with her brother.
• Offered to prove motive to lie about incest, rather than general sexual propensity.
o Think MIMIKCOP to prove claim is false.
 Frat brother accused of rape, wants to prove that V consented to sex with another brother
minutes before alleged rape.
• Offered to prove sexual propensity generally, or something more specific?
o Probably not admissible.
 Alleged rapist wants to prove that he had heard that alleged V was promiscuous.
• Offered to prove lack of knowledge that V did not consent, rather than general sexual
propensity.
o Probably admissible!
Colorado v. Bryant
• What did court hold regarding prior sexual history?
• Held admissible:
o Sexual contacts within 72 hours of physical examination
 Shows that someone else besides Kobe would be source of semen, injury, etc.
o General nature of relationship with witnesses to whom she reported the rape
• Held inadmissible all other sexual history.
• 412 - Sex Offense Cases.
 (b)(2) Added requirement in civil case that evidence substantially outweigh harm to victim
and prejudicial impact on any party.
o Notes
 Just b.c you get w.in 412 exception in civil case, you don't always get it in. While 403
prejudice is available in civil cases, the above requirement is tougher
 This test specifically looks at the harm to the V, whereas 403 examines harm to the party,
which may not be the V
• 413 - Evidence of Similar Crimes in Sexual Assault Cases
o (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the
defendant’s commission of another offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
• 414 - Evidence of Similar Crimes in Child Molestation Cases
• 415 - Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
o Prior acts of sexual assault and child molestation are admissible against party accused of same,
notwithstanding 404(b)
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o Notes
 Propensity logic is ok – if you were previously a rapist, we believe it is more likely you raped
in this case!
 Such an inference is less objectionable when referring to rapists as opposed to women
(promiscuity  consent), b.c rapists are a smaller class of people
IMPEACHMENT OF WITNESS
General
• Types of Impeachment Not limited to c-x
o Untruthful disposition (credibility) — show W has propensity to lie (608, 609)
 Character witness re truthfulness (608(a))
 C-X re bad acts affecting truthfulness (608(b))
 Prior convictions (609)
o Bias (credibility) -- show W is biased
o Defect in perception or memory
 Rules are more liberal on this ground than when suggesting someone is a liar (credibility is
province of jury)
• Attack on Testimony -- more specific; credibility
o Prior inconsistent statements – prove W said something different at a different time
 "Light was green."; "Light was red."
o Contradiction – when you prove something W said was wrong or incorrect based on some other fact
(not on something W already said).
 Any other evidence (besides what W said) "light was red."
 Separate & distinct from Prior inconsistent statements
**Remember:
• Rule 404 – this was one of the exceptions to the rule agst proving character to prove conformity with
character
• Rule 405 – if character is admissible but not essential issue, can ask about specific instances of conduct on
CX by can’t prove though extrinsic evidence.
o If character is essential issue, or if you’re proving MIMIKCOP-Habit can prove specific conduct
through extrinsic evidence.
• We distinguished b/w ASKING about conduct and PROVING it rhough extrinsic evidence.
Bias and Untruthful Disposition

• 608 – Character and Conduct of a W
o (a) (1)You can attack a W’s character for truthfulness through opinion or reputation testimony. (2)
You can support a W’s character for truthfulness through opinion or reputation through opinion or
reputation testimony only if her character for truthfulness has been attacked.
 (1) Presumption of 404 is that character is a bad thing. But 608 says that character is good for
1 thing: goes to credibility/trustworthiness ( sincerity!)
 (2) When has character for truthfulness been attacked?—[we’ll address in next class]
o (b) Specific acts bearing on a W’s character for truthfulness cannot be proven through extrinsic
evidence, except for convictions under 609. Specific acts bearing on the W’s character for truthfulness
may be asked about on C-X of the W herself or a character W for her, in the ct.’s discretion.
Taking the stand does not waive your right to take the 5th when asked questions about bad acts that are
relevant only b.c they underestimate your character for truthfulness.
 2 different kinds of W’s:
• For anyone testifying, truthfulness is always an issue. CX W to find out whether
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they’re lying.
• Character W: someone testifying as to the character of another W(‘s credibility). CX
about whether they are aware of prior bad/good acts of the W to find out whether they
have a credible opinion of the character of that W.
• Notes
o Character for truthfulness vs. Bias
 MIMIKCOP/Habit allowed you to avoid the 404-405 character evidence restrictions:
• B/c you weren’t proving a general character trait, but something more specific
 If you prove BIAS  will allow you to avoid the 608-609 impeachment restrictions:
• Bias is more SPECIFIC than
• B/c you aren’t proving a general character trait (of untruthfulness), but something more
specific
• Impeachment only allows you to use opinions and reputations. Bias allows you to use
specifics about the person.
o Bias defined: A relationship between the witness and the parties or issues in the case that could lead the
witness to slant his or her testimony (Abel)
 Affects memory, perception & sincerity. W sees something the way they want to.
• Bias doesn’t have to be negative
• Argument: witness is willing to lie for a specific reason. You aren't proving general
character for truthfulness but something more specific (avoids 608-609 restrictions)
• A specific argument re: credibility that can be proven using extrinsic evidence; offer
prior acts to prove specific reason to lie, not general character for untruthfulness
o Must still consider 403 prejudice argument.
 If you can prove motive for untruthfulness (bias), you get out of 608 and in under MIMIKCOP
and you can prove untruthfulness using extrinsic evidence
• 608(b) Bad Acts vs. Proving Bias
o Member of lying organization—evidence of untruthful character [even if W
denies it, can't prove it—"take the answer"]
o Member of lying prisoner organization—a bit more specific
o Member of lying prisoner organization w/ defendant—takes it out of character
and into bias [BAD ACTS evidence allowed]
United States v. Abel
• ∆: Abel
• Pros. W: Ehle
• ∆’s W: Mills
o Testified that Ehle said he would lie on the stand
o The Pros wants to call Ehle to the in rebuttal to testify that Mills and Abel were in the Aryan
Brotherhood, whose members will lie for each other (or die)
o Bias  can be proven by extrinsic evidence
o Relevance will rely on whether its bias or not
• Relevance
o Suggests that Mills is willing to lie and lie for Abel
• Prejudice
o Ct. reduced prejudicial impact (forbid use of term “Aryan Brotherhood”, could not describe
punishment, offered to give jury instruction)
• Barred under 608(b)?
o Specific acts bearing on a W’s character for truthfulness cannot be proven through extrinsic evidence,
but can be asked about on C-X
o If Pros asked Mills if he was an A.B. member, and Mills says “No” the prosecutor could NOT present
extrinsic evidence contradicting his answer. C-X has to take the answer of the W if 608(b) applies.
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o BUT 608(b) does not apply b.c evidence proves that Mills is biased.
• Truthfulness – Rules 608 & 609

