Torts

Abhijit Das, 1999

Evidence Outline, reprint 12/14/2011





Abhijit Das – Evidence Outline

Table of Contents





RELEVANCE ........................................................................ 1 WITNESSES ........................................................................ 14

WHAT KIND OF PROOF? ....................................................... 1 COMPETENCY AND PERSONAL KNOWLEDGE ................... 14

IS THE EVIDENCE RELEVANT TO THE ISSUE? ....................... 1  FRE 601 (119), 602 (121), 603 (122) ...................... 14

 FRE 401 (71) ..............................................................1 Competency Assumed.................................................... 14

RELEVANT BUT STILL EXCLUDED ....................................... 1 Personal Knowledge Required ..................................... 14

 FRE 403 (75) ..............................................................1

Oath .............................................................................. 14

CONDITIONAL RELEVANCE DETERMINATIONS .................... 1

Dead Man Statutes ........................................................ 15

 FRE 104 (44) ..............................................................1

Testimony by Jurors ...................................................... 15

LIMITED INCLUSION OR EXCLUSION .................................... 2

 FRE 105 (49) ..............................................................2 HYPNOSIS IN THE COURTROOM ......................................... 15

 FRE 106 (50) ..............................................................2 OPINION TESTIMONY AND SCIENTIFIC EVIDENCE ........... 15

RELEVANCE AND PROBABILITIES ....................................... 2  FRE 701 (161), 702(162), 704 (165), 705 (167)...... 15

Lay Witnesses ................................................................ 15

RELEVANCE PART DEUX ................................................ 2 Expert Witnesses ........................................................... 15

CHARACTER ........................................................................ 2 IMPEACHMENT OF WITNESSES.......................................... 16

 FRE 404 (77) ..............................................................2  FRE 607 (129), 608 (130), 609 (134), 613 (156), 801

(178) 16

Character in Civil Cases ................................................. 2

Impeaching Credibility ................................................. 16

Character in Criminal Cases .......................................... 2

REHABILITATION OF WITNESSES ...................................... 18

Victim’s Character .......................................................... 3

 FRE 608 (130) ......................................................... 18

PRIOR ACTS / HABIT........................................................... 3

Basic Principles ............................................................ 19

 FRE 404(77), 406(84) ................................................3

Ways to Repair… .......................................................... 19

Other Bad Acts of Misconduct ........................................ 3

LEADING QUESTIONS ........................................................ 19

Habit ............................................................................... 4

 FRE 611 (147) ......................................................... 19

PUBLIC POLICY EXCLUSIONS / PLEAS ................................. 4

Cross Examination ........................................................ 19

 FRE 407 (86), 408, 409, 410, 411 ..............................4

Direct Examination ....................................................... 19

Relevance Exceptions for Public Policy ......................... 4

PRIVILEGES ...................................................................... 19

Documents and Records.................................................. 5

 FRE 501 (113), 502 (299), 503 (300), 504 (306)..... 19

TYPES OF EVIDENCE: SEXUAL ASSAULT / RAPE ................. 5

State & Common Law ................................................... 19

 FRE 412 (99), 413 (106) ............................................5

Social Worker-Client .................................................... 20

Rape ................................................................................ 5

Physician-Patient .......................................................... 20

Similar Sexual Assault Cases .......................................... 5

Husband-Wife ............................................................... 21

HEARSAY .............................................................................. 5 WRITTEN MEMORANDA ................................................... 21

 FRE 612 (153) ......................................................... 21

BASIC DEFINITION .............................................................. 6

Adverse Party ................................................................ 21

 FRE 801 (a-c) (178) ...................................................6

STATEMENTS WHICH AREN’T HEARSAY ............................. 7 FOUNDATIONAL EVIDENCE AND

 FRE 801(d) (179) .......................................................7 AUTHENTICATION .......................................................... 21

DANGERS OF HEARSAY........................................................ 9

BENEFITS OF TESTIMONY; CONTRAST WITH HEARSAY ........ 9 AUTHENTICATION .............................................................. 21

 FRE 901 (247) ......................................................... 21

HEARSAY EXCEPTIONS (DECLARANT  UNAVAILABLE) ..... 9

Steps in Authenticating ................................................. 21

 FRE 803 (191) ............................................................9

Tape Recordings ........................................................... 21

POLICY – FOR EXCEPTIONS (DECLARANT = UNAVAILABLE)

Telephone Conversations .............................................. 22

........................................................................................... 13

Self-Authenticating Exhibits.......................................... 22

HEARSAY EXCEPTIONS (DECLARANT = UNAVAILABLE) ... 13

 FRE 804(b) (221) .....................................................13 BEST EVIDENCE DOCTRINE ............................................. 22

 FRE 1001 (259), 1002 (261) .................................... 22

Duplicates ..................................................................... 22

Summaries..................................................................... 22

Judge/Jury Allocation ................................................... 22







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Abhijit Das, 1999

Evidence Outline, reprint 12/14/2011





BURDENS OF PROOF ....................................................... 22  FRE 301 (63) ........................................................... 23

JUDICIAL NOTICE ............................................................. 24

BURDEN OF PRODUCTION................................................. 22  FRE 201 (53) ........................................................... 24

 FRE 301 (63) ............................................................22 Legislative Facts ........................................................... 24

Presumptions................................................................. 22 Adjudicative Facts ........................................................ 24

BURDEN OF PERSUASION .................................................. 23 Mandatory Judicial Notice ........................................... 24

 FRE 301 (63) ............................................................23

Permissive Judicial Notice ............................................ 24

Generally....................................................................... 23

Effect of Judicial Notice ................................................ 24

Allocation ...................................................................... 23

Standards of Proof ........................................................ 23

BURDENS IN CIVIL CASES.................................................. 23

 FRE 301 (63) ............................................................23

BURDENS IN CRIMINAL CASES ......................................... 23









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Abhijit Das, 1999

Evidence Outline







Relevance

Relevant But Still Excluded

Clark: Relevance is a low threshold, and it is very FRE 403 (75)

difficult to exclude on this basis. The judge makes

the call based on his experience. The “step Clark: FRE403 is also written to favor admissibility

method” is used to show aspects of the situation. because the burden is to prove why it shouldn’t be

admitted, not the other way around. Also, never

Admissible make this your first argument – it signals you

Inadmissible have nothing else on which to exclude.

What Kind of Proof? In the judge’s judgment, if the evidence’s relevance is

1. Direct Evidence – proves a proposition directly. If “substantially outweighed by the danger of unfair

believed, solves the matter at issue. [e.g. testimony prejudice, confusion of the issues, or misleading the

by eyewitness that he saw defendant kill victim] jury, or by considerations of undue delay, waste of

2. Circumstantial Evidence – tends to prove a time, or needless presentation of cumulative evidence”

proposition indirectly through inference (additional it may be excluded.

reasoning is used to reach the proposition) [e.g.

1. Prejudice – “unfair prejudice” is the key: judgment

testimony by officer that defendant was seen

will be made on an improper basis such as emotion.

running after gun shot that killed victim was heard]

a. gruesome pictures – often excluded, especially

if the pictures are large or in color. [State v.

Is the Evidence Relevant to the Issue? Chappel, AZ, 1983 (79) - which is an exception

FRE 401 (71) to the general rule] However, when necessary to

FRE401 merges the “materiality” and “probative” inquiry show how the defendant brought about death,

into one test. pictures are not usually excluded despite

prejudicial impact.

1. Does it tend to prove or disprove a fact of b. prior crimes – usually excluded because the

consequence? possibility jurors will be less concerned with the

a. Materiality – Whether the evidence being offered high burden of proof for a person with a record

relates to an issue in the case – (relationship – it is an abuse of discretion to admit name and

between the fact and the applicable substantive law type of prior conviction despite a defendant’s

– certain matters like bias and credibility are offer to stipulate to a conviction [Old Chief v.

always in issue.) [e.g. In an action for negligence in US, US, 1997 (s377)]

a car accident, evidence that car was going 35 in a 2. waste of time / cumulative - limits may be

20 would be material, whereas 35 in a 55 wouldn’t] imposed on the number of witnesses, if repetitive,

If direct evidence, and passes this test, always etc.

relevant. Circumstantial evidence must satisfy 3. no unfair surprise – FRE403 doesn’t recognize

probative test. “unfair surprise” as a ground for excluding

b. Probative – The evidence must make the factual otherwise relevant evidence.

proposition more or less likely than without the

evidence. [e.g. testimony by witness to assert she

thought car was going 55 to back up claim that car Conditional Relevance Determinations

was travelling at 55 makes it more likely that it was] FRE 104 (44)

“Step Method” – When the link isn’t obvious, an Ordinary relevance determinations do not involve a

“evidential hypothesis” or “chain of inference” finding of fact. Some evidence, however, is relevant

must be provided. only if some other preliminary fact exists. [e.g. the fact a

a) the longer the chain, the less probative value, warning was made only relevant if it was heard.

b) the circumstantial evidence need not make preliminary fact = whether it was heard.]

the entire fact more probable, but rather make an 1. jury decides – in a majority of courts and the FRE

element of that fact more probable. hold that the jury should decide questions of

conditional relevance





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Evidence Outline





2. judge decides – a judge may disallow of he

determines that a reasonable jury could not possibly

find that the preliminary fact existed. A judge may

allow evidence subject to a promised later proof of

the preliminary fact.

Clark: 104(b) is a dumb rule. To be subject to this

rule evidence must be type that can be Relevance Part Deux

disregarded if condition is deemed unmet.

Evidence that may linger, like membership in the Admissible

KKK, wouldn’t really work. *** CHECK THIS Inadmissible

Limited Inclusion or Exclusion Character

FRE 105 (49) FRE 404 (77)

If evidence is admissible as per one defendant or Character in Civil Cases1

purpose and not another, the court can give limiting 1. Generally not admissible to prove probable conduct

instructions to the jury. [e.g. Plaintiff can’t introduce evidence that

Clark: you generally don’t want this. Not only don’t defendant is usually a reckless driver to prove that

juries always follow the rules, this ends up calling he was negligent on the day in question.]

attention to evidence you don’t even want the jury 2. Admissible when directly in issue

to consider. a. Character is an ultimate fact in dispute and

must be proved by competent evidence2

FRE 106 (50)

Generally known as the rule of completeness, this rule i. Defamation: Plaintiff sues defendant for

allows another part of a writing earlier introduced to be calling plaintiff a thief and defendant pleads

presented in order to correct what would have otherwise truth as an affirmative defense – that

been an inaccurate or unclear picture of the situation. plaintiff is as despicable as they say he is.

ii. Negligent Entrustment: plaintiff sues

defendant for negligently permitting the use

Relevance and Probabilities of car by reckless driver, driver’s character

If probability evidence – in a case where plaintiff was for recklessness at issue – should not have

hit by unidentified blue bus the fact that 85% of blue lent car, etc.

buses in town are operated by D - is to be introduced, it iii. Wrongful Death – as evidence that the

must be upon a solid foundation. [Consider People v. damages for loss of the individual – a

Collins, CA, 1968, 96 – black man, blond girl in yellow compulsive gambler for example – is not

car – mathematician multiplies probability of partly great

yellow car (1/10) by moustache (1/4) by girl with b. Evidence of either reputation in the

ponytail (1/10) by girl with blond hair (1/3) by all the community, opinion, or specific acts to show

other factors to get 1 in 12 million that couple exists this character issue. Hence, FRE allows any type

with such criteria – Court reversed conviction – a) no of evidence (reputation, opinion, or specific

scientific basis for the probability numbers, b) no acts)3 when character is in issue.

showing that factors were independent – which means

no reason to believe they should be multiplied, c) jury

may accord too much weight to the resulting figure Character in Criminal Cases4

instead of any independent probabilities.] 1. Generally bad character inadmissible to prove he

Clark: You might get away with statements like is more likely to have committed crime5

“what are the chances” but this form is too

conclusory.

