Evidence
I. Introduction and Overview
a. 3 Basic Rationales for Rules of Evidence
- see FR 102 (purpose & construction of rules of evidence)
i. Truth
1. epistemic paternalism: evidence law built on distrust of lay juries’
ability to weigh evidence properly.
a. Think juries don’t know how to separate reliable & relevant
testimony from irrelevant and unreliable evidence.
b. See rule 403 for most explicit epistemic paternalism: exclusion
of relevant evidence on grounds of prejudice, confusion or
waste of time.
ii. Efficiency/ Saving Time
iii. Policy
- examples:
o hearsay rule & exceptions
Hearsay is (1) out of court statement (3) offered to prove the truth (2)
of the matter asserted. (notice you prove 1, then 2, then 3 (truth last in
proof).
Truth promoting b/c hearsay not as reliable as witness testimony
(can’t be cross-examined/ assess actual witness of statement)
o Subsequent remedial measures (rule 407):
Not liable for making repairs
Policy reason b/c want to ensure premises are safe.
o Relevance Rules (401, 402): truth & efficiency promoting.
b. 3 kinds of evidence:
i. testimonial (thr direct & cross-examination)
1. most evidence can be proved through testimonial description, except
writings, which must be introduced at trial.
2. direct & cross-examination: usually, only cross is allowed to ask
leading questions.
ii. real: tangible things directly involved in transactions or events in litigation
(e.g., gun at scene of crime)
iii. demonstrative: tangible proof that helps make the point to be proved (e.g.
maps and graphs); often require expert testimony to bring forth the meaning.
c. Requirements of Evidence:
i. foundation
1. testimonial evidence, for instance, founded on personal experience.
2. Testimony is foundation for almost all kinds of evidence.
3. Rule 611: assigns to trial judge power to include and exclude evidence
(control order & mode of testimony of witnesses):
a. 611b. “Scope of Direct rule”: cross-examination to be
confined to subject matter of direct examination.
i. Although up to judge for exceptions
ii. AND questions to impeach witness’s credibility always
allowed.
b. See problem 1-A: first question is ok b/c impeachment; 2nd &
3rd question, not sure, but can argue for broad construal of
direct’s subject matter. Or for 2nd, can also use as
impeachment (how can she have caused accident if she’s
looking at you?)
ii. Preservation for appeal
1. timely and specific objection (to evidence that one does not want to
include). (103(a)(1): stating specific ground of objection.
2. offer of proof (for evidence that has been ruled to be excluded, but
that one wants to include)
i. must make substance of evidence apparent from
context for the appellate court; record has to reflect
substance of evidence (have the court record what the
evidence is, out of presence of jury)
3. Error must be not harmless or must be “plain error”
a. Even so, appellate court will not reverse if:
i. cumulative evidence on same point is against (so much
so that objected to evidence won’t have effect)
ii. overwhelming evidence – enough other evidence
notwithstanding this error
iii. curative instructions: trial judge’s limiting instructions
under 105
1. although limiting instructions can be
counterproductive by making evidence even
more noticeable.
2. whether substantive right affected by
evidentiary error turns on substantive law.
II. Relevance:
a. Overview:
i. Logical Relevance def. 401:
1. At common law was: “relevance” + “materiality”
a. materiality: has to do with what’s at issue
b. relevance: more or less probable (when evidence is material)
c. 401 standard very low.
ii. Conditional Relevance: 104(b)
1. When evidence has very low probative value, cts will usually require
proof of condition for evidence first.
iii. Pragmatic Relevance: Rule 403:
1. logically relevant evidence can be excluded when probative value
substantially outweighed by danger of prejudice, confusion or waste
of time.
b. Logical Relevance issues
i. Direct Evidence/ Circumstantial Evidence:
1. direct evidence, if believed, necessarily proves point on which it’s
offered.
a. Direct evidence is always logically relevant.
2. circumstantial evidence, if believed, does not necessarily prove point.
a. Requires evidentiary hypothesis.
b. Alternative explanations available.
ii. Cases:
1. Old Chief : logical relevance of prior conviction.
iii. Hypos:
1. 2A: logically relevant b/c: evid hypothesis of: speeding at one pt ->
continued speeding.
a. Possibly a conditional relevance challenge – to show whether
conditions of road are different.
2. 2B: logical relevance b/c more probable boys caused accident if they
run away from scene.
a. Possible conditional relevance challenge. Evidentiary
hypothesis can be defeated by timing (e.g., if they were seen
running away at same time as accident – can’t run 4 blocks
that fast).
b. Judge will likely let in evidence and just have counsel bring up
conditions through cross-x.
3. 2C: evidentiary hypothesis: hiding fr police as evidence one has
committed the crime. Circumstantial b/c other possibilities.
a. Possibilities include running away b/c of other outstanding
warrant – conditional relevance.
b. Judges almost always admit evidence of escape.
4. 2D: Walter’s own slips are logically relevant (suggest that sometimes,
the floors stick). Might depend on where he slipped (conditional
relevance challenge – but still likely to be admitted).
a. But Walter’s testimony of other customers’ telling him they
slipped are inadmissible as hearsay,
i. unless they are used to suggest managers knew there
was a problem (relevant b/c goes to notice & exercise
of care. Don’t need to believe what they said is actually
true).
ii. Court will probably include evidence for its high
probative value. May issue a limiting instruction.
c. Pragmatic Relevance
i. Prejudice: persuasion through irrational means (such as emotion). Rational
persuasion is always ok.
ii. Cases:
1. State v. Chapple: graphic inflammatory photos introduced by
prosecution. Chapple’s only claim is he’s not Dee. He is not disputing
the evidence the photos show (that Dee was killed by bullet in head).
Inadmissible under 403 b/c very slight probative value for photos
(already established victim is dead) but highly prejudicial (will upset
jury).
2. Old Chief: probative value of introducing details about previous
conviction slight (just introducing stipulation of previous conviction
enough). Prejudice: jury may draw impermissible inference or want to
lock him up for being a bad man.
a. Also see 404 for inadmissible character evidence.
iii. Hypos:
1. 2E: battered wife stabbed to death. Donald claims she fell on knife.
Prosecution wants to introduce evidence of prior abuse.
a. Relevant under 401: helps establish likelihood of intentional
violence.
b. Prejudice? – “bad person” problem & impermissible character
inference.
c. In actual case, evidence was introduced b/c high probative
value in establishing intent. No other way to establish intent
since only 2 witnesses were Donald and victim.
2. 2F: Risner was struck fr behind on road. Gas tank explodes. Risner
sues automaker claiming engine defective. Automaker wants to intro
evidence that: 1) impacting video was going too fast; 2) involuntary
manslaughter guilty plea fr driver for accident.
a. 1) clearly admissible b/c of probative value (fast impact ->
greater likelihood not defective engine)
b. 2) however, may cause confusion.
i. Confusion as to responsibility
ii. Fact of guilt of manslaughter does not displace
possible responsibility of auto maker for defective
issue
1. but jury may confuse criminal responsibility for
manslaughter with tort responsibility for
product liability.
iii. cumulative evidence issue, too, b/c of 1).
iv. also not great probative value.
3. 2G: Lina, Mira collision. Conversation about insurance payment.
Myra wants to introduce evidence of conversation as evidence of
Lina’s negligence. Lina: 411 challenge (evidence of liability insurance
not admissible as proof of negligence)
a. high probative value and relevant.
b. Her admission of fault tied up w reference to insurance.
c. may be admissible with limiting instruction: 1) may not
conclude she has insurance; 2) may not draw culpability
inference from insurance.
4. 2-H: rule of completeness applies here. (Rule 106: writings – cts may
require intr of oral testimony for completeness. Also see 611 judge’s
authority to order proceedings.
d. Conditional Relevancy:
i. Comes into play when evidence has slight probative value. Then may require
proof of a condition first (which may be proved through examination of
witness).
ii. 2I: stolen pickup. Suspect runs used auto parts place . remains of stolen truck
& backpack (fr different stolen vehicle). Prosecutor wants Det. Ogden to
testify re 2 matters 1) someone saw truck enter property; 2) someone else
testify re: backpack, truck.