o You can attack a W’s character for truthfulness through opinion or reputation testimony.
 Most liberal admissibility of character evidence in FRE
o You can support a W’s character for truthfulness through opinion or reputation testimony ONLY if her
character for truthfulness has been attacked.
 Character evidence for truthfulness can be used as sword. BUT you can't put on W and w.o any
attack on her character for truthfulness put on any evidence W is truthful.
o When is a W attacked for her character of truthfulness?
 To the extent the attack is not on a person's sincerity you cannot say their character for
truthfulness has been attacked
• Bias is not an attack on character for truthfulness when the behavior is not itself
corrupt, and c-x doesn't suggest deliberate distortion.
o W is brother of ∆ — doesn't suggest you're a liar, merely that you might distort
your testimony in this case.
• Impeachment is not always an attack on truthfulness – it may be used to prove
misperception, misnarration, or memory problems
• Contradiction is not an attack unless C-X suggests W is currently lying. You might be
contradicted by evidence b.c you forgot.
• 609 - Impeachment by Evidence of Conviction of Crime
(a) General Rule
(b) Time Limit
(c) Effect of Pardon
(d) Juvenile adjudications
(e) Pendency of Appeal
o Notes
 You can offer a conviction to prove a character for untruthfulness to prove a person is now
lying. Can't offer it to prove character of criminal. Extrinsic evidence allowed.
• Why?
o General belief that criminal convictions are evidence of dishonesty.
• ∆'s dilemma: Prior convictions are highly probative of your truthfulness (w. restrictions
—primarily impermissible propensity inferences). BUT juries hold it against ∆s for not
testifying.
• Questions re 609
o Juvenile, but prosecuted as adult?
 Counts as adult
o 10 years: Since what
 Conviction or release, whichever is later
o Under appeal
 Doesn’t matter, but can introduce (e)
• Dishonesty or false statement
o Dishonesty must be one the face of the crime
Perjury, fraud Yes
Forgery Yes
Failure to file taxes Yes
Embezzlement Yes
Larceny If facts show fraud or deceit
Not just stealth
Prostitution No
• Probative value vs. Prejudice
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o Deception or stealth
o Conscious disregard for others
o Dissimilar to charged crime
o Repeat offender
o Recent crime
Attack on Testimony
• Types of attacks
o Prior inconsistent stmt
 Shows this W is not credible
 Can be admissible for its truth  as long as stmt was taken under oath
 Foundation under 613
o Contradiction
• You may impeach a hearsay D as if they were a W
o See 806.
11/10/09
• Prior inconsistent stmt
o 613 - Prior Statements of Witnesses
 (a) You don’t have to tell a W you have a prior stmt before asking her about it, but once you’ve
asked, the opposing atty has a right to know what the stmt is.
 (b) You cannot prove a prior inconsistent stmt through extrinsic evidence unless the W was
able to explain or deny the stmt
o 607
 “The credibility of W may be attacked by any party including the party calling the W”
 Limitations
• You cannot call a W knowing they will only provide information you will impeach
o May call if can argue good faith reason to believe s/he will say something
credible or offer corroborative evidence
o A stmt is inconsistent when…
 A W feigns forgetfulness
• Ct. has an emphasis on sincerity
 A W is intentionally lying
 A W is evasive or silent
 A W changes positions
• A W who forgot she made the statement is NOT inconsistent
o What is “inconsistent”?
 The [prior] statement is inconsistent with the D’s testimony [at trial]
• The trial testimony does not have to literally contradict the prior statement.
o Inconsistency may be found in evasive answers, silence, or changes in
positions. In addition, a purported change in memory can produce
inconsistent answers.
• Contradiction
o Proving that something the witness said is not so.
o Contradicting through extrinsic evidence:
 Apply the collateral evidence rule
 The contradiction must do more than merely contradict the witness; it must be relevant for an
additional reason
Hypothetical
• Π sues ∆ for car accident
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o A testifies for ∆
 π backed into ∆
o π wants to offer:
 B: π wasn’t backing up!
o Extrinsic evidence OK: proves a substantive point in the case.
o A: I first met ∆ after the accident.
o C: A was dating D!
 Extrinsic evidence OK: Proves BIAS
o A: I was coming from the store...
o Store manager: We were closed!
 Extrinsic Evidence NOT OK: Only contradicts a “collateral” point.
o Purpose: to keep trial moving and not waste time on minor points
 If the statement does more than contradict, it’s admissible
o The contradiction must have some additional relevance.
 NOT the same as saying that you could have proved it in your case-in chief.
• Two reasons:
o A contradiction may be “collateral” to your case but central to the W.
 i.e. A fact about which the W could not be innocently mistaken (e.g.
his name)
• These facts can be proven through extrinsic evidence.
o Some contradicting evidence can be offered to impeach even though it would
be inadmissible in your case in chief,
 As long as it would be relevant
• E.g., π testifies: "I've never had an accident"
o Could contradict her by proving prior accidents, but
couldn't use that in case in chief per 404(b) b.c it's
propensity
o ∆ could also argue the stmt is inadmissible b.c π
violated the character evidence rule
o Admissible to impeach but inadmissible in case-in-chief
 Why is this weird?
• It’s still not usable to prove propensity.
• She shouldn’t have said it in the first place.
• Criminal ∆ testifies
o You CAN impeach with statement that violated Miranda
 (Harris)
• Unfair to allow ∆ to lie on the stand and hide behind Miranda violation
o Can only be used for the limited use of impeachment
• Exception
o If statement was involuntary (coerced)
o This often undermines reliability of the statement
o Impeach with silence: If ∆ has not been given Miranda warnings, then silence can be used to impeach.
 Post-arrest post-warning silence
• CAN’T use to impeach, violates Due Process (Doyle)
• “Gaps” (selective silence) CAN be used to impeach (Anderson)
 Pre-arrest silence
• CAN be used to impeach (Jenkins)
 Post-arrest pre-warning silence
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• CAN be used to impeach (Fletcher)
o Impeach with illegally obtained evidence
 If contradicts statement offered on direct  OK
 If contradicts statement on cross  OK
• “Reasonably suggested” by direct and not “smuggled in” (Havens)
o On direct, ∆ said did not know wrapped packages contained Quaaludes
o C-X “Do you know what Quaaludes look like?” — “No”
o Pros. then admitted illegally obtained briefcase full of Quaaludes
o Court says ok—but this is close to manipulation (Hernandez)
• NOTE: This rule has been liberally interpreted so prosecutors can sneak in illegally
obtained evidence when the D testifies.
• Remember 608(a)(2) - Rehabilitating the Witness
o Evidence of truthful character is admissible only after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or otherwise.
o Impeachment is not always an attack on character for truthfulness.
 Consider if it undermines perception, memory, or narration, rather than sincerity
 Bias not an attack, when behavior not itself corrupt, and c-x doesn’t suggest deliberate
distortion. Bias not an attack, when behavior not itself corrupt, and c-x doesn’t suggest
deliberate distortion.
 Contradiction (and prior inconsistent statement) not an attack, when c-x doesn’t suggest
currently lying.
• Prior consistent statements:
o Remember Tome
Virginia v. Bobbitt
• On trial for cutting off her husband’s penis
• Lorena claimed temporary insanity caused by year of abuse by her husband
o Her mental state is an essential issue  evidence of her mental state is admissible
• Pros. wants to challenge her severity of abuse.
o Was Lorena’s testimony inconsistent
 Q: And did you think that you decided to drop his charge too?
 A: I don’t remember that
o Was answer due to evasiveness honest or dishonest
 Judge’s decision
 If yes  then testimony is inconsistent
o Judgment call re credibility
• Prosecutor does not need to mention the prior stmt to Lorena
o 613 - says the W doesn’t have to be shown the stmt
o Chance to explain or deny  does not have to happen until after introduction
Character/Truthfulness Checklist
• In considering application of character/truthfulness
o FIRST, ask what sort of evidence are you trying to offer—
 reputation/opinion
 evidence of conduct
 If reputation/opinion, what are you trying to prove?
• Character?
o Trait--if essential issue  then OK (405(b))
o Trait to infer alleged act  NO (404(a))
 UNLESS
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• Accused offers re self/Pros rebuts (404(a)(1))
• Accused offers re victim/Pros rebuts re V OR accused (404(a)
(2))
O UNLESS
 SEX crime victim (412)
• Truthfulness
o Trait of untruthfulness re W  then OK (404(a)(3), 608(a))
o Trait of truthfulness re W  NO
 UNLESS
• Credibility has been attacked (608(a))
 If conduct, what are you trying to prove?
• Character
o Trait--if essential issue  OK (405(b))
o Trait to infer alleged act  NO (404(b))
 UNLESS
• C-X character W (405(a))
• Sex crime (413-415)
o MIMIKCOP  OK (404(b))
o Habit  OK (406)
• Truthfulness
o Trait of truthfulness/untruthfulness NO (608(b))
 UNLESS
• C-X W or character W at the court’s discretion (608(b))
• Conviction of crime (609)
o Bias  OK
o SECOND, ask what you are trying to prove
 Character trait
 Something more specific than character trait
 If reputation/opinion, what are you trying to prove?
• Character
o Trait – if essential to the issue  OK (405(b))
o Trait to infer alleged act  NO (404(a))
 UNLESS
• Accused offer re self/Pros. rebuts (404(a)(1))
• Accused offers re V/Pros. rebuts re V or accused (404(a)(2))
o UNLESS
 SEX crime V (412)
• Truthfulness
o Trait of untruthfulness re W  OK (404(a)(3), 608(a))
o Trait of truthfulness re W  NO
 UNLESS
• Credibility has been attacked (608(a))
 If conduct, what are you trying to prove?
• Character
o Trait – if essential issue  OK (405(b))
o Trait to infer alleged act  NO (404(b))
 UNLESS
• C-X character W (405(a))
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• Sex Crime (413-415)
o MIMIKCOP  OK (404(b))
o Habit  OK (406)
• Truthfulness
o Trait of truthfulness/untruthfulness NO (608(b))
 UNLESS
• C-X W or character W at the court’s discretion (608(b))
• Conviction of crime (609)
o Bias  OK
Easerly v. Letwin
• Π will testify that he and ∆ made an oral K for a broker’s commission, should π complete a deal for ∆. π made
the deal, but ∆ backed out. ∆ denies that he ever made an oral K with the π.
• Problem: Prior acts by π
o ∆’s atty has discovered that π has made similar claims in 8 previous lawsuits. In each case, π uses the
same claim and fact pattern as case at bar. ∆ knows that the judge will not want to admit evidence of
prior acts.
o How to get it in
 If conduct  what are you trying to prove?
• MIMIKCOP
o Common Scheme or Plan – 404(b)
o Judge can still exclude under 403
• Truthfulness
o C-X W or character W at the ct.’s discretion - 608(b)
 Series of similar suits undermines π’s credibility
 BUT judge has right to exclude & π did win some of the suits!
o W is one of prior ∆s sued by π. He is willing to testify for ∆.
 How to get in
• Shows MIMIKCOP
• Through opinion or reputation
Michigan v. Manion (1&2)

