Evidence - Professor Murray -
A. Federal Rules of Evidence
1. Considered by court, but finally enacted by Congress
a. NB: are statutes
B. FRE 401 - "Relevant evidence" means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
than it would be without the evidence.
1. Includes "relevance" and "materiality"
a. Relevance - one fact makes another more likely
b. Materiality - likely fact has legal consequence
C. FRE 402 - All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of congress, by these rules, or by other
rules prescribed by the SC pursuant to statutory authority. Evidence which is
not relevant is not admissible.
D. Fact-finders generate fact images through inference, using induction
E. Three "paths" of inference
1. Logic and experience -> fact of legal consequence
2. Logic, experience and intuition -> just and right outcome
3. Feelings, emotions and prejudices -> outcome directed by emotion, etc.
4. NB: Must have first level inference to be admissible
F.Admissibility - not the same as sufficiency
1. Connection need not be strong enough to lead to conclusion by itself
2. Evidence may be relevant if it narrows the range of possibilities
1. Problem II-1: King Solomon's Judgment p28
a. Inference: woman who acted in child's interest must be mother
2. Tanner v. United States (1987) p31
a. Defendant requested new trial because of
allegations that jurors were drunk/high during trial
b. Decision: only "external" force can cause new trial - can't question
what (metaphorically) goes on in the jury room
3. Problem II-2: The Mangled Hand p37
a. Witness says that guy was looking away at pizza when hand got
caught in machine and caused injury leading to worker's comp
b. Not relevant because worker's comp is SL
4. Problem II-3: The Defective Unopened Drum of Paint p37
a. First drum of paint with 10-yr warranty failed.
Can it be introduced as evidence to get money back for
b. Yes, if same batch
c. If could chemically test 2nd drum, using first as evidence seems
d. Other levels of inference: isn't it fair that this guy is allowed to return
paint when 1st drum failed and caused damage?
H. Conditional Relevance
1. FRE 104(b) - Relevancy conditioned on fact - When the relevancy of evidence
depends on the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to support a
finding of the fulfillment of the condition.
2. Problem II-7: The Rim p53
a. Expert will testify about accident based on how far rim was thrown.
Lawyer wants to introduce rim with testimony of investigator who
b. Must show evidence that rim actually came from accident - enough so
that factfinder could conclude that it did come from accident
3. Romano v. Ann & Hope Factory Outlet, Inc. (RI 1980) p54
a. Expert tested bike 3 years after accident - findings only relevant if
condition of bike had not changed during that time
b. Minority case: rejected FRE and held that court had to be satisfied by a
preponderance of the evidence
(1) RI has since adopted version of FRE
I. Prejudice and Probativeness
1. FRE 403 - Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by consideration of undue delay,
waste of time, or needless presentation of cumulative evidence.
a. Probative value: connection with fact
b. Substantially outweighed: often difficult
c. Unfair prejudice: inference we don't want to recognize
d. NB: If using, must be able to articulate why inference which hurts is
unfair, point out other ways in which legitimate inference can be established
e. Considerations when using the rule:
(1) Nature of the "unfair prejudice"
(2) Quality and importance of legitimate inference
(3) Alternatives for establishing legitimate
(4) Importance of issues to which legitimate inference relates
2. Problem II-8: A Picture Is Worth a Thousand Words (Commonwealth v.
a. Judge allows color slides of murder scene to be shown to jury, allowed
b. Prosecutor wants them in to add "life" to case about hired killer, make
c. Defendant wants them kept out because they could make jurors want
to punish someone, will connect them with D even if he's not guilty
3. US v. Yahweh Ben Yahweh (S.D. FL 1992) p61
a. Larger than life photos of corpses provided corroboration of witness's
b. Allowed in under discretion of trial judge
c. NB: If reasonable purpose for evidence, it takes a lot of unfair prejudice
to keep it out
4. US v. Grassi (5th Cir. 1979) p64
a. D offered to stipulate that films were obscene to keep them from being
shown to jury under 403 (indictment for distribution of obscene
b. Stipulation will be given weight but is not decisive
(1) would be more important in civil case
J.Problems in Circumstantial Proof
1. The importance of context to understanding evidence
a. Most facts are dealt with in real life context, but trial removes things
(1) May have different or exaggerated effect out of context
b. Three types of context:
(1) Location, action or train of events in which facts occurred
(2) Background, experience, outlook of
(3) Context of the personae of the actors
2. Problem II-10: Stella's Stockings (People v. Adamson, 1947) p69
a. Murder victim found with stockings torn off, stockings missing from
scene. Parts of stockings (not necessarily the same ones) found in suspect's apartment
b. this seems to make suspect more likely guilty
c. But, parts of stockings like this were commonly used by
African-Americans for hair-care at the time. White jury might not
have this context.
3. Problem II-13: Bombs, Bats, and Hammers p73
a. (1) Bombing suspect had borrowed clothespin earlier. At trial, expert
shows model using clothespin - one of a few possible things. Probably admissible.
(1) Unfair inference - it was a clothespin that was used (it didn't
have to be)
(2) Fair inference - it was more likely
b. (2) Witness saw bat and hammer (likely murder weapons) at D's
house. They are now missing, but another bat and hammer are put into evidence as
(1) Some legitimate use and connection with crime, so probably
c. (3) Jury shown dry-wall hammer, which could have been murder
weapon (but not sure); no evidence that D, construction worker,
ever had one.
(1) Too attenuated - not admissible
4. Circumstantial Evidence of State of Mind
a. Very important
(1) Legal consequences often depend on state of mind
(2) Reliable direct evidence of SOM difficult to get
(3) Problem: there are often alternative inferences
b. Problems II-14 & II-15: Flight and Non-Flight p75
(1) Must ask: how well-established is the connection, what are
(2) If many explanations, judge will keep evidence out; if only a
few, can go to jury because not unfairly prejudicial
c. US v. Silverman (9th cir. 1988) p76
(1) Man gave wrong identity to DEA agents who came to his
(2) Court held that trial court should not have given "flight
instructions" to the jury because there was not sufficient
connection between the crime for which he was on trial
and his concealment of his true identity (he was unaware
of the nature of the charges when he concealed his
d. Jenkins v. Anderson (1980) p81
(1) Guy didn't report crime for 2 weeks, then pleaded self defense.
(2) Court held that this could be used to impeach him, at least if
e. Criminal cases - inferences based on the
following may involve issues of unconstitutional
(1) failure to testify
(2) failure to give a statement to police
(3) failure to explain ambiguous circumstances
f. Arguing SOM inferences
(1) Is there a rational association?
(2) What alternative associations are there?
(3) Could a factfinder find that the relevant association is the most
g. Problem II-17: Toilet Bowl Evidence p87
(1) Spoilation of evidence may give rise to inference against
person who did it
(2) Inference on inference used to be
considered to attenuated, now depends on the
quality of the inferences
K. Probability and Statistical Proof
1. Intuitive sense of probability informs analysis of all information
a. e.g. if victim says attacker had red hair, and D has red hair, this is
2. People v. Collins (Cal 1968) p95
a. "Product rule" used to "show" that there was a very small chance of a
pair having the same characteristics as Ds and people witnesses
b. Court reversed because of problems:
(1) Probabilities were just made up
(2) Were not independent variables
(3) Only addressed whether any couple would have these
characteristics, not actual guilt
(4) This type of evidence would be given too much weight by jury
3. Some prob. evidence is admissible
a. e.g. fingerprints, DNA, blood tests
b. Note: will not be enough to go to jury by itself
4. Smith v. Rapid Transit (Mass. 1945) p105
a. Victim hit by bus most likely belonging to D (they were the only
company that ran a line on that street), but no other real evidence.
b. Not enough to survive directed verdict - prob. evidence can be argued
along with other evidence, but cannot be sufficient for verdict.
5. Problem II-20: License Plate Roulette p106
a. D owns four trucks with license plates that fit incomplete number seen
by V. Two others exist.
b. This evidence should be admitted, but would not be sufficient by itself.
c. If could be shown that it couldn't be either of the two other trucks, this
could be sufficient.
6. Problem II-21: Blue Bus p105
a. P run off road by blue bus. D owns four-fifths of all blue buses
b. Admissible but not sufficient
(1) Allow this to shift burden to D
(2) Proportional liability
7. Problem II-22: Prison Yard p108
a. One prisoner out of 24 hides, others kill guard.
b. Without more evidence than this, couldn't convict - 24/25 is reasonable
c. If another prisoner testifies that it was he who hid, could probably
8. Cole v. Cole (NC 1985) p127
a. Probability of paternity calculated using Bayes theorem - assumed
fertile. This led to 97% chance of paternity; if infertile, chance
b. When shown that D was sterile, must find he was not father
II. Categorical Rules of Exclusion
A. Bar evidence which generates inference of fact of legal consequence because of
1. May be admissible for some purposes and not others
a. This limitation may be a little
B. Subsequent Remedial Measures
1. FRE 407 - When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence or culpable conduct in connection with the
event. This rule does not require the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment.
2. Note: evidence of such measures not enough to show negligence - must also
show that D knew or should have known of defect
3. Problem III-1: Locking the Barn Door p135
a. (1) Sign erected after accident is not admissible to show
dangerousness or negligence, may be admissible to show
feasibility if controverted
b. (2) Previous sign would be admissible to show standard of care not
adhered to by Ds crane operator
4. Problem III-2: The Exploding Pinto p137
a. Ford changed design of new Pintos before P had accident.
b. Depends on whether event is design, sale, or accident.
(1) Policy would seem to apply to event being design.
(2) Policy seems less important in mass-produced goods,
however - other forces are at work.
5. Problem III-3: The Dismissed Employee p137
a. D company fires truck driver involved in
b. Probably a remedial measure, but might be used to argue control.
Might be argued wasn't relevant because could be other reasons
6. Example: M buys snowblower. Grinder control is down near engine. After
using blower, reaches into discharge chute and has fingers cut off.
Warnings were there but covered in snow. New models made with
grinder control on handle.
a. M argues for admission under feasibility, possibly SL
(1) Ask questions like "is the control safer somewhere else" - this
led to settlement during cross-exam of expert
7. Problem III-5: Third Party Repairs p138
a. Covered by language of the rule, but doesn't fit the policy (not
discourage remedial measures)
8. Problem III-7: The Aluminum Gear Box p138
a. Claim was SL - change was to show defect only, not negligence or
culpable conduct. But isn't the policy still the same?