1. 1) is hearsay and inadmissible. NOT a case of conditional relevance
b/c the necessary condition is the hearsay.
2. 2) circumstantial evidence that Fd pickup was stolen. Condition
would be: counsel calls the person whose backpack’s stolen.
a. Under AZ rules, not enough b/c need to be “clear and
convincing” evidence
b. But probably ok under Fed R. -> POE standad. Se Huddleston
e. Probabilistic Evidence:
i. People v. Collins: problems w/ use of probability in evidence
1. prosecutor assumed the probabilities w/o laying any foundation
2. not proven each probability is independent (also foundation problem)
3. even if prob had foundation and independent, danger of confusion:
prob describes population but we don’t know if this couple possesses
the characteristics. (how many relevant couples fit this profile)
4. also the # (1 in 12 million) may confuse/ overwhelm jury: jury may
forget it needs to establish the credibility of the witnesses that claimed
to see this couple (and thereby -> prob. E.g., prob. Depends on if
witnesses really did see a blonde, interracial couple, etc.)
5. “second draw from the hopper” problem (That the second draw IS the
same queen of hearts/ couple)
6. these problems profoundly prejudiced jury.
ii. In general, probabilistic evidence is admissible. E.g. DNA evidence.
iii. 2J: “blue bus case” type. “naked statistics” insufficient to support verdict b/c:
1) do not want disincentive to find particularized verdicts; 2) statistics would
usurp jury’s function; 3) would lead to certain wins (e.g, if verdict was based
on just 80% likely this wheel is D’s, then EVERY P -100% - would win)
1. evidence may get before jury.
2. would need particularized proof connecting this tire to D, however,
for jury verdict.
iv. Market share liability cases: probabilistic recovery enough b/c all the drug
makers are creating harmful products, just can’t trace this product to this
plaintiff. Liability at issue, not causation. Dif. Fr “blue bus.”
III. Hearsay:
a. Definition:
i. Rule 801(c)
1. Definitions:
a. Statement: oral or written assertion or nonverbal conduct of a
person, if intended as assertion.
b. Declarant: a person who makes a statement.
c. Hearsay: “… statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.”
2. Elements:
a. Out of court statement (1)
b. Offered to prove the truth (3)
c. Of the matter asserted (2)
(1) and (3) often the key issues. E.g. – statement in slander case is not
hearsay b/c statement is not (3) offered to prove the truth (i.e., we
don’t care about whether the statement states someone has these
characteristics. We simply need evidence of the statement)
3. “not hearsay” – 801(d): some prior statements by witnesses;
admissions by party-opponents (what other party in lawsuit says, b/c
party-opponent can testify).
4. hearsay exceptions: 803, 804.
b. Reasons to Exclude Hearsay
i. No cross-examination
ii. Not under oath
iii. No demeanor evidence (although this may not be a great reason since people
often poor demeanor judges)
iv. Underlying reason for complicated hearsay rules: mistrust of lay jury’s
judgment. Systems w/ judges as factfinders rely on judges to weigh or
discount hearsay’s propriety.
c. Hearsay risks:
i. Misperception
ii. Faulty memory
iii. Misstatement
iv. Distortion; insincerity; lying.
d. Hypos:
i. 3-A: bank robbery statements of other people:
1. “Higgins did it.” – direct evidence hearsay
2. “Higgins walked out with money bags.” – circumstantial evidence
hearsay.
3. “They should lock up Higgins for what he did.” Direct evidence
hearsay (but stated obliquely)
ii. 3-B: truck pulling ahead at green light.
1. non-assertive conduct so not hearsay. Admissible bc relevant. But
hearsay risks are still present.
iii. Machines & animals:
1. The more human intervention, more likely to be hearsay.
a. Possible hearsay: stock report printout (although there is a
business records exception), drug-sniffing dogs.
i. perhaps fall under exceptions. Need to lay foundation.
b. Not hearsay: dog recognizing owner (instinct, not intentional,
non-verbal conduct, not assertion); looking at watch to check
time (no intention).
e. Cases:
i. Wright v. Doe d. Tatham: common law holds non-assertive statements may
still be hearsay. Business letters are hearsay when they imply that decedent
was competent (otherwise they wouldn’t write him a letter dealing w/
business).
1. two-step inference: 1) these letters assume dealing w/ competent
person; 2) therefore, Wright must be competent.
2. not hearsay under 801 b/c not “offered to prove the truth” of the
business matters (which are what are asserted in the letter)
3. to tell the difference b/w oblique reference (801 hearsay) and mere
implication (not 801 hearsay), ask if you can substitute statement for
content of statement.
ii. Cain v. George: silence =/ = hearsay (i.e., “negative hearsay” is not hearsay).
Man dies fr CO in motel. Parents of decedent sue motel owners re: defective
heater. D’s defense: other customers of same room had not complained about
heater.
1. Relevance: if heater were defective, people would’ve complained.
2. circumstantial evidence.
3. not hearsay b/c not a statement to NOT complain (There’s no
assertion, just silence)
iii. US v. Check: indirect hearsay IS hearsay. Prosecutor asks Spinelli to recount
his conversation w/ Cali, but only Spinelli’s part of the conversation. 3 levels
of hearsay:
1. Spinelli’s out of court statements. Direct hearsay.
2. inference of Cali’s out of ct statements. Indirect hearsay.
- this causes the most problems b/c we’re trying to prove 2’s truth
thr inference.
3. inference of Check’s out of ct statements. However, 3 is admissible
b/c it’s party-opponent admission – not hearsay under 801(d)(2).
f. Non-hearsay out of Ct statements:
i. Not offered to prove truth of matter asserted. When the words are probative,
not the truth of the words.
ii. 6 Broad Categories:
1. Impeachement
2. Verbal acts (of legal significance): when saying of words is what
we’re trying to prove (e.g., solicitation, slander, perjury). Context
matters.
3. proof of effect on reader or listener
4. verbal objects: nonhearsay circumstantial evidence of identification.
5. circumstantial evidence of declarant’s state of mind
6. circumstantial evidence of declarant’s memory or beliefs.
iii. Hypos:
1. 3-C: impeachment b/c offered to prove Bystander changed his story.
All jury has to believe is that bystander said earlier statement, not
whether what he said was true.
a. Abby might raise 403 objection for confusion. Judge may give
limiting instruction, but will admit evidence b/c highly
probative as to credibility of witness, plus Abby called the
witness- so other side is entitled to attack inconsistencies.
2. 3-D: verbal act. Prosecution wants to establish she said the words,
which constitutes solicitation, not the truth of her words (that she’s
sexually versatile).
3. 3-E: verbal act. Lord leased land to Cartwright for % of crops.
Cartwright borrowed $ fr bank and defaulted. Bank repossessed corn
and sold to Prager. Lord sues Prager and bank for conversion,
claiming repossessed corn was his share of the crop. 2 statements at
issue:
a. Lord wants to introduce testimony that he and C had gone to
field and C had pted out corn was “your share for this year and
it belongs to you.”
i. Verbal act IF objective theory of contract: Those words
transfers the ownership bc contract had stated Lord
was entitled to X % of corn.
1. best evidence doctrine would require producing
the contract.
2. hearsay if subjective theory of contract,
however, b/c would then require intent to
transfer, so truth of words matter, not just the
words themselves.
b. Bank wants to introduce testimony of loan officer that C had
told us corn was his.
i. Hearsay, b/c depends on whether C is factually correct
(that the corn actually is his).
1. HOWEVER, his being in default may lead to a
“proof of effect on listener” issue.
a. C would have to acknowledge he’s in
default and that default -> repossession
right by bank.
b. Bank relied on his statement that the
corn was his.