• ∆: Lt. Manion
• Charged w. murder of Barney Quill.
• ∆se: Temporary insanity, triggered by ∆ discovering his wife had been raped by Q.
• W: Alphonse Paquette – bartender at Q’s bar the night of the allege rape and murder
o Testified to Ms. Manion’s: style of dress, alcohol consumption, behavior w. Q
• W: Mrs. Manion – alleged V. Testifies that she suffered a black eye and lost her undergarments during the
attack. When she was questioned by her husband, she swore on a rosary that it was rape.
o On C-X was questioned on: marital & religious history, prior trips w.o her husband, prior rides w. men,
prior trips w. Q, missing undergarments, prior acts of violence by Lt. Manion, why she swore on a
rosary.
• W: Jailhouse snitch Duane Miller
o Testifies that Manion admitted malingering
o Questioned: Why he is in jail, prior incarceration, rap sheet (arson, assault w. a deadly weapon, larceny,
indecent exposure, window-peeping, perjury, disorderly conduct)
• W: Lt. Manion
o Denies making stmt to Miller or why Miller might testify against him.
o C-X: Fight w. Miller, prior fights, abuse of wife.
(11/17/09)
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PRIVILEGE
-Q8: Is it privileged?
General
• Policy:
o Privileges may or may not deter truth-seeking (would you reveal that info if it weren't for privileged),
but we allow them b.c we value the relationship (w.o them, your atty wouldn't be able to give you good
advice)
Rules
• 501 - General Rule
o Common law rules: Privileges decided per common law “in the light of reason and experience”
o State law rules: When state law determines claim or defense, state rules of privilege apply.
• PFRE 503 – Attorney – Client Privilege
o (d): No privilege when the communication is relevant to a breach of duty by client or attorney to the
other
o (e) Crime-fraud exception: The privilege doesn’t apply when you wanted the attorney’s advice so that
you could plan (or commit) what you knew (or reasonably should have known) was a crime.
 It is privileged that you committed a crime in the past though
o What is a client?
 A “client” either received “legal services” or talked to lawyer about receiving “legal services”
• Note: broad protection; if it's reasonable to believe there was an a-c relationship, there
is
o What are legal services?
 Do something “lawyerly”
Telling client time &place of trial NO
Accounting work NO
Business Agent NO
Preparation of tax returns Maybe
 Depends on the extent of legal expertise needed. The less ministerial and common the less
likely it is to be privileged / the more complicated and legal interpretation needed the more
likely it is to be privileged.
 Isn’t privileged if you don’t intend for it to stay confidential, so the actual numbers are not
privilege…but the other communications that are discussed to determine whether you can
claim a deduction may be privileged.
 NOTE: Law says legal services rather than legal advice which is broader than legal advice
o What is a lawyer?
 Someone the client reasonably believes us authorized to practice law somewhere
o What is protected?
 Proposed by rejected (PFRE) RULE 503 allowed clients to refuse to disclose (and to prevent
others from disclosing) “confidential information made for the purpose of facilitating the
rendition of professional legal services”
o What is a “confidential communication”
 PFRE 503 defined a communication as “confidential” if it was not intended to be disclosed to
outsiders.
o Client’s Identity
 3 Possible tests
• Legal advice
o Disclosure would implicate client in matter for which client sought legal help
o REJECTED
• Confidential Information
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o Revealing identity would effectively disclose confidential communication
o BEST TEST – most cts have required a showing under this test
• Last link
o Disclosure would provide last link in existing chain of evidence
o REJECTED
o Disclosure to outsiders
 PFRE 503 defined a communication as “confidential” if it was not intended to be disclosed to
outsiders
 Insiders
• Client
• Client’s representative
• Attys
• Atty’s representatives
• Facilitators
o Anyone to whom disclosure furthers legal service
• Communicators
o Anyone necessary for transmission
• Attorneys representing other clients with a common interest are protected by the
privilege. Justification: attorneys are pooling their resources.
• Communications between joints client are covered by the privilege so long as the atty
is present when they communicate—except not privileged in litigation of A against B
o Real evidence
 Physical evidence
 Cannot make evidence privileged by giving it to an atty
 If an atty receives contraband/fruits of crime, must turn it over to the police
• Need not disclose anything more to the police
o UNLESS atty’s actions (or advise) made information unattainable
 e.g. removed evidence – must reveal original location
 Where a criminal ∆gives an atty real evidence (a communicative act), the atty must turn over
the evidence. But link to ∆ and atty/location may be kept confidential.
• Opposing Counsel cannot say how the evidence was introduced or that opposing
counsel turned in the real evidence
o Even the source of the evidence is often protected
 If the atty tells ∆ to go and bring him the evidence, they must reveal the location
o Justification: atty instruction to ∆ to get evidence deprives law enforcement the
chance to uncover truth. Privilege is construed narrowly, so only spontaneous
acts by defendant are covered.
 To be protected defendant must act on his own spontaneously
 Goal with forcing atty to turn over evidence is to have jury in the position as if the police had
found the evidence – in which case the only thing the jury would know is where the evidence
was found
 If ∆ brings gun before any charges have been filed, atty must keep eye on investigation to put
police in as good position as they would have been had the gun been left in its original place
o Are corporations clients?
 Yes
 Who’s the client in a corporation?
• Any officer or employee
o This is too broad; Officers or employees may potentially be covered but it is
the corporations privilege not the officer or employee.
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 NOT TEST - Their actions must represent the corporation.
• Acting under direction of superiors for legal advice
o This could be anybody in the corporation but the protection would be triggered
by a memo or message requiring the employee to cooperate with the atty in the
case.
 Upjohn Standard (seems most prevalent)
• “Control group”: can obtain and act on attorney’s advice
o People in the corporation are covered if they have power to actually act on the
atty’s advice. This does not include most employees
 NOT TEST - The privilege also protects giving information to the
atty, not just asking things from the atty
• Nobody: corporations aren’t clients
o This is too narrow; but it is a possibility.
 NOT TEST - “this Court has assumed that the privilege applies when
the client is a corporation” (Upjohn)
 Solution
• Supreme Court decided the client are those who are Acting under direction of superiors
