1. Is it admissible? (primary rules and 403 balancing)
2. If so, for what purpose? (will limiting instruction be nec/effective)
3. Goal of Evidentiary Rules: Allow/exclude to maximize likelihood of reaching right outcome
(truth, not fairness)
a. Hearsay: is it enough to deploy the ordinary tools (oath et al) against the testimonial risks
associated with the W we do have to use/trust the stmt?
4. Modern trend has been steady expansion of what gets in, eg, hearsay exceptions, who can
5. Applying the rules, disaggregate possible objections, the risks, of a piece of evidence and deal
with them separately. Could cumulate the risks associated with any given piece and evaluate
case by case if should admit, but we don’t do that [except the background 403 principle sort
of does]. Benefits of disaggregation: administrability and simplicity.
6. Most rules are presumptions, trial court has discretion to reject [again, 403 in background].
7. Regardless of rules of evidence, sometimes just unfair, perhaps to the point of
unconstitutional to keep out evidence. See, eg, Chambers v Miss (preventing W from
testifying re X’s declarations vs penal interest, violates D’s constitutional rights to present a
defense, even though X available and thus not within hearsay exception)
8. Trial court has lots of discretion, so many such rulings, appellate court must be deferential.
I. BACKGROUND PRINCIPLES
A. An item of proof is never admissible unless it is relevant (tends to prove or disprove a
proposition) and material (the proposition is legitimately in dispute).
1. Materiality: offered to prove something that is properly provable
a. whether material to issues properly in dispute does not turn on something inherent in the
evidence, it is in the interaction between the evidence and the pleadings/substantive law
b. Immaterial evidence is, by definition, never admissible.
2. Relevance: tends to prove or disprove a disputed proposition; proposition is more or less
likely to be true in light of evidence, as compared to without it. R401.
a. Irrelevant evidence is never admissible; relevant may be.
b. Relevance is decided by judicial screening on a case-by-case basis, fact sensitive, common
sense, experience and intuition. R104.
c. Relevance is a yes or no question.
B. If relevant and material, then generally admissible, unless exclusion is justified by external
policy, cost, or undue prejudice. R402.
C. Real vs Testimonial evidence:
1. Testimonial evidence: special risks: Perception, Sincerity, Narration, Memory
2. Real evidence: must lay foundation, show evidence is what it appears to be, and how/why it
is admissible – provide basis for knowing relevance
D. Direct vs Circumstantial evidence:
1. Direct: if true, establishes an ultimate fact at issue. Problem: trustworthiness
2. Circumst: if true, does not necessarily establish an ultimate fact at issue, but proves a
different fact that in turn gives rise to inference with regard to a fact at issue. Problems:
trustworthiness and actual bearing on facts in dispute.
E. Probative. R403.
1. Purpose for which offered will determine probative value – offered to prove direct fact or to
start the chain of inferences.
2. Proof is cumulative. Evidence that in isolation is only of slight probative value is much more
valuable when it exists in addition to other evidence of guilt
3. One way to look at it is as characteristics shared by D and culprit
II. CHARACTER EVIDENCE
A. Admissibility of evidence of defendant’s character R404:
1. Relevance? D may offer positive trait but must link to crime charged.
2. Neg trait is per se inadmiss vs D to show propensity, Mills, because of undue prejudice – it
may be irrationally overvalued by, or will unduly inflame jury, etc.
3. Balancing—is it admissible? prejudice, but also time, distraction costs.
a. Probative value does not have to be high for defense use:
i. only has to show reasonable doubt
ii. more worried about convicting innocent than vv.
4. If admissible, by what method? CL: only reputation; R405 allows reputation and opinion.
neither CL nor FRE permit evidence of good acts.
5. If D presents such evidence, what can pros do in response?
6. Use of priors for other than propensity: R404(b), ok if prob > prej. Van Metre;
B. Balancing undue prejudice vs probative value:
1. In all juris, under CL and federal rules, evidence of prior crimes is not admissible, but it is
because of the undue prejudice, not just because of slight probative value.
a. Mills (11th Cir 1998): prior act evidence not admissible to show that D’s character makes
element of crime more likely. Facts: D charged with fraud, personal trip reported as
business; ev of customs-related lie not admiss to show intent to lie for this fraud charge.
2. Failure of rationality: Jury might overvalue the evidence b/c fail to understand just how little
prob value it has.
3. Punish bad char, without regard for whether committed instant crime
4. Per se bar serves both aspects of fairness: getting right result, and making the game fair; the
rule has much more benefit for preventing wrongful convictions than it has cost in
C. Defense use of character evidence (Methods). R404(a), R405.
1. FRE specifically allow D to present evidence of own character trait or victim’s to show action
in conformity therewith, R404(a), by opinion and reputation evidence, R405.