4. 3-F: Effect on listener. Alford smelled gas. Forrest claims to be from
gas company and wears gas company shirt and asks Alford to show
him where gas leak is. Alford took him there, Forrest lighted a match,
explosion, Alford injured. Alford sues gas company for negligence;
Interstate raises contributory negligence as defense, arguing A should
not have gone so close if suspected gas leak. Alford offers to testify as
to Forrest’s statement. Interstate raises hearsay objection.
a. Statement cannot be offered to prove F is agent. (Hearsay b/c
will depend on truth of F’s statement).
b. The shirt is also hearsay if offered as direct evidence but not if
circumstantial evidence.
c. But, to prove A was not negligent, F’s statements not hearsay
b/c only need to show that someone said was fr gas company;
this would make it reasonable for A to go pt out source of
leak. Does not depend on whether F actually was fr gas
company. Effect on listener.
i. Gas company will raise 403 objection as to confusion,
but judge will not accept b/c of highly probative value
as to whether A was contr. Negl.
5. 3-G: Verbal objects. Better characterized as nonhearsay circumstantial
evidence of identification (direct evidence would make it hearsay).
Must lay foundations.
a. Hypo setup: S, F, and N charged with conspiring to distribute
cocaine. Case depends partly on showing they used a
warehouse at X address & sold coke @ E. Evidence includes:
S used to attend UIUC, was a football fan, team’s called
“Fighting Illini,” nickname was “Witter;” F lived at X.
b. As proof S had been to E, matches in his possession bearing
legend (of E’s name).
i. Hearsay objection: the legend is a written assertion that
the matchbook’s fr E. Jury has to believe the words on
mb are true; accurately describe where mb was.
ii. Have to lay foundation that mb is circumstantial
evidence of identification. Eg, witness who orders mbs
for the bar, and say the mb was only distributed @ the
bar.
iii. McDonald’s logo on truck or Coca-Cola cans can be
admitted under 902(7) – (trade inscriptions are self-
authenticating). But mb probably not under 902(7) b/c
probably not a (distinctive) trade inscription.
c. As proof S was in X, mug bearing likeness of Indian Warrior
and legend proclaiming “Chief Illiniwek” and “The Fighting
Illini” and word, “Witter.”
i. Probably also admissible as nonhearsay circumstantial
evidence of identification but only b/c all the other
evidence already laid foundation: name of fb team, S’s
nickname, his attendance and his being a fb fan.
d. As proof S knew N, 1) testimony by barmaid at E that N was
with a man, who she accurately pointed out to I, along w/
testimony by I that man barmaid pointed out was S.
i. Not hearsay b/c not out of ct statement (when you have
both in ct).
6. 3-H: circumstantial evidence of state of mind. Widower claims pain
and suffering damages. D intro evidence of decedent’s will, where it’s
stated that widower is “cruel.”
a. Here, it’s the fact that she thinks he’s cruel that will help jury
infer not much loss of companionship.
b. Not hearsay b/c jury is not determining fr statement whether
he actually is cruel.
7. 3-I: circumstantial evidence of memory or belief. D is on trial for
sexual assault of child in his room. Officer testifies as to child’s
recounting of appearance of room. Another officer testifies as to
appearance of room which he’s been in, and the descriptions match.
a. Out of ct statement describes something unique (here, a paper
mache man).
b. Independent proof of unique thing
c. Only plausible explanation would be: person has experienced
what’s in statement.
d. Here, not hearsay b/c we’re not concerned w/ truth of
description. Statement instead used to prove memory ->
inference that one was at place.
g. Non-hearsay by definition of Fed. R. Evid. (801(d)):
i. Prior statements by witnesses
ii. Admissions by party-opponent: party’s own statement offered against party.
1. admissions even applies to statements one could not have had
personal knowledge.
h. Statements with “Performative” Aspects
i. “performative” in that declaration accomplishes something other than what
words of declaration asserts.
ii. Most clearly won’t be held as hearsay: lies.
1. lies are not hearsay b/c not trying to prove truth of matter asserted.
They necessarily are trying to accomplish something other than prove
truth of matter asserted.
iii. Cases:
1. US v. Singer:
a. prosecution needs to est. S& L live @ an address. Have proof
1 uses an alias. Evid at issue: envelope addressed to S&I( sent
to alias) – mailed to address and found at the address,
containing eviction notice.
b. Hearsay issue: written out of ct statement is that these two ppl
live at the address.
i. It’s not a verbal act b/c prosecution is not trying to
prove termination of tenancy.
c. Ct. holds this is not hearsay b/c purpose of mailing was
purpose was to give (legally required) notice of termination.
d. A better explanation: to admit is hearsay (b/c it does depend
on the truth of this address being right), but to admit under
residual exception of 807 b/c the circumstances guarantee
accuracy: landlord has strong incentive to get the address
right, and it’s part of set of actions designed to achieve
eviction, and people generally do not pick up others’ official
mail. E.g., this isn’t junk mail that anyone may pick up)
2. Pacelli: @ issue is Lipsky’s testimony that others brough him to a
meeting and talked about how the murder was bungled.
a. Relevance: implying their belief that Pacelli killed Patsy.
b. Pre-rules case. If merely implicit belief, not hearsay under Fed
R. But, if oblique statements asserting he’s killing her. Then it
is hearsay. It’d depend on how one characterizes matter
asserted.
c. Ct holds that this is hearsay. “Since the extra-judicial
statements clearly implied knowledge and belief on the part of
third person declarants not available for cross-examination as
to the source of their knowledge regarding the ultimate fact in
issue [who killed Patsy], Lipsky’s testimony … was
excludable hearsay evidence.”
iv. Hypos:
1. 3-J: wife lies to cops suspect’s in Denver, but cops find him
elsewhere.
a. Relevance: guilt as reason for wife lying about his
whereabouts.
b. Lie accomplishes a misleading function, not to prove he’s
actually in Denver.
c. Therefore, not hearsay b/c not trying to prove truth of her
statement.
d. If wife were misled, this may be hearsay b/c then need to
prove truth of her false belief.
i. What he’s told her is admissible under 801(d)(2)
admission by party opponent
ii. But if she’s been misled, not sure if they can admit
what she’s said.
2. 3-K: Bruno claims he thought a plane found w/ marijuana was just
there for landing and repairs. His witness will testify he told others
about storing plane @ other airstrip.
a. Relevance: a guilty person wouldn’t tell other people,
publicly, about the plane.
b. Because he’s offering evidence, he’s not a party-opponent to
himself, therefore 801(d)(2) does not apply. Out of ct
statement’s is his own statement.
c. Not hearsay b/c: circumstantial evidence that he’s not guilty
b/c otherwise he wouldn’t disclose to others. It’s not offered to
prove truth of what he’s asserting (that he has a plane).
IV. Hearsay Exceptions
a. 4 Main categories:
i. 801(d) exceptions - Defined as not hearsay
ii. 803 exceptions – unrestricted exceptions
iii. 804 exceptions – where declarant is unavailable
iv. 807 “catch all” or residual exception: where circumstantial guarantees of
trustworthiness
b. Crawford Confrontation Clause issues
i. “Testimonial” Out of ct statements cannot be offered against criminal
defendants without opportunity to cross-examine declarant
1. exception for emergencies. Davis
2. “testimonial” statements not completely defined.
3. What happens when defendant kills the witness? See Guiles
ii. Confrontation clause issues only arise in criminal cases with respect to
evidence offered by prosecution.
c. 801(d) exceptions – not hearsay as defined by Fed R.
- can be offered as substantive evidence (proving truth of prior statements)
i. Prior inconsistent statements by witness – 801(d)(1)(A)
1. Elements:
a. testifying witness’s statement
b. subject to cross-examination regarding that statement
c. statement is inconsistent
d. prior statement must be given under oath @ trial, hearing,
deposition or other proceeding.