to give information to attorneys or seek legal advice and the “Control group” (those
who can obtain and act on atty’s advice)
o Treatise argues that explicit direction not necessary; notes importance of
provision of legal services and confidentiality.
 NOTE
• Again, this privilege is owned by the corporations, not the
employee/officer/control group. So if criminal liability
attaches the govt. can still acquire this info against the person
even if it cannot against the corp.
o What if the client dies?
 Privilege doesn’t expire when the client dies but there may be other ways around it…
• I.e. didn’t intent the information to remain confidential.
o Can the court force an atty to divulge communications in order to determine if the privilege applies?
 Sometimes you need to know what the communication was to know whether or not the
privilege applies.
• Closed camera review
California v. Brent
• Facts: ∆ borrowed $ from Della Street to pay a blackmail (Street borrowed it from Mason w.o telling him why).
Brent attacks blackmailer  goes to Mason.
• What’s the best argument against asserting the atty-client privilege?
o Brent meet w. him to give him the money b.c it was his NOT b.c she was seeking advice
o Client’s perspective is the one that matters
 AC extends to initial meeting/consultation
• Not technically her atty at time  does not matter b.c fact gathering is privileged.
• Does the presence of Ms. Street & Mr. Drake destroy the privilege?
o It does not matter that both work for Mason
 Work has to be in furtherance of legal advice.  Here presence had nothing to do w. her role
as a secretary.
 Yes, b/c Ms. Street is present at the meeting at Ms. Brent’s friend – not as Mason’s
secretary.
 Presence of person must be in furtherance of legal sources
o What are Mason’s obligations regarding the $?
 Mason must turn the $ over to the authorities but does not have to reveal the source of the $
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11/19/09
• Waiver
o You lose privilege if voluntarily disclose privileged communications to an outsider
o Waiver does not occur if the disclosure is protected by a different privilege
o Must be distinguished from unintentional or inadvertent disclosure
o PFRE 502: applies to atty-client privilege and work product
 (a) If privileged material is disclosed during litigation or to an agency there is waiver only if
the disclosure is intentional, and there is subject matter waiver only if fairness requires
o Fairness
 Advisory committee: “Subject matter waiver is limited to situations in which party
intentionally puts protected information into the litigation in a selective misleading and unfair
manner”
• Cf. Rule of completeness (FRE 106): Entire document admissible if fairness requires
 Subject matter waiver
• Compare subject matter waiver to the communication/document actually disclosed
• Inadvertent disclosure
o Does inadvertent disclosure waive privilege?
 Most cts. say sometimes
• If negligent or reckless
• Is massive
• If important
• If relied on by recipient of disclosure
 But different than waiver in that
• Subject matter waiver wont ever occur
o PFRE 502
 (b) If privileged material is inadvertently during litigation or to an agency there is no waiver if
“reasonable steps” were taken to prevent and rectify (claw-back) disclosure
• PFRE 504 - Psychotherapist-Patient Privilege
o Confidential communications made for the purpose of mental diagnosis and treatment.
o Who is a patient?
 A patient is anyone who consults with or is questioned by a psychotherapist.
o Who is a therapist?
 Licensed
• Social worker (Jaffe)
• Psychologist or Psychiatrist (PFRE 504)
• M.D. (PFRE 504)
o Patient must reasonably believe
o What’s a confidential communication?
 (a)(3) A communication is “confidential” if not intended to be disclosed to third persons…
o Statements made to insiders are privileged. Insiders include…
 People present at therapy to further patient’s interest in therapy (e.g., family members).
• NOTE: this is NOT the case w. attorney-client privilege
• Communicators
• Participants
• Patient
• Therapist
• Joint client—group therapy, marriage therapy
o Can the therapist waive the privilege?
 Usually no, but some cts have said it has been waived when therapist disclosed stmt. The
justification being the doctor was acting on behalf of the patient
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• Ex: therapist seeking legal advice for patient discloses information to atty
o Rationale:
 Therapist relies more on stmts made to make diagnosis, whereas doctor relies more on physical
observation (and observations are not privileged)
 Must trust therapist for therapy to be effective; trust not as important for doctors
• PFRE 504 - Psychotherapist-Patient Privilege Exception
o (1) Commitment proceedings
o (2) Ct-ordered examinations with respect to the purpose for which the examination is ordered
 (e.g. ordered for competency to stand trial, unprivileged only for that purpose)
• Can’t be used against the ∆ at trial or at sentencing (Can only be used for the limited
purpose of determining competency to stand trial).
o (3) When patient relies on his mental condition as element of claim or defense (or patient is dead and
another relies on patient’s mental condition)
 NOTE: If atty hires therapist, therapist testimony can be privileged b/c of atty-client privilege;
make clear to client that they are speaking to therapist at direction of atty–therapist is then an
agent of the atty
• Spousal Privilege
o Marriage is the “best solace of human existence” Stein (1839)
o Spousal Testimonial Privilege– Testimony is barred entirely and spouse need not even take the stand
 The testifying spouse holds the privilege – if you want to testify against your spouse, they can’t
prevent you from doing so (Trammel)
o Spousal Confidential Privilege– Only the confidential communication is barred; matter communicated
that spouse would probably like to be kept secret (not observations)
o Rationale
 Public good served by the privileges: fostering harmony & sanctity of the marital relationship
• But if you prevent wife from making a deal w. prosecutor because she can’t testify
against husband, this undermines marital relationship
• But consider that if she testifies and sends husband to jail, is the marital relationship
furthered
o Lyon: Both arguments are bad!
Trammel v. United States
• Parties / Facts
o ∆: Otis Trammel, charged with importing heroin.
o W: Elizabeth Trammel, who agreed to testify against Otis under promise of leniency.
 Otis wishes to prevent Elizabeth from testifying against him
• ∆ is claiming testimonial
• Holding: The testifying spouse holds the privilege
• What can Trammel block?
o Confidential communications between him & Elizabeth
• Public good is served by the privilege
o Fostering the harmony and sanctity of the marriage relationship
• Giving the ∆ the privilege foster harmony
o “…the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her
husband can prevent her from giving adverse testimony…It hardly seems conducive to the preservation
of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her
testimony.”
Testimonial Spousal Privilege Confidential Spousal Privilege