9. Robbins v. Farmers Union Grain Terminal Association (8th Cir. 1977) p140
a. Cattle damaged by urea feeding, makers of feed changed warning on
feed afterwards. SL claim on unreasonable dangerous and
b. Court held admissible because not in the wording of FRE 407
(disagreed with policy)
c. This is the minority view
10. Werner v. Upjohn (4th Cir. 1980) p147
a. Cleocin allegedly negligently prescribed. Revised warning (required
by FDA) admitted into evidence.
b. Court held not admissible to prove SL because policy was the same.
Fact that FDA required also did not make admissible.
c. Majority view but SC has not spoken
C. Settlement Offers and Payment of Medical Expenses
1. FRE 408 Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or its amount. evidence of conduct or
statements made in compromise negotiations is likewise not admissible. This rule does not
require the exclusion of any evidence otherwise discoverable merely because it is presented in
the course of compromise negotiations. This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice of a witness,
negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation
a. Used to be distinction between fact statements and others - now all are
protected to encourage negotiations
2. FRE 409 - Evidence of furnishing or promising to pay medical, hospital, or
similar expenses occasioned by an injury is not admissible to prove
liability for the injury.
a. If, say, paid witnesses' bills, this could be admissible to show bias
3. Problem III-8: Mr. Nice Guy p159
a.(1) at accident scene: Offers are protected, although there may be
some types of negotiations we don't want to protect (semi-coercive).
b. (2) Even though done at deposition, this was probably all negotiations
(they have to start somewhere).
D. Proof of Insurance
1. FRE 411 - Evidence that a person was or was not insured against liability is
not admissible on the issue whether he acted negligently or otherwise wrongfully. This rule
does not require the exclusion of evidence of insurance against liability when offered for
another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a
2. Problem III-14: The Deep Pocket Approach p166
a.(1) P lawyer asks D if co. carries insurance against accidents.
Inference is carried insurance because he thought he would need it, or that has "deep pockets".
Excluded under FRE 411.
b.(2) P can ask Dr X if he was retained by D's insurance co. - show bias.
Evidence of amount of coverage would be a close call - might show amount of bias.
(1) Note: must show bias beyond just being hired by D.
(2) Judge ends up manipulating evidence - e.g. just letting it be
shown that X testifies for lots of defendants.
3. Problem III-15: Hit and Run p167
a. D wants to show he had no motive to drive away
because he is insured.
b. Within words but not intention of rule - usually allowed in this type of
4. Problem III-16: Absence of coverage p167
a. Can't ask "own party" about insurance, even if answer will be no.
5. Insurance rule is usually strictly applied, but several legitimate ways to get
before jury (note: no explicit requirement that they be controverted)
6. If insurance is relevant to bias of witness, may be admitted on that issue
a. e.g. statement taken by insurance adjustor
b. expert hired by insurance company
c. often with limiting instruction
7. Party may "open the door" to insurance evidence
a. Saying something like "how much should D really have to pay for this?"
- imply that he's paying it himself.
8. Collateral Source Rule
a. Third party payments of injured party's expenses legally irrelevant
III. Character and Credibility
A. The Propensity Rule
1. FRE 404 - (a) Character evidence generally. Evidence of a person's
character is not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut
(2) Character of victim. Evidence of a
pertinent trait of character of
the victim of the crime offered by the
accused, or by the prosecution to
rebut the same, or evidence of a
character trait of peacefulness of the
victim offered by the prosecution in a
homicide case to rebut evidence that
the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness,
as provided in Rules 607, 608, and
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
a. Note: Allowed to "humanize" witness with
questions like "are you married?"
2. People v. Zackowitz (NY 1930) p178
a. state wanted to introduce evidence of other weapons found in guys
house. He was only carrying one weapon at time of crime, which he said was in self-defence.
b. Court said would not be allowed in - was being used as evidence of
c. Dissent: showed SOM - guy chose between weapons, then went out to
3. Evidence can have non-propensity as well as propensity inferences - e.g. has
means relevant to offense
a. Rule 403 may be involved if first is small relative to second
4. Problem IV-1: Return to the Scene p184
a. State wants to show that D stole bonds from combination safe a month
before the crime for which he is on trial.
b. Shows that D can get into safe
c. Might need limiting instruction because of "did it before, will do it again"
5. Problem IV-3: Money or Death p190
a. Bank robber uses notes with picture of dead guy under one word and
living guy under another. Can state offer evidence that D has
been shown to use similar note when robbing other banks?
b. "Modus operandi" or "signature" is admissible
c. Could have been acquitted of other crimes
(1) Only need something that reasonable jury could believe (not
beyond reasonable doubt)
(2) Verdict may not have rested on
d. Note: 404(b) is not exclusive category of exceptions
6. US v. Danzey (2nd Cir 1979) p191
a. Unusual features of crime - guy always hunched over, certain type of
"getaway" and "switch" cars, etc. - introduced by government to
b. Allowed in government's case in chief - only got cautionary instruction
to reduce "undue" prejudice
7. Easerly v. Lewin (in-class film)
a. Court originally would not allow in evidence of 8 previous suits brought
by plaintiff broker under same exception to statute of Frauds,
even though D showed that in all cases P testified that D told him
there'd be a "nice piece of change" in it for him.
(1) Don't want to try 8 cases here, etc.
b. Then D witness testified as to veracity of P, and P lawyer tried to
impeach by bringing up suit by P against witness. This "opened
the door" for the evidence about the other suits.
8. Commonwealth v. Jewett (Mass 1984) p196
a. Court held that evidence that victim of another assault misidentified
this guy should have been admitted.
b. Inferences: There's some rapist out there that looks like this guy;
police procedure was faulty.
c. Extra latitude is often given to D to show innocence
9. Tucker v. State (Nev. 1966) p203
a. Guy calls police and says he found a dead guy in his house - not
indicted. 6 years later the same thing happens, prosecutor tries
to introduce evidence of previous incident.
b. Court holds that there must be clear and
convincing evidence that D committed first crime.
c. court was probably too vigorous - legitimate inference given by
"doctrine of chances"
10. Huddleston v. US (1988) p205
a. Similar acts evidence - selling other stolen items
b. Court held that the court doesn't have to make a finding that the prior
act actually occurred - can admit evidence of previous act if the
jury could make such a finding based on all the evidence
(1) See Rule 104(b)
11. Williams v. Florida (Fl. 1959) p214
a. Man allegedly attacked girl with ice pick from the back of her car. He
said it was consent. Evidence that he'd hidden in the back of
another girl's car showed m.o. and negatived claim of consent -
12. Oliphant v. Koehler (6th Cir 1979) p219
a. Man orchestrated rape so there would be little or no evidence, then
went to police and said "someone is going to accuse me of rape."
state wanted to show he'd done this 2 or 3 times before.
b. Allowed into evidence as m.o. or as negative happenstance (doctrine
c. Dissent: this was unfair prejudice because he'd been acquitted of other
rapes - violation of double Jeopardy
d. Note: courts more willing to allow propensity evidence in cases like
rape - seems more predictive here than in robberies, etc.
13. State v. Conlogue (? - 1984) (materials)
a. D wanted to introduce evidence that mother of V had been abused and
was therefore more likely to abuse children. Also evidence that
witness saw her hit other children.
b. Ct. said had to allow evidence of abuse of mother if being used to
show D's innocence (i.e. mother was the guilty party)
c. Evidence of hitting other children allowed in under 404(b) to show that
she was guilty, not D
14. Evidence of medical or psychological condition
a. "Character" evidence is inference by lay people (jury or witnesses)
b. If person inferring is medical professional, then may be admissible
(1) e.g. abused child syndrome, battered wife syndrome, even
"jailhouse puffing" syndrome
B. When can you prove character - and how?
1. Rule 404(a) exception for character of criminal D
a. D's choice
b. May be enough to create reasonable doubt
2. FRE 405 - (a) Reputation or opinion. In all cases in which evidence of
character of a trait of character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowed into relevant specific
instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait
of character of a person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of his conduct.
a. Traditionally, only reputation allowed, still true in some states.
b. Must have foundation.
c. Trait identified must be inconsistent with crime charged.
3. Problem IV-6: Proof of the Defendant's Violent Character p240
a. State not allowed to offer evidence of reputation for violence
b. State can't show previous armed robbery
c. State can't offer certified copy of conviction
(1) But if D testifies, see R609
d. If conviction is admitted into evidence and D convicted, and he appeals
to SC, he has not been deprived of due process
(1) Tyler v. Texas - can introduce such evidence to show that D is
habitual criminal to affect sentencing. Better to bifurcate trial, though.
4. Example: Father indicted for "depraved indifference" murder of son, who died
of ruptured jejunum.
a. Son died 6/23, trauma occurred 48-72 hours prior (Thur.) - no
evidence that father hit son Thur. or Fri.
b. Four pieces of evidence:
(1) D had instigated boy and brother to file false charges of sexual
abuse against mother (witnesses will testify)
(2) Police suggested D might be prosecuted for this
(3) Father seen poking boy in stomach with baseball bat on
(4) Father heard saying "If you keep lying like your mother I'll shut
you up for good" on Saturday
c. Evidence of failure of false charges admissible as motive
d. Poking with baseball bat maybe not m.o., but unusual behavior and
close to time of alleged act.
e. Threat was not prior, but could show attitude towards kids -
indifference could be not caring for child with peritonitis
5. Character evidence can be admitted when:
a. crim. D introduces to show character inconsistent with crime charged
(1) By prosecution when D opens door
b. When character is at issue in case
(1) libel, custody, etc.
6. What looks like character evidence can be admitted when:
a. Given medical diagnosis
b. Often when offered by D as exculpatory
C. Proof of Character and Prior Similar Occurrences in Civil Cases
1. Close cases
a. Use of character evidence in civil cases with criminal overtones -
Crumpton (p243) and Ginter (p246)
b. Evidence with a direct inference of relevance to the case - Phinney
(p249) and Dallas Railway (p250)
2. Problem IV-10: The Why Concert p251
a. Is evidence of crowding at prior concerts admissible?
b. Yes - not to show propensity to crowd, but to show knowledge and
notice of dangerous conditions
3. Clark v. Stewart (OH 1933) p252
a. Son causes damage with car, P sues father. Two theories:
(2) negligent entrustment
(a) would have to show father knew about other accidents
or unsafe habits
b. Can't ask question that assumes fact not in evidence
c. Can only ask about something (say, accident) if have good faith basis
for believing it happened.