2. State v. Smith: Direct evidence (testifies as to abuse). stationhouse
declaration counts as “other proceeding” – informed, written
statement, signed and notarized. Analyses as 807 issue (these are
indicia of trustworthiness)
a. Atypical approach. Fed courts do NOT treat stationhouse
declarations as other proceedings.
i. Would have been testimonial statement under
Crawford (but subject to c-x so not confrontation
issue)
ii. What do count: grand jury, deposition, jury,
immigration proceedings – statements to border
guards(9th Circuit)
3. 4-A: Barlow tried for robbery. Breen testified as to Barlow’s
involvement @ grand jury, but claims amnesia @ trial. IN actual case,
Ct admitted:
a. silence is inconsistent (inconsistency does not have to be
opposite. Change in important details sufficient)
b. grand jury testimony
c. Breen is cross-examinable as to whether his amnesia is
credible.
i. Genuine memory loss would probably -> inadmissible
b/c really cannot c-x.
ii. Prior consistent statements by witness – 801(d)(2)(B)
1. Elements:
a. testifying witness’s statement
b. subject to cross-examination regarding that statement
c. offered to rebut charge of improper influence or motive
i. does not implicate ALL impeachment.
1. Different from use of prior consistent
statements for rehabilitating impeached
witness, b/c rehabilitation cannot be used as
substantive proof.
ii. Can be used to replace current statement as substantive
evidence.
d. Does NOT have to be under oath, or at trial or proceeding.
e. Must arise prior to event w/ improper motive. Tome. (child
abuse case)
i. Tome incorporates common law rule.
ii. Tome recognizes temporal determination may be
difficult (was child abused first or did child want to
live with mom first?)
iii. 2 possible readings:
1. rehabilitation and substantive use of evidence
both have temporal requirement (majority
reading)
2. only applies to substantive use of evidence.
iv. Dissent focuses on relevance issue (but relevance is
implicated in hearsay issues: probative value has to do
w/ whether to admit. See instances where o/c
statements used to prove circumstantial evidence of.. )
iii. Prior statements of identification – 801(d)(1)(C)
1. prior ids often more reliable.
a. Closer in time to event, less suggestive than ctrm setting
b. This is the “line-up” or mugshot type situation. NOT narrative
statements accusing someone of crime. “after perceiving
someone.”
2. State v. Motta: composite sketch drawn after robbery complaint
admissible as prior statement f id.
a. Under Hawaii rules: requires ID at trial and prior statement
b. Under Fed rules: does NOT require ID @ trial. Prior statement
sufficient.
iv. Admissions by Party-opponent – 801(d)(2)
1. Basics:
a. almost always admissible.
b. each party is responsible for own words.
c. no against interest requirement.
d. admissible as substantive proof.
2. Individual Admissions. Hypos:
a. 4-B: M takes truck to C’s auto repair. C is not present. Shop
burns down, car destroyed. M sues C under respondeat
superior; wants to intro statement C said employee started fire
to insurance adjuster.
i. Admissible even though C was not present. C is party
to suit. Personal knowledge has no bearing on
801(d)(2) admissibility.
ii. Even tho C had motive to lie to insurance adjuster (i.e.,
maybe fire was intentional, not negligent), still
admissible.
iii. Cts also generally admit statements when hospitalized
or drunk.
iv. Cts generally do not admit statements of sleeptalk
(can’t explain self while asleep), although occasionally
will admit amorous sleeptalk of nonspouse in divorce
proceeding.
v. Cts often also do not admit confessions of the severely
injured.
vi. Cts usually do not admit statements by young children.
b. 4-C: F accuses B of sex assault & files civil suit. Should B
enter guilty plea @ criminal action? What consequences for
civil action?
i. Prior guilty pleas do count as “admissions by party-
opponent.” Whether admissible depends on:
1. similarity b/w criminal and civil action (403
issue)
2. whether statement entered in guilty plea
undermines probative value (plea bargaining as
insurance against heavy punishment instead of
real declaration of culpability)
3. at time of guilty plea, was defendant aware of
ramifications (generally assumed if D had
counsel; if pro se, depends on judge’s
explanation)
ii. Guilty plea may be basis for summary judgment:
1. guilty plea does not bind defendant in civil
action
2. but is basis for s.j. unless defendant’s affidavits
challenge some of underlying facts.
iii. Collateral Estoppel effect?
1. Guilty plea does not have collateral estoppel
effect b/c c.e. usually on matters actually
litigated (guilty plea =/= litigation)
a. Although a few courts have opposite
view.
d. 803 Exceptions: Unrestricted Exceptions
i. Present sense impression: 803(1)
1. immediacy is the key.
2. Rationale: likely to be reliable because not much time to have
memory fade or to make up lie.
3. Case: Nutall:
a. 2 out of court statements at issue:
i. O’Hara: Clarence looked ill.
1. Relevance: goes to issue of compulsion.
Circumstantial evidence that he’s compelled to
work b/c sick ppl don’t go to work.
2. Clearly present sense exception b/c O’Hara was
present.
ii. Florence: conversation with deceased. However, she’s
testifying as to Clarence’s out of court statement.
1. oblique assertion that George is compelling
Clarence to work. “Why are you forcing me to
come to work the way I feel?” – direct evidence
of compulsion & source of compulsion.
2. so present sense impression should be of
Clarence’s.
a. present sense impression of compulsion.
b. Why not inadmissible oblique hearsay
under Check? (maybe b/c in Check, o/c
statement’s not present sense)
ii. Excited Utterance: 803(2)
1. Excitation, not immediacy, is the key. No specific time provision.
a. Ask whether declarant still in state of excitation.
b. Includes factors such as: cause of excitation; time of exciting
event; age (children may be excited for longer than adults);
appearance of declarant, etc.
2. Rationale: excitation -> no calculation -> won’t lie.
a. However, excitation can also make a statement less reliable.
3. Case: Arnold: issue: illegal possession of firearms.
a. Her own statements lay foundation for excitation. Seems
circular but court also points to other evidence. Moreover,
courts often admit declarants’ own statements to establish
foundation.
b. In general 5-20 minutes after exciting event doesn’t pose a
problem.
4. Hypo: 4-I: Mrs. Sanders need to prove Mr. Sanders’s work-related
injury.
a. Relevance: injury fr work b/c pain fr lifting barrel.
b. Excited utterance b/c: sudden pain + he dies.
i. Statement itself as evidence of excitation.
1. but other circumstantial evidence, too: coming
home early (VERY atypical for Sanders); exam
@ doctor showing elevated blood pressure
2. Even when statement itself is primary evidence
of excitation, courts will usually admit it.
a. Quasi-objective test. Taking into
account particular circumstances (age,
condition, etc) would reasonable person
be excited?
iii. Then Existing mental, emotional, or physical condition. Aka Current State of
Mind: 803(3)
1. must be current state of mind but not statement of memory or belief to
prove fact or belief remembered unless re: wills.
2. Cases:
a. Oberman v. Dun & Bradstreet:
i. Issue is whether D&B issued a false credit report of
Oberman, which prevented him from getting a lease he
wanted.
1. Oberman testifies as to Rance of Prudential
Realty’s o/c statements.
2. Although Rance is recounting facts, this shows
his statement of mind because it shows his
motive for why .
3. Rance’s statement is direct evidence as to why
Prudential won’t give him a lease (motive,
intent, for not renting).
4. May be a 403 objection: confusion b/c cannot
use statement to prove D&B actually issues a
poor credit report, or any credit report.
b. Hillmon: Issue is whether there is insurance fraud. Insurance
company claims “accidental” shooting of insuree was really
dead body of someone else, while insuree had gone into
hiding.
i. Insurance wants to introduce letters that show intent to
do certain future acts (which would be circumstantial
evidence for declarant actually performing such act –
in this case, going to Wichita with H)
1. however, not admissible as evidence that
declarant actually performed these acts.
ii. Evidence is admissible to show intent to go w/ H to
CO.
1. that intention, in turn, provides circumstantial
evidence that he did go.
iii. Hillmon is pre-rules. “Wherever the bodily or mental
feelings of an individual are material to be proved, the
usual expression of such feelings are original and
competent evidence.”