Includes only confidential No – keeps spouse off stand altogether Yes
communications? (Note: if a spouse sees another spouse do
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something this is not a confidential
communication, but the info won’t come out
if spouse is prevented from taking the stand
at all)
Must be married when No – as soon as you are married, your Yes
communications are made? spouse doesn’t have to testify to events that
happened before marriage
Must be married when Yes* No (Broader)
privilege is asserted?
Only the witness holds the Yes No (Broader)
privilege?
Applies in civil cases? No Yes
Applies to spouse crime No No
against child of another
spouse?
If a spouse vs. spouse crime? No (this means battered women can’t refuse No
to testify)
Applies when spouses are Yes No
joint participants in a crime?
**
* Divorce eliminates the testimonial privilege.
California v. White
• ∆, Nadine, confesses to psychiatrist under influence of truth serum
• Dr. is privileged  does not need to go t police about ∆’s confession
• Mason was present at hospital to help the dr. (his client)
• Are Nadine’s stmts on the tape privileged? Yes.
o Nurse does not destroy privilege  facilitator
o Psychologist-patient  disclosed in atty-client privilege does not waive b.c in context of another
privileged relationship
• When nurse discloses  involuntary
o Did dr. take proper step?
 Yes, she knew the rules Mason & dr. took reasonable steps
• Mason has retrieved real-information. What does he have to do?
o When a client disrupts evidence on their own, atty is not required to disclose where they come from
o Mason must turn the pills over to the police and has to reveal where they came from, but why he knows
is privileged
o Prosecution could offer into evidence & Mason could stipulate that jury could hear where it came from.
CATEGORICAL RULES OF EXCLUSION