4. Exum v. General Electric (DC Cir 1987) p255
a. can use prior accidents involving same model of fryer to show
dangerousness of fryer, and that company had notice thereof
D. Character and Habit
1. FRE 406 - Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence
of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or
a. Need proof of regularity so as to be semi-automatic
b. Operating motor-vehicles often borderline cases
2. Meyer v. US (D Colo. 1979) p262
a. Dental malpractice case - dentist testified that he was in the habit of
giving standard warning regarding wisdom teeth. This was
accepted as evidence that he gave this patient warning.
b. Note: no other way to prove he gave warning
E. Character and Credibility
1. FRE 607 - (See book for text) - Credibility may be attacked by any party
(including the one that called the witness)
2. FRE 608 - Evidence of character and conduct of witness (see book for text)
a. Can attack with evidence of untruthfulness, can respond with evidence
b. Specific instances may not be proved with extrinsic evidence, but can
be addressed on cross-exam if probative of truthfulness of witness or of person about whose
character the witness is testifying.
c. [Note: subject to Rule 403]
3. FRE 609 - Impeachment by evidence of conviction of crime (see book for text)
a. Can introduce evidence of conviction of witness other than accused if
serious enough (1 year in prison) or if it involved dishonesty or
b. Court must give special permission to use conviction more than 10
c. Pendency of appeal does not make conviction inadmissible
d. Note: conviction only admitted if probative value to show credibility
outweighs prejudice to D (when witness is D)
(1) If witness is not D, convictions will be allowed in more often -
prejudice must substantially outweigh probative value to
4. US v. Beechum (5th Cir. 1978) p270
a. Postal employee found with silver dollar in his pocket, says he was
going to return it. But several missing credit cards also found in
his wallet. Are these admissible?
b. Because cards are relevant to intent, they are admissible
5. Impeachment can address any of the following:
a. physical or mental attributes of witness
b. point of observation, time interval, etc.
c. witness's bias
d. witness's honesty
6. Impeachment can be done by:
a. Evidence of bias
(1) On cross or extrinsic
b. Evidence of poor ability to
(1) On cross or extrinsic
c. Evidence of untruthfulness
(1) Bad reputation (608(a))
(a) cross or extrinsic
(2) Convictions for crime (609)
(a) cross or extrinsic
(3) Prior bad acts probative of credibility (608(b))
(a) cross only
d. Evidence of unreliability
(1) contradiction (2 witnesses)
(2) prior inconsistent statement
(a) must relate to case at issue
(b) cuts across possible reasons
7. Problem IV-16: The Worrisome Witness p281
a. Evidence of theft may be permissible because it was done by
"pretending it had been paid for."
b. Can't use extrinsic evidence, but could bring out on cross-exam
c. If conviction, probably not allowed in - fact circumstances were not
necessarily proved, only larceny, which doesn't necessarily involve "dishonesty"
d. Note: it is the "name" of the crime that matters, not necessarily the
exact facts. Also, some states do include larceny as a crime of
8. Problem IV-17: Fracas at Fenway Park p281
a.(1) Evidence of witness's reputation for
peacefulness - not admissible because not related to
b.(2) Witness's reputation for truth - not
admissible because not yet attacked
c.(3) Witness's conviction for marijuana possession - probably not
admissible because punishment probably less than 1 year
d.(4) Witness's conviction for perjury 12 years before - may be too old to
e.(5) Cross-exam of B on A's convictions? Perjury probably ok, marijuana
only ok if impeachable offense
f.(6) Testimony by C that A filed false SEC
statement - not admissible because extrinsic evidence
g.(7) B testifies to A's truthfulness after attack - admissible
h.(8) A admits he's P's brother - admissible. Probably doesn't open
things to evidence of A's truthfulness (borderline)
i.(9) Prior inconsistent statement - also borderline case
9. Rehabilitation - attack is precondition. Then can introduce:
a. Proof of ability to observe/remember/articulate
b. Assertions of even-handedness
c. Proof of good reputation
d. Prior consistent statement
e. Other consistent evidence
10. Problem IV-19: Assault and Battery p296
a.(1) W testifies to D's truthful reputation - not
admissible because not impeached
b.(2) W testifies to D's peacefulness - admissible under 404 (trait
inconsistent with assault)
c.(3) P shows D convicted of felony 9 years before. W testifies as to D's
truthful reputation. Admissible because evidence of conviction
attacked D's veracity.
11. Problem: IV-20: Specific Contradiction and Self-Contradiction p297
a. Alibi testimony contradicts W's testimony - not attack on veracity
because there could be other reasons testimony doesn't match
b. Prior inconsistent statement brought out in cross-exam - close case
(1) Might depend partially on manner of cross-exam
F. Rule 412 and "Rape Shield" legislation
1. At common law, evidence of past conduct of rape victim admissible to show
consent or lack of credibility. Now all states severely limit this type of
2. FRE 412 - Sex Offense Cases; Relevance of Victim's Past Behavior (see book
a. Exceptions: (evidence of specific acts)
(1) To show that semen/injury/pregnancy caused by someone
(2) Prior sexual acts with D to show consent
(3) If exclusion would violate constitutional rights of D
3. Commonwealth v. Gouveia (Mass 1976) p333
a. D wanted to introduce evidence of intercourse with escort earlier in the
evening, obscene actions not including intercourse. Ruled not admissible.
b. Possible inferences include:
(1) 1 consent -> more consent
(2) V sending signals
(3) wildness of party
(4) D's SOM
4. Doe v. US (4th Cir. 1981) p330
a. D offered evidence of what had been told him of V's reputation.
Admitted as affected D's SOM.
b. This is not the law - Gouveia is.
5. Problem IV-28: The Singles Scene p338
a. D seeks to show V regularly met men in bars and had sex with them.
Classic 412 inadmissible case.
6. Problem IV-29: Prostitution, Rape, or Both? p338
a. D claims V mad because they agreed on $50 fee and he only had $20.
Can D show V is prostitute?
b. Must fall under 412(c) to be allowed in - courts go both ways
(1) may depend on D's articulation of
7. Problem IV-30: Impeachment and Pregnancy p342
a. D wants to show that V had sex with X and accused D of rape to have
another explanation of pregnancy.
b. Admissible under 412(b)(1)(A) - injury, etc.
(1) Preconditions: timing, perhaps fertility of X
8. Problem IV-31: The Woman who cries wolf p342
a. Woman has accused five other men - withdrew 4 accusations, fifth
man was acquitted. Is report of rape sexual activity?
b. could only come in on cross of V
c. Probably admissible - doctrine of chances
9. Other real-world instances:
a. Prosecution opens door: "chaste character"
b. Negate inference of innocence - usually young children
(1) Inference is that child would not have known about such things
(2) Jacques says constitutionally required
c. Other evidence ("penumbra of 412")
(1) Clothing (may not survive 403)
(2) Other social conduct at time near attack
(3) Statements by V to others at time near attack
G. New Rules 413-415 (In supplement)
1. FRE 413 - see supplement for text
a. Can bring in evidence of previous sexual assault for any matter for
which it is relevant
b. Can use propensity evidence
c. Can be uncharged assaults
2. FRE 414 - same for child molestation
3. FRE 415 - same for civil cases
4. Rationales for new rules:
a. Encourage victims to come forward
b. More valid inference - high level of correlation
c. D's already helped in other ways - too few Vs come forward, etc.
d. Desire to convict more Ds
5. Constitutionality of new rules
a. Double jeopardy if already convicted?
b. Due Process - "convictions" for uncharged crimes
c. Equal protection - against sex offenders as a class - no, because
women are included in 414
d. More likely to be constitutional if 403 applies
IV. Witness Competence and Examination
A. Role of lawyer at trial: create an image of something from real life that will motivate
factfinder to find in favor of the lawyer's side.
1. Law of evidence regulates this process - especially the 600s of the FRE
B. Cross-examination and Competency of Witnesses
a. Develop facts helpful to your case
b. bring out facts harmful to opponent's case
c. establish facts impeaching witness's credibility
d. Problem V-1: The B&G Bar and Grill p362
(1) Witness says she saw D have several drinks
(2) Questions about what else she remembers (or doesn't) -
question reliability of her memory
2. Secrets of in-court presentations
a. Must control way witnesses provide facts
b. tools of control:
(2) witnesses' knowledge and understanding
(3) order of presentation
(4) choice of source of evidence
c. Important tool: Form of question
(1) Unwritten rule: witness must fairly answer question put to him
(2) Form ranges from "wide open" to "hard leading" - should
adjust to what is required to:
(a) Get testimony as expected
(b) with precision
(c) without excessive control
d. Berger v. US (1935) p364
(1) lawyer tries to show witness threatening him, but he's really
just making it up, confusing and rattling witness - not
3. Competency of Witnesses
a. FRE 601 - Every person is competent to be a witness except as
otherwise provided in these rules. However, in civil actions and proceedings, with respect to
an element of a claim or defense as to which State law supplies the rule of decision, the
competency of a witness shall be determined in accordance with State law.
(1) Allows state "dead man" statutes to apply
b. FRE 602 - A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the testimony of the witness himself.