1

FRE 404

2

FRE 405(b)

3

FRE 404(b)

4

FRE 404



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Abhijit Das, 1999

Evidence Outline





2. Accused may always introduce evidence of good Prior Acts / Habit

character having tendency to show he didn’t FRE 404(77), 406(84)

commit the crime whether or not he takes the stand. Other Bad Acts of Misconduct

a. Methods of Proving Character 1. Admissible to prove another element of present

i. traditional: witness limited to reputation crime7 and not to show defendant had criminal

only, opinion or specific acts not allowed. propensity. It is unclear what level of proof is

ii. modern: witness may testify to defendant’s required on the prior act sought to be introduced or

reputation and his personal opinion of who should decide it.8

defendant, but not specific acts, which are 2. Huddleston four part test employed by many courts

still not admissible in which a judge:

3. Prosecution may not initiate evidence of bad a. decides whether the evidence is offered for a

character of defendant, but if defendant puts proper purpose

character in issue by having a character witness b. decides if it is relevant for that purpose

testify as to his opinion of defendant’s character, c. decides if the probative worth is outweighed

prosecution may rebut by showing bad character. by the risk of unfair prejudice

a. by merely taking the stand, the accused d. limiting instruction on the request

doesn’t “open the door.” 3. Upon reasonable notice by request of defendant or

4. Cross examination prosecution in a criminal case, admissible to prove

a. majority view: prosecution may test the another purpose: MIMIC rule: Motive, Intent,

credibility of defense witnesses by asking Mistake (Absence of), Identity, Common Plan or

whether witness has heard of particular Scheme9

instances of misconduct (reputation) and may a. Identity – if modus operandi is a crime

ask about arrests and convictions signature – must be very similar so as to almost

b. modern view: inquiry is allowed regarding preclude the possibility that two different

specific instances of conduct [“Do you know criminals were involved.

that ------?” is allowed. if a witness denies b. Intent – if the person admits the act, but offers

knowledge of specific instances, prosecution an innocent explanation, intent evidence could

cannot prove by extrinsic evidence rebut that innocence (evidence of similar acts,

(arrest/conviction records) for example) – relatively lax standard.

c. Absence of Mistake – other crimes evidence

Victim’s Character6 used to show that the act in question was not

1. Admissible in Homicide Cases – when defendant inadvertent [e.g. Huddleston v. US,10 defendant

claims self-defense, he may introduce evidence of purchased stolen goods from seller but claimed

victim’s violent nature to show that the victim was not to know they were stolen. Evidence that

actually the aggressor. The prosecutor may then defendant had previously purchased other stolen

introduce evidence of victim’s good character. Most goods from this seller was admissible.]

courts do not allow prosecutors to offer rebuttal d. Common plan or scheme – evidence defendant

evidence of defendant’s reputation for violence to recently stole burglary tool is probative of

show that he was the aggressor. burglary or that defendant used a similar method

2. Methods of Proving Character – reputation and as the crime alleged

opinion evidence is admissible to show character of

the defendant or victim. On cross examination,

inquiry is permitted into specific instances of past 7

conduct of victim. Examples/Clarification: often how litigators try to sneak in

previous crimes evidence is by trying to convince the judge

that it is needed to prove an element of the current crime

8

see page 497

9

Examples/Clarification: while usually used by a prosecutor,

5

Rationale: such evidence creates extreme prejudice – jury defendants in signature crimes sometimes use this technique to

may convict regardless of guilt in crime charged show that someone else committed the crime.

6 10

FRE 404(a)(2) page 497



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defect in product or design, or need for warning16

Habit (Applied by a majority of courts to product liability)

1. Routine reactions to regular responses as compared Such evidence is admissible to:

to character evidence – quality of conduct a. prove ownership or control

2. Habit is more specific than character evidence [e.g. b. prove defendant has destroyed or concealed

#1) habit: defendant walk to work on the same evidence [e.g. repairing fender to hide evidence

streets every day and stops at the same stop sign of collision]

every day. #2) character: fact that defendant is c. rebut evidence of defendant’s witnesses on

“careful” or “careless.” Can’t use drinking as safety of the condition (“there was no hazard”

evidence to prove drunk on a specific occasion. with a later sign that says “beware, hazardous”)

3. Rule:11 Habit or routine business practice is d. to rebut a claim that all feasible safety measures

admissible to prove conduct of person or had been taken17

organization on a specific occasion conformed to the 2. Settlement Offers or negotiations18 – offers to

habit or routine. Some states reject habit evidence or compromise or compromises in settlement of a

allow it only where no eyewitnesses are available.12 disputed claim not admissible to prove liability for

4. Habit must be routinely performed without or invalidity of claim or amount19 Conduct or

deliberation13 [e.g. #1) evidence that mail is statements made during negotiations are also

routinely put in a certain stack to be picked up by excluded (it’s all my fault, I’ll pay you $5000 –

mail clerk and mailed by same is admissible to under FRE, all excluded). Such evidence is

prove a particular letter was picked up and mailed. admissible to:

#2) Halloran v. Virginia,14 where testimony that an a. prove bias or prejudice of a witness

auto mechanic regularly used an immersion heating b. negative contention of undue delay in presenting

coil to heat a refrigerant in violation of warnings and a claim

labels had been excluded. Held: testimony should c. prove obstruction of criminal prosecution

have been allowed. Such evidence of habit is 3. Offers to pay medical expenses20 - evidence that

admissible to prove conformity on a specific defendant paid or appeared to pay plaintiff’s

occasion, because “no one who has demonstrated a medical bill is not admissible to prove liability for

consistent response is more likely to repeat that the plaintiff’s injuries21 Unlike settlement

response when the circumstances arise again.”] negotiations, conduct or statements accompanying

offers to pay medical expenses are admissible22



Public Policy Exclusions / Pleas

FRE 407 (86), 408, 409, 410, 411 16

Rationale: conduct is equally consistent with injury by mere

Society wants to encourage this behavior

accident or through contributory negligence, and social policy

Relevance Exceptions for Public Policy of encouraging people to make such repairs [FRE 407 note]

1. Subsequent Remedial Measures:15 Evidence of see also Flaminio v. Honda Motor Co, page 506, which

repairs following an injury to the plaintiff is discusses the applicability of FRE rules to diversity cases, and

inadmissible to prove negligence, culpable conduct, the interest the Congress has procedurally in preventing juries

from focussing on the wrong issue – remedial designs – and

hence

17

considered to be opening the door to this type of claim.

18

FRE 408

11 19

FRE 406 Rationale: Offers may be motivated by “desire for peace

12

Rationale: some fear that habit evidence can consciously be and not from weakness of position” and public policy favors

used to one’s advantage (you always do something at 6 and settlement of disputes [FRE 408 note]

20

hence there’s an alibi), it can easily be disregarded even well FRE 409

21

established ones, and especially easy to fabricate. Rationale: payment may be made for humanitarian motives

13

Definition/More Info: Generally, has three qualities: a) and not admission of liability

22

specificity, b) regularity, and c) degree of regularity Rationale: communication is essential to compromises so

14

similar hypo – exploding can – on page 501 they should be protected but statements regarding offers to pay

15

FRE 407 medical expenses are usually incidental [FRE 407 note]



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Evidence Outline





4. Liability Insurance23 – evidence that one was or Rape30

was not insured against liability is inadmissible to 1. Reputation or opinion of victim’s past sexual

prove negligence or wrongdoing24 Admissible to behavior is not admissible in any civil or criminal

prove ownership or control and to show bias. proceeding (Rape Shield Statute) If the probative

value of victim’s sexual behavior or predisposition

substantially outweighs the danger to the victim, it

may be admissible in a civil case – such as a sexual

harassment suit.

Pleas and Related Statements 2. Admissible in criminal cases to show:

1. Withdrawn guilty pleas, pleas of nolo contendre, a. victim’s past sexual behavior with others to

offers to plead guilty or evidence of statements to prove whether defendant was or was not the

prosecute in making such pleas are not admissible in source of semen or injury31

any proceeding25 b. victim’s past sexual behavior with defendant to

2. Admissible: prove consent

a. where another contemporaneous statement in c. when the Constitution requires that evidence be

plea negotiations has been introduced admitted32

b. in subsequent perjury prosecution, false d. Above only admitted on motion with 15 days of

statement made under oath, on record, and in trial and offer of proof at hearing in chambers

presence of counsel

c. to impeach inconsistent testimony [US v. Similar Sexual Assault Cases33

Mezzanatto] The addition of FRE 413-415 completely eviscerates the

“no showing of predisposition” for sex offenses.

Documents and Records26 1. Sexual Assault - evidence of defendant’s prior

1. Must be authenticated27 commission of sexual assault admissible in a

2. Best Evidence Rule28 criminal case to prove any matter to which it is

a. Original is required only when contents of relevant

writing are at issue 2. Similar child molestation cases34 - evidence of

b. copy admissible if original unavailable29 defendant’s prior commission of child molestation

3. Not available on collateral matters admissible in a criminal case to prove any matter to

which it is relevant

3. Similar acts in a civil case35 - evidence of

Types of Evidence: Sexual Assault / Rape

FRE 412 (99), 413 (106) defendant’s prior commission of sexual assault

admissible in a civil case where a claim for relief is

based on one’s conduct of sexual abuse or child

molestation.

23

FRE 411

24

Rationale: knowledge of presence of or lack of liability Hearsay

insurance would cause juries to decide on improper grounds

and prejudicial effect on defendant – whether defendant had

insurance or not does not tend to prove liability

25

Rationale: Prejudicial effect of the evidence would

30

outweigh the probative value of a withdrawn plea of guilt as an FRE 412

31

admission Furthermore, pleading guilty may very well be a FRE 412(b)(1)(A)

response to a defendant’s analysis of the alternatives of a 32

Examples/Clarification: See Olden v. Kentucky, page

punishment after trial – he’s choosing the better option, not 474, where the court held that it was unconstitutional to

necessarily saying he did it. preclude sexual history evidence of victim’s incestuous

26

Definition/More Info: Includes a) handwriting, b) voice relationship with brother which may have been part of a bias

and telephone, c) photographs and X-Rays against father for stopping relationship.