2. Main goal of rules: keep presentation very limited.
3. Specific Acts
a. relevant, but maybe not that probative
b. even more than prejudice in a lot of cases, time and distraction are an issue (raising
collateral issues would inspire pros to rebut; jury focuses on whether other specific acts
happened, distraction, confusion)
c. excluded by R405(a), and excluded in all jurisdictions
d. unless character is an element of crime, R405(b)
a. probably more persuasive than reputation, but also more idiosyncratic
b. permitted by R405(a), not CL
a. arguably more balanced, because purports to rely on many more people
b. permitted by R405(a) and CL
c. must go to relevant character trait
d. reputation of D in the community was original requirement, modern rule is reputation as
among any considerable group with whom D regularly associates
e. W must be qualified to testify (time in community, # of comments heard)
f. W may only testify to whether D’s reput for X is good or bad, no specific act test. on direct
D. Prosecutorial response to Def character evidence (R404)
1. Cross of D char witnesses
a. purpose: test KNOWLEDGE and CREDIBILITY of W. Monteleone.
b. P right to impeach vs undue prej to D:
i. may impeach just like any other witness
ii. may ask about bad acts to test W’s knowledge (see Monteleone below), but if W
cannot know about bad act, can’t ask because no impeachment value
iii. get limiting instruction, only goes to W’s knowledge, not Def’s char or evid of guilt
c. Even if D opens the door to character evidence, P cannot pose “guilt assuming
hypotheticals” to character witness; no extrinsic proof of incidents if W denies; limited to
traits D raises.
d. Gilliland (10th Cir 1978, 22): where W offered as fact witness, not for character, P may
not turn into a char witness to introduce evidence of prior convictions otherwise inadmiss.
2. Use of specific acts on Cross:
a. Kept out of case-in-chief because fails 403 balancing, thus any argument to let it in as
rebuttal has to rest solely on fairness – kind of tenuous.
b. Also, must keep reputation/character from becoming centerpiece of trial
c. Distinguish direct proof of character by inference from prior bad acts, vs impeach
credibility/knowledge of reputation W
d. Justification for use on cross:
i. fairness element: D opened the door, should be aware of consequences
ii. hard for P to get reputation evidence vs D
iii. probative value on credibility is very high (high prob on issue of low import)
iv. control D from calling fraudulent char Ws
e. Monteleone (8th Cir 1996, 25): where D offers W as a character witness, P may test
knowledge and credibility of W by reference to specific acts, BUT only if:
i. good faith factual basis that incident occurred and would be a matter of general
knowledge in the community; and
ii. incident is relevant to character traits at issue
f. Where D calling char W and introducing evidence of specific good acts has high cost for
time and confusion, problem with use of specific bad acts on cross by P is prejudice (the
specificity triggers prejudice)
g. Prior bad acts that are not convictions:
i. must have reas grounds to believe occurred, and that it is part of D’s reputation.
ii. D may not present evidence that prior act did not occur, bears risk that jury will
think it did by opening issue of reputation, so long as P can make the reasonable
basis showing, this is part of D’s reputation
iii. Allowing D to rebut creates a side show, but not allowing means only protection
is a weak limiting instruction. Keeping P from presenting entirely tho is not fair.
3. Rebuttal witnesses
a. may not use extrinsic evidence of specific bad acts as rebuttal
b. may rebut with testimony of reputation from different community (determine reputation
in terms of trait, not in terms of community) or opinion.
E. Use of prior bad acts by Prosecution other than for propensity. R404(b).
1. Pros may offer prior bad acts for non-propensity point if probative value is sufficiently high.
a. See Cunningham (7th Cir 1996, 31): where evidence shows MOTIVE, admissible under
404(b) even if also shows PROPENSITY, unless 403 bars it.
i. Facts: D charged with tampering with needles, stealing drug, ok to introduce
evidence of addiction & suspension for past thefts (but not convictions for same)
and drug test falsification because showed motive—she enjoyed drug use, tests
necessary for reinstatement (explanation necessary for jury to make sense out of
other evidence), and may infer she’s still addicted.
2. Requirements under Van Metre: so long as passes 403, admissible under 404(b) if:
a. RELEVANT to something besides character
b. NECESSARY to prove element of the crime
c. RELIABLE jury must be able to reasonably conclude that (i) act occurred and (ii) D did it.
3. Length of requisite inferential chain is important to determination of whether sufficiently
strong to run risk that undue prejudice will determine outcome.
4. Intent is particularly tricky because looks a lot like propensity or general character inquiry
5. State of mind: “Where a defendant claims that his conduct has an innocent explanation, prior
act evidence is generally admissible to prove that the defendant acted with the state of mind
necessary to commit the offense charged.” Zackson (2d Cir 1993)
a. Whitty (Wis 1967, 43): prior crime evidence admiss to show identity, where 2 girls both
ID def as asking about a rabbit, 1 in charged sex assault, other in incident the night
b. Howard (Ill App 1999, 45): prior crime evidence to establish modus operandi (ie, identity)
not admissible if crimes are not sufficiently similar or distinctive. (Fact-specific
assessment). Facts: D charged with armed robbery of 1 prof, evidence of another prof that
D had also robbed him is not admissible.
7. Use of non-conviction priors: All jurisdictions allow their use
a. Can easily argue that 404(b) should only cover crimes because of cost to defendant, but
FRE leave it to judge to keep out if necessary.
b. Standard for non-conviction priors: jury can reasonably conclude that it occurred and that
Def did it. Huddleston (US 1988, 39)
i. in practice, means need 1st hand W, bc otherwise 403 balancing keeps it out.
8. 404(b) is not applicable to intrinsic or inextricably intertwined bad acts, eg, uncharged
offenses arising out of same event/transaction or necessary to complete story of crime.