This rule is subject to the provisions of Rule 703, relating to
testimony by expert witnesses.
c. FRE 603 - Before testifying, evey witness shall
be required to declare that he will testify truthfully, by oath
or affirmation administered in a form calculated to awaken his
conscience and impress his mind with his duty to do so.
d. FRE 610 - Evidence of the beliefs or opinions of a witness on matters
of religion is not admissible for the purpose of showing that by
reason of their nature his credibility is impaired or enhanced.
e. Witness can be disqualified if court finds that:
(1) Can't express
(2) Can't understand duty to tell truth
(3) Doesn't have ability to perceive
(4) Doesn't have ability to remember
f. Problem V-2: The Intoxicated Informer p370
(1) Past drug use left to cross-exam and, in some cases, to
g. Problem V-3: Little Archie, the Child Witness p370
(1) Incompetent witness may become competent by becoming
(a) Lapse of time may impair memory, but won't disqualify
h. Problems V-4 - V-6: increasing level of
difficulty managing witness - may go too far at extreme,
but we go to some extent (interpreters for deaf, etc.)
i. Problem V-7: You feel very sleepy . . . p373
(1) Problems with hypnosis:
(a) May be too suggestive
(b) Artificial confidence
(c) May cause witness to "fill in" memory
(2) Advantage: may unlock real memory
j. People v. Hughes (NY 1983) p374
(1) Hypnotically induced testimony not allowed, but pre-hypnosis
(2) State must show pre-hypnosis recollection not impaired
(3) Jury charged on excess confidence
k. Different treatments of hypnotically stimulated testimony
(1) Like any refreshed recollection - treated on cross
(2) NY rule (above)
(3) Testimony irretrievably tainted and inadmissible
l. Rock v. Arkansas (1987) p388
(1) D couldn't remember incident clearly, but under hypnosis
remembered events consistent with accidental discharge
of gun. State followed NY rule.
(2) SC held that per se ban on hypnotically induced testimony was
denial of due process.
m. Maine: State v. Commeau (1981)
(1) Victim prepared sketch under "slight hypnosis" with police
artist. Then identified D in lineup. Was this tainted by hypnosis?
(2) Admissible if lineup was otherwise proper
4. Form and Scope of Examination of Witnesses
a. FRE 611 - (a) Control by court. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be
limited to the subject matter of the direct examination and matter
affecting the credibility of the witness. The court may, in the
exercise of discretion, permit inquiry into additional matters as if
on direct examination.
(c) Leading questions. Leading questions should not be used on
the direct examination of a witness except as may be necessary
to develop his testimony. Ordinarily leading questions should be
permitted on cross-examination. When a party calls a hostile
witness, an adverse party, or a witness identified with an adverse
party, interrogation may be by leading questions.
(1) "Subject matter" for cross not limited to facts brought up on
direct (e.g. could be whole accident at issue)
b. Problem V-8: Direct Examination: Accident p399
(1) Must lay foundation - at least name
(2) Question should be more directed than "where were you on
6/1" - perhaps specific time
(3) Too leading to ask "did D drive into you?"
(a) Something more like "what happened next?" should be
c. Problem V-9: Direct examination: Car Theft p399
(1) "You saw D driving away didn't you?" too leading
d. Problem V-10: Direct and cross-examination: High Sticking p399
(1) "D struck you with this, didn't he?" too
(a) Must show recollection has been exhausted to use
leading question to refresh recollection
(2) Similar question on cross is fine
e. Problem V-11: Cross-examination: Charles Atlas p400
(1) "Isn't D too small to beat up P?" Asks for a conclusion - not
allowed unless W is better qualified to draw conclusion
than jury is.
f. Problem V-12: Cross-examination: Lover's Quarrel p400
(1) Question which includes fact with which witness does not
agree - can be real abuse
(a) fact not in evidence
(b) makes contested fact unfairly
g. Problem V-13: Opium p401
(1) Witness must be answering question
(2) Traditionally, only interlocutor can object to this, but other party
can object if there are other reasons (e.g. here no
h. Problem V-14: Hostile Witness p401
(1) P calls S to show agency for D, doesn't discuss accident
(2) D can cross examine on whether S was taking approved route
- goes to agency
(3) D can't cross-examine as to due care or as to P's negligence -
not in scope
i. Problem V-15: Death at Awahnee p402
(1) Caretaker testifies as to finding body, how can D get in
statements about cancer, victim's drinking, etc. on cross?
(a) D can assert that subject matter is the death as a
(b) Recall witness when P rests
(c) Ask judge for permission to examine as if direct under
C. Illustrative Aids
1. Visual depictions of testimony or argument
a. gets rid of problem of image going from witness to jury, just leaves
problem from witness's observation to memory
a. Do they go to jury room?
b. What kinds of arguments can be made from them?
c. What can be done with them by other party?
d. How accurate/to scale must they be?
e. Costs of aids and fairness
3. Maine Rule 616 (materials)
a. Regulates use
b. Confirms power of court to prevent unfair prejudice
c. Regulates property interests and use of aids by both parties
d. Aids don't go into jury room, must be preserved for appeal
4. Problems with animation
a. May be too convincing
b. Can't really cross-examine
D. The Rule against Hearsay
1. Policy: can't cross-examine person who isn't in court
2. FRE 801(a),(b),(c) - (a) Statement. A "statement" is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by him as
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, otehr than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
3. Problem V-18: Arsenic & Hor d'oeuvres p 406
a. salesman's statement that he sold D poison not hearsay
b. statement of sister that W told her he sold poison is hearsay - not
4. Problem V-19: Murder at the Seaside Bistro p406
a. Signed statement of now-dead witness given to police at scene -
5. Problem V-20: Assault on Mass. Ave. p406
a. P testifies that A told her D did it - hearsay unless A testifies
b. A pointed at D - still hearsay (non-verbal conduct as statement)
6. Problem V-21: Murder in the Ajax Building
a. Coroner says V not pregnant at death - not hearsay, conditionally
b. Person in another building says she saw man at window as body fell
out - admissible, D lawyer will ask about ability to see, etc.
c. Policeman says A told him she saw D shove V out window - classic
d. Witness testifies about own prior statement - still hearsay
e. Letter telling D V was pregnant - not hearsay if only offered to show
that V told D this, not for truth of matter.
7. Problem V-24: Trespass Per Quod Servitium p413
a. Child alleged to be mute heard to say "I can speak" - admissible
because not really for "truth of matter" - clearer if child said something else
8. Problem V-26: Summary Judgment p414
a. affidavit in support of journalist's privilege - issue of law means that
rules of evidence do not apply
9. Problem V-28: Dissatisfied Purchaser p415
a. advertisement: if you don't like lot, you'll get money back - verbal act:
fact of statement important regardless of truth
b. letter: I have inspected and want my money back
(1) Hearsay as to whether P inspected
(2) Statement of dissatisfaction (requirement for refund) not
10. Problem V-29: The "corn-crib" case p415
a. Tenant to landlord: "this is your corn" - admissible because words of
transfer, which become true by being spoken
b. Tenant to bystander: "this is landlord's" - hearsay - only relevant if true
11. Example: witness called by D says "light was red"
a. Can ask "didn't you tell policeman light was green?" if used for
b. "Didn't you say in deposition light was green?" - admissible under
801(d)(1)(b) - prior inconsistent statement under oath okay for
impeachment and truth
c. D asks question on redirect "what did you tell policeman?" -
801(d)(1)(b) - prior consistent statement to rebut implied charge of
12. What is a statement?
a. oral or written statement
b. nonverbal conduct if intended as an assertion
c. some states use objective test - if relevance of conduct is as an
13. Problem V-30: Captain Cook and Davy Jones p420
a. Experienced captain goes on ship - evidence that ship was seaworthy?
b. Not intended as assertion - not hearsay
c. Might be close case in "objective test" states
14. Problem V-31: Black Crepe p420
a. Black crepe could have been hung as assertion or as personal grieving
- if first, not admissible
b. Doctor pulling sheet over patient's face could also be assertion or not
15. Cameron v. Walton-March, Inc. (E.D. Pa. 1990) p421
a. Company wanted to show that they had received no complaints about
allegedly toxic cleaner.
b. To argue that had no notice - admissible
c. To argue not dangerous - might be hearsay - see
E. Statements of a Party Opponent
1. FRE 801(d)(2) - A statement is not hearsay if . . . The statement is offered
against a party and is (A) his own statement, in either his individual or a
representative capacity, or (B) a statement of which he has manifested
his adoption or belief in its truth, or (C) a statement by a person
authorized by him to make a statement concerning the subject, or (D) a
statement by his agent or servant concerning a matter within the scope of
his agency or employment, made during the existence of the relationship,
or (E) a statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy.
2. Problem V-36: He Who Laughs Last . . . p426 - C files tax abatement request
claiming land only worth $50K. State later takes land, claiming it is worth
$50K, C claims it is worth $100K.
a.(1) Abatement request admissible - statement of party
b.(2) If state claims only worth $30K, C can't introduce request, because
not opposing party
c.(3) C can't offer city tax assessment because city not agent of the state
(although probably admissible if it were the state tax collector)
3. Problem V-37: If you're gonna get hit . . . p426 - P is hit by D's chauffeur
a.(1) Letter by D saying C's negligence caused P's injuries - admissible
(1) usual requirement of personal knowledge relaxed
b.(2) Letter alone is not enough to go to jury - no proof of agency
c.(3) C at scene: "it was my fault" - admissible as statement of agent on
fault and agency
(1) Note: agency can't be proved through statements of agent
4. Problem V-38: Silence as Statement p427
a. D says nothing of value in safe, S says "Hey those are $1000 bills" and
D does not respond - admissible as adoptive admission
b. Policeman says "You thought you'd get away with 50 grand, did you?"
- not admissible because no response expected
5. Fletcher v. Weir (1982) p427
a. D claimed self-defense, but didn't report crime and didn't explain to the
police. Prosecution used silence to impeach him on the stand.
b. This was allowed, but not clear if could do this if D didn't testify
6. Problem V-39: Omar the disappearing cat p430
a.(1) Manager said that they had cat - statement in scope of agency
b.(2) Person in restaurant says they have can and that he's D's manager.
Statement is establishing agency - isn't this bootstrapping?
(1) allowable - judge makes preliminary determination free of rules
of evidence - Rule 104
(a) Not all states allow this
7. Warner v. Maine Central Railroad (materials)
a. SL case - P had to prove that sparks from RR caused fire. Evidence
was letter from station manager to RR office. Probably in scope of agency, although personal
knowledge requirement would have to be relaxed.
b. Objection: not authorized to make statement - not speaking for
(1) Allowing this into evidence could cripple internal reporting
c. Not admissible in Maine, would be admissible under the FRE
8. Mahlandt v. Wild Canid Survival & Research Center, Inc. (8th Cir. 1979)
a. Child found inside fenced enclosure with wolf standing over it. Son
tells Poos "Sophie bit child." Poos tells president same, gives him note that says the same.