27 33

FRE 401 FRE 413

28 34

FRE 1002 FRE 414

29 35

FRE 1003 FRE 415



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Admissible should be inadmissible hearsay on the issue of

Inadmissible whether the vessel was seaworthy41] and is

admissible both to show declarant’s state of mind

Basic Definition

FRE 801 (a-c) (178) and truth of the matter asserted. Absence of

An out of court36 statement37 offered to prove the truth complaints or silence in a situation where such

of the matter asserted is inadmissible. conduct can be interpreted as a statement that

“everything’s ok” is admissible since no assertion is

Policy reasons: adverse party is denied the opportunity

to cross examine, thereby violating the constitutional intended. [e.g. people who are on a train but say

right to confront. nothing about the extreme cold asserted by plaintiff]

2. Offered to prove the truth of the matter asserted

Clark: Only hearsay when offered to prove what the

– when a statement is offered for another reason [i.e.

speaker was primarily trying to affirm or

impact on listener] statement is not hearsay and is

communicate

admissible. Examples:

1. Statement – oral or written assertion or non verbal a. Verbal Acts – a statement that is itself a

conduct intended as an assertion [e.g. #1) declarant legally operative fact because the fact that

nods his head up and down, #2) robbery victim those words were said means something

picks a picture out from a series of mug shots and apart from their truth (including an offer to

hands it to the officer without saying a word is contract) [e.g. #1) officers recounting of

hearsay because it’s the same as saying “that’s the prostitute’s offer to have sex not hearsay,

one”] non-assertive38 conduct is not hearsay [#1) because its unimportant whether she

truck driver lurching forward at light39, #2) Wright actually would. #2) statement “you’re a

v. Doe d. Tatham,40 Baron Parke in invalidating the dumb shit-head who’d steal from your own

admission of letters by persons who presumed they mother” is not hearsay when offered as

were corresponding with a sane man, analogized: proof of slander – truth of words

fact that sea captain loaded his family on a ship unimportant to the charge, #3) Husband in

Denver problem42 - lies are performative

36 words, hence not hearsay]

Definition/More Info: In-court testimony by a party to a

prior conversation that includes a one-sided conversation

b. Verbal Part of Act – words that accompany

intended to parse out the other party’s statement to avoid physical acts are not hearsay if they clarify

hearsay is also inadmissible as hearsay, see United States v. otherwise ambiguous acts [e.g. bob hands

Check, page 132. the mayor money. Unclear if proper or a

37

Definition/More Info: Must be by a human. “statements” bribe. Statement that “this is to repay your

by machines – the reading of a clock or radar gun, which loan last year” would be admissible as non-

would be inadmissible if made by a human declarant, are not hearsay.]

hearsay. Similarly, objects establishing a link between a person c. Impact on listener – statement is not

and a place are not usually considered hearsay. [e.g. #1) hearsay and is admissible when offered to

Eagle’s Rest Bar Problem, page 141 – matches in pocket

show hearer’s state of mind in sense of

more like mud on shoes than a note that says “I’ve been to that

bar.” – verbal object exception, #2) Luggage with Clarke’s

showing notice or knowledge or motive [e.g.

card – also verbal object, might not be able to use as proof of #1) third parties’ statement that floor was

ownership, but definitely a strong connection., #3) Eagle’s wet admissible as proof that plaintiff had

Rest Bar Problem #3, page 141, testimony “I pointed out the notice of the condition, #2) statement by a

couple to the police in the past” not hearsay because verbal person, “I’m from the gas company” you

marker. *** CHECK THIS, #4) US v. Singer, p. 158, address

on envelope not hearsay because not being used to prove that

defendant lived there, only landlord’s behavior] 41

Examples/Clarification: The fact that the sea captain’s

38

Definition/More Info: The assertion must be intended by actions are interpreted by an observer as an assertion that the

the person doing the conduct. Common law was different: any ship is seaworthy would not be enough to make this

statement that could be interpreted as an assertion. See US v. inadmissible hearsay under the Federal Rules, hence this case

Singer in footnote above. isn’t the modern law on the issue. Under FRE, therefore, the

39

page 121 letters probably would have been admitted.

40 42

England, 1837, page 121. page 160



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believe that the person is from the gas Statements Which Aren’t Hearsay45

company and hence your following him is FRE 801(d) (179)

more reasonable.] Not hearsay if:

d. Declarant’s state of mind – circumstantial 1. Prior Inconsistent46 Statement47 – made under

evidence of such kind is not hearsay because oath48, if it was made at a prior proceeding or

not offered to prove matter asserted but that deposition, is admissible to both impeach credibility

declarant believed them to be true or what and as substantive proof (for its truth).

the declarant knew [e.g. #1) “I’m the Queen 2. Prior Consistent Statement – whether under oath

of England” not as proof of its truth but to or not, offered to rebut an express or implied charge

prove declarant’s insanity., #2) statement of recent fabrication or improper influence or

that “I need to get my brakes fixed” motive on part of witness - hence admissible for its

admissible to show D’s knowledge – not truth [Tome v. US,49 statements must be made

that brakes were indeed bad, #3) Betts v. before the motive arose to be admissible under

Betts,43 “he killed my brother and he’ll kill 801(d)(1)(b)]

mommy too” not hearsay because not Clark: prior statement by a witness who is on the

offered to show that Ray killed her brother stand should be admissible on the theory that the

but to show her mental state and fear at the person is available for cross now – even regards

time, #4) Paper-Mache Man44 - a girl’s to prior statements. He is opposed to the

description of the room where she was traditional rule which doesn’t allow it.

previously raped – not hearsay because goes

3. Prior Statement of Identification50 – of a person

to her knowledge. #5) Anna Sofer’s will:

after perceiving him [e.g. photo ID or from a lineup

like a public slap on the face – unlikely to

– because and ID closer to the event is presumably

lie. Clarke: so darn reliable, we consider it

more reliable]. This ID is not limited to

not hearsay]

corroborative evidence, but can be used as a primary

Clark: Every hearsay problem can be broken down source of ID [State v. Motta51]

as follows:

a) declarant did or said X

45

b) therefore Y is true Some consider these to be exceptions, but they are treated

c) because _____________. by FRE as not hearsay at all.

46

* is X isn’t an assertion, no hearsay. Definition/More Info: Inconsistency seems to include

* if X is an assertion, but no the same as Y, also feigned and possibly truthful claims of failure to recall.

47

probably not hearsay. Definition/More Info: This is different than common law

where it was hearsay, though admissible to impeach

48

Definition/More Info: Threshold for oath seems to be any

Examples:

proceeding with a notary present and under oath in State v.

a) “I’m alive, I’m alive” Smith, 181, but Clark indicates this is not the standard and

b) he’s alive most courts wouldn’t follow it. Statements made in agency

c) dead people can’t speak – even if liar proceedings are admitted, however, under US v. Castro-

Ayon, 186.

49

Impeachment: Examples/Clarification: page 193. – there are several

a) said X different readings of Tome: 1) only non-hearsay use is

b) therefore a liar statements made before motive, 2) if used for this purpose only

c) because now says not X available if pre-motive and then can be used for truth, and 3)

may be admissible on many grounds, but substantive evidence

use only in rebuttal and if pre-motive. Casebook likes #3,

notice:

Clark not so much.

a) said X 50

This is different than common law where it was hearsay

b) therefore had notice of something 51

Examples/Clarification: page 206 - Which allowed both ID

c) should’ve checked based on notice and sketch drawn by a sketch artist to be introduced at trial. In

US v. Elmy it was held that a third party (like an officer) could

43

Washington, 1970. page 171. also testify to the ID. Perhaps the same concept as verbal

44

page 143 marker.



7

Abhijit Das, 1999

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4. Admission by Party Opponent52 – an out of court remember, you can’t use the statement to

statement or conduct by a party to the present prove the matter asserted – that driver

litigation that is used against him. Does not need to worked for X if the statement is “I was

be “against interest” of the person, can be an making a delivery for X” – independent

opinion, and does not need to be a result of personal evidence of such employment/agency would

knowledge. Statements overheard while declarant is be required – but see Bourjaily]

sleeping generally not allowed. [e.g. “the accident d. Vicarious Admissions – statements made

was my fault” – an opinion made by the party by another party may be imputed to a party

opponent, would get in.] based on certain relationships – also a

a. Civil pleadings (judicial admissions) – modern trend.57 There are limits, however.

admissions made in civil cases may bind [Bruton v. US,58 which held inadmissible

parties even if later amended.53 Most courts “the powerfully incriminating extrajudicial

provide limited protection for guilty pleas in statements of a codefendant, who [stood]

minor traffic infractions – allowing pleas to accused side-by-side with the defendant.”

avoid the costs of litigation. e. Co-Conspirator Statements59 – Statements

b. Criminal pleadings – (a) nolo contendre made by one conspirator (1-co-venturer) are

plea is inadmissible because it doesn’t admit admissible against other co-conspirators, so

guilt, but (b) guilty plea is admissible in a long as the statement was made during the

following criminal or civil case involving course of the conspiracy (2-pendency)60, and

the same act. in furtherance of it (3-furtherance).61

c. Authorized Statements54 – a statement by [note: Bourjaily v. US62 eliminated the

an agent or person authorized by party- independent evidence requirement in

opponent is admissible as is a statement by holding that a trial judge, in making a FRE

an agent while under the agency 104(a) factual determination, may use the

relationship. Statements made between an hearsay testimony itself as evidence of the

agent and a principal, once held existence of a conspiracy63 without, or in

inadmissible, are increasingly admitted addition to, other independent evidence.64 A

because they are considered very reliable –

that view is codified by the FRE. [e.g. #1)

written and oral statements made by a 57

Definition/More Info: Common law used be that

wildlife director to the wildlife president statements themselves needed to be authorized, but FRE seems

after a wolf bit a child held admissible since to say that statements made while under an agency relationship

it was a statement made under the scope of are generally admissible.

58

the agency – also, first hand knowledge was page 219

59

not necessary when used against the party Rationale: FRE 801(d)(2)(E) – Consider the rationale –

that made the statement, see Mahlandt v. conspirator comments such as those admitted can be

considered the verbal acts of a conspiracy.

Wild Canid Survival & Research 60

Definition/More Info: A statement made after a

Center55, #2) Errand for Boss problem56 - conspiracy has ended, is admissible only against the declarant

himself. What if the conspiracy included plans for after they

52

Examples/Clarification: Treated differently because a) got caught? Courts usually don’t accept this, see Krulewitch

unlike other exceptions, there’s no special reason to think v. US, p. 261.

61

these comments are more reliable, and b) arguably this isn’t Examples/Clarification: Does not require the declarant to

hearsay – merely part of the litigation. be absent – because the context of the conspiracy cannot be

53

This excludes pleadings in the alternative: “even if I was replicated, see US v. Inadi, page 248.

62

negligent, I am still not …” may not be used as evidence of page 248

63

negligence. under the POE standard

54 64

FRE 801(d)(2)(C)-(E) The statement may be used against Examples/Clarification: This rule effectively overruled US

both in suits against the individual or the party under whose v. Nixon and Glasser v. US, both pre-rules cases. The dissent

authority the statement was made. argued that the independent evidence rule was essential to

55

Page 240 safeguard the reliability of these statements and 104(a) could

56

page 245 be read as consistent with FRE801(d)(2)(E)’.



8

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circularity problem exists, but so does a 4. Inaccurate Perception – because of poor

coincidence problem.65] perceptive ability [i.e. eyesight or hearing],

f. Adoptive Admissions66 – cases where A declarant’s statement was simply incorrect though

explicitly or implicitly adopts B’s statement believed by declarant

as correct are admissible.67 [e.g. #1) Q: 5. Mistake in transmittal – mistake made by person

“Were you speeding?” A: “Yes” – adopts simply repeating the statements of another

the question as part of the answer as both

being declarant’s statement; #2) US v.

Benefits of Testimony; Contrast with Hearsay

Hoosier68, silence in the face of an

1. Oath – fear of perjury and solemnity of occasion

inculpatory statement where a denial is

increases truth potential. Hearsay = no oath.

expected from an innocent man, is

2. Demeanor – Jurors can judge demeanor of witness.

effectively an adoption of the statement and

Hearsay = no such opportunity.

admissible69 #3) consider insurance cases –

3. Context – Statements in the contexts of a larger

cases go both ways – whether death cert. is

story that jurors can evaluate for sincerity and

an admission by beneficiary for purposes of

accuracy. Hearsay = no such context.

cause of death]

4. Cross Examination – Subject to adversary seeking

to uncover truth. Hearsay = no such opportunity.