3. Hypo: 4-J: prosecutor accuses Neft of extortion of Quade.
a. B/c an element of extortion is threat, prosecutor wants to intro
Quade’s statement that “Neft is going to kill me” as evidence
of Quade’s fear.
b. Fear as circumstantial evidence of threat.
c. Probably admissible although fact-laden.
d. Would require a limiting instruction.
e. What if this were a murder prosecution? Probably
inadmissible b/c highly prejudicial but fear -> slight probative
value.
i. Unless Neff’s raises self-defense as affirmative
defense. Then Quade’s fear would tend to show Neff is
not defending himself.
iv. Statements for purposes of medical diagnosis or treatment: 803(4)
1. Rationale: declarants have incentive to tell truth to get accurate
medical diagnosis.
2. include: statements told to doctors or their agents (nurses, interns,
etc.); statements made to doctors while looking to litigation.
a. no presupposed standard on what’s relevant to diagnosis.
3. Cases: child abuse/ battering cases. What to do w/ statements that
identify the abuser?
a. Some courts think ID is relevant to diagnosis. Some courts do
not.
b. Depends on nature of treatment, emotional trauma, relation of
attacker, etc.
c. Blake v. State: statements IDing child abuser is ok, once
proper foundation is laid.
i. Renville test for foundation:
1. declarant’s motive in making statement
consistent w/ purposes of promoting treatment
or diagnosis
2. content of statement reasonably relied on by
physician in treatment or diagnosis.
ii. Here, Renville test satisfied b/c: who alleged assailant
is in sexual assault case determines extent of testing &
treatment.
iii. Blake argues that b/c victim is 17, statement not as
reliable as younger victim’s. Ct holds that age goes
toward statement’s weight, but not to admissibility.
d. Commonwealth v. Smith: statement by 5-yr old Priscilla
identifying father as one who put her in scalding hot water for
bath not admissible. Ct holds that id’ing perpetrator does not
further purpose of treating burns. Relevance of ID to
psychological and emotional treatment not sufficient. Key is
“pertinent to medical treatment.” – allowing relevance for
psych/ emot would neuter pertinency requirement.
e. Also, possible constraints fr Crawford Confrontation Clause
limits.
v. Recorded recollection: 803(5):
1. content of record of recollection (read to refresh recollection, when
matter was fresh in witness’s mind) can be read into evidence but
record itself cannot be entered as exhibit unless offered by adverse
party.
2. 4 elements:
a. lack of present recollection
b. accurately reflects knowledge witness had
c. earlier statement adopted by witness (e.g., signature)
d. statement made or adopted @ time when memory fresh in
witness (“I affirm… accurate” not enough)
3. a good example of laying the foundation for 803(5): Ohio v. State p.
262
vi. Business Records: 803(6)
1. 4 elements:
a. regularly kept records of business (with business broadly
defined: basically any organization)
b. info derived from someone’s personal knowledge (not
necessarily person who prepared record)
c. info in record must’ve been gathered/ recorded @ or near time
of event
d. qualified witness to lay foundation for 1-3 (typically custodian
of records).
i. Does not have to be someone who made the record or
worked for business
ii. Sufficient if had personal knowledge of regular
recordkeeping practices f the business.
2. Case: Petrocelli: P had hernia surgery. Felt discomfort. Sued surgeon
G.
a. 2 records at issue:
i. Report by Dr. S (2nd opinion): refers to severed nerve
ii. Clinic record referring to pain patient suffered fr
severed nerve.
b. Ct holds the 2 records not admissible as business records.
i. Problem is, personal knowledge not adequately
established. How does S know about P’s severed
nerve?
1. records do not clearly indicate who has the
personal knowledge.
c. Why didn’t P try to admit under 803(4) (diagnosis): perhaps
b/c doesn’t have medical expertise on own injury?
d. Or why not try conjunction of 803(4) & (6)?
vii. Other common hearsay exceptions:
1. 803(8): public records & reports.
2. 803(13): family records.
3. 803(18): learned treatises.
4. 803(19): reputation concerning personal or family history.
5. 803(21): reputation as to character.
viii. 804 Exceptions: Unavailable Declarant
1. 804(a): definition of unavailability:
a. includes exempted by privilege, refuses to testify when
ordered to, can’t be present b/c of death or illness, absent fr
hearing and can’t be procured by process or other reasonable
means.
b. NOT unavailable when a. is due to “procurement or
wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.”
2. 803(b): exceptions for unavailable declarants: former testimony,
dying declration, statement against interest; statement of personal or
family history; forfeiture by wrongdoing.
a. (1) (former testimony) & (3) (against interest) most invoked.
b. Hypo: 4L: gov’t procured unavailablility of Jane but no
wrongdoing. But she’s most impt witness.
i. Ct probably will NOT admit.
1. Govt needs to try harder to ensure avail or
prevent unavail where witness crucial & had
motivation to frame other guy.
3. former testimony of witness:
a. not limited to judicial proceedings. Also includes: depositions,
administrative hearings, pretrial hearings.
b. Key questions:
i. Whether party against whom testimony is offered has
opportunity to develop & similar motive to develop
testimony by direct, cross, or redirect.
1. in criminal proceedings, must be same party
(i.e., the defendant)
2. in civil proceedings, same party or predecessor
in interest.
3. also, issue must be similar b/c n otherwise, not
same motive to develop testimony.
c. Case: Lloyd: Lloyd and Alvarez are sailors who get into a
fight. L sues ship company which impleaded Alvarez who
counterclaimed AE. Lloyd has disappeared. Alvarez wants to
intro a statement by Lloyd.
i. Ct holds that Coast Guard rep at prior hearing is
predecessor in interest (L’s statement in prior hearing;
A’s lawyer was present there).
1. same nucleus of operative fact: same interest in
finding truth
ii. concurrence: Coast Guard not predecessor in interest
but invokes catch-all. Nature of proceeding, interest in
finding truth, etc. circumstantial indicia of reliability,
1. here, Concurrence seems to make more sense
than majority.
a. Predecessor in interest = privity of
interest = mutual or successive interest
in same property.
i. Overwhelming majority of cts
agree w/ this definition. Lloyd
majority is an outlier.
ii. Alvarez’s lawyer didn’t have
opp to examine L; just presence
is not enough.
4. dying declaration (aka statement under belief of impending death)
a. broadens common law exception.
i. In prosecution for homicide or civil action, statement
by declarant of cause of death is admissible.
1. declarant does not have to die.
a. Cts in conflict w/ whether declarant
must have personal knowledge of cause
of death.
b. Judges make determination as to
whether statement is dying declaration.
Not purely objective standard.
c. Imminent =/ certain.
5. statement against interest
a. against economic or legal interest (civil or penal), so likely to
be true.
b. Statement tending to expose declarant to criminal liability and
offered to exculpate accused admissible only when
corroborating circumstances indicate trustworthiness of
statement.
c. Judge makes determination whether context -> declaration
against interest.
i. Declarant may have conflicting interests
ii. Declarant must understand statement is against interest.
d. Williamson: only self inculpatory statements are admissible.
i. “Collateral” statements (self exculpatory ones that are
mixed w/ self inculpatory ones) not admissible.
e. 4-M: statement exonerating accused. Is this trustworthy?
i. Quickly offered- no chance to collude.
ii. In actual case, was admitted b/c circumstances
indicated statement’d be reliable.
6. Confrontation Clause issues:
a. 6th Amendment: right of accused to ask witnesses questions.
Applies only to criminal defendants.
b. Crawford: Crawford stabbed Lee. Crawford claims self
defense. His wife in a police statement indicated Lee was
unarmed. She was not witness at trial b/c Crawford invoked
spousal privilege, which made her unavailable as a witness.
i. Ct holds that prosecution cannot introduce her police
statement. Confronttation Clause bans ex parte
examinations as evidene against accusted.