F. Use of prior bad acts by Defense vs 3d parties, other than for propensity. R404(b).
1. Same rule for defense as for pros – 404(b): may use to show something relevant to elements
of crime, but 404(a)(2) not to show propensity.
a. Thus Def may bring evidence of other’s bad character to show 3d party did the crime, or to
make out a defense based on 3d party actions, R404(b) says “person”, not “accused,”
2. R404(a)(2) (char traits of V): prejudice triggered in jury is different, V’s liberty is not at
stake – though care about fairness to prosecution, undue prej is lower.
a. Still can’t use specific acts though
3. R412 is a specific exception to this general rule (see below).
G. Sex Offenses. R412–415.
1. Rape Shield Rule, R412:
a. Specific overruling of the more general 404(b): evidence of character, predisposition,
priors of V not admissible even for motive, intent, etc.
b. Pros can use equiv evidence vs D, but D does not have reciprocal rights.
i. Prob v Prej: evidence of promiscuity is overvalued by juries
ii. External social policy: encourage prosecution, protect privacy of V, don’t want to
deter Vs from bringing suit.
d. b1B: Evidence that V and D had sex a number of times before admissible to show consent
e. b1C: Constitutional? Catch-all exception: if unconstitutional to keep evidence out, let it in
i. Triggers where probative value is so high it goes to element of crime.
ii. Davis v Alaska (US 1974, 63): state requirement of non-disclosure of juv records
used to preclude cross ex of W vs D, unconst under Confrontation Clause. Do
other exceptions to 412 protect rule against Davis attack?
f. Admissible when point is not to prove that engaged in sex act or has propensity, as when,
eg, want to use to show knowledge or understanding. See Carino, Summit, John Doe.
2. Prior sex offenses admissible to show committed this offense, R413, 414, 415.
a. All subject to 403 balancing. May be a constitutional requirement. See Burns; Mound.
b. Goes beyond use to show “taste” motive, but 404(b) does that already.
c. Allows use to show bare propensity. LeCompte
3. Case Law
a. LeCompte (8th Cir 1997, 50): evidence of prior, uncharged sex offenses admissible, per
policy of Congress in Rules 413 to 415. Evidence under R414 is still subject to 403
balancing, but must give effect to policy embodied in special rules.
b. Mound (8th Cir 1998, 53): subject to protections of 403, R414 does not violate DP
(fundamental fairness cases do not allow feds to pass on state criminal procedure); on
rational basis review, no EP violation because interest in effective prosecution of sex
offenses, and cases typically turn on tough credibility determinations. Evidence is
admissible under 413/414 even though not admissible under 404(b).
c. Burns (Missouri en banc 1998, 56): rule of evidence allowing evidence of priors to show
propensity violates state constitutional right to trial solely for offense of indictment. Such
evidence only admissible if logically relevant (establishes guilt) and legally relevant (prob
> prej) [suggests 413/414 only constitutional because 403 still applies, but Stone seemed
to read it differently]
i. Stone casts this as, unconst to let in prior rape if it is not a conviction.
d. Carino (3d Cir 1980): evidence of specific acts to show V’s character barred by 405(a) but
admissible under 404(b) if relevant to show, eg, D reasonably feared bodily harm.
e. Summit (Nev 1985, 61): error to exclude evidence of V’s prior sex experience where
relevant to show knowledge of sexual acts in question, rather than lack of chastity. Rape
shield rule (412) protects V’s privacy and undue prej, but point at which D’s rights trump.
f. John Doe (HI 1996, 64): D has right to present evidence of W’s past sex behavior and her
understanding of physio and moral elements of sex bc info necessary to elements of crime.
H. Character Evidence in Civil Cases
1. 404(a) exception allowing criminal defendant to make character an issue does not apply in
civil cases, unless character is an ultimate issue in the case. See Towers Financial.
2. But prior acts for other than character (that is, 404(b)) may be.
3. SEC v Towers Financial (DNY 1997, 70): 404(a)(1) precludes civil def from calling char
witnesses because exception for “accused” only covers criminal defendants [makes sense
because not right on margin of winning or losing in civil, POE not reasonable doubt, and D’s
liberty is not at stake]
III. SPECIAL RULES OF CIRCUMSTANTIAL EVIDENCE
A. R406: evidence of habit is admissible to show conformity therewith – much more probative than
specific prior acts, automatic action, not volitional. See Weil.
1. Weil v Seltzer (DC Cir 1989, 73): habit for purposes of R406, refers to NONVOLITIONAL
activity that occurs with invariable regularity. If volitional, then not probative evidence.
Must occur with sufficient regularity that more probable than not happened. Evidence of
treatment of former patients is not habit, just propensity.
B. R407: evidence of repairs taken after accident not admissible to show negligence – not
necessarily relevant, plus social policy to promote repair and safety.
1. Such evidence is admissible for other purposes, eg, proof of ownership if controverted by D; or
feasibility (if defense is, it was safe as could be), see Anderson.
a. Anderson v Malloy (8th Cir 1993, 78): may not use evidence of subsequent remedial
measures to prove negligence/culpability under 407, but may use such evidence for other
purposes, eg, to rebut def argument that additional measures were not feasible, and to
challenge credibility of Def claiming did everything necessary. Use limiting instruction to
explain to the jury.