Dangers of Hearsay

1. Ambiguity – what was asserted wasn’t really what

declarant meant to say due to language difficulties

or similar impediment

2. Insincerity – knowing statement intentionally

misleading for ulterior motive Admissible

3. Incorrect Memory – honest belief but faulty Inadmissible

memory or confusion with another similar fact or

Hearsay Exceptions (Declarant  Unavailable)

issue FRE 803 (191)

1. Present Sense Impression – statement describing

or explaining an event while declarant was

65

Examples/Clarification: The judge could let the testimony perceiving the event or immediately thereafter

in based on his FRE104 determination that a conspiracy a. does not have to be startling or exciting

existed and the statement isn’t hearsay, while the jury could b. includes cases where a witness makes an

find that no hearsay existed, but rather some negligence. How accident or crime report shortly after it

about treating the evidence under FRE104(b) and let the jury c. safeguard – statement is free from memory

decide if its relevant? deficits and there is no time for calculated

66

FRE 801(d)(2)(B) reflections

67

Examples/Clarification: Generally, party needs to have a) 2. Excited Utterance70 – statement made about a

heard the statement, b) understood it, c) not have been under

startling event while under the stress of excitement

confusion or duress, d) been called upon to deny the statement

if untrue

is admissible71, but the event must produce shock or

68

page 227 excitement and the scope must be relate to the event.

69

Examples/Clarification: This is not the case where [see US v. Iron Shell, below – some lapse of time

declarant was in custody and had been told that anything he (45 minutes) and response to inquiry (“what

said could be used against him – there, silence is happened?”) doesn’t necessarily destroy exception]

understandable – see Doyle v. Ohio, page 230, because that

would invalidate Miranda. However, pre-arrest custodial

70

questioning is different under Jenkins v. Anderson, page 234. FRE 803(2)

Where police aren’t present, and statements are made that an 71

Rationale: Based on the theory that a person’s reflective

innocent person is expected to rebut, the adoption by silence faculties are stilled and memory is not a problem. Generally

theory applies per US v. Alker. My thoughts: I wonder how limited to a half-hour from the occurrence as a limit to how

sensible this policy is – there are bragging rights that such a long you can wait – some exceptions for medical necessity or

statement might carry that might question its credibility. coma, etc.



9

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Clark: maybe this is a case where a hard case made Hillmon78 - letters stating intention to travel to

bad law – stretched too far, perhaps. Also, think Colorado admissible as proof of intention to go,

about the wife abuser situation – wife: “he’s because the letters increased the probability that

going to kill me” based on years of abuse – not he did in fact go to Colorado; #2) where

the first time you’ve thought about it – hence no declarant states an intent and is the murder

guarantee of non-reflective response72 victim, like US v. Pheaster79, that declarant’s

a. no requirement of unavailability, competency, stated intent to meet defendant80 would be

or identification of the declarant admissible under common law to support

3. Then Existing Mental or Physical Condition73– inference that defendant was there81; #3) even

statement of declarant’s then existing state of mind, where he statement includes some backward

emotion, sensation, or physical condition (intent, looking statement (“I just got a call from D

plan, motive, pain, health, etc.) may be used to asking for money which I intend to send”), if the

prove existence of that condition or to prove thrust of the statement is forward looking, the

probable future conduct consistent with the intent entire statement will be admitted, under US v.

[see Nuttall v. Reading Co.74] Annunziato82]

a. statement of past memory or belief to prove e. statements as to past state of mind are

the fact remember is not admissible unless generally not admissible. [e.g. #1) “I didn’t

related to declarant’s will. mean to kill him” in a murder case; #2) for

b. Present physical condition – when one’s present statements based on past actions, like

physical condition at certain time is in issue, Shepard v. US83, court will not admit

statements made at that time are admissible to statements such as “Dr. Shepard has poisoned

prove that condition. [e.g. plaintiff’s statement me” because it was backward facing, not

at accident that he is in pain are admissible to forward facing like Pheaster or Hillmon]

prove he was in fact in pain75 but a person’s exception for cases dealing with the execution

statement that “my leg must be broken” would or revocation of wills where statements by

not be admissible for uninformed opinion testator before and after execution of will are

because of the opinion stated] admissible

c. Statement of past conditions – generally 4. Statement for Medical Diagnosis or Treatment –

excluded [e.g. last friday I was in pain76] statements made to medical personnel which are

d. statements of present intent to prove reasonably pertinent to diagnosis or treatment are

subsequent behavior are admissible [e.g. #1) “I admissible84

intend to go to X admissible to show probability a. including both past and present statements

he went there77” see Mutual Life Ins. Co. v. b. FRE allows statements of the cause or source of

the condition closely related to medical

diagnosis and treatment to be admitted even by a

72

Examples/Clarification: statements that are clearly self

serving, such as “I carefully stopped at the sign” may be

78

suspect. page 282

73 79

FRE 808(3) Examples/Clarification: page 286 – see also People v.

74

page 264, husband’s statement that he was feeling ill Alcade, p. 288 – “I’m going out with Frank tonight”

admissible to prove that point admissible as evidence that see did so in a murder trial against

75

Rationale: Perhaps based on the theory that statements Frank.

80

contemporaneous with symptoms are more reliable than Examples/Clarification: especially forceful if there is

present testimony based on recollection independent evidence that declarant actually did the things he

76

Rationale: on the theory that there’s no way to cross claimed – even if independent of the other named person

81

examine and greater likelihood of falsification FRE803(3) may limit this doctrine, though – see House

77

Examples/Clarification: modern view also allows such a Judiciary notes

82

statement, if including the intent to accompany another person, page 293

83

to support the inference that such action was taken with the page 292

84

other person a that the other person did that thing with FRE 803(4) – based on the theory that people don’t usually

declarant lie about symptoms to their doctors



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Abhijit Das, 1999

Evidence Outline





third person.85 [see US v. Iron Shell86 in which the regular practice to make the record, is

a little girl told her doctor about a man trying to admissible.95 Testimony must be:

put something in her vagina – because the a. provided by someone who can provide a

statements related to the doctor’s inquiry as to foundation for the records such as a

what happened so that he could treat her “custodian” of the records.

condition – not an inquiry into who did it, etc.] b. free from self-serving influences (such as the

Factual statements of other circumstances accident report written by one party after an

surrounding the event are inadmissible.87 accident) [like Palmer v. Hoffman96 where the

court held inadmissible a railroad’s accident

report because of lack of regularity – most

courts would probably now hold it inadmissible

for self serving reasons]

c. for medical records: statement made by a

hospital doctor or administrator. a statement

made to a doctor by a patient97 cannot be used

later to prove the matter asserted by the patient.

[see Petrocelli v. Gallison98]

5. Recorded Recollection88 – memorandum or record 7. Absence of Entry in Business Records99 –

on matter about which witness once had first hand absences may usually be admissible since the failure

knowledge89, but now has insufficient recollection to record a transaction is rarely an assertion.

may be read into evidence.90 Document must have Generally, the same requirements apply as to the

been prepared or adopted by the witness, and the regularity of the records.

witness must have vouched for its accuracy at the 8. Public Records & Reports100- records, statements

time it was recorded.91 [See Ohio v. Scott92] and reports, prepared by a public official are

a. this is different than FRE 612 “Present admissible101 if:

Recollection Refreshed” – because, there, the a. prepared by public employee within scope of

only thing going into the record is the testimony, duty

not the device used to refresh the witness b. made at or near the time of the event

testimony. c. police reports102 inadmissible in criminal cases

6. Business Records Exception93 – a writing, record

or memorandum of any act, transaction, occurrence, personal knowledge of the matter recorded. “business” can

if made in the regular course of business94 and it was mean association, or institution of many kinds.

95

Rationale: business incentive to keep accurate records – no

motivation to file. it would also be too cumbersome to bring in

everybody that may have contributed to the records.

85 96

Definition/More Info: if the person whose condition is page 325

97

being discussed is unconscious, for example – often called the Examples/Clarification: courts are also reluctant to admit

“Good Samaritan” doctrine opinions made by doctors in such reports that doctors could

86

page 269 and 298 otherwise make in live testimony

87 98

Examples/Clarification: so in the Iron Shell example, a page 316

99

statement about who raped the girl to the doctor may not be FRE 803(7)

100

admissible. Definition/More Info: FRE 803(8) various parts: (a)

88

FRE 803(5) activities of the office, (b) matters observed by public officials

89

the knowledge also had to have been made “fresh” and (c) factual findings from official investigations unless

90

Rationale: theory being that statements made fresh in mind untrustworthy

101

are more reliable than statements made on the stand. Examples/Clarification: as opposed to the business

91

the person must be available to testify to having made the records exception above, public records are self-authenticating

recording. if certification procedures are used.

92 102

page 306 Examples/Clarification: statements excluded are those

93

FRE 803(6) made by police and other law enforcement personnel. In US v.

94

Examples/Clarification: and in a timely manner, near the Oates, a full-time chemist for the Customs Service was held to

point in time when the event occurred by someone with fall under the category of “other law enforcement” personnel.



11

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d. in civil cases, factual findings (including

opinions and conclusions) are admissible.

e. not untrustworthy [see Baker v. Elcona Homes

Corp.103 – where the factors for trustworthiness

were applied: 1. timeliness, 2. skill or

experience, 3. whether a hearing was held, and

4. motivation problems (Palmer v. Hoffman)

and the court determined that the report was

trustworthy]

9. Treatises104 - in direct testimony, parts of written

treatises can be read into testimony, though they may

not be included as exhibits. in cross examination,

treatises may be used against an expert even if the expert

refuses to accept the authoritativeness of the treatise.









The court also held that such material is not to be admitted

under any other evidence rules and was absolutely

inadmissible.

103

page 328

104

FRE 803(18)



12

Abhijit Das, 1999

Evidence Outline





Admissible a. party against whom testimony is now being

Inadmissible offered was a party to former suit and had

opportunity and some motive111 to cross

Policy – for Exceptions (Declarant = Unavailable)

examine112 as adverse party in present

A group of hearsay exceptions are available only when a

proceeding, or

declarant is unavailable for two primary reasons:

b. in a civil action113, a predecessor114 with similar

1. Trustworthiness – special guarantees which make

interests had an opportunity to cross examine

up for the inability to cross examine

2. Dying Declarations115 – in a homicide

2. Necessity – need for hearsay evidence, usually

prosecution116, or in a civil action, a statement made

caused by the unavailability of the declarant

by unavailable declarant while believing his death is

imminent117 that concerns the cause or

“Unavailable” when the declarant:

circumstances of what he believed to be his

1. Exempt due to privilege

2. refuses to testify

3. testifies to lack of memory of subject matter of

statement105

4. physically unavailable (death, physical or mental 110

Examples/Clarification: the former testimony must have

illness106) been given under oath or sworn affirmation and subject to

5. is absent107 or cannot be subpoenaed (out of cross examination – prior trial, preliminary hearing, grand jury

country)108 investigation (is used by the defense only – never by

prosecution), suppression hearing or deposition. affidavits and

statements made to police are not admissible.

Hearsay Exceptions (Declarant = Unavailable) 111

Examples/Clarification: motive can be different, if, for

FRE 804(b) (221) example, the amounts in question are very different – prior suit

1. Former testimony109 – by a now unavailable was small, the second much larger. The Supreme Court seems

witness at another hearing or in deposition110 is to construe this requirement strictly for defense requests. See

admissible in a subsequent trial if: US v. Salerno, 368, where the Court held that unless the

defense could argue that the prosecution had a motive when it

cross-examined individuals for grand jury testimony, it could

not introduce the exculpatory evidence on lack of similar

105

Examples/Clarification: see US v. DiCaro, page 347, motive grounds. The witnesses had not been offered “use

where a witness was held to be “subject to cross examination” immunity” by the government for their testimony, and were

for FRE 801(d)(1)(A) – prior inconsistent testimony – thus unavailable to testify.

112

purposes but unavailable for 804(a)(3) purposes because he Examples/Clarification: there is no requirement that

remembered making the statement but not the underlying actual cross examination have occurred, though if the

events. defendant had no counsel, it may be judged that he had no

106

a minor illness will not do – for which an adjournment reasonable opportunity to cross examine.