Board meeting discusses biting. Expert says that the cuts aren't bites, that the wolf was acting
b. Poos' statements - within the scope of his employment - admissible
c. Trial court excluded board meeting reports under 403 - would not have
been admissible against Poos, only the corporation and thus
would have needed limiting instruction. also repetitive and with
low probative value.
9. Problem V-41: Recall Letters 440
a. agency required recall letter to be sent (after the accident at issue).
admissible in trial?
b. Letter admissible to show notice
c. What if letter said there had been lots of accidents? P would say this
was admission, D that it was subsequent remedial measure. Some courts say covered by 801,
d. Maine has specific rule (407(b)) - recall letters admissible
10. Statements by co-conspirators
a. Must be:
(2) During time of conspiracy
(3) In furtherance of conspiracy
b. Bourjaily v. US (1987) p442
(1) can conspiracy be proved using statements seeking
(2) Judge decides on admissibility under R104(a)
(a) Need not follow evidence rules (except privilege)
(b) Preponderance of the evidence standard
(3) Court did not consider whether conspiracy could be proved
solely on statements under attack
(a) Stevens, concurring: couldn't do this
c. US v. Silverman (9th Cir. 1988) p449
(1) Foundation for conspiracy cannot consist only of statements of
F. Prior Statements
1. FRE 801(d)(1) - A statement is not hearsay if . . . The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with his testimony, and
was given under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition, or (B) consistent with his
testimony and is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or motive, or (C) one of
identification of a person made after perceiving him.
a. Only concerned with statements offered for truth
2. FRE 613 - (a) Examining witness concerning prior statement. In examining a
witness concerning a prior statement made by him, whether written or not, the statement need
not be shown nor its contents disclosed to him at that time, but on request the same shall be
shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or
deny the same and the opposite party is afforded an opportunity to
interrogate him thereon, of the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent as
defined in Rule 801(d)(2).
3. Problem V-44: The Stolen BMW p467
a. W tells P that D stole car, then on stand says that X stole car. Can P
cross-examine on previous statement? Yes, for impeachment.
b. W denies and P testifies to his prior statement -
also okay under 613.
c. This doesn't give P enough evidence to go to jury
4. Problem V-45: The "Forgetful" Witness p467
a. Witness does not remember D's participation, doesn't remember grand
jury testimony when it is shown him. Is the testimony itself admissible?
b. Yes, under 801(d)(1) - inconsistent, under oath, witness subject to
cross-examination even if he doesn't remember
5. Problem V-47: Blind Justice p471
a. Blind man grabs guy trying to steal his wallet, when police come he
says "this is him." Is this statement admissible?
b. Yes - identification under 801(d)(1)(c)
G. Hearsay exceptions
1. Not non-hearsay, but generally have mark of reliability to
2. If alternative guarantee strong, need show little necessity
a. Rule 803 (declarant available)
3. Severe necessity may support admission with less showing of reliability
a. Rule 804 (declarant unavailable)
H. Former Testimony
1. FRE 804(b)(1) - Testimony given as a witness at another hearing of the same
or a different proceeding, or in a deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now offered, or, in a
civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
a. Note 801 non-hearsay depends on new cross, this depends on old
2. Problem V-49: The Dead Witness I p473
a. W testifies for P at first trial, but dies before second trial - prior
testimony is admissible
3. Problem V-50: The Dead Witness II p474
a. W testifies for P at trial concerning D's negligence in auto accident.
W dies before G's (passenger) trial against D. W's prior testimony admissible.
4. Problem V-51: The Dead Witness III p474
a. W testifies against P in trial for arson. Then P sues insurance co. for
damage. Insurance co. can offer record of W's testimony if W is
b. Okay even if civil trial first.
5. Problem V-52: Dead Witness IV p474
a. P injured getting on bus. P's husband H sues for loss of services and
W testifies for D. If W dies, can D use prior testimony when P
sues it? Yes, because H and P have similar interest.
(1) Note: can only do this in civil case
6. Problem V-53: Dead witness V p474
a. P's car hits D, injures W. P sues D and D testifies. If D dies can W
use his testimony when W sues P? Yes - same interest, same party, same issue.
I. Statements Against Interest
1. FRE 804(b)(3) - A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary interest, or so far
tended to subject him to civil or criminal liability, or to render invalid a
claim by him against another, that a reasonable man in his position would
not have made the statement unless he believed it to be true. A
statement tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
a. Note on statements against penal interest: fear that false statement of
guilt will be attributed to dead guy to exonerate D; this is why
independent corroboration required.
2. Problem V-55: The Speeding Chauffeur p476
a. B not in car when chauffeur hits D. Can B's statement that chauffeur
was speeding be admissible if B unavailable? No, because no personal knowledge.
(1) Note: 602 not waived here.
3. Problem V-56: Thick as thieves p 478
a.(1) W says Joe (now dead) said he did it - not admissible because no
b.(2) Signed letter from Joe saying he did it - not admissible for same
c.(3) W says Joe said D didn't do it - not against interest
d.(4) W says Joe said Frank and he did it, D didn't - no corroboration
e.(5) W says Joe said he and D did it - not really to exonerate, but maybe
not against Joe's interest, and a confrontation clause problem -
J. Dying Declarations
1. FRE 804(b)(2) - In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that his
death was imminent, concerning the cause or circumstances of what he
believed to be his impending death.
2. Problem V-57: The Voice from the Grave p479
a. V says that sister shot her and then dies - classic dying declaration
b. Can use declarant's statements to show belief in impending death
c. Determination made by judge under preponderance of the evidence
3. Shepard v. US (1933) p479
a. Woman said a month before her death, "husband poisoned me."
b. Court found that she didn't really believe she was dying - no "settled
c. Declaration can be in the form of a conclusion, but does need to satisfy
K. Rule 803 exceptions: Statement of Present Sense Impressions,
Then-Existing Mental, Emotional, Physical, or Medical Condition, and Excited
1. FRE 803 - The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition or
(2) Excited utterance. A statement relating to a startling event or condition
made while the declarant was under the stress of excitement cause by the event or condition.
(3) Then existing mental, emotional, or physical condition. A
statement of the declarant's then-existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain and
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of the declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements
made for purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as pertinent to diagnosis or treatment.
a. Line between 803 and 804 varies by jurisdiction.
b. Judge determines if exception met.
c. Other exceptions, e.g. 803(13) family records, 803(19) rumor and
reputation in family
2. Example: P and M live together. P being tried for assault on M when M
disappears with her child. State offers 911 recording and testimony of operator that it came
from the house. Police identify voice as that of son saying "Help! He's hitting her!"
a. excited utterance (803(2)) - tone of voice, that it's a 911 call
b. present sense impression (803(1)) - tense of verb, 911 call
c. relevant, enough evidence for the jury to infer that son had personal
d. what if neighbor said that M arrived at her apartment disheveled and
said "He beat me again - I can't take it anymore."
(1) Might be excited utterance, but don't know how long it has
(2) existing mental, emotional or physical condition (803(3)) - the
"I can't take it anymore"
(3) other part of statement - statement of memory or belief to
prove fact remembered or believed, or rule 403
e. what about testimony of doctor who saw M at ER and says she told
him that P hit her?
(1) statement for medical diagnosis or
(a) admissible because identity of attacker would affect
treatment (send her home or not, etc.)
(b) FRE allows in for any purpose - under common law,
only allowed to support diagnosis
3. Example: Jackie Bevins shot husband 12 times with 6 shot revolver. Defense
was self-defense and insanity. Jackie's psychiatrist testified as to history
of horrific abuse by her husband which led to psychotic episode. There
was some independent evidence, and Jackie didn't testify. Jury found
a. Note: whole story of abuse was admissible without any real
4. Problem V-65: Strong Feelings and Future Plans p485
a.(1) "after one night with D, I realize how much I despise P" - admissible
to show despise P, but not to show that D caused this.
(1) Might use cautionary instruction or refuse to admit under Rule
b.(2) H said he had to go away on business - admissible for state of mind
c. Note: Statement on state of mind that looks forward (intention)
available for all inferences. Statement on state of mind that looks backward only admissible on
state of mind (if relevant).
5. Mutual Life Insurance Co. v. Hillmon (1892) p485
a. Walters said in letters that he would be
travelling with Hillmon. Walters disappears about the
same time that Hillmon is allegedly killed in accident. The body is
buried out west and H's wife claims the insurance. Insurance co.
wants to introduce letters to show that the body buried was really
b. Court rules that the letters are evidence of W's intention, and the jury
can infer that he did as he intended (relevant hearsay that falls
under an exception)
6. Shepard v. US (continued) (1933) p490
a. statement that husband had poisoned her offered in evidence to rebut
suggestion that she had committed suicide
b. court did not allow because the statement looked backward, not
(1) Also, instructions to limit to allowable purpose (rebuttal)
couldn't possibly be effective
L. Two Processes of Proof: Refreshing recollection and Past Recollection Recorded
1. FRE 803(5) - A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable him to testify fully
and accurately, shown to have been made or adopted by the witness when the matter was
fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit unless offered by
an adverse party.
2. FRE 612 - Except as otherwise provided in criminal proceedings by Section
3500 of title 18, USC, if a witness uses a writing to refresh his memory for the purposes of
testifying, either -
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary
in the interests of justice, an adverse party is entitled to have the writing
produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce into evidence those portions which relate to the
testimony of the witness. . . (see book for complete text)
a. can use anything
b. must be otherwise admissible to go to jury
c. often use admissible items for sake of economy
3. Problem V-68: Negligent Entrustment p493 - Mrs. P's maid, M, packs items in
boxes and makes list of the contents
a.(1) P identifies list as being in M's writing -
not admissible, hearsay
b.(2) M shown list, then remembers contents and testifies - okay as
refreshed memory (612)
(1) Opposing counsel has right to see
(2) Shouldn't identify list or read from it (would give "evidentiary
c.(3) M says she doesn't remember even after looking at the list, but
recognizes it and remembers that it was accurate - list can be
read into evidence under 803(5)
d. what if P put items in boxes, and M listed what P said she was putting
in - then it's double hearsay, but probably with two exceptions:
present sense impression (803(1)) and past recollection recorded
M. Business Records
1. FRE 803(6) - A memorandum, report, record, or data compilation, in andy
form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term "business" as used in
this paragraph includes business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
2. FRE 803(7) - Evidence that a matter is not included in the memoranda,
reports, records or data compilation, in any form, kept in accordance with
the provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind which a
memorandum, report, record, or data compilation was regularly made
and preserved, unless the sources of information or other circumstances
indicate lack of trustworthiness.