2. Rule requires a safety component to the subsequent action, not, eg, repainting boat.
C. Huffman (10th Cir): ev of design change between manufacture and accident admissible.
D. R408: specific factual statements made during settlement negotiations are not admissible.
1. Diff rules:
a. Traditional rule (England) was admissible unless stated hypothetically, but that was just
trap for the unwary, so in practice looks kind of arbitrary.
b. FRE: explicit admissions ok, but if made in course of settlement negotiations, not
admissible; fight is over whether in context of settlement, and if it is, per se inadmissible
bc social policy to encourage settlement; not about time, confusion or prejudice at all.
i. Logan (6th Cir 2001): R408 does not preclude evidence that crim D attempted to
or did settle civil case.
c. Relevancy theory: Rochester Machine v Mulach Steel (Penn 1982, 84):, evidence of
acceptance of responsibility is admissible, exclude offers to settle that are just deals,
rather than pure admissions of fact (desire for peace v concession of wrongdoing).
2. Policy to encourage settlement vs policy to decide on best evidence available.
3. These admissions are very probative, though offer to compromise may or may not be an
actual admission of fault.
4. Joice (Mo 1945): proof of compromise of settlement admissible vs W to show interest or bias.
E. R409: evidence of payment of medical bills not admissible.
F. R410: statements made during plea discussions generally inadmissible
1. rule applies to statements, not objects. (If apply to physical evidence turned up as a result of
such statements, would provide some really bad incentives.)
2. Greene (8th Cir 1993, 90): 410(4) excludes statements of D in course of plea negotiations to
atty for pros, or to gov’t agent with actual or apparent authority (as shown by pros actions) to
negotiate, or whom represents to def authority to negotiate.
G. R411: Charter v Chleborad (8th Cir 1977, 92): evidence of existence of liability insurance
policy is not admissible to show negligence or wrongdoing under 411, but may be admissible for
other purposes, eg, bias of W.
1. Facts: D charged with malpractice, P expert, D calls rebuttal W to attack P’s expert’s
reputation, must allow evidence that D’s W is employed in part by the same insurance co
that represents D.
H. Paden (5th Cir 1990): Fed Rules of Evidence n/a to sentencing.
A. Method for HEARSAY: is it enough to deploy the ordinary tools (oath et al) against the
testimonial risks associated with the W to the stmt to use it/trust it?
B. Models of testimony
1. Testimonial risks, put you on a continuum of credibility:
a. sincerity, narration, memory, perception
2. Inferential leaps with typical testimony:
a. Assertion—(sincerity & narration) Belief of declarant
i. circumstantial leap sometimes
b. Belief—(memory & perception) Truth (of matter asserted)
3. Encouraging to tell the truth / assessing probative value:
a. oath (sincerity/perception)
i. perjury threat
ii. moral pressure
iii. decreases risk of intent’l lies
iv. seriousness of the occasion
b. demeanor/personal presence before trier of fact (sincerity/narration), non-verbal cues
c. cross-ex (narration/perception/memory), either inspires or elicits unbiased account
d. Thus fixes two forms of unreliability: all three increase probative value of testimony, and
increase jury ability to tell how much weight to give it
C. IS IT HEARSAY? R801(c)
1. Summary: not hearsay when –
a. not for truth of matter asserted, eg, just to show D had knowledge. McClure
b. verbal act, fact of stmt made relevant to substantive law, eg, oral contract. Hanson
c. implied assertions, Zenni.
2. Definition: out of court assertion offered to prove the truth of the matter asserted (801(c))
a. State v Carter (Oh 1995, 109): “An ‘assertion’ for hearsay purposes ‘simply means to say
something is so…’”
3. Costs of rule: complicated and difficult to apply, lose some evidence (albeit of uncertain
value), but error costs would be higher if did not have some limit on hearsay, or if absolute
4. Justifications for exclusion:
a. unreliable for truth of matter asserted
i. ordinary tools for assessing probative value are not available for hearsay (that is,
the oath, et al, deployed against the testimonial risks of sincerity, et al)
b. exclusion deters fraud (eg, spread rumor to held D, then bring in suckers to testify to it)
c. avoids unfairness to opponents, who wouldn’t be able to counter the hearsay evidence in
any meaningful way
i. law as a sporting event
ii. confrontation clause (right to contest ev and Ws against you)
d. may serve best-evidence principle (force proponent of evidence to bring in declarant
because hearsay account is barred)
5. Not truth of matter: where out of ct stmt is offered to prove impact on relevant actor, but not
for truth of matter asserted, the stmt is not inadmissible on hearsay grounds. See McClure
a. If not for truth of matter asserted, don’t care if reported statement is true, relevance of
W’s testimony is, more or less, just that stmt was made – can apply ordinary tools to that,
don’t need to apply to declarant.
b. hearsay problem is not affected by certainty that stmt was actually made
c. Distinguish offered to prove fact at issue from showing something else, eg, motive – just
like 404(b)—no char evidence for propensity, but ok for motive.