1. Testimonial statements of witnesses not
admissible unless
a. Witness unavailable to testify
b. Defendant had prior opportunity for
cross-examination.
c. No specific definition for “testimonial
statements” but includes “ex parte in-
court testimony or its functional
equivalent … affidavits, custodial
examinations...”, extrajudicial
statements contained in formalized
testimonial materials,…”, (p. 367, last
full paragraph)
i. Also see p. 373. At a minimum:
testimony at preliminary
hearing, police interrogation
(stationhouse statements).
2. For nontestimonial statements, just go to
hearsay rules.
3. Here, Crawford’s wife’s statement inadmissible
b/c Crawford doesn’t have opportunity to cross
examine her when he’s properly invoked
spousal privilege (correctly invoking privilege
is NOT wrongdoing so no forfeiture issues)
c. Also see notes 5(b) and 6 on p.376-77. (co-defendants’
statements, and statements by child victims in child abuse
prosecutions)
d. Davis: both Crawford and Davis are Scalia opinions. 2 cases
consolidated on appeal.
i. Davis: Domestic dispute b/w Davis & McCottry.
McCottry tells 911 operator Davis has hit her. 911
operator elicits who assaulted her and what happened.
ii. Hammon: reported domestic disturbance. Police arrive
on scene. Amy makes statement to police.
iii. Ct holds:
1. McCottry’s statement is nontestimonial but
Amy’s is testimonial.
a. Statement seeking help w/ current event
vs statement concerning past criminal
event
i. 911 calls are not per se
nontestimonial. Key is whether
there is ongoing emergency.
ii. In Davis, 911 operator needs to
figure out whether assault is still
ongoing.
iii. In Hammon, police already
arrived, so no ongoing
emergency. Rather, police were
trying to elicit evidence for
prosecution of crime.
2. There may be a forfeiture issue, too. Hammon
forefeits Confrontation Clause rights if he
engaged in wrongdoing in making Amy
unavailable.
e. Giles: (not on test): Giles is convicted of murdering his ex-gf.
Prior to murder, she’d given statements to police.
i. Ct holds Giles did not forfeit Confrontation rights b/c
did not intentionally kill her to make her unavailable as
a witness
ii. forfeiture when intent to make unavail. Eg drug dealers
who kill people to prevent them fr testifying against
them.
ix. 807: Residual Exception:
1. having “equivalent circumstantial guarantees of trustworthiness”
2. may be admitted by court if:
a. offered as evidence of a material fact
b. statement more probative on point for which it is offered than
any other evidence that proponent can procure through
reasonable efforts.
c. General purposes of rules & interest of justice best served by
admitting evidence.
3. must give notice to adverse party b/f offering this evidence, & give
adverse party fair opportunity to prepare to meet the evidence.
V. Other Relevance Issues:
a. Character Evidence: 404 & 405
i. Overview:
1. 404(a) bars use of character evidence. i.e., bars the propensity
argument:
a. 2 basic problems w/ propensity arg: 1) low probabtive value;
2) highly prejudicial.
2. HOWEVER, 404(b) drastically limits 404(a)’s scope.
a. 404(b): Evidence of other crimes, wrongs, acts not admissible
to prove character but may be admissible for “other purposes”
(e.g., motive, opportunity, knowledge, etc.).
b. usually guard against 404(b) swallowing up 404(a) with a 403
objection.
3. ALSO, 3 exceptions in 404(a). (first two just in criminal context; third
in crim and civ)
a. character of accused: when the accused offers a relevant
character trait, prosecution can rebut with character evidence.
i. But accused must open the door
b. character evidence of victim offered by accused, or prosecutor
may rebut same trait in accused, or offered by prosecutor of
peacefulness of victim in homicide case to rebut evidence
victim was first aggressor.
i. 412- Rape Shield Rule – limits 404(a)(2)
c. impeaching witnesses.
4. 405: methods of proving character:
a. testimony as to reputation or in form of opinion
b. specific instances of conduct when character if element of
charge, claim or defense.
i. There is also a 803(21) hearsay exception for character
evidence.
5. 413-415: exceptions to usual character evidence rules when accused
of sexual assault or child abuse.
ii. Hypos Illustrating 404(a) exceptions applications.
1. 5-A: Don &Vince fight in saloon. Don charged w/ assault & battery.
Pleads self defense:
a. prosecutor calls Coach during case in chief, his testimony Don
is “mean aggressive physical man… prone to violence.”
i. Relevant b/c if he’s prone to violence, more likely to
assault
ii. But barred by 404 [(a)(1) exception only when
prosecutor rebuts evidence by defendant)
b. During Don’s case-in-chief, D calls Rev who testifies Don is
“peaceably disposed toward all”.
i. Relevant b/c makes him less likely to assault.
ii. Ok under 404(a)(1)
1. but this opens the door for prosecutor to call
Coach w/ aggression testimony.
2. 5-B: Don calls Ernie to offer evidence that V is belligerent.
a. Relevant b/c helps Don’s self defense claim
b. Admissible under 404(a)(2).
3. 5-C:
a. for opinion evidence, foundation requires personal knowledge
of people whose character is at issue.
b. for reputation evidence, foundation requires personal
knowledge of people in community where reputation is
established.
c. Ernie and Don cannot talk about specific events on direct
examination. But thy can talk about specific acts on c-x to test
knowledge/ foundation of opinion.
4. 5-D: after coach’s evid of Don’s peacefulness admitted during d’s
case-in-chief, prosecutor intros evidence that Don beats women.
a. Highly relevant to witness’s credibility.
i. Also relevant to propensity but NOT admissible for
propensity purpose.
b. Will be admissible as rebuttal for evidence that D is peaceful.
c. But if rebuttal evidence were less directly related, such as
embezzlement or tax evasion, then a 403 objection probably
will be sustained (low prob value high prej). A football brawl
is more probabive, but probably also will not survive 403.
iii. Hypos/ Cases Illustrating 404(b) application
1. Haddleston: 4-part test for 404(b) admission – by preponderance of
evidence.
a. Evidence proffered for proper 404(b) purpose
b. Relevant to proper 404(b) purpose
c. Probative value outweighs prejudice (converse of 403)
d. Limiting instructions if asked.
2. 5-E: evidence of witnessing prior acts of shoplifting & reputation as
shoplifter intro’ed at shoplifting trial.
a. Clearly barred under 404(a) b/c clear propensity argument
b. But, may be admissible under 404(b) as evidence of motive to
steal, etc.
i. In practice, difficult to bar under 404(b)
3. 5-F: Prosecutor wants to offer ex-gf’s description of Moore as a drug
dealer in trial for cocaine sale (he only had a small amount on him)
a. prior hashish sales: good chance will get in under 404(b)
b. prior cocaine sales: definitely will get in under 404(b)
c. evidence goes to intent to sell cocaine.
4. 5-H: need to establish plan or design for RICO & extortion charges.
a. Rupert’s testimony on envelope of cash
b. Neely’s on bribe to Judge.
c. Properly admitted under 404(b). Relevant to whether
enterprise existed (use of ct as place to get bribes). But neither
can name specific bribery instances.
5. 5-I: kid dies fr injuries. Brought into hospital by mom who said it was
an accident. Prosecutor @ mom’s manslaughter trial wants to intro
evidence that she brought kid to hospital twice w/I last year, both
times serious injuries, both times said was accident.
a. Highly likely to be Admissible under 404(b) under “other
purpose” or “absence of mistake or accident.”
b. Highly probative. (can a 7 yr old really just have that many
serious accidents in quick succession?)
c. Harder to say if admissible if timeframe of previous incidents
different or caregiver other than mother. Also would be more
prejudicial, so better 403 objections.
d. Judge will make the finding.
iv. Hypos illustrating 412, 413-415 (Rape Shield, Sexual Assault & Child
Abuse):
1. 5J:
a. incidence of previous consensual sex. Admissible under
412(b)(1)(B)
b. someone said she’s an “easy mark” – inadmissible under
412(a)
c. someone else had sex with her on same day. May be
admissible under 412(b)(1)(A) (other person as source of
semen/ injury),
2. 5L:
a. evidence of previous sexual assault (testimony by another
woman): certainly admissible b/c meets POE standard.
i. May be 403 objection b/c jury may draw impermissible
inference as to consent now.