3. 4 "legs":
a. kept in course of regularly conducted business activity
b. regular practice to keep records of this kind
c. made at or near time of events recorded
d. by or from info. from person with knowledge
4. Problem V-72: Hospital Reports p499
a. record says that D brought P in, saying that he (D) hit him (P) with his
car - seems to satisfy requirements
(1) could argue that no knowledge
(2) D's statement was admission - so must just show report can
5. Problem V-73: Computer Records p500
a. P insurance co. keeps computer records of calculations of
retrospective premiums. Can it enter printout of data and calculations? In most cases, yes.
b. possible problems:
(1) processing continues after initial
recording (unlike paper)
(2) printout could be form different from that used in everyday
N. Public Records and Reports
1. FRE 803(8) - Records, reports, statements, or data compilations, in any form,
of public offices or agencies, setting forth (A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and proceedings and against the Government in
criminal cases, factual findings resulting from and investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate lack of
2. FRE 803(9) - Records or data compilations, in any form, of births, fetal deaths,
deaths, or marriages, if the report thereof was made to a public office pursuant to requirements
3. FRE 803(10) - To prove the absence of a record, report, statement, or data
compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record,
report, statement or data compilation, in any form, was regularly made and preserved by a
public office or agency, evidence in the form of a certification in accordance with rule 902, or
testimony, that diligent search failed to disclose the record, report, statement, or data
compilation, or entry.
4. Problem V-75: Police reports p502
a. Double hearsay, but see below
5. Johnson v. Lutz (NY 1930) p502
a. police report containing statements of witnesses
(1) police statement is statement of person whose duty is to report
(2) statements of witnesses are still hearsay, need to fall under
some other exception to come in
6. Beech Aircraft Corp. v. Rainey (1988) p504
a. Public record (here JAG report) can contain factually based opinions -
will fall under 803(8)
b. Note that other rules may function to exclude this (e.g. 701)
c. Note SC used statutory construction to interpret Rules here
O. "Other Exceptions"
1. FRE 803(24) - catchall exception (see book for text)
2. FRE 804(b)(5) - catchall exception (see book for text)
a. equivalent guarantees of trustworthiness
b. evidence of material fact
c. more probative than any other available evidence
d. general interest of justice served
e. must give advance notice
4. Dallas County v. Commercial Union Assurance Co. (5th Cir. 1961) p511
a. Issue: was courthouse hit by lightning 60 years before? (would help
prove that damage was not caused by recent fire). Evidence:
60-year old newspaper article.
b. Allowed in because of necessity and guarantee that it was truthful
(1) Anyone still alive who would remember would have been a
(2) story of local interest would give a high degree of local interest
- people would correct, etc.
5. Brookover v. Mary Hitchcock Memorial Hospital (1st Cir. 1990) p516
a. Issue: did assistance take too long to come to retarded boy in
hospital? Evidence: nurse's statement, mother's testimony as to
what boy said.
b. Nurse's statement was statement of party opponent
c. court allowed in mother's testimony because nurse's notes
(1) Note: traditional indicia look to
circumstance, not truth
6. US v. Bailey (W.D. Pa. 1977) p524
a. witness gave statement at plea bargain, then refused to testify at trial
(unavailable under 804(b)(5))
b. allowed in because of indicia of reliability - corroboration and
consistency with other evidence
7. US v. Bailey (3rd Cir. 1978) p527
a. Rejected statement because no circumstantial guarantees of
8. US v. West (4th Cir. 1978) p533
a. Wired informer testified at grand jury, was
killed before trial. Testimony allowed under 804(b)(5).
b. Indicia: guy was wired, watched, debriefed thoroughly - basically,
couldn't have lied
c. Problem: police were ones proving accuracy of statements
d. Note: fact that D was suspected of murder may have influence
9. US v. Garner (4th Cir. 1978) p537
a. Co-conspirator testified for grand jury for plea bargain, wouldn't testify
for prosecution at trial
(1) note: implied that there was threat from D
b. Allowed testimony even though only indicia was corroborating evidence
(basically, doctrine of chances)
c. Garner v. US (1978) (denial of certiorari) p542
(1) SC should consider this issue
(2) Note: debate in criminal cases superseded by debate over
V. Confrontation and Compulsory Process
A. The confrontation clause: "In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him."
1. Applies to states by 14th amendment
2. Only applies to evidence offered against accused in criminal case
3. May exclude evidence otherwise admissible under rule, statute, or decision
4. Any testimony not given in open court, by witness in presence of jury and D,
with cross-examination may implicate clause
B. Interests protected:
2. chance for "eye-contact"
3. presence of witnesses with factfinders
1. Well-established hearsay rule exception
2. Good reason to admit evidence and substantial other guarantees of
3. Note: Many cases seem to turn on facts, no one determinative factor, SC
attitude may be changing
D. Mattox v. US (1895) p569
1. Testimony given in previous trial (with cross) used in retrial of same case after
witness dies. Protection occurred in first trial - that is enough to not
E. Pointer v. Texas (1965) p571
1. Testimony given at preliminary hear, at which D was allowed to cross but had
no attorney. Because no chance for real cross, could not admit
statement into trial without violating clause.
F. Bruton v. US (1968) p573
1. Co-conspirator confessed - this was allowed into trial with limiting instruction
that it not be used against Bruton. SC said this was too much to ask of
jury - if the state wanted to use this evidence they must have separate
a. No chance for cross, etc.
G. California v. Green (1970) p579
1. Witness testified at preliminary hearing but was evasive at trial. State
introduced "inconsistent" prior testimony.
2. Court said that credibility could be assessed at trial, and there was cross at
H. Maryland v. Craig (1990) p628
1. Statute said that child witness could testify by closed-circuit camera if
testifying in the courtroom would cause such emotional distress that she couldn't communicate.
Child so testified.
2. Interests protected?
a. allowed cross-exam
b. jury sees witness
3. court allowed testimony - said there was enough protection, don't want to hurt
I. Idaho v. Wright (1990) p640
1. statement of child to doctor allowed in under Idaho's residual exception,
allowed because of corroboration
2. Court: corroboration is not enough - circumstances surrounding the making of
the statement must provide sufficient guarantee
J. Washington v. Swan (Wash. 1990) p657
1. statement to child protective worker allowed under residual exception.
Accepted circumstantial ("indirect") corroboration.
a. Probably inadmissible under Wright
K. Current status:
1. Traditional exceptions preserved
2. New exceptions, statutory or residual must:
a. Have good reason for admissibility
b. Show some circumstantial guarantee of reliability attached to
c. Corroboration is not enough
L. Should confrontation be a matter of evidentiary sufficiency?
1. i.e. does clause just require that D not be convicted on unconfronted
M. Is confrontation clause a rule of preference?
1. Proof should be subject to confrontation if possible, but if not possible, there
should be indicia of reliability and some corroboration by other evidence
A. Privileges in general
1. To protect out-of-court relationships, not in-court evidence
2. Associated with relationships that involve:
a. helping someone
b. confidential communications
3. FRE 501 - privileges left to states, statutes and common law (see book for
4. States codified privileges
a. 502 - Reports required to be confidential by statute
b. 503 - Lawyer-client
c. 504 - Psychotherapist (doctor?) -patient
d. 505 - Wife-husband
e. 506 - Communications to clergy
f. 507 - Political vote
g. 508 - Trade secrets
5. Reporters' privilege?
a. Branzburg v. Hayes - not constitutionally required
b. Some states have "shield law" that functions as privilege
c. In re Farber (NJ 1978) p696
(1) D wanted to subpoena reporter's notes to use in defense, even
though state had strong shield law. Court held that
reporter must at least submit to in camera review under
compulsory process clause of 6th amendment, and D
must be able to see it if relevant, etc.
B. Lawyer-Client Privilege
1. Protects communications both ways
2. Proposed Rule 503
a. Many jurisdictions: common law or just statute
b. client: person getting services or consulting with view to getting
c. lawyer: authorized or reasonably believed by client to be authorized to
d. confidential communication: in furtherance of legal services, only to
those persons necessary
e. covers all permutations of communications (varies in some states)
(1) furtherance of crime or fraud
(2) claimants through same deceased client
(3) breach of duty by lawyer or client
(4) document attested to by lawyer
(5) joint clients
3. Problem VII-2: The Blackacre Fraud p709
a.(1) Whispered conversation in court? Can't make
attorney divulge - doesn't matter where conversation takes
(1) What if bailiff overheard? Could call him under Hoy v. Morris
(2) What if secretly eavesdropping?
Unintentional waiver - still confidential.
b.(2) Can't force D to divulge conversation, either
c.(3) What if D is asked "What did you tell the trustees?" and he says
"that is what I just told my lawyer"? He must answer.
(1) can't "clothe" subject matter with
d.(4) Notes from D to his attorney - protected
(1) Will have to divulge if they're used to refresh recollection on
stand (equivalent to waiver of privilege)
4. Prichard v. US (6th Cir. 1950) p710
a. Guy involved in ballot box-stuffing went to old friend judge for advice.
Court said that he did not have reasonable belief that the judge (in
charge of the investigation into the case) could give confidential
5. Problem VII-6: The Evanescent Privilege p714
a. Lawyer gave bad advice - told D not to testify because past convictions
would come up (apparently didn't know 609). Court granted
hearing for new trial.
b. At hearing, court waived privilege entirely - D withdrew motion for new
trial so that other confidential communications in same
conversation would not be revealed.
c. what really happened? Probably D told lawyer he was guilty, lawyer
didn't want perjured testimony on the stand, used subterfuge to
6. US v. Pape (2nd Cir. 1944) p716
a. Lawyer represented D and woman involved in alleged prostitution ring.