d. Bridges (Wis 1945, 109): Declarant’s past stmts describing perp’s home before had ID’d D
as perp admissible to show declarant’s knowledge (shows had knowl from crime, not from
subsequent visits or info from police) [~ 801(d)(1)(B) case, court allows as just not
hearsay, language suggests viewed as going to d’s state of mind, 803(3), but that’s wrong]
6. Verbal Act doctrine: making of stmt has independent significance under the substantive
law. Eg, libel, invasion of privacy, oral contract. See Hanson
7. Implied Assertions: non-assertive actions are not hearsay under R801(a)(2), Zenni
a. Zenni (ED Kan 1980, 103): implied assertions evidence is admissible under the federal
rules – not hearsay unless assert the truth of the matter, thus must be assertion.
i. rejects Wright v Tatham (English case 1837, 104) (where competence of testator
is issue, letters from 3d parties re: normal business matters are not admissible)
b. Risks are same with regard to memory, perception, narration
c. Difference is sincerity – not likely to be insincere regarding an unstated assumption.
d. Underlying belief may be self-verifying, as when the declarant is relying on it.
i. eg, Baron Parke’s seaworthiness eg (see 104)
e. Compared to rank hearsay, add circumstantial risk, which arguably offsets sincerity risk
i. extra inference from assertion to belief
ii. eg, Wright: assumption that act shows declarants believe in T’s sanity may be
flawed, may have no opinion on the matter but just assume as we usually do.
f. Implied assertions still barred in England (see Kearley, 1992)
i. where can reduce a testimonial risk, define as non-hearsay or make an exception
ii. sincerity risk is different than others, if decrease that, let it in
if this is explanation here, can use it for making exceptions
iii. not a paradigm or policy decision, just a bright line definition – it’s not a
statement, so it is not hearsay, quick and dirty.
h. Problem: stmt not literally used to prove truth of matter asserted, but no lessening in
sincerity risks. eg, rules let in, kid said “dad killed fluffy” to show he hates dad, but keeps
out, kid said “I hate dad” to show same.
i. Solution: literal application, error costs don’t outweigh administrative costs of
thinking about the problem. In practice, if courts see the problem, fake it and
dump under truth of matter asserted on functional grounds. (not implied enough)
i. Alternative (ie, keep Wright): hearsay includes, any act or stmt from which trier of fact is
asked to infer a belief of speaker, author or actor, which belief is used as circumstantial
proof of the truth of the belief.”
D. “HEARSAY” EXCLUSIONS (outside of technical definition)
1. Prior inconsistent statements. R801(d)(1)(A) (admiss to impeach, for truth of matter
asserted if prior was under oath at prior proceeding and subject to perjury)
a. Castro-Ayon (9th Cir 1976, 112): W’s prior inconsistent stmts (under oath) may be used
for impeachment, same as under CL, but also for substantive value (diff from CL); “other
proceeding” broadly construed. Facts: illegal immigrant W’s stmts in interrogation
admissible when gives diff testimony at trial.
b. Webster (7th Cir 1984): cannot call W for primary purpose of impeaching with otherwise
inadmissible prior stmts.
c. Scenarios: W admits stmt, denies accuracy/truth OR W denies ever making prior stmt
d. Note: different than normal hearsay because decl is a W, so can assess all those normal
testimonial things, eg, sincerity, plus have oath, presence, cross-ex.
e. Truth protections:
i. Oath: declarant makes new statement under oath, thus W testimony of prior
declaration, offered for truth of matter, is even less reliable than rank hearsay
ii. Demeanor: helps with accuracy of repudiation, not truth of prior stmt (because
don’t see demeanor when made that one)
iii. Cross: helps with whether made stmt, but if claims did not make it, can’t get into
truth of matter asserted in alleged stmt – cross becomes futile.
f. Testimonial risks: not as bad as rank hearsay, but sincerity with re to prior stmt is still
problem – if repudiates under oath, than prior is less likely to be true (by assumption),
but jury better able to tell if repudiation is sincere.
g. Three approaches:
i. CL: prior inconsistent admissible for credibility, but not for truth of matter
asserted (not under oath, repudiated under oath, not reliable)
ii. Opposite: always admissible because declarant in court
iii. Modern, majority, fed rules: admiss or truth if initial stmt was under oath in
prior proceeding and subject to penalty of perjury. R801(d)(1)(A). Castro-Ayon
2. Prior consistent statements. R801(d)(1)(B). (not admissible unless to rebut recent charge
of fabrication, though it is not hearsay)
a. no hearsay problem, if made before, ratified again, in court under oath, but risk of manuf
b. except if to rebut charge of fabrication, because highly probative as to that. must be made
prior to motive to fabricate arose, because otherwise not particularly prob. See Tome.
i. Tome v US (US 1995): stmts admissible under 801(d) may be used for
credibility, but also as substantive evidence of the truth of the matter asserted.
Under (d)(1)(B), prior stmts must come before W has reason to lie (keeps CL
Facts: V testifies, then 6 Ws testify re V’s prior consistent stmts in child
abuse case, with possibility of fabrication bc of custody disput, inadmiss.