113

would be more appropriate this is strictly civil – no criminal cases allowed

107 114

Examples/Clarification: for criminal cases, where see Lloyd v. American Export Lines, Inc., page 293,

confrontation clause issues arise, the state must show that where testimony from a coast guard hearing regarding a fight

attendance could not be procured by other means. See Barber two ship crewmembers had was held admissible in a

v. Page, page 352, which held that in a state prosecution, subsequent suit brought by one of the combatants against the

where a prisoner was in a federal prison in another state he shipping company. the “nucleus of operative facts,” the

wasn’t unavailable because procedures where available which conduct of the combatants, was the same and “there was a

would have allowed him to testify. But see Mancusi v. sufficient community of interest shared by the Coast Guard in

Stubbs, page 356, which held witness was unavailable where its hearing and Alvarez in the subsequent civil trial” – they

it found he was living in Sweden and the prosecutor made no both sought to establish Lloyd’s wrongdoing. this holding,

effort to procure his attendance. followed by many courts, minimizes the importance of the

108

Examples/Clarification: the federal rules are stricter than predecessor in interest requirement.

115

state rules when a witness is absent. the person seeking to offer FRE 804(b)(2)

116

the testimony must show that the declarant cannot be unavailable in a non-homicide cases, though under common

persuaded to appear and that efforts to take a deposition were law, it wasn’t available for civil cases either.

117

unsuccessful. this may be shown through statements made by the

109

FRE 804(b)(1) declarant, or his knowledge of the severity of his wounds



13

Abhijit Das, 1999

Evidence Outline





impending death118 Under common law, death was clearly indicate the trustworthiness of the

required – not under FRE, where declarant may be statement.126

unavailable on other grounds.

3. Statements Against Interest119 - statements which,

when made,120 was against declarant’s121 pecuniary Witnesses

or proprietary interest122 or tended to subject

declarant to civil or criminal liability such that a Competency and Personal Knowledge

reasonable person would not have made it unless he FRE 601 (119), 602 (121), 603 (122)

believed it to be true.123 However, statements which

subject the declarant to criminal liability124 and Competency Assumed127

are offered to exculpate the accused are not Every witness is presumed competent to testify. The

admissible125 unless corroborating circumstances district judge does retain the power to order a mental

evaluation.128 Children are also able to testify.129 Three

reasons why they may be incompetent:

118

the rationale for this rule being more religious than legal – 1. lack of personal knowledge

the “dying declarant, knowing he is about to die, would be 2. failure/refusal to take oath130

unwilling to go to his Maker with a lie on his lips.” Does this 3. lack of capacity to recall

rationale stand up to modern views of hell, etc? are you much

more likely to make such a statement in the hopes of getting

revenge, or self-exoneration than you are to speak truthfully

Personal Knowledge Required131

for fear of god? An ordinary, non-expert witness, must limit his

119

FRE 804(b)(3) testimony to facts of which he has first-hand

120

on the theory that if the person doesn’t know its against knowledge.132 Difference from hearsay: if it appears on

interest, then the reliability factor goes down its face that the testimony is a repetition of what

121

unlike an admission, the declarant whose statement is someone else said, then its hearsay. If the witness claims

admitted need not be a party to the litigation. to have personal knowledge but contexts supports the

122

declarant must have had actual knowledge of the facts and contention that he couldn’t have seen it, then it is void

have known that the statement was against interest for lack of personal knowledge.

123

Also incorporates one-way interests: a tax return to prove

that the person made at least that much – theory that you

would never overstate your income: where the interest of the Oath133

declarant is to aim high, use the number as the maximum. What does the requirement do?

Conversely, where the interest is to aim low, use the number as

126

a minimum. Courts are mixed on the application of conclusory Rationale: we don’t want people confessing to get others

remarks, such as “it wasn’t your fault” right after an accident. off the hook. However, with corroboration, the situation is

See Carpenter v. Davis, where the court allowed in a portion different, where a reasonable person can infer from the

of the statement, “you pulled right in front of me” – “I know” corroborating evidence that the declarant, not the defendant

but it excluded, “it’s not your fault.” Perhaps this should have could have committed the crime.

been attempted as a party admission – which would allowed 127

FRE 601

128

even the opinion portion (though the court ruled the wife page 529

wasn’t a party to husband’s suit). 129

See Ricketts v. Delaware, page 532, where a six year old

124

Definition/More Info: but where a statement is part was allowed to testify after a statement to the effect that “lies

against a declarant’s interest, but part neutral or self serving, are bad” and a promise to tell the truth. Sufficient under 601

the collateral statements are simply not admissible under for competency and 603 for oath. Some states do not presume

FRE804(b)(3) according to the Supreme Court in Williamson competency for children.

130

v. U.S., page 377. the fact that a person is making a partly See United States v. Fowler, page 530, where defendant

inculpatory statement doesn’t increase the reliability of the refused to take the oath “I state that I will tell the truth in my

non-self inculpatory portion. (in fact, there’s a fear that the testimony” but offered alternatives such as “I am a truthful

declarant may be trying to curry favor with the authorities by man” – held insufficient under FRE 603.

131

“bringing in the big fish” etc.) FRE 602

125

under the traditional approach, they weren’t admissible – 132

See Mahlandt which held that first-hand knowledge is not

see Justice Holmes’ dissent in Donnelly v. US, page 376, required when a statement is to be used against the party that

protesting the reason behind excluding this evidence while made the statement.

133

allowing dying declarations. FRE 603



14

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1. impress upon witness solemnity of duty

2. ensure witness is paying attention and will

Hypnosis in the Courtroom

articulate clearly

1. Testimony by witnesses after hypnotic

3. awaken conscience – express willingness to refreshment – most courts will exclude such

pay for lie statements because of lack of safeguards though

some courts will allow such testimony after

Dead Man Statutes134 stringent safeguards including videotaping and

A survivor from common-law, dead man’s statutes documentation.

attempt to “equalize the opportunities of proof in 2. Defendant has a right to testify, even after

litigation involving a decedent and survivor where the hypnosis – whatever burdens courts place on third

subject matter of the suit is a transaction or event that party testimony, the Supreme Court has held, in

occurred when both were living.”

Rock v. Arkansas,139 that though states have some

1. Extreme – prevent the survivor from testifying at all right to guard against unreliable hypnotized

about the transaction between him and the decedent. testimony, a per se ban on all hypnotically refreshed

Oral agreement, for example, will not be permissible testimony is unconstitutional. Especially where post-

without evidence beyond survivor’s testimony to its

hypnosis testimony was corroborated, it should

existence

have been admissible. Procedural safeguards which

2. More liberal – less draconian versions allow the should be employed:

survivor to testify but equalize the advantage by

a. hypnosis only by psychologist or psychiatrist

allowing the decedent’s estate to introduce hearsay

b. neutral setting

statements by the decedent.

c. videotaped or recorded

3. Federal Rules – there is no federal Dead Man’s

Statute, but a court sitting in diversity must apply Opinion Testimony and Scientific Evidence

the state statute under FRE 601. FRE 701 (161), 702(162), 704 (165), 705 (167)

Lay Witnesses140

Testimony by Jurors135 1. Generally inadmissible

1. Testimony Prohibited before the same panel on 2. Admissible as to common sense impression such as

which she sits appearance, state of emotion, intoxication, speed of

2. Pre-Verdict Questioning136 - regarding failure to vehicle, and testimony helpful in resolving issues141

follow instructions (reading a newspaper) is allowed Expert Witnesses142

while the trial is in progress 1. Generally admissible where scientific, technical, or

3. Post-Verdict Questioning137 – jurors can be asked other specialized knowledge will help the trier of

questions about their jury service – not about fact to: understand the evidence or determine a fact

deliberations – but about whether improper evidence in issue. Does not necessarily have to testify to

(extraneous prejudicial information) was available something beyond jury’s knowledge – just has to

a. key: external/internal distinction provide a refined understanding. Judge has ultimate

b. Drug and alcohol use by the jury while hearing discretion.143

testimony and under deliberation is internal, and 2. Expert may be qualified by:

hence not subject to questioning.138 a. knowledge

b. skill

134

page 543

135 139

FRE 606 page 535 – defendant shot her husband in the chest. She

136

FRE 606(a) cannot remember all of the events. After hypnosis, defendant

137

FRE 606(b) remembered that her finger was not on the trigger but rather

138

see Tanner v. United States, page 553, which involved an that the gun fired when her husband grabbed her arm. A gun

affidavit from a juror regarding such abuses during the trial. expert corroborated with testimony that the design of the gun

The Supreme Court held that the affidavit was not a valid basis was defective allowing such accidental shooting.

140

for a post-verdict evidentiary hearing into the validity of the FRE 701

141

verdict. see also Advisory Committee Notes, page 126, see examples on page 690

142

talking about reasons for questioning jurors – almost every FRE 702

143

“internal” factor is out. FRE 104(a)



15

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c. experience h. credentials of the scientists

d. training 3. Appellate Daubert Standard – under GE v.

e. education Joiner,147 the appellate standard for Daubert is

Clark: remember, an expert needs no formal abuse of discretion by the trial judge as gatekeeper –

education. could be tons of experience a.k.a. My not an overly stringent review.148

Cousin Vinny – Marissa’s automobile testimony Clark: Though Daubert appears at first to liberalize

144

3. Bases of Expert Testimony: The facts or data admissibility, it is enormously anti-plaintiff.

upon which an expert bases an opinion may be those Instead of a head count, the judge now has any

perceived by or made known to the expert and need factors to consider – many more places along the

not be admissible in evidence if: they are of a type way to eliminate new emerging sciences. It has

reasonably relied upon by experts in the particular been especially difficult to get in toxic tort cases

field.145 Hence, there is a body of evidence that an because of expert testimony inadmissibility.

expert can rely upon but the trier may not. 4. Syndrome evidence: some courts apply Daubert to

4. Opinion on ultimate issue is admissible, including syndrome evidence – but most fail the test. The

defendant’s state of mind at time of trial names of syndromes, like Battered Wife Syndrome,

a. exception: opinion on criminal defendant’s state are not usually allowed so as to prevent undue

of mind at time of crime prejudice.149

5. Opinion admissible without first testifying to 5. DNA Evidence – satisfies the Daubert standard

underlying facts or data unless required by court under State v. Moore.150 What should trial judges

Scientific Evidence do with the application of an otherwise accepted

1. The Frye Standard – under Frye, only “generally method in a particular case? should the judge

accepted” scientific evidence could be admitted. decide, or is that a question of fact for the jury?

2. The Daubert Standard – in rejecting Frye, the

Supreme Court in Daubert v. Merrell Dow

Impeachment of Witnesses

Pharmaceuticals146 established a new standard FRE 607 (129), 608 (130), 609 (134), 613 (156), 801

focussed upon “reliability.” Under the new standard, (178)

in order to be admissible, scientific evidence must: Impeaching Credibility

a. be derived by scientific method and be valid There are six ways to impeach the credibility of a

b. fit at least one issue in the case, and therefore be witness:

relevant to the task at hand. 1. Prior Inconsistent Statement151

c. the above determinations are for the court under

FRE 104(a)

In determining whether the evidence qualifies as

scientific, the court will consider the following

147

factors: supplement page 397

148

a. whether methodology can be applied to the facts Examples/Clarification: Can be read to emphasize the anti-

in this case admissibility bent of Daubert, because decisions to exclude

b. whether the method has been and can be tested scientific evidence are not subject to a searching review. my

c. whether the method has been subject to peer opinion: Is there any reason to believe that trial judges, and

review and is published more than appellate courts are better prepared to answer these

questions? perhaps we just want to draw a line and have it

d. rate of error for the method

done with earlier.

e. whether method was designed independent of 149

Rationale: syndrome evidence is allowed into the

the litigation courtroom to equalize misconceptions about abusive

f. operational standards regarding the method situations. The jury'’ background information should be

g. general acceptance corrected, or they might let incorrect assumptions distort their

evaluations of the facts.