1. but at most judge will issue limiting instruction.
b. Evidence of conviction for rape of minor:
i. Less probative b/c minor & highly prejudicial b/c
conviction
ii. But 403 objection would be hard to sustain.
b. Habit: 406:
i. Habit is distinct from character evidence. Involved routine practice.
1. “semi-automatic,” “reflective,” “(almost) nonvolitional”
2. specific, regular, repeated behavior.
a. E.g., wearing a seatbelt probably won’t get in b/c not specific
enough
b. But driving a regular route to work probably would count.
ii. Hypos:
1. 5-M: testimony Lance is “Good careful driver”:
a. this is character evidence, not habit b/c not specific behavior.
b. But if testimony were he stops @ every stop sign along a
specific route- then may be able to argue it’s habit.
2. 5-N: whether H habitually used immersion coil to heat water.
a. Regular, specific response to a situation. “often.” – probably
admissible as habit.
3. 5-O: organizational routine, where L relied on others’ personal
knowledge. Issue is whether L can testify as to procedure even tho
didn’t personally. However, was admissible in real case. Cts typically
look to:
a. chain of authority
b. guidelines or procedures
c. manuals
d. attitudes in the workplace.
c. Remedial Measures: 407:
i. Rationale: to encourage repairs.
ii. But application is tricky b/c depends on what counts as “feasible” measures.
d. Settlement Offers: 408-411:
i. 408: settlement offers: compromises & offers to compromise are inadmissible
as proof of liability or amount when claim is disputed, or impeachment
(except as to bribery)
1. Basic rationale, to encourage settlements.
2. 5-P: not settlement negotiations when Cheron offers to pay for
Sosbee’s damages b/c did not contest validity or amount.
ii. 410: inadmissibility of plea bargains when:
1. withdrawn guilty plea
2. plea of nolo contendere
3. plea discussions that did not result in guilty plea or resulted in
withdrawn guilty plea.
4. 2 limited exceptions: where another statement made in same course of
plea/ discussions had been introduced and this one must in fairness be
considered along with it; perjury.
5. Hypos:
a. 5-R: tough case whether confession or plea negotiation.
b. 5-S: bargaining for others not covered in 410. statements re:
3rd parties are admissible.
iii. 409 (offer to pay medical bills) and 411 (liability insurance); evidence of
offer to pa med bills or has liability insurance not admissible to show fault.
1. insurance is not very relevance
2. but is highly prejudicial b/c jury may feel that since insurance’ll pay
for it anyway, may as well award some $ to person who’s injured.
VI. Expert & Scientific Evidence
a. 602: Competency of Witnesses: 602: in general, requires personal knowledge -
except for expert witnesses (including scientists).
b. 701: Opinion Evidence.
i. Federal Rules allow lay witnesses to give opinion testimony
1. inferences of lay witnesses limited to what one can rationally reach
and not based on specific knowledge.
2. e.g., lay witness may testify someone is speeding but not specific
speed.
c. 702-705: Expert Evidence (including scientific evidence):
i. 702: what counts as expert/ scientific evidence:
1. scientific, technical, or other specialized knowledge that will assist
trier of fact to understand evidence.
a.
2. Qualified by knowledge, skill, experience, training or education
a. Does not have to be formal training.
b. Usually whether one is an expert is settled before the trial.
3. testimony as to opinion or fact if testimony is
a. based on sufficient facts or data
b. product of reliable principles or methods
c. witness has applied principles & methods reliably to facts oof
case
ii. 703: Basis of opinion testimony by experts:
1. experts can testify on basis of inadmissible testimony (e.g. hearsay,
since experts may rely on secondary sources for their expertise)
iii. 705: Disclosure of Facts or Data Underlying Expert Opinion:
1. expert need not first testify as to underlying facts or data unless court
requires, and may be cross-examined on these issues always.
iv. 704: Opinion on Ultimate Issue:
1. expert testimony can encompass ultimate issue of fact
2. except as to mens rea of crime or affirmative defense that involved
mental state. (e.g. psychiatrists can’t say X intended to kill)
a. borderline case may be: whether defendant can distinguish b/w
right & wrong (since this goes to insanity defense)
b. a psychiatrist definitely cannot testify defendant is legally
insane. That is for trier of fact alone.
c. Helpful to see what’s in DSM – this helps show whether
psychiatrist is testifying as to what’s an illness, or what’s a
legal standard.
v. Hypo: 9C: doctor asked how she determines what’s area’s standard of care.
She says she’s familiar with P’s condition and practices medicine there. She
also spoke w 11 colleagues in Tampa, 5 in a curbside consult (she just talked
about it w them), 6 in a formal presentation. “All 11 share my view. They all
see it the same way as I do.”
1. Fl. S. Ct. rules this does not count as “fact or data” because she’s
merely serving as conduit for others’ expert testimony. Highly
prejudicial b/c we don’t know anything about these 11. Inadmissible
hearsay.
2. However, reversible error could’ve been avoided if she’d just said in
her experience, X had met standard of care.
d. Scientific Evidence:
i. Prior to Daubert, courts had applied Frye standard: scientific evidence must
be I “general acceptance” to be admissible.
ii. Daubert: 702 does not incorporate Frye standard. Instead, scientific evidence
must be thr scientific reasoning or methods. 4 non-exhaustive considerations:
1. testability of hypothesis or falsifiability
2. whether published in peer-reviewed journal (maybe doesn’t have to be
peer-reviewed. E.g., law reviews)
3. rate of error o/ scientific techniques used to test hypothesis.
4. general acceptance.
iii. Kumho Tire: applying Daubert to all expert testimony.
1. key is reliability.
2. 702 was amended after Kumho. Reliabilility now explicitly included.
VII. Impeachment & Repair
a. Impeachment:
i. Overview:
1. Show Reasons to doubt witness's word in general - definite (in in
telling jury why to doubt witness), but nonspecific (in not showing
what testimony to doubt)
a. Show witness has bias, animus, motivation, or corruption
b. Show defect in sensory or mental capacity (perception or
memory)
c. Show witness is by disposition untruthful by
i. Cross-examining target witness about nonconviction
misconduct (R608(b))
ii. No extrinsic evidence allowed
iii. Cross-examining him about certain kinds of
convictions (R609)
iv. Testimony by a character witness that target witness is
untruthful (R608(a))
ii. Nonspecific Impeachment:
i. Manske: what is meaning of character “for untruthfulness” in 608(b).
1. 608(b) establishes that a witness’s specific instances of conduct
may only be raised on cross-examination if probative of
truthfulness or untruthfulness.
a. Manske sought to c-x Pszeniczka about threats he’d
made to witnesses testifying in another case.
2. Ct holds that this falls under 608(b) b/c “untruthfulness” does
not have to just mean outright dishonesty.
a. Reversible error in lower court. Rare.
ii. Impeachment by Prior Convictions
1. 609(a)(1): 2 standards:
a. witness who is not on trial:
i. admissibility of conviction of felony. Subject to
403 objection.
b. Defendant witness:
c. admissibility of conviction of felony.
d. Reverse 403 standard. Probative value must outweigh
prejudicial effect.
2. 609(a)(2): conviction for felony or misdemeanor involving
“dishonesty” or “false statement.”
a. E.g., passing bad check.
b. NOT open to 403 objection.
3. 609(b): time limit.
a. Presumption that convictions or release of over 10 years
ago are excluded
i. Unless Court determines probative value of
impeachment is greater than prejudice
1. But proponent must give sufficient
advance written notice to adverse party
of intent to use evidence
4. 609(c): pardon, annulment, certificate of rehabilitation:
a. makes convictions inadmissible
i. and when no subsequent conviction for a felony.