Scalia concur: formalist, rule tracks CL
Breyer dissent: if admiss to rehab W, can use for substance, no timing req’t.
c. Cf Bridges (Wis 1945, 109): Declarant’s past stmts describing perp’s home before had
ID’d D as perp admissible to show declarant’s knowledge (shows had knowl from crime,
not from subsequent visits or info from police) [pre-FRE, court allows as just not hearsay,
language suggests court viewed as going to declarant’s state of mind, 803(3), but that’s
3. Prior identifications. R801(d)(1)(C). See Lewis, Owens (prior id made by testifying W
a. better than normal hearsay because id closer in time, so more reliable (though true for all
b. in ct IDs are not actually all that reliable – too much suggestion, thus prior IDs are
admissible, almost on a credibility rationale.
c. logic of this suggests should be consistent, but Lewis says that’s not necessary.
i. Lewis (2d Cir 1977): W’s prior photo ID of D admiss (CL equiv of 801(d)(1)(C))
even though pointed to wrong person at trial. If decl testifies at trial, prior IDs
d. Owens (US 1988, 126): memory damaged W ID’d D on 2d FBI agent visit to the hospital,
but at trial, could not remember assault in question or other visitors to hospital. W’s
memory loss does not make introduction of prior ID a violation of Conf Clause, because
out of ct IDs are generally preferable to in-court.
i. Br-Marshall dissent: just posing questions does not make for effective cross ex.
ii. Questionable because cross is meaningless, and rationale of rule is consistency.
4. Admissions against party. R801(d)(2).
a. rule does not require that stmts be against interest at time made to be admitted (thus it is
over-inclusive, if the rationale is reliability, should at least block if self-serving when
made, but rule doesn’t)
b. Justification: responsibility, not reliability. Vague reference to adversary system, party
can be held responsible. Not very satisfying as a matter of theory or policy, but been
around for a long time.
c. Only admissible against declarant. R801(d)(2)(A)
i. eg, X to W, “Y owes me,” W testimony admiss vs X for murder, not vs Y for debt
d. Only admissible against declarant.
i. eg, A & B fraud trial, A told W, “we cheated P,” admiss vs A, not B
ii. follows responsibility rationale, not about reliability
iii. problem: co-trials, does a jury instruction protect B’s interest?
iv. Exception: co-conspirators. R801(d)(2)(E)
e. Personal knowledge not required.
i. admission can be offered against party who admits a fact about which he actually
has no personal knowledge. See Mahlandt (8th Cir 1978, 143) (wolf bite case)
f. Adoptive admission. R801(d)(2)(B)
i. manifest intent to adopt another stmt as own, eg, insurance claim, dr’s report
attached thereto, ok to use vs claimant later.
g. Admission by silence
i. Need to have emotional basis for not responding, else silence admissible against.
See Green (139)
ii. Circumstantial evidence issue, sometimes silence context justifies inference,
sometimes it doesn’t.
h. Vicarious admissions. R801(d)(2)(C) –(D)
i. CL: if within A’s authority to speak for P, A’s statements are admissible vs P.
Rationale is very narrow, logic is not reliability, it’s responsibility for what
comes out of “your” mouth.
ii. Federal rule expands quite a bit:
Declarant authorized by P to make stmts on subject (C)
Declarant is P’s agent, and matter is within scope of employ/agency and made
during course of relationship (ie, not after decl is fired) (D)
iii. Rationale is reliability, when info is within emp’ees competence and vs
employer’s interest, and no reason to be vindictive
does not block if lag, or otherwise potential for pre-meditation, self-serving
does not block if made before stmt is against party’s interest
Easy to fix, (D) is unduly crude.
v. If made within the firm, may it still be used vs the firm? ?no? see Mahlandt.
i. Co-conspirator exception. R801(d)(2)(E).
i. problem: potentially unreliable, and used vs crim defendant
ii. CL: cannot use the disputed evidence to show existence of conspiracy, that would
be circular, need other evidence rising to level of POE.
iii. Bourjailly (US 1987, 152) Fed Rules, relying on 104(a), judge not bound by FRE
in determining admissibility, so disputed stmt can itself be used to establish
conspiracy, leaves open Q of whether at least some independent corroborating
evidence is necessary, which is answered in the affirmative by 1987 FRE amend.
dissent: this was a distinctive element of the CL exception that existed next
to a CL version of 104(a), so should not assume codification changes that.
iv. Need a little “aliunde evidence” to establish conspiracy.
v. Douglas v AL (~1961): co-def pleads 5th, reading confession to him and asking if
he made stmt violates conf clause – technicality of not introducing into evidence
does not fix, evidence is not admissible if D cannot cross ex regarding it.
vi. Inadi (US 1986, 149): Confrontation Clause does not preclude gov’t using (E)
evidence without presenting declarant even if declarant is available.
historical underpinnings of Clause: prevent trial by affidavit
co-consp prior stmts are not substitutes for in-ct, so Confr does not bar use –
priors are part of act, knew 5th am might trigger, co-conspirator might lie,
actual event different than in-ct testimony in texture and probativity.
Stone: should still have to call as a W, even if let evidence in regardless of
whether willing to testify.