150

page 741

144 151

FRE 703 FRE 613 – note that this really applies to non-parties only

145

see examples on page 698 since a prior inconsistent statement is substantively admissible

146

page 717 as an admission (does not get tossed as hearsay)



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a. witness must first have opportunity to explain or proof of personal adoption is certainly probative

deny only with extrinsic impeachment (laying of bias, according to the court.]

the foundation)152 i. court may limit how much you can say

b. extrinsic evidence regarding material153 issues about the group to limit prejudice (i.e. not

only; no extrinsic impeachment on collateral allowing the name “Aryan Brotherhood)

issues (can highlight the inconsistency, but can’t b. paid witnesses: clearly a proper issue to bring

introduce other evidence to hammer it home) up. [e.g. “Will you tell us, sir, what hourly rate

c. may not be used as a subterfuge to get you charge for testifying in cases such as this

otherwise inadmissible testimony in – under one?”]

FRE 607 – by impeaching your own witness. c. confrontation clause – courts have held that

[e.g. #1) you can’t ask a witness a question you constitutional issues (due process) may arise

know he will get wrong in order to bring in the upon denial of a defendant’s right to impeach

prior statement; #2) it is OK, however, if you the credibility of a witness [see Olden v.

call the witness in good faith not knowing what Kentucky and Davis v. Alaska]158

he will say – see Webster154] 3. Defect in Sensory of Mental Capacity – Attacking

d. May include statements obtained in violation party may try to demonstrate that witness was under

of Miranda unless under coercion or the influence of drugs or alcohol,159 or that witness

involuntary. [see Harris v. New York155 for one is mentally impaired.160 Proof of mental illness can

that was admissible, or Portash 156 for an be made through the introduction of medical records

example of where statements under a grant of and psychiatric testimony.161

immunity are not useable to impeach.] Possible 4. Character for Untruthfulness - in addition to

to avoid the prior statement if that portion of cross, may be introduced on direct as well under

your testimony is in accordance with the 607.

defective confession. a) specific instances of conduct (which did not

2. Bias evidence is always allowed and is never result in conviction)162 – allowed at the

collateral. This can take the form of a witness’ discretion of the court if probative of

friendly feeling to one of the parties, hostility to truthfulness.163 No extrinsic evidence allowed.

one of the parties, or self interest in the outcome. Hence, if you ask “Isn’t it true that you…?” and

a. membership in group: bias may be shown by the witness denies it, you’re stuck.

demonstrating that the witness belongs to a b) instances of crimes involving dishonesty or

particular group and subscribes to its beliefs. false statement 164 Trial judges usually lack

Extrinsic evidence may be used only if bias is discretion to disallow this type of evidence.

denied. [see United States v. Abel,157 Supreme

Court held that: prosecution entitled to show

that a defense witness was a member of a secret 158

page 585

prison organization which had a creed requiring 159

though perhaps most courts may not allow proof of habitual

members to lie to protect each other. Common impairment or alcoholism as proof of impairment at the

membership in an organization, even absent particular time.

160

Cross examination should be aimed at illness within the

time period the witness is testifying about and should not be

aimed to stigmatize the witness.

152 161

FRE 613(b) See United States v. Lopez, page 597, for information

153

Examples/Clarification: For example, if the testimony regarding trial court discretion in requiring a witness to

varies only slightly from the record, or the fact is a minor one, undergo psychiatric or mental evaluation.

162

extrinsic evidence is not allowed. Keep in mind, however, FRE 608(b)

163

some evidence that may be excluded here could be introduced Examples/Clarification: Usually must usually directly

as bias evidence, etc. involve truthfulness – theft, for example, is debatable.

154

page 636 Questions about drug use, violence, or sexual relationships are

155

page 639 disapproved, though potentially useful to show bias. Some

156

page 646 jurisdictions do allow bad conduct unrelated to truthfulness.

157 164

page 586 FRE 609(a)(2)



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c) other crimes by a witness other than the 5. Opinion or Reputation – witness credibility may

accused165 – if punishable by death or 1+ year, if be attacked or supported based on reputation or

it passes muster under 403 (prejudicial impact opinion evidence given by a character witness.

doesn’t outweigh probative value) Testimony must refer only to character for

i. if the witness has lied about the prior truthfulness or untruthfulness and must be preceded

conviction in the past, you may be able by a foundation – asserting personal knowledge of

to get the conviction in under 608, even the witness or his community. Evidence of

though it would not have been truthfulness may be introduced only if original

admissible under 609 witness’ truthfulness attacked and may include

d) defendant’s prior conviction – evidence of a specific instances of truthfulness.169

defendant’s prior conviction may be introduced 6. Contradicting Testimony – only evidence that has

to impeach if the probative value outweighs (not relevance independent of its contradicting effect

substantially) prejudicial impact to defendant. gets in,170 either through cross examination or

Factors employed include: extrinsic evidence. [FRE 608(b) does not apply to

i. nature of conviction this category – only covers untruthful disposition

ii. recency or remoteness impeachment, However, 608 and rape shield laws

iii. whether similar to charged offense both trump the general right to contradict]

iv. whether defendant’s record is clean a. Counterproof that contradicts but also proves

v. importance of credibility issues a substantive point admissible

vi. importance of getting defendant’s b. Counterproof that tends to prove another

testimony impeaching point admissible171

e) Inadmissible convictions166 c. Counterproof which only contradicts is usually

i. more than 10 years elapsed – unless by excluded as collateral

special notice of intent to use and the d. prosecution may ask questions on direct, the

interests of justice require its use cross-examination of which can open up the

ii. juvenile adjudications introduction of otherwise inadmissible evidence

iii. witness has been pardoned and no to impeach. [see US v. Havens172 where

subsequent conviction in excess of one year illegally seized evidence that had been excluded

f) Judge’s Evaluation – a judge may inquire into as inadmissible was held admissible for use by

the factual background leading to the prior the prosecutor in rebuttal to answers in response

conviction, but need not do so in determining to questions asked by the prosecutor during his

admissibility. [See Lipscomb167] cross examination – a.k.a. opening his own

g) Preserving appeal – to raise and reserve for door]

review the claim of improper impeachment, the 7. Forbidden Attacks: impeachment based on

defendant must testify. [See Luce168] States may religion, beliefs, or opinions

still allow defense appeals from adverse rulings

Rehabilitation of Witnesses

in limine.

FRE 608 (130)

h) Limits – impeaching party is allowed to bring in

the fact of the conviction, date, and type but not

the underlying details.

169

Clark: thinks that you should not be able to skirt 609 FRE 608(a)(2)

170

and bring in the gory details under 608, but there generally viewed as a result of judicial discretion in FRE

403.

seems to be no case law. 171

Examples/Clarification: when otherwise excludable

testimony gets in to contradict a witness, usually the testimony

being contradicted could itself have been excluded: e.g.

testimony by D, “I’m a good driver” could be excluded by

165

FRE 609(a)(1) objection because it’s character evidence. But P won’t object,

166

FRE 609 because it lets him bring in evidence of other accidents as

167

page 614 counterproof.

168 172

page 625 page 661



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Basic Principles Privileges

1. You can’t repair until attacked. 173But you can FRE 501 (113), 502 (299), 503 (300), 504 (306)

bring out damaging information on direct so as to State & Common Law

defuse: 1. Based on societal desires to encourage particular

a. expert fees relationships, and therefore unlike other rules of

b. prior convictions evidence.177

c. plea bargains a. FRE has no specific privilege provisions178

2. Repair must meet attack: only fairly direct except for FRE 501

responsible is allowed, hence, a statement b. in diversity cases, governed by state law and

supporting the general veracity of a witness will not privilege rules, in federal question cases,

be allowed to answer an attack on a specific governed by federal common law – not bound

statement. by the state in which the court sits.

Ways to Repair… c. there must be a confidential communication for

1. Redirect examination of witness: an attempt to the privilege to apply

explain away any aspersions cast upon his veracity d. person who holds privilege may waive it by

2. Cross examine negative witnesses: in an effort to consent

refute point suggested during the attack a. disclosure to a third party can constitute

3. Positive character witnesses: waiver

a. testimony of character witnesses as to good e. Eavesdroppers – as long as the privilege holder

reputation for truth of primary witness [see US was not negligent, there is no waiver, and

v. Medical Therapy Sciences174] eavesdropper may not testify which is different

b. generally, we don’t like expert witnesses than the common law rule.

testifying as to whether someone is telling the Attorney-Client179

truth, but they can support the plausibility of the 1. Client holds privilege to refuse to disclose and to

testimony. prevent anyone else (including lawyer) from

4. Prior Consistent Testimony: to rebut charges of disclosing a confidential communication180

recently fabricated testimony175 between attorney and client181 during legal

a. should predate alleged fabrication or motive services182 An attorney’s waiver is invalid without

[Tome v. US] client’s consent.

b. since it is a non-hearsay use, doesn’t have to

meet requirements of FRE 801(d)(1)(B) – only 177

Examples/Clarification: the privileges are often aimed at

needs to do so if you wish to use it as obstructing the free flow of information. the other rules of

substantive proof. evidence are generally viewed as tools to ensure more

5. Court retains the discretion to limit embarrassment accurate adjudication. To this end, see Bentham, on page

of witnesses176 868 which says the privilege is only for protecting the guilty.

Counter arguments: a) even innocent people need

Leading Questions representation to protect their rights and may not want to spill

FRE 611 (147) their privacy to do so, b) we live in a complex society – need

Cross Examination help to conform to the law.

178

1. Cannot refuse answer they were approved by the Supreme Court but rejected by

Direct Examination Congress. Proposed FRE 502-510

179

1. Improper, except to establish preliminary facts; to PFRE 502

180

aid witness with memory loss; when questioning Examples/Clarification: the communication must have

been made to an attorney (which includes secretaries,

hostile witness, child witness, timid witness; to

paralegals, etc under US v. Kovel, 882). and applies to

develop testimony as necessary consultations, even where the attorney is not retained

181

client can be a corporation as well as an individual

182

Examples/Clarification: services performed by lawyers are

173

FRE 608(a)(2) not always privileged. If lawyer performs other services,

174

page 673 accounting, investigator, shipping agent, etc. those activities

175

FRE 801(d) are usually not covered unless the legal component is great.

176

FRE 611(a)(3) see page 872



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a. the fact that lawyer-client relationship exists and the privilege. In Upjohn, the corporation had

the identity of the client are not privileged. [See learned of possible illegal activity in its foreign

In re Grand Jury Investigation (Durant)183 dealings. In order to investigate, its corporate

but see page 910-911 for contrary examples] counsel confidentially spoke with individuals at

unless they may constitute the missing link in all levels of the company to discuss the legal issues

an investigation – self incrimination worries. involved. The court upheld the privilege and

b. reasonable steps must be taken to preserve overruled the “control group test.” To rule

privilege – throwing documents in the trash – otherwise, would destroy the purpose of the

not reasonable. [see Sew ‘n Sweep v. Swiss- privilege and make it difficult for corporations to

Bernina184] comport with the law.