"Fact of representation" not protected by privilege.
b. Hand, dissenting: should be privileged if D hires own attorney for other
person (communication between client and lawyer)
7. Written communications between lawyer and client may also be privileged
a. But can't make privileged just by adding lawyer to list of addressees
b. Records made for other purposes and sent to lawyer not privileged
8. No privilege for tangible evidence given to attorney by client
9. Fisher v. US (1976) p725
a. Tax records given to lawyer. Court held not privileged unless
protected by 5th amendment. accounting records not protected, therefore could be
10. Problem VII-11: The Smoking Gun p749
a. Client walks in and says "I just shot V. Here's the gun."
b. Can't take gun and keep it - would obstruct justice
c. Should not take it at all
(1) If you do, probably have to hand it over
d. What if client says will destroy?
(1) Most lawyers say telling him that's illegal is enough
(2) If gun is already in your control - close question
e. What if he tells you where it is? Or where body is? Privileged.
11. Clark v. State (Tex. 1953)
a. telephone operator testified as to conversation in which D said he did
it, lawyer said "get rid of it" (the gun).
b. no privilege for "get rid of it" part because in furtherance of crime
c. court let whole conversation in, but there's an argument that should
only let in enough for context
12. In re Ryder (E.D. Va. 1967) p752
a. Lawyer took stolen money and shotgun from client's safe deposit box
and put in own safe deposit box; supposedly so client couldn't destroy. Went around asking
other lawyers about it. Stuff stayed in box until police found it.
b. this is not allowed.
13. Hitch v. Arizona (AZ 1985) p759
a. Watch found by defendant's girlfriend -
potentially evidence - and given to attorney
b. If attorney doesn't think it will be destroyed, can give it back; if he
thinks it will be destroyed, must hand over to authorities
c. can't turn it over anonymously - would destroy significance
d. If lawyer turns it over, prosecution can't mention source to jury
C. The lawyer-client privilege in the corporate context
1. Radiant Burners v. American Gas Association (N.D. Ill. 1962) (rev'd) p774
a. Old law - no privilege for corporations
2. "Control Group" test
a. Only those in position to direct action (i.e. getting advice) have
b. SC left scope to case-by-case development
3. Upjohn Co. v. US (1981) p777
a. Questionnaire from company lawyer to employees asking for
information on illegal foreign payments. Government requested
production of the questionnaires - co. pled privilege.
b. SC held that control group test was too narrow - privilege should
extend to any employee giving information about matters within
the scope of their corporate duties.
4. Privilege v. Work Product
a. Privilege belongs to client and covers
communications between client and lawyer
b. Work product covers notes, records of interviews, statements and
other materials which embody the lawyer's mental processes in
preparing the case
(1) May cover statements of non-client
D. The Husband-Wife Privilege
1. Originally disqualification; now many jurisdictions have privilege for
a. Usually resides with party spouse - can be waived by him
2. Problem VII-18: Bits and Pieces p806
a. Wife accused of murdering V; alibi is that she was at home
b. Husband can testify that wife went out, but not that she said she was
3. Trammel v. US (1980) p799
a. Witness spouse can waive privilege
a. cases between spouses
b. spouse accused of crime against other or child
c. observations of spouse
d. note: no intra-family privilege (except in a few jurisdictions)
E. Psychotherapist-Patient Privilege
1. Did not exist at common-law, was in proposed rules (for M.D. acting as such)
a. Sometimes with statutory dr.-patient privilege
b. Sometimes mixed with confidentiality requirements
c. disparate among states
2. Jaffe v. Redmond (1996) (materials)
a. Police officer shot suspect (P's decedent), later had counselling with
clinical social worker. Social worker's notes were subpoenaed,
she refused to give them up; jury was told they could take this to
mean they were negative and found for P.
b. court of appeals found that there was privilege, but must be balanced
against need (here little need)
c. SC defined new privilege under 501 - privilege without balancing.
(1) Important to mental health
(2) Uncertain privilege useless
(3) similar privilege recognized in all states
(a) no federal privilege would undermine state goals
(4) denial would not provide much evidence because
communications would not happen
d. Scalia, dissent: Shouldn't have privilege, and definitely shouldn't
extend to social workers (main point)
(1) states tie privilege to licensing, and federal does not do this
VII. Opinions, Scientific Proof, and Expert Testimony
A. Lay Opinions
1. FRE 701 - If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue.
a. evidence should be as "unprocessed" as possible
2. Commonwealth v. Holden (Pa. 1957) p820
a. D convicted for murder. Defense was alibi. Witness said he though
D "winked" at him to ask him to provide an alibi.
(1) but maybe just something in D's eye (according to witness on
b. Majority said this testimony okay, but dissent said this was like
c. Under FRE? Could probably say was wink, but couldn't give
(1) objections: hearsay and opinion
3. Problem VIII-3: Murder ar the Hotel Thoreau p823
a.(1) Clerk says that man had expression of
"ineffable sadness" on face. Would allow in even though
lots of "processing" because almost impossible to describe "raw
b. Also said he "acted disoriented." Would not allow in because could
c.(2) Y says he found body, thought it had been dead 8 hours. Not
rationally based on perception (unless he's an expert) - not
4. Opinions commonly received:
b. State of mind - sad, mad, etc.
c. State of health - drunk, sick, sober, etc.
5. Often depends on form of question
a. Don't ask for "opinion" or "conclusion"
b. Ask "what was condition"
6. May a lay witness give opinion as to mental condition of D?
a. Borderline case - has been permitted if
sufficient facts on which to base it
(1) More often on behalf of D than prosecution
b. can testify to facts about actions, let jury draw conclusions
c. Dube - man charged with 4th bank robbery pleads insanity, presents
psychiatrist as witness. Prosecution did not present own expert.
Jury convicted anyway.
(1) Appeal: conviction was okay because lay people can disagree
(2) If prosecution had called an expert, would have been "buying
into defense's agenda"
B. Opinions on matters of law
1. Sometimes permitted when law is recondite
2. Logically unsound - should be briefed to judge
3. More reasonable when issue is foreign law
C. Expert Testimony, Scientific Proof, and Junk Science
1. Problem of expert testimony: hard to know when conclusions are worthy of
belief if we can't test them ourselves
a. One may sound as worthy as another - we don't want "persuasive
2. FRE 702 - If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
3. Frye v. US (D.C. Cir. 1923) p829
a. Precursor to lie detector used - not accepted by scientific community,
therefore not admitted.
(1) Court didn't identify relevant "community"
(2) Is this a delegation of something the court should do? Is it
4. Problem VIII-5: Fried by Frye
a. Polygraph evidence submitted by defense, rejected under Frye. Were
D's rights violated?
b. note: not admissible for prosecution, but usually allowed in for D
5. Problem VIII-7: Good Buddy p833
a. Trucker testifies that going over bump at certain speed would cause
load to shift. Probably admissible because of guy's experience.
(1) perhaps not admissible because in common experience - don't
need "expert help"
6. Overlap between lay and expert analysis
a. psychological matters often appreciated by lay people and subject of
b. "everyday physics"
7. State v. Saldana (Minn. 1982) p841
a. Expert witness testified about rape trauma syndrome, said she
believed victim had been raped (not consent), had not fabricated story. Court would not allow
if introduced by prosecutor.
8. In re Agent Orange Product Liability Litigation (E.D.NY 1985) p876
a. Opt-outs from class. Issue: causation. Court accepted P's expert's
qualifications and science, but dismissed on lack of factual basis
for opinion (medical records didn't indicate much, had little other
(1) Rule 703
(2) Problem: isn't this the province of the jury?
9. Wells by Maihafer v. Ortho Pharmaceutical Corp. (1985) p894
a. Judge found P expert witness more convincing - based more on
demeanor, not so much on science
(1) Doctors would probably have decided the other way
10. Proposed reform to rules:
a. require reasonable reliability
b. require substantial assistance to factfinder
c. never adopted because of decision in Daubert
11. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) p919
a. P alleged that birth defects were caused by Bendectin, 9th Cir. threw
out evidence of expert witness under Frye rule.
b. SC rejected this, set out 2 part standard:
(1) Reliability (implied by "scientific knowledge") - should consider
(a) if it can be tested
(b) peer review and publication
(c) known or potential rate of error
(d) "general acceptance"
(2) Fit - connection to inquiry, if it fits issue directly (relevance)
(3) Judge must make preliminary determination
12. Daubert v. Merrell Dow Pharmaceuticals (9th Cir. 1995) (on remand) pS-543
a. Not enthusiastic about new test (feel courts not qualified)
b. Here experts could show that B was capable of causing birth defects,
but not that it caused these birth defects (did not increase rate by factor of 2)
(1) One doctor who said it did cause these defects, but his
methods didn't pass
c. 2 prongs work in tandem to exclude junk science
13. Possible alternatives
a. court-appointed expert
(1) Rule 706
b. Expert "side judges" (assistants)
(1) used in arbitration, occasionally in court
c. Expert specialist judges
(1) In rare situations, judges have educated selves - e.g. asbestos
(2) Used in administrative proceedings
d. Expert factfinders/juries
(1) Constrained by requirement of
representativeness of jury
(2) Could be used in some cases where parties agree on it
e. Note "problem of delegation" - only way to keep some of the
decision-making from being given to 3rd party is to educate
14. Court-appointed experts
a. FRE Rule 706
(1) On court's or party's motion
(2) court can choose by nomination or on its own
(1) eliminates partisanship
(2) jury and judge not required to choose between competing
(3) savings in cost and effort
(4) outcome more likely to be mainstream
(1) expert may have own biases - no
(2) expert essentially decides issue - not judge or jury
(3) hard to fit in adversary presentation
(4) no innovation, etc.
d. how work in adversary system?
(1) could have one assist judge in Daubert screening
(2) is it that judges and lawyers are worried about losing power?
e. note how used in German system
VIII. Authentication and Identification
1. FRE 901 - Requirement of Authentication or Identification -
see text in book
2. FRE 902 - Self-Authentication - see text in book
3. FRE 903 - Subscribing witness's Testimony Unnecessary - see text in book
4. FRCivP 44 - Proof of Official Record - see text in book
5. Documents and things in evidence
a. have high credibility (don't change or
b. people learn visually - faster and easier
c. can be consulted repeatedly
(1) only get one shot with oral testimony
d. make cases real and convincing
6. Foundation - must show two things:
a. Thing in real life is connected with a fact of legal consequence
b. Document or thing is the actual thing with the real life connection
(2) like conditional relevance - only relevant if real
(a) Note that standard of proof is the same - if a factfinder
could find that it is the thing
7. Laying foundation in court: 3 questions
a. Can you recognize this?