- Q9: Should it be excluded for policy reasons?
General
• Rules motivated by policy concerns and not seeking the truth
Rules
• 407 - Subsequent Remedial Measures
o (a) Generally: Cannot prove that someone took remedial measures following an accident in order
to prove she (or the product) was at fault.
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Rationale
• Relevance
o Consistent with accident or contributory negligence.
o Just because you did something virtuous doesn’t mean you were bad
before.
• POLICY
o We don’t want to discourage precautions
o Don’t want to punish people for taking precautions
 What is a “Remedial measure” (inadmissible under Rule 407)
Safety device Yes
Change in company rules Yes
Firing employees Yes
Investigation (e.g. “Go find NO
out what happened on aisle
4.” When comp uses
investigative matters to find
out what caused the
accident)
o (b) Exceptions: Subsequent Remedial Measures Can be offered to Prove:
 But can prove that someone took remedial measures following an accident in order to
prove
• Ownership or control (if controverted)
• Feasibility of precautionary measures (if controverted)
• Impeachment (similar to “if controverted” aspect)
• Another purpose besides culpability.
Flaminio v. Honda Motor Corp (7th Cit. 1984): As long as there is any procedural basis for the rule you should
not apply the state adoption/rule.
• Π – Forrest Flaminio
• Claim: Defective design and failure to warn about “wobble” on Gold Wing edition bike
• Facts: The cycle begins to wobble and when π lifted himself out of the seat to see what was the matter, the bike
shot of the road and π is now paralyzed.
• Evidence: After the accident, Honda made the struts thicker to reduce any wobble problem,
• Issue: Should state rule re 407’s admissibility to remedial measures apply?
o Diversity case & state rule 407 excluded strict liability cases
o Look to Erie: If the issue is procedural (concerned w. accuracy or expense of the case) – federal
rules apply. If the issue deals w. substantive law – state rules apply.
• Ct. thinks that 407 has a procedural background.
o Concerns w. relevance here  thus procedural elements are inherent and FRE 407 applies
 407 has to do w/ seeking truth because one of the rationales for the rule is relevance – fear
that jury will overweigh a remedial measure and use it as a basis for guilt
o Posner concludes that Erie is applicable
o Does not matter when the primary rationale for the policy was
o When is something “controverted”? (question on final)
 “Can prove subsequent remedial measures to prove ownership, control, or feasibility, if
controverted.
When is something clearly not controverted? When you stipulate, make an admission
What if you refuse to stipulate? Unclear
What if you don’t deny, but a W does? You can use remedial measure for impeachment
 When is feasibility controverted?
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• Stating it would be “impossible” to take a precautionary measure  feasibility
controverted
• But where measures are only described as “undesirable”  not controverting
• Terrible, stupid idea  probably controverting
• J. Posner in Flaminio: controverting net advantages is not = to controverting
feasibility (Honda said, "Stupid idea" or undesirable)
• 408 - Compromise and Offers to Compromise
o (a) Prohibited Uses: Cannot prove (or impeach opponent’s proof) the validity or amounts of
claims disputed at the time of negotiation by offering
 (1) offers to settle claims or the setting of claims
 (2) anything you say or do in compromise negotiations is also inadmissible
 BUT You can’t make evidence inadmissible by presenting it during compromise
negotiations. (if the evidence exists because of negotiation, it is excluded)
• Rationale
o Relevance
 Consistent with desire for peace.
• Doesn’t necessarily show you were liable, perhaps you
just did not want to deal with costly & extensive litigation.
• Jury may overweigh evidence of settlement discussions
o POLICY
 We want to encourage settlements.
• When is a claim “disputed as to validity or amount”?
o Almost always
 Example: “I only owe you $50.”
o Not disputed example: “OK, I owe you $100. How about I give you $50
and you forget it?
o (b) Permitted Uses: Can prove other things, such as: bias or prejudice (e.g. W was a passenger
who settled) rebutting assertion of delay obstruction of criminal case
 Example:
• π and Passenger are hit by ∆. Passenger settles with ∆. π sues ∆.
o π offers Passenger’s settlement with ∆, to prove ∆ liable.
 Inadmissible under 408.
o Passenger takes stand for ∆, & π offers Passenger’s settlement w. ∆.
 Admissible to prove bias.
 Rebutting assertion of delay
• “You delayed and that makes you more liable; we were trying to settle”
 Obstruction of criminal case
• e.g., offering someone money to prevent them from going to the police
• 409 - Payment of Medical and Similar Expenses
o Offers to pay (or the payment of) medical expenses for an injury are not admissible to prove
liability for the injury.
 Rationale
• Relevance
o Consistent with humane impulses.
• POLICY
o We want to encourage assistance.
• 408 vs. 409
What is protected by rule 408: Compromise 409: Medical Expense
Offer & Payment Inadmissible Inadmissible
Associated stmts Inadmissible Admissible
73
Can you admit for other purposes? Yes yes
Bias, delay, obstruct criminal
o Lesson: When offering to pay medical bills and to prevent statements from coming in, make sure
you say you’re offering to pay for settlement purposes! "I'm doing this b.c I want you to settle."
• 410 - Inadmissibility of pleas, plea discussions, & related statements.
o The following are inadmissible against person who made a plea or was involved in plea
negotiations:
 Guilty plea later withdrawn
 Nolo plea
 Stmts made when plea taken
 Stmts made in course of plea discussions with attorney for prosecution
• Note: Doesn't seem to cover DA's efforts to negotiate a plea
o (a) Exceptions
 (1) if part of plea or plea discussion introduced by defendant, prosecution can introduce
the rest if fairness requires
 (2) prosecution for perjury or false statement
• Common questions regarding 410
Guilty please Not excluded
Rationale: Relevance of guilty please
outweighs policy concerns b.c plea is
undisputed
Stmts by ∆’s atty Excluded
Attempt to open negotiations Excluded
Offered against prosecution Not technically excluded, but the
Advisory Committee Notes state the in
fairness they should not be admitted
Would 408 exclude prosecutor’s Language refers only to “claim” which
offer makes the rule sound applicable only to
civil cases.
o Plea negotiations that led to a guilty plea might be excluded
• Statements to law enforcement
o General rule: Not inadmissible under 410, b.c plea discussions must be with an attorney.
 BUT 410 applies if ∆ reasonably believes that she is negotiating a plea.
• E.g. if law enforcement claims authority to bargain (must be more than “we’ll put
in a good word for you”)
• 411 - Liability Insurance
o Liability insurance not admissible to prove culpability but doesn’t exclude proving control or bias.
 Cannot prove you have liability insurance to prove culpability, or vice versa
 What can liability insurance be offered to prove?
• Bias
• Control of a premise as evidence by the fact that it's covered by an insurance
policy
 Rationale
• Relevance
o The theory for admissibility is that insurance reflects your recklessness or
makes you reckless. That is silly.
• Policy:
o Want to encourage ppl to have liability insurance.
• Prejudice
o The evidence may “induce juries to decide cases on improper grounds.”
74
REVIEW
Remember to ask all questions!