2. Documents and correspondence prepared by a. still unclear who exactly is covered, but

attorney for his own use are not privileged broader than control group, and must deal with

communication (not communication) employee in his corporate role.

a. research memos and witness statements, are Social Worker-Client

examples of such documents 1. Extends physician-patient privilege in some states

b. also, physical evidence given to the lawyer – 2. Patient hold privilege

not as a means by client to communicate with 3. applies whether or not patient is a party

lawyer not covered. Also, if an attorney 4. professional must be licensed or certified

chooses to remove or alter an object, he a. applies to psychologists and psychiatrists

deprives the prosecution of the opportunity to b. notes taken by licensed clinical social worker

observe the evidence in its original condition, may protected as well

therefore the original location and condition of 5. communication must be confidential

the evidence lose the privilege – it’s like the 6. no privilege if:

object wore a tag: “this object was in place A” a. patient puts mental condition in issue

which has been removed. Attorney must then b. court ordered examination

reveal how and where he got the object. [see c. commitment proceeding against patient

People v. Meredith185] Physician-Patient187

3. Work product – attorney has qualified privilege, 1. statutory privilege based on encouragement of full

which is not subject to discovery unless good cause disclosure

exists 2. patient holds privilege to refuse to disclose and to

4. No privilege exists if: prevent physician from divulging information

a. made in the presence or hearing of third party acquired while attending the patient in his

b. act in furtherance of crime or fraud [See State v. professional capacity

Phelps, where the court held that advice to a. If patient is not present, in most jurisdictions, a

avoid a future crime is privileged, advice taken doctor may assert on patients behalf

to commit future crime and not get caught is b. if person incompetent or deceased, may be

not privileged.] asserted by guardian or personal representative

c. dispute between attorney and client (breach of 3. no privilege if:

duty) a. non-medical information

d. joint clients – when communication made b. patient/witness puts physical condition in issue

between joint clients and attorney and a dispute c. criminal or tortious act

arises between the clients. d. dispute between doctor and patient

5. The Corporate Client – prior to Upjohn v. U.S.,186 e. contractual agreement exists

the “control-group” test applied to who may 4. generally, only recognized in civil proceedings

communicate within a corporation to a lawyer under 5. applies whether or not patient is party to the

proceedings

183

page 905

184

page 888

185

page 875

186 187

page FRE 503



20

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Husband-Wife188 evidence is what the party claims, then it is

1. protects marital relationship when valid marriage admissible under authentication standards

exists, ends upon divorce Steps in Authenticating

2. spousal immunity from testifying in criminal cases 1. having the exhibit marked for ID by the court

a. common law – both spouses barred from reported

testifying against each other in civil or criminal 2. authenticating the exhibit by the testimony of a

cases witness unless the exhibit is self-authenticating

b. modern rule: most states allow either spouse to 3. offering the exhibit into evidence

testify for the other in a civil case, and most 4. permitting examination by opposing counsel

states also hold that either spouse can be 5. allowing opposing counsel opportunity to object

compelled to testify against the other in a civil 6. submitting to court for examination if the court

case desires

c. Federal courts in criminal cases: privilege 7. obtaining the ruling of the court

belongs to witness spouse who cannot be 8. requesting permission to have the exhibit, if

compelled to testify or barred from testifying admitted, presented to the jury by reading it to

[see Trammel v. US] them or having it passed to them.

3. Spousal Communications Tangible Objects

a. must be communication made in reliance upon 1. Someone generally identifying something is

the sanctity of marriage which spouse would enough. They are not required to give specific

want to keep confidential reasons for why they identify the object. “pretty

b. may be asserted by either party sure” good enough as ID [see US v. Johnson,190

c. divorce does not terminate, and extends beyond where the victim authenticated the ax used in the

marriage case]

2. Chain of Custody: a missing link in the chain if

Written Memoranda

FRE 612 (153) custody doesn’t destroy the authenticity of the

To promote Credibility and Memory

evidence if there is sufficient evidence that the

Present Recollection Refreshed189 offered object is what it is purported to be. [see U.S.

1. Shown to a witness v. Howard-Arias191]

2. May not be read while testifying Writings

3. Exception: past recollection recorded 1. Nicknames and references in a written letter

a. read into evidence after proper foundation laid discovered during a consent search were sufficient

Adverse Party to authenticate the letter. [see U.S. v. Bagaric192]

1. Entitled to inspect and introduce portions relating to 2. Stylistic patterns, misspellings, etc. can all be used

testimony to authenticate when reasonably reliable

3. Contracts:

a. someone who saw it executed [901(b)(1)]

Foundational Evidence and Authentication b. recognized handwriting [901(b)(2)]

Authentication c. jury compares handwriting samples [901(b)(3)]

FRE 901 (247) d. distinctive characteristics [901(b)(4)]

The requirement of authentication as a condition for e. obtain - public office where filed [901(b)(5)]

admissibility is satisfied by evidence sufficient to f. show – ancient document [901(b)(6)]

support a finding that the matter in question is what 4. see sample on page 974

the proponent claims. Tape Recordings

1. Judge plays a screening function under FRE 1. Trial judge has broad discretion. Though

104(b). If evidence is such that there is a chance competency of the operator, accuracy of the

a jury could reasonably believe that the recording, and ID of the person on the tape are



190

page 968

188 191

FRE 504 page 970

189 192

FRE 612 page 972



21

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considered, corroborating evidence through a 4. if you can prove the its contents by the

“voiceprint” etc. is enough [see U.S. v. Biggins193] testimony, deposition, or written admission of

Telephone Conversations the party against whom it is offered.

1. Self-Identification is Insufficient. [See US v. Summaries

Pool194] Allowed if the original writings are too voluminous to

Self-Authenticating Exhibits195 be entered conveniently into the record.

1. domestic public documents under seal Judge/Jury Allocation

2. domestic public documents not under seal 1. When the admissibility of other evidence of

3. foreign public documents writings, recordings, or photographs under these

4. certified copies of public records rules depend upon a fulfillment of a condition

5. official publications of fact, the question whether the condition has

6. newspapers and periodicals been met is for the court to decide

7. trade signs, tags, or labels 2. When the issue is whether the asserted writing

8. acknowledged documents a) ever existed,

9. commercial paper and related documents b) another writing at trial is the original, or

10. presumptions under Acts of Congress c) the evidence correctly reflects the contends

then it is a jury matter.

Best Evidence Doctrine Burdens of Proof

FRE 1001 (259), 1002 (261)

Might be called the “Original Document Rule” Burden of Production

Rule in general: “In proving the terms of a writing, FRE 301 (63)

where the terms are material, the original writing must Presumptions

be produced unless it is shown to be unavailable for 1. Definition: a deduction that the trier of fact is

some reason other than the serious fault of the required to draw from the evidence in the absence of

proponent.” a contrary showing [US v. Ahrens]

1. Original Document rather than a copy a. A presumption shifts the burden of going

2. when presented to prove terms of writing: rule forward with the evidence

only applies where what is to be proved is the terms 2. Rebuttable presumptions – place the burden of

of the writing and going forward with the evidence on the opposing

3. the rule does not apply if the document is party – or a directed verdict is entered against it

unavailable because destroyed.196 a. if opposing party meets its burden of going

Duplicates197 forward with the evidence, the case goes to the

Duplicate is admissible unless: jury or judge – if not directed verdict is entered

1. genuine question exists as to authenticity of the against it

original 3. Majority view: Bursting Bubble Theory – a

2. under the circumstances, it is unfair to admit the presumption is not evidence, but a preliminary

original assumption of fact which disappears after the

and usually admissible where: introduction of sufficient evidence to sustain a

1. all originals lost or destroyed contrary finding. Under this approach, once the

2. if no original can be obtained defendant produces some evidence that the

3. if the original is in the possession of the presumption – a.k.a. plaintiff’s claim – is invalid,

opponent the presumption disappears.

4. Minority view: Morgan: The presumption should

shift the burden of production and persuasion.

193

Hence, under this approach, once the defendant

page 975 produces some evidence that the presumption – it

194

page 980

195 must also bear the burden of persuading the trier that

see page 31, supplement

196

Rationale: to eliminate chances for distortions in copies, its evidence is persuasive.

and fraud.

197

FRE 1003, 1004



22

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5. Conclusive Presumptions: rules of substantive trier of fact, rather, after P’s presentation of a prima

law which cannot be rebutted by producing facie case, D was only required to demonstrate some

evidence to the contrary legitimate non-discriminatory reason, and thereafter,

6. Due Process: as long as there is a rational it was P’s burden to prove, by POE, that the

connection between the fact proved and the ultimate proffered reasons weren’t actually followed. P

fact presumed, due process requirements are met. retains the burden of persuasion throughout.

Congress, therefore, can allocate presumption, if 2. Disbelief in the defendant’s reasons does not

rationally related to the purpose, in different issues equal verdict for the plaintiff. See St. Mary’s v.

for which civil claims may be brought. Hicks199

Burden of Persuasion 3. Direct evidence of discrimination, once shown,

FRE 301 (63) requires D to bear the burden of persuasion of

Generally demonstrating it would have made the same decision

1. Task - present legally sufficient evidence to absent the discrimination. See Price Waterhouse v.

persuade trier of fact on all issues. Only relevant Hopkins,200 where the court held that this was not a

when both sides have met their burden of production burden shift inconsistent with Burdine, but rather

so as to make either plaintiff or defendant victory like an affirmative defense.

possible. Burdens in Criminal Cases

Allocation FRE 301 (63)

1. Usually, the party seeking to change the status quo 1. Elements of a crime – those elements required and

has the burdens upon it. defined by a legislature that constitute the crime

2. Burden on plaintiff to prove the allegations in the 2. Affirmative Defenses – certain factors recognized

complaint and the burden upon the defendant to by the legislature as being excuses or justifications

prove all affirmative defenses for the crime

Standards of Proof 3. Burdens – the state has the burden of proof as to the

1. Preponderance of the Evidence – fact at issue is elements of the crime while the defendant has the

more probable or likely than not to exist than not to burden for affirmative defenses

exist 4. Discretion – a state has considerable discretion in

2. Clear and Convincing Evidence allocating whether a factor is an element or a

a. existence of fact at issue is highly probable or defense. Constitutional limits are applicable: due

reasonably certain process and Eighth Amendment. The following are

b. higher than POE generally considered allowed:

3. Beyond a Reasonable Doubt a. insanity

a. sufficient evidence to overcome presumption of b. self-defense

innocence of defendant c. duress

b. standard used in criminal cases d. voluntary intoxication

Burdens in Civil Cases e. extreme emotional disturbance

FRE 301 (63) 5. Mullaney v. Wilbur201 - Maine’s murder statute,

1. Workings of FRE 301 – In Texas v. Burdine,198 which required a defendant to rebut the presumption

involved a suit under Title VII, where P had the of “malice aforethought” was held to be an

burden of producing evidence that D had unconstitutional shifting of burden from the

discriminated. She also had to persuade the trier of prosecutor to the defendant, hence a due process

fact that such discrimination occurred. She had the violation.

benefit of a presumption of the existence of 6. Patterson v. New York202 – a New York law

discrimination upon the showing that she was defined 2nd degree murder as the intentional killing

qualified. D was thereafter required to prove that he of another. Can be reduced to manslaughter if the

had valid non-discriminatory reasons. Held:

199

defendant was never required to persuade the page 787

200

page 787

201

page 797

198 202

page 779 page 795



23

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defendant as an affirmative defense, under POE, material whose accuracy cannot reasonably be

proves he was under emotional disturbance. Held: questioned (almanacs, encyclopedias)

did not violate due process rights of the defendant 2. Examples on page 844

because the prosecution had to prove all elements of Legislative Facts

the crime beyond a reasonable doubt. It is within a 1. Definition: those facts that are relevant to “legal

state’s legislative power to determine which reasoning” and the “lawmaking process”

elements will be part of which crimes. Dissent: a. includes statutory law and judicial decisions

What, then, prevents a state from abolishing all 2. Advisory Committee Notes – distinguishes

distinctions and making basic crime definitions? legislative from adjudicative facts