5. 609(d): juvenile adjudications:
a. generally inadmissible
i. except when witness who is not the accused
1. if conviction of offense would be
admissible to attack credibility of adult
a. and court is satisfied that
admission is necessary to
determine guilt or innocence.
6. 609(e): pendency of appeal
a. is admissible.
b. This helps counter other party bringing in evidence
under 609(a)
iii. 610: Religious belief/ opinion
1. not admissible for impeachment or to enhance credit
2. to promote tolerance for religious beliefs.
a. For instance, one cannot bring in fact someone belongs
to an atheist organization (?)
b. Nor can one ask whether one’s religion’s tenets include
telling the truth.
iii. Specific Impeachment:
1. 613(b): Prior Inconsistent Statements:
a. admissible only when witness has opportunity to explain or
deny the statement & opposing party can interrogate
b. or when “interests of justice otherwise require”
c. separate from 801(d) which can be used for substantive proof.
i. 613(b) does not apply when requirements of 801(d)
met.
d. Hypo: 8-E: whether prior testimony of witness is admissible
when not in courtroom.
i. Cases differ on when this is ok.
ii. Just not being in courtroom does not lead to
inadmissibility
iii. What if sent home, not told he can come back?
1. may be inaccessible.
2. If cannot find again, inadmissible.
3. the judge may admit evidence only after he or
she knows the witness can come back.
iv. If joined French Legion & can’t be subpoenaed
1. then definitely inadmissible evidence.
2. Cases:
a. Webster: King is a prosecution witness. His testimony
exculpates Webster (the defendant).Prosecution then
introduces prior inconsistent statements by King.
i. Prosecutor is allowed to impeach own witness. Rule
607
1. However, 403 objection: jury may see King’s
prior statements as substantive proof of
Webster’s culpability.
2. However, King’s prior testimony is only
admissible to impeach King.
3. Limiting instruction was issued.
ii. Ct holds:
1. Prior inconsistent statement introduced for
impeachment is not ok when it is just “mere
subterfuge” to get otherwise inadmissible
evidence to jury.
2. BUT, good faith requirement: as per Morlang
standard for applying 607.
3. Here, Prosecution showed good faith (i.e., no
bad faith) b/c it tried to voir dire King outside
presence of jury before presenting him
(prosecution did not know what King would
say). However, defense had objected so v.d. did
not occur.
b. Harris: statements inadmissible under Miranda can be
admissible for impeachment purpose
i. invokes Walder, which involved physical evidence that
was barred for substantive proof but was ok for
impeachment.
1. However, dissent points out that in Walder, the
evidenc was collateral matter while in Harris,
the evidence was for similar matter, so it is
much more prejudicial here (more likely for
jury to take as substantive proof of crime)
c. Mincey: involuntary statements are inadmissible for
impeachment purposes.
i. Here, Mincey was in a hospital after being shot, was
denied a lawyer despite repeated requests.
ii. Due process violation.
b. Repairing Credibility
i. 608: character witness may repair credibility of another witness only after
witness has been attacked for truthfulness
1. not every impeachement is an attack on truthfulness (e.g., sensory
defect)
ii. US v. Medical Therapy Sciences:
1. prosecution cannot impeach own witness and then call other witnesses
to repair credibility.
2. But here, direct examination is not an attack on veracity, while c-x
was. Therefore, prosecution has right to repair.
VIII. Authentication & Foundations
a. Rationale: 901: every kind of evidence requires authentication (it is what it claims to
be).
i. Admissibility separate issue from weight of evidence.
ii. U.S. v. Johnson: being “pretty sure” is enough to lay foundation for testimony
axe the one used in attack.
1. does not have to be free from doubt.
a. goes to weight accorded, not admissibility.
iii. Laying foundation = authentication for witnesses’ testimony.
iv. Examples: 901(b): nonexhaustive list of examples of authentication:
including (e.g., testimony by witness with personal knowledge, public
records)
b. Authentication for tape recordings: Turney v. State: 7 requirements:
i. Showing recording device capable of taking the testimony
ii. Showing operator of device was competent
iii. Establishment of authenticity and correctness of recording
iv. Showing that changes, additions, deletions not made
v. Showing of manner of preservation of recording
vi. Identification of the speakers
vii. Showing the testimony was elicited voluntarily w/o any inducement.
c. Authentication of telephone conversations: US v. Pool:
i. Not sufficient for purposes of id to just take testimony that X says he’s X on
the phone.
d. Best Evidence Doctrine:
i. 1002: “To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as otherwise
provided…”
1. more liberal than common law b/c of better duplication technologies.
2. also covers more than just writings. Includes photos, film, etc.
3. A print or negative counts as an original.
ii. 1003: duplicates are also admissible unless
1. genuine question raised as to authenticity of original
2. in the circumstances, it would be unfair to admit duplicate in lieu of
original.
iii. 1004: original not required
1. if lost or destroyed (and no bad faith. i.e., one did not destroy the
evidence)
2. not obtainable
3. in possession of opponent and not produced
4. collateral matters (not closely related to controlling issue)
iv. 1005: certified copies of public records are admissible.
v. 1006: summaries of voluminous writings, etc admissible, while originals
must be made available for examination or copying by other parties.
vi. Cases:
1. U.S. v. Duffy: shirt inscription or anagram (a few words) is not a
writing
2. Meyers: best evidence doctrine does not apply merely b/c written
version of testimony exists.
3. Sylvania Electric Products v. Flanagan: need to show originals are
unavailable to waive requirement for original.
e. Self-Authentication: [not on exam]
i. 902: on this list, do not witnesses to la foundations.
1. e.g., public documents, official publications, newspapers, trade
inscriptions
2. if these are not refuted by counter-proof from other side, then jury
must assume it is what it says it is.
a. EXCEPT for criminal prosecution b/c of presumption of
innocence.
i. Ct will not instruct jury to find evidence to be what it
purports to be when proffered by criminal prosecutor.
IX. Privileges [not on exam]
a. 3 Broad categories:
i. confidential communications to certain professionals (e.g., attorneys, doctors)
ii. witnesses deemed incompetent to serve as witnesses (e.g., spouses)
iii. Constitutional protections against self-incrimination
b. Professional Communications:
i. Attorney-Client privilege:
1. client holds the privilege (i.e., he has to assert it)
2. cannot disclose confidential communications for purposes of legal
representation, even for attorney not retained
3. objective measure of intent for communication to be confidential:
a. for example, in presence of 3rd parties waives privilege
i. third parties do not include colleagues or agents of
attorney
ii. third parties may also not include some family
members
4. does not apply where:
a. joint clients’ disputes or
b. malpractice actions b/w client & attorney or
c. in furtherance of fraud or criminal activity
5. applies to any employees of corporation where corporation is client
ii. Physician-Patient privilege:
1. Held by the patient:
a. Doctor can assert it for patient
b. Only patient can waive it
2. for purposes of treatment
3. if the patient calls doctor as witness regarding consultation, generally
held to be waiver
4. does NOT cover:
a. fact of treatment
b. dates of treatment
c. also frequently does not apply in criminal context, depending
on how relevant to issue.
5. presence of 3rd parties destroys privilege
c. Spousal Privilege:
i. 2 kinds:
1. where spouse is criminal defendant: defendant has privilege of
disallowing defendant’s spouse from testifying at all.
a. DOES NOT apply where defendant charged with committing
crime against spouse or close relative (e.g., child abuse)
b. Crim defendant cannot stop ex-spouse from testifying.
2. in all other contexts: can disallow testimony on confidential
communications b/w spouses
a. communications cover more than just words. For example,
also what’s seen.
b. Applies only to communications at time of marriage
c. But those communications protected even if spouses are now
divorced or one is dead.
d. Also does not apply where civil action against spouse or child
abuse.
e. 3rd parties destroys the privilege
f. but a spouse cannot prevent criminal defendant from testifying
in own defense.