Ct also claims that Def can call the witness (Compuls Process Clause), but
weak since P has much more power to force Ws to appear
Not a traditional hearsay exception, thus unavail not necessary, but P should
still have to demonstrate reliability (pre agency theory, co-conspir is not
reliable)—Ct reply: no, reliability is not traditional req’t for this exception
vii. After Inadi, not clear what’s left of Conf Clause:
ok to prove conspiracy with HEARSAY;
ok not to call the declarant, even if available;
reliability is not necessary
E. HEARSAY EXCEPTIONS (hearsay exceptions, unavail not required)
1. Note: R403 balancing applies to R803, even if within exception, must be prob > prej
2. Excited Utterances, R803(2), see Dallas v Donovan
a. Dallas v Donovan (Tex 1989, 161): stmts that are sufficiently product of excited state
are admiss – startling occasion, no time to fabricate relative to circumstances of the
occurrence. No time req’t relative to the subject of the stmt, just to the state of excitement.
i. Facts: stmt of W in response to carnage at accident that 2 days prior to that, had
told city stop sign was down admissible.
i. sufficiently startling event (normal thought processes disengaged), determined by
ad hoc judicial inquiry
ii. spontaneous reaction to event (product of event not thought)
time: doesn’t need to be contemporaneous with event, but declarant must still
be in excited state when made, case by case
response to question: if so, suggests not spontaneous, potentially self-serving
at time made and declarant may realize that
iii. no unavailability requirement
thus, even though cannot get in under prior stmt rule based on declarant
testifying as a witness, can get in whether call declarant or not
Makes sense to let it in over the bar on prior statements, but maybe going too
far to allow it without also requiring that declarant be called as a W
c. Testimonial risks:
i. decreased sincerity risk – this is the key
ii. increased narration risk
d. Rationale: reliable enough to let in even though hearsay (based on the decreased sincerity
risk). Plus, might even prefer the out of court, more reliable than just in-ct stmt to same
e. Universally accepted rule.
3. Present sense impressions, R803(1), see Houston Oxygen
a. Houston Oxygen v Davis (Tex 1942, 159): stmts that are sufficiently spontaneous are
admissible– no memory defect, no time for calculated misstatement, the W recounting
stmt will often have been right there (so a fact witness also).
i. describe event observed, at that time (thus narrower than Excited Utterance)
ii. must be contemporaneous with event, any time lag kills
iii. need not be excited utterance
c. Testimonial risks: mainly a decreased sincerity risk because of time frame, but could
conceivably be premeditated (eg, fake death and let W hear exclamation)
d. Not a commonly accepted rule in CL jurisdictions.
4. Medical diagnosis or treatment, R803(4), see State v Moen
a. State v Moen (Or 1990): 803(4) stmts made for medical diagnosis or treatment admiss, if
pertinent to diagnosis or treatment, (but not usually stmts indicating fault) because
desire for proper treatment presumptively outweighs risk of falsification (sincerity) and
reliable enough for diagnosis means reliable enough to escape hearsay bar. Moreover,
narration risks are reduced relative to rank hearsay because incentive to be clear.
i. [decision in this case is a little suspect because stmts went to fault, and came
prior to crimes alleged]
b. Statement types
i. present condition: CL and fed rules (universally accepted)
ii. causes that are relevant: fed rules
iii. causes that are irrelevant to treatment or diagnosis: inadmissible
c. Testimonial risks: decreased sincerity risk, incentive to be honest to get good treatment,
and for same reason, decreased narrative risk. Decreased memory and perception risks,
immediate, and we tend to know what we’re feeling.
5. Then-existing mental, emotional or physical condition, to show state of mind
indicated by statement (Adkins), admissible to show action in conformity
therewith (Hillmon), R803(3)
a. Questions: does it show state of mind? is it distinguishable from straight stmt of fact, eg, I
did not poison myself, which relies on mem/belief and is not admissible?
b. Then-existing physical condition
i. Casualty Ins v Salinas (Tex 1960, 167) W may testify to declarant’s past stmts
of then-existing pain, long-standing exception, suggests these past stmts more
reliable than in-ct stmts. [huge hazard of manufacture]
c. Party’s state of mind is a substantive issue in the case.
i. This exception is a necessity; alternative of relying only on circumstantial
evidence is not very satisfying.
ii. Only need to get from stmt to belief, does not matter if true
iii. Sincerity is same problem as ever
iv. Declaration must refer to contemporary state of mind of declarant, but can infer
from that point forward and back (eg, stmt of D, I hate V, for state of mind one
week before the murder, admissible bc can infer forward)
v. Adkins problem: stmt may suggest matters that it is not competent to prove.
Adkins v Brett (Calif 1920): if mental state of decl at particular time is
material issue, evidence of stmts indicating that mental state are admissible
despite hearsay quality. But underlying matter asserted (ie, cause of the
state of mind (here, my wife drinks, thus have a mind to leave her), cannot be
proved by the evidence – give a limiting instruction.
Standard practice is a limiting instruction, but will just exclude if risk of
misuse is too high relative to probative value of ev on the appropriate issue.
d. State of mind is not ultimate issue in case. See Pheaster; Hillmon (US 1892, 174).
i. Even though A’s state of mind is not an ultimate fact at issue, evidence may be
admissible to show state of mind as jumping off point for inference.
ii. US v Pheaster (9th Cir 1976, 173): Stmt of A that intends to do act with B is
admiss as evidence of BOTH A and B’s subsequent conduct.