Clark: If you want to offer a new defense, you may Adjudicative Facts

place it within the affirmative defense category so 1. The rules which “relate to the parties”

as to place the burden upon the defendant. a. who did what, where, when, how, with whom,

and with what motive

7. Sandstrom v. Montana203 - involved a jury b. facts that normally would go to jury except that

instruction which stated “the law presumes that a judicial notice may be taken because no

person intends the ordinary consequences of his reasonable person could dispute them, e.g.:

voluntary actions” Objection to the instruction i. the reliability of radar speed tests

rebuffed by the trial judge – “you can give those to j. the boiling point of water

the Supreme Court.” Held: the jury could have Mandatory Judicial Notice

interpreted this presumption to be a shift in the 1. Facts that are so universally known that they cannot

burden of persuasion or a conclusive presumption as reasonably be disputed (adjudicative)

to the issue of intent, and hence impermissible. 2. Meaning of legal expressions (legislative)

8. County of Ulster v. Allen,204 in which a NY state 3. Meaning of English words and phrases (legislative)

statute stated that the presence of a fire arm in a car 4. Federal and State law (legislative)

is presumptive evidence of its illegal possession by 5. Federal and State rules of procedure (legislative)

all in the car. defendants sought to have the statute a. [201(a) note – treat 2 through 5 as part of court’s

declared unconstitutional on its face. Held: reasoning process and not as judicial notice]

mandatory presumptions may be challenged on their Permissive Judicial Notice

face, permissive presumptions must be challenged as 1. May take judicial notice of certain matters206 and

applied. Here, the presumption is rational – and required to take notice when requested by a party

more likely true than not – and should be upheld and provided with the necessary information207

because of the rational link between the fact 2. Laws of other states or nations208

presumed and the ultimate facts proved by the 3. Administrative regulations and orders

prosecution. a. municipal ordinances must be plead, and may

not be judicially noticed, since they are often

Judicial Notice compiled in a haphazard way and difficult to

FRE 201 (53) research

Judicial notice is the acceptance of a fact as true Effect of Judicial Notice

without the necessity of formal proof, which may be 1. Civil Case – binding on jury to accept as conclusive

taken at any stage of the proceeding – both trial and any fact judicially noticed

appellate and without any notice required to the parties. 2. Criminal Case – Jury instructed that it may, but not

1. not subject to reasonable dispute because it is required to, accept any fact judicially noticed as

generally known within the jurisdiction of the conclusive209 Though generally, judicial notice can

court205 (such as location of a road) and capable

of accurate determination based on review of 206

FRE 201 (c)

207

FRE 201 (d)

203 208

page 814 Examples/Clarification: though this was impermissible in

204

page 822 many jurisdictions under common law, the federal courts and

205

a judge’s personal knowledge alone is insufficient to rules allow such judicial notice generally

209

support judicial notice FRE 201(g)



24

Abhijit Das, 1999

Evidence Outline





be taken on appeal, it must be taken at trial so as to

give the jury a chance to ignore it [See US v.

Jones210 - failure of the prosecution to prove an

element of the crime cannot be corrected upon

appeal, even if the fact would otherwise be subject

to judicial notice]

a. not for legislative facts, though: a judicial

notice regarding a legislative fact, since not

covered by FRE 201(g), is binding upon the

jury. Legislative facts are “established truths,

facts, or pronouncements that do not change

from case to case but apply universally.” [See

US v. Gould211]









210

page 845

211

page 858



25

Abhijit Das, 1999

Evidence Outline





Abhijit Das – Evidence Outline – Index



(Declarant  Unavailable) 9 defendant’s prior conviction – 17

Absence of complaints or silence 6 Demeanor 9

Absence of Entry in Business Records 11 Direct Evidence 1

Adjudicative Facts 23 DNA Evidence 15

Admission by Party Opponent 7 Documents and Records 5

Adoptive Admissions 8 Duplicates 21

Affirmative Defenses 22 Dying Declarations 12

agent 8 Effect of Judicial Notice 23

Ambiguity 9 Excited Utterance 9

Attorney-Client 18 Expert Witnesses 14

Authentication 20 Former testimony 12

Authorized Statements 8 Foundational Evidence and Authentication 20

Benefits of Testimony; Contrast with Hearsay 9 gruesome pictures 1

Best Evidence Doctrine 21 Habit 3

Bias 16 Hearsay 5

Burden of Persuasion 21 Hypnosis in the Courtroom 14

Burdens in Civil Cases 22 Impact on listener 6

Burdens in Criminal Cases 22 Impeachment of Witnesses 15

Burdens of Proof 21 Inaccurate Perception – 9

Bursting Bubble Theory 21 Incorrect Memory 9

Business Records Exception 11 Insincerity 9

can’t repair until attacked. 17 judge decides – 1

Character 2 Judge/Jury Allocation 21

Character for Untruthfulness 16 Judge’s Evaluation 17

child molestation cases 5 Judicial Notice 23

Circumstantial Evidence 1 jury decides 1

Civil pleadings 7 Lay Witnesses 14

Co-Conspirator Statements 8 Leading Questions 18

collateral issues 16 Legislative Facts 23

Competency and Personal Knowledge 13 Liability Insurance 4

Competency Assumed 13 Mandatory Judicial Notice 23

Conditional Relevance Determinations 1 Materiality 1

conduct (which did not result in conviction 16 Medical Diagnosis or Treatment 10

Context 9 medical expenses 4

Corporate Client 19 mentally impaired 16

criminal liability 13 MIMIC 3

Criminal pleadings 8 Mistake in transmittal – 9

Cross Examination – 9 Morgan 21

Cross examine negative witnesses 18 My Cousin Vinny 15

Dangers of Hearsay 9 Necessity 12

Dead Man Statutes 14 Negligent Entrustment: 2

Declarant  Unavailable 9 Oath 9, 13

Declarant = Unavailable 12 of crimes involving dishonesty 16

Declarant’s state of mind 6 Offers to pay medical expenses 4

Defamation 2 opening his own door 17

Defect in Sensory of Mental Capacity 16 opinion 2

defendant’s prior conviction 17 Opinion or Reputation 17



26

Abhijit Das, 1999

Evidence Outline





Other Bad Acts of Misconduct 3 Settlement Offers or negotiations 4

other crimes 16 Sexual Assault / Rape 5

paid witnesses 16 Standards of Proof 22

Paper-Mache Man 7 Statement 6

past memory or belief 10 Statement of past conditions 10

Permissive Judicial Notice 23 Statements Against Interest 13

Personal Knowledge Required 13 statements as to past state of mind 10

Pleas and Related Statements 5 statements obtained in violation of Miranda 16

Positive character witnesses: 18 statements of present intent 10

Present physical condition – 10 Statements Which Aren’t Hearsay 7

Present Sense Impression 9 Step Method 1

Preserving appeal 17 Steps in Authenticating 20

Presumptions 21 Stylistic patterns, misspellings 20

Prior Acts / Habit 3 Subsequent Remedial Measures 4

Prior Consistent Statement 7 Summaries 21

Prior Consistent Testimony: 18 Syndrome evidence 15

prior crimes 1 Tangible Objects 20

Prior Inconsistent Statement 7, 15 Tape Recordings 20

Prior Statement of Identification 7 Telephone Conversations 20

Privileges 18 Testimony by Jurors 14

Probabilities 2 The Corporate Client 19

Proving Character 2 Then Existing Mental or Physical Condition 9

Public Policy Exclusions / Pleas 4 Treatises 11

Public Records & Reports 11 Trustworthiness 12

Rape 5 Verbal Acts 6

Recorded Recollection 11 Verbal Part of Act 6

Redirect examination of witness 18 Vicarious Admissions 8

Rehabilitation of Witnesses 17 Victim’s Character 3

Relevance 1 Ways to Repair… 18

Remedial Measures 4 Withdrawn guilty pleas 5

reputation 2 Witnesses 13

rule of completeness 2 Work product 19

Scientific Evidence 15 Writings 20

Self-Authenticating Exhibits 20 Written Memoranda 20









2

Abhijit Das, 1999

Evidence Outline





Shepard v. US.............................................................. 10

Abhijit Das – Evidence Outline

St. Mary’s v. Hicks ..................................................... 22

Cases State v. Chappel ............................................................ 1

State v. Moore ............................................................. 15

also People v. Alcade .................................................. 10 State v. Motta ................................................................ 7

Baker v. Elcona Homes Corp .................................... 11 State v. Smith ................................................................ 7

Barber v. Page ............................................................ 12 Tanner v. United States .............................................. 14

Betts v. Betts ................................................................. 6 Texas v. Burdine ......................................................... 22

Bourjaily v. US.............................................................. 8 Tome v. US .............................................................. 7, 18

Bruton v. US.................................................................. 8 Trammel v. US ............................................................ 20

Carpenter v. Davis...................................................... 13 U.S. v. Bagaric ............................................................. 20

County of Ulster v. Allen ........................................... 23 U.S. v. Biggins ............................................................. 20

Daubert v. Merrell Dow Pharmaceuticals ............... 15 United States v. Abel .................................................. 16

Davis v. Alaska............................................................ 16 United States v. Check ................................................. 5

Donnelly v. US............................................................. 13 United States v. Fowler .............................................. 13

Doyle v. Ohio ................................................................. 9 United States v. Lopez ................................................ 16

Flaminio v. Honda Motor Co ...................................... 4 Upjohn v. U.S .............................................................. 19

Frye .............................................................................. 15 US v. Ahrens................................................................ 21

GE v. Joiner ................................................................ 15 US v. Alker. ................................................................... 9

Glasser v. US ................................................................. 8 US v. Annunziato ........................................................ 10

Halloran v. Virginia ..................................................... 4 US v. Castro-Ayon ........................................................ 7

Harris v. New York .................................................... 16 US v. DiCaro ............................................................... 12

Huddleston v. US .......................................................... 3 US v. Elmy ..................................................................... 7

In re Grand Jury Investigation (Durant) ................. 18 US v. Gould ................................................................. 23

Jenkins v. Anderson ..................................................... 9 US v. Havens ............................................................... 17

Krulewitch v. US .......................................................... 8 US v. Hoosier ................................................................. 8

Lloyd v. American Export Lines, Inc ....................... 12 US v. Inadi ..................................................................... 8

Luce.............................................................................. 17 US v. Iron Shell ........................................................... 10

Mahlandt v. Wild Canid Survival & Research Center US v. Iron Shell, ............................................................ 9

.................................................................................... 8 US v. Johnson .............................................................. 20

Mancusi v. Stubbs ...................................................... 12 US v. Kovel .................................................................. 18

Miranda ......................................................................... 9 US v. Medical Therapy Sciences ............................... 18

Mullaney v. Wilbur .................................................... 22 US v. Mezzanatto .......................................................... 5

Mutual Life Ins. Co. v. Hillmon ................................ 10 US v. Nixon .................................................................... 8

Nuttall v. Reading Co. .................................................. 9 US v. Oates .................................................................. 11

Ohio v. Scott ................................................................ 11 US v. Pheaster ............................................................. 10

Old Chief v. US, ............................................................ 1 US v. Pool .................................................................... 20

Olden v. Kentucky ...................................................... 16 US v. Salerno ............................................................... 12

Palmer v. Hoffman ..................................................... 11 US v. Singer ................................................................... 6

Patterson v. New York ............................................... 22 Williamson v. U.S ....................................................... 13

People v. Collins,........................................................... 2 Wright v. Doe d. Tatham ............................................. 6

People v. Meredith...................................................... 19

Petrocelli v. Gallison .................................................. 11

Pheaster or Hillmon.................................................... 10

Price Waterhouse v. Hopkins .................................... 22

Ricketts v. Delaware ................................................... 13

Rock v. Arkansas ........................................................ 14

Sandstrom v. Montana ............................................... 22

Sew ‘n Sweep v. Swiss-Bernina ................................. 18



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