(1) ability of witness to provide foundation
b. Tell us what it is?
c. How are you able to recognize X?
(1) factual basis for authenticity
(2) exceptions: can self-recognize animals, unique personal
(3) must explain for anything mass-produced or easily forged
8. Problem IX-1: Blackacre
a.(1) unrecorded deed from G to P - could identify signature, either from
familiarity or from seeing document signed. Could also identify
chain of possession, if possible.
b.(2) recorded deed - witness from deed office (901(b)(7)) or with seal
and signature (902(1))
c.(3) list of expenditures and receipts - could be authenticated by D if she
(1) problem: hearsay, probably only admissible as a past recorded
recollection (if made at time)
d.(4) local newspaper of 1978, referring to party at "D's ranch" -
presumed authentic under 902(6)
(1) not hearsay because offered to show that people thought it
was D's ranch, not that there was a party there
e.(5) tax records and receipts - D could testify to chain of possession (i.e.
he stored them)
(1) records not hearsay because just offered to show they exist
(2) receipts probably public records
f.(6) cancelled checks for utilities - D could identify signature, or testify to
chain of possession
(1) no hearsay because just offered to show payment
g.(7) letter from G to D, saying "in response to previous letter, there are
no other deeds" - signature, or reference to previous letter ("reply letter doctrine")
(1) hearsay unless just offered to show D's good faith
h.(8) telephone conversation between witness and G, in which G said no
other deeds - records of to whom call was placed, person said he
was G, voice familiarity
9. Public Documents
a. 902(1) - signature and seal of custodian
b. 902(2) - signature of custodian and signature and seal of another
public officer attesting that first signature is ok
c. FRCivP44 - certificate of officer having legal custody plus certificate
and seal of another official who has seal that custodian does have
d. note: this is all stuff you have to do preparing for trial
10. Authentication: how it's done
a. by recognition
b. statute, seal, or government record
c. chain of custody
(1) note: lawyer should be careful not to break chain by taking
d. agreement between two sides
e. deposition testimony
(1) note: must be careful to ask all three questions
f. requests for admission
(1) problems with discovery deadlines
11. Miller v. Pate (1967) p963
a. evidence in trial - shorts with large reddish-brown stains were key
evidence; expert said that they were stained with blood the same type as the victim.
b. on habeas corpus defense expert got to examine them and found that
stains were paint - SC said must reverse
(1) they have been represented as "heavily stained with blood"
c. Was there ever a real link to shorts? No - found
a mile away from the crime scene, no real link to D.
(1) Note: artificial connection made just by bringing them into the
d. This type of thing more likely to happen when the prosecution is
convinced of D's guilt
e. What about D? Lawyers too often "awed" by experts
a. Premises or objects that can't be made part of the record
b. Can't be considered evidence to support finding at trial
c. Problem IX-15: The case of the spite fence p967
(1) P requests a view. Jury sees fence with repulsive paintings
on P's side. When return to courtroom, P rests, and D
moves for nonsuit.
(2) This will be granted, at least under conventional wisdom
d. Problem with views: couldn't be preserved for appeal
(1) Not such a problem with video
a. powerful - people trust cameras, visual is good
b. accurate - don't forget, communicate well
c. Problem IX-16: The Spite Fence: A Reprise p967
(1) P offers photo of fence, unable to say who took photo
(2) admissible - just has to be relevant, have someone say it's a
fair and accurate representation
d. Adamczuk v. Holloway (Pa. 1940) p968
(1) P offered photo, witnesses said it was accurate, but didn't
know who took it
(2) trial court excluded, but PA SC let it in
e. Photos won't always be admissible - e.g. daytime photo for nighttime
(1) Rule 403
f. Wigmore theory (see p969) - photo form of testimony - therefore need
witness testimony as to scene
(1) this isn't really possible
(a) x-rays, etc.
(b) automatic cameras
g. Foundation questions for photos:
(1) recognize what is depicted?
(2) what is it?
(3) does it fairly and accurately depict thing/place at time in
h. Problem IX-17: The Case of the Hidden Camera p970
(1) automatic camera - see 2 cases below
i. Sisk v. State (Md. 1963) p971
(1) "regiscope" - automatic camera that takes 2 photos at once
(check and person cashing it). Witness couldn't be
looking at both at once, can't really say it pictures both
fairly and accurately.
(2) Tradition view: not admissible if no extrinsic evidence
j. State v. Tatum (Wash. 1961) p972
(1) Another regiscope
(2) Modern view: should be admitted because it is circumstantially
accurate - process is correct
k. Digital visual media
(1) Does the ability to falsify make more suspect?
(2) What is now difference between photo and illustrative aid?
(3) May need to require stronger showing of "no tampering"
before admitting a photo
14. Example of authenticity
a. Represent Alice Brown, claimant on $50,000 policy on the life of her
husband, Alex Brown, which was issued in late 1994
b. In 1995, Alex was in an auto accident and was left with a plate in his
head and constant pain. 7/12/96 he took off in his single-engine Cessna and never came
(1) 7/12 fisherman off Matinicus hears on radio "I'm going in!" and
sees single-engine plane plunge into water. Is this
relevant? yes, if it is his plane. How show this?
(a) no other reports of missing planes
(b) did fisherman recognize voice?
(c) Alex often flew there (there might be a rule 404
objection to this, but you might be able to show it
was habit, etc.)
(2) 2 weeks later, nosewheel of Cessna washes up on Matinicus,
from plane like Alex's (about 13,000 planes like this exist).
(a) how many planes like this have gone into water here?
(b) how long would a wheel stay in this condition?
(3) When Alice came home on 7/12, she found envelope on table
with "To my wife, with love" in Alex's handwriting. Inside was the life insurance policy.
Relevant to inference of suicide. If you're helping fill out the claim, what do you do?
(a) they decided not to send it (but not to affirmatively
B. The Best Evidence Rule
1. FRE 1001 - definitions (see book for text)
2. FRE 1002 - To prove the content of a writing, recording or
photograph, the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by Act of Congress.
a. Rule of preference, not admissibility
b. note: applies when proving content
3. FRE 1003 - A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances
it would be unfair to admit the duplicate in lieu of the original.
a. Problem: it's hard to know if a duplicate is authentic if you don't have
(1) many courts will be willing to require the original in many cases
- e.g. when there is handwriting on a photocopy
4. FRE 1004 - The original is not required, and other evidence of the contents of
a writing recording, or photograph is admissible if -
(1) Originals lost or destroyed. All originals are lost of have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available
judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was
under the control of the party against whom was offered, he was put on
notice, by the pleadings or otherwise, that the content would be a subject
of proof at the hearing, and he does not produce the original at the
(4) Collateral matters. The writing, recording, or photograph is not
closely related to a controlling issue.
5. FRE 1007 - Contents of writings, recordings, or photographs may be proved
by the testimony or deposition of the party against whom offered or by his written admission,
without accounting for the nonproduction of the original.
6. FRE 1008 - Functions of Court and Jury (see book for text)
7. Problem IX-19: Whiteacre p983
a. P claims under deed allegedly given by D, can P testify about deed?
(1) No - not without explaining why can't
produce D (1002)
b. Can P question D about it on stand?
(1) Yes - Rule 1007
8. Problem IX-20: Sparkplugs p983
a. Must original sparkplug be brought in or can witness just testify about
(1) Don't need originals, because they aren't writing or document
(2) What is the logical difference?
(a) writings consciously aimed at
9. Problem IX-21: Accident Report Forms p983
a. P filled out accident report at scene. Can she now testify about
(1) Yes - she's testifying about the accident,
not the report
(2) BER does not apply when the source of information is the
witness, not the writing, even if the information is also in a writing
10. Problem IX-23: Barnyard Justice p990
a. Libellous picture on billboard. P testifies about it - is this ok?
(1) Yes, if billboard can't be brought into court
(2) There is no "second-best evidence" rule - he doesn't have to
show photo, etc.
11. Problem IX-25: Arson Interrogation p991
a. D's statement was transcribed by a stenographer.
Can the policeman who took it testify about it?
(1) Yes - he's testifying about what he heard
b. What if it were tape recorded? No difference
12. Meyers v. US (D.C.Cir. 1949) p991
a. Do not need to use transcript of prior testimony - can have witnesses
testify about it
b. dissent: should have to use transcript if available (it's the most reliable)
13. Expert witnesses - don't have to use originals for the basis for their testimony
a. this can be the subject of cross-examination, though
b. if all experts in the field use originals, could have a problem under 703
14. US v. Marcatoni (5th cir. 1979)
a. Policeman saw "bait" bills in house and noted serial numbers. When
police went back later with search warrant, couldn't find bills. Can he testify about the
b. Appeals court held that this was permissible, even though trial court
hadn't gone through formal questioning about whether government had requested bills from D,
(1) assumed unsuccessful search established that they were not
15. Problem IX-31: Burning Romeo p1001
a. P testifies that he was so mad after reading libellous letter that he
burned it. Can he now testify about its contents?
(1) If could show burned in anger, not bad faith, will be allowed
(2) See 1004(1)
16. US v. Taylor (9th Cir. 1981) p1003
a. Taylor's signature on telecopy was important issue. The government
couldn't get the original telecopy, and used a photocopy of a photocopy. Allowed.
b. Taylor's objection was invalid because not raised at the time, only on
appeal (this objection must always be at time to be valid)
17. FRE 1005 - The contents of an official record, or of a document authorized to
be recorded or field and actually recorded or filed, including data
compilations in any form, if otherwise admissible, may be proved by copy,
certified as correct in accordance with rule 902 or testified to be correct
by a witness who has compared it with the original. If a copy which
complies with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.
a. Amoco Production Co. v. US (10th Cir. 1980) p1006
(1) 1005 will not apply to original deed which was recorded and
then returned to parties - whole issue was that part of the
original deed had not been recorded correctly
18. FRE 1006 - The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates, shall be made available for examination
or copying, or both, by other parties at reasonable time and place. The court may order that
they be produced in court.
a. summaries are sometimes abused to process data
(1) summaries should not contain inferences or arguments
(2) there is a difference (or at least there should be) between
summaries and illustrative aids