1. What are you trying to prove?
2. Is it relevant?
a. Material?
b. Logically relevant?
c. Conditionally relevant?
d. Authentic?
3. Does the Witness have personal knowledge?
4. Are you quoting somebody?
a. Is it hearsay?
5. Are you quoting something?
a. Best evidence?
6. Is it an opinion?
a. Lay/expert
7. Does it concern prior acts?
a. Character/credibility
8. Is it privileged?
9. Should it be excluded for policy reasons?
a. Categorical rules of exclusion
10. Does the prejudicial effect outweigh?
New York v. Rudnick

• Categorical rules of exclusion
• Review
• Before committing suicide the client (Dr. Michael’s) offers to give the prosecutor info about his co-∆ (Rudnick)
through plea negotiations w. his atty Delaney. Delaney approaches prosecutor w. Michaels.
• Can the prosecutor call Delaney to testify to very “damaging evidence”?
o Michaels did not intend the info remain confidential
 NOT crime fraud exception under atty-client privilege  b.c it does not mean the co-∆’s
cannot testify against each other
• Only applies if the ∆ is trying to get an atty to advance a crime
o Need intent for info to be considered confidential
 Better arg than Michaels waived his privilege b.c for waiver to occur you have to release a
significant amount of info
• Can Delaney refuse to disclose to the trial judge what Michael’s said about the evidence?
o NO  judge can consider evidence asserted to be privileged in deciding whether the privilege applies
 Zohn
• If Michaels had admitted fault when talking to the prosecutor?
o The prosecutor could not offer the stmts into evidence b.c they were made during plea negotiations
 FRE 410
o Not necessarily hearsay  party opponent exception
• Could Michaels’ stmts be made against Rudnick?
o NO  Constitutional Confrontation Clause
 410 cannot apply to co-∆s  can use info discovered in plea bargains against others
 No privilege issue here  Michaels’ has waived A-C privilege
California v. Banks
• Review
• ∆: Nancy Banks
75
• Accused of murder Fremont b.c he discovered her and her bro’s embezzling scheme
• W: Larsen Halstead – acct. hired by Fremont to review the books shortly before Fremont’s death. Kept a list of
the serial #s of the $20’s Fremont kept in his safe.
o Can Halstead testify that the books did not balance?
 Yes! He is an expert and as an expert he can rely on otherwise inadmissible evidence - thus,
best evidence rule/concerns disappears.
• Not multiple hearsay  has personal knowledge of the books
• Books could be considered business records & quoting a BR is not hearsay
o Can Halstead testify, “One of the bill’s serial number was K00460975A?
 Must find hearsay exception 1st (most likely to get in on recorded recollection) – NOTE: cannot
give paper to jury b.c it is not evidence
• Not refreshing recollection  no foundation laid and W is just reading off a list
• W: Sgt. McClanahan – found $20s in Rodney Banks’ dresser
o Is stmt “Rodney said he received the money from Nancy” admissible
 NO – inadmissible hearsay
o Is stmt “Nancy said she gave money to Rodney” admissible?
 YES – stmt by party opponent hearsay exception
• W: Rodney Banks
o As soon as someone takes the 5th – attys can use stmts made against interest b.c the W is now
unavailable
o Does Rodney’s claim that he took the money from Fremont raise any hearsay exceptions?
 Prior inconsistent stmt that he received the money from his sister
 BUT stmt was made to police and not at proceeding so it cannot be admitted as a substantive
matter
• BUT: can be used to impeach him
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Evidence Lyon, Spring 2009

INTRODUCTION & OVERVIEW

-Q1: What are you trying to prove?

California v. Barton: Is x an issue in

Romano v. Ann & Hope Factory Outlet:

• What does the rule say…

- Q10: Does prejudicial effect substantially outweigh probative value?

• Rule 105: Limited Admissibility

• Stipulation is not always enough

Old Chief v. United States:

• ARGs for not allowing stipulation to substitute (absent any prejudice):

New York v. Salva:

New York v. Di Biasi:

Statements not offered to Prove the Truth

• Why does behavior make a difference?

Prior Inconsistent Statements (exception #1)

Prior Consistent Statements

• Prior stmts that rebut the charge. Hypo:

Party’s Own Statement

Admissions by Speaking Agents

• Weinstein’s arguments re agent/employees

Hearsay Mini Review

803(4): Statements for the purpose of medical diagnosis or treatment

Cause of Symptoms gets Special Treatment

• Child abuse cases

Present Recollection Refreshed

• 803(7) – Absence of Entry in Records

Baker v. Elcona Homes

Rule 804 Hearsay Exceptions: D Unavailable

Hearsay & the Constitution

BEST EVIDENCE RULE

1002 – Requirement of Original

United States v. Queeg (Mayrk Case)

• 404 – Character Evidence

• 406 - Habit; Routine Practice

• Rule 412 - Sex Offense Cases.

Bias and Untruthful Disposition

• Truthfulness – Rules 608 & 609

Michigan v. Manion (1&2)

Testimonial Spousal Privilege Confidential Spousal Privilege

CATEGORICAL RULES OF EXCLUSION

Remember to ask all questions!

New York v. Rudnick

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