Note: rejects House Judiciary stmt of intent to abrogate Hillman
iii. Problem: even though gets from Act (statement) to Belief (state of mind) with
high probability of accuracy, much less likely to get from state of mind to action
in conformity with such. That is:
even if really probative for state of mind, value is much less to show action in
and exception is rooted in necessity, which is not present in the leap from
state of mind to action, adds a circumstantial risk.
BUT: it does not rely on perception or memory to get from state of mind to
action in conformity therewith, so better than rank hearsay. Cf Shephard.
iv. Eg: letter offered to show, first, intention to take trip with A, the state of mind
exception, and second, circumstantial use, shows did take trip with A, and since
A was at place, so was victim.
v. Conditional statements are still single-hearsay (eg, I am going tmw if H goes), do
not need independent evidence of condition having been fulfilled. Just a
circumstantial evidence problem, as to whether condition was meet.
vi. Distinguish hearsay problems from circumstantial inference problems.
e. Limit: May not be used to show a recollection or belief – cannot use prior stmt to show
that what declarant remembers or believes to be true, as shown by the stmt, is in fact
true. See Norton.
i. Norton v State (Tex 1989, 181): 803(3): A stmt to W that A intends to act
because of prior event is admiss to show A’s state of mind/plan to act, but not to
show that the alleged triggering event actually happened.
ii. If don’t have this limit, then state of mind exception obliterates hearsay rule (A
tells W, i saw x go to store, W testifies, because it shows A’s belief, which can be
used to show truth of underlying matter.)
iii. Shephard: wife tells nurse, D poisoned me, then dies. Stmt showed w’s present
belief, that she was poisoned – can it be used to show that D poisoned her?
stmt to belief is same as in Hillmon (sincerity and narration)
but state of mind to truth is pure hearsay (memory and perception), whereas
the leap in Hillmon was by circumstantial inference, action in conformity.
maybe technically admissible to show her state of mind, that she did not kill
herself, but a protective jury instruction won’t protect against undue prej, so
6. Business Entities Exception, R803(6)
i. Necessity: common business transactions, no one will remember because routine
ii. Reliable: made as a matter of course, intended to be relied upon
i. Must be made in normal course of events
ii. Reasonable time req’t: delay = unreasonable
iii. Foundation: need the custodian to testify to circumstances of record-keeping,
what proceds are used & regularity, but could be anyone with pers knowledge.
iv. “business” under the FRE is broadly defined.
c. Likely candidate for 2x hearsay, can be okay so long as each step follows routine practice
(eg, reporting employee always reports same way, to same other)
d. Limit: not if prepared with eye to litigation. See Scheerer v Hardee’s (8th Cir 1996, 204),
because risk of opportunism, circumstances show decided lack of trustworthiness.
e. Records do not fit within exception if irrelevant to business purpose
i. eg, statement by jaywalker that hit while jaywalking, medical report cannot be
used to show truth of matter
f. Business: financial necessity, thus accurate
g. Hospital: info for health, thus accurate
h. Cop: official duty, intended to be relied upon, thus accurate.
7. Public Records Exception, R803(8)
a. 803(8)(B) but police reports are inadmissible against criminal defendant
i. Confrontation Clause concerns
ii. Sheerer style concern with trustworthiness, anticipation of litigation
iii. Okay for civil actions – justify? should still be untrustworthy, except that by
barring from criminal proceedings, perhaps make more trustworthy.
iv. Some courts have permitted police reports if put forth by crim Ds, but that’s a
bad reading of 803(8)(B), (C) shows could distinguish when wanted to.
b. 803(8)(C) factual findings from official investigations, in civil, and vs gov’t in crim. See
Beech Aircraft, problem is that lots of underlying hearsay, report based on information
that could not itself be given to jury. ~ admission of prior convictions; some expert
F. ADMISSIBLE HEARSAY (exceptions when declarant unavail)
1. Unavailability: necessity justification; satisfies Confrontation Clause, in some cases
automatically, in others only if trustworthy. Why for some and not others? artifact of the CL
2. Former testimony exception, R804(b)(1)
a. Sufficiency of prior cross-ex
i. If party evidence offered against had ~ motive and interest as party against
whom W originally testified
ii. Fed rules: ok only if party evidence offered against was a party in the first case –
identity of parties, in terms of involvement in prior suit.
Exception for predecessor in interest – drafted narrowly, but cases like Clay
(6th Cir 1983, 223) turns fed rules into approach #1)
FRE (tries to) sacrifice reliability for fairness
iii. Compromise, let judge decide whether cross ex first time was adequate, ad hoc
(no jurisdiction uses this, puts judge in awkward position)
b. Issues involved in prior proceeding?
i. CL: must be identical, any difference in claim, theories of parties, relief sought,
bars prior testimony evidence, because if not identical, even same party would
not have crossed same way 1st time.
ii. FRE: theories of parties do not matter (broadened issues, but tried to toe the CL
line on identify of parties)
iii. More popular modern rule: substantial, not absolute identity of issues.
c. Confrontation Clause: Roberts: requires unavail and reliable to vindicate Conf Clause
(but see below, effectively limited to this exception, and reliable is presumed)
d. Testimonial risks: does not eliminate, but if cross-ex was legit, should be covered by
availability of transcript. Sincerity could still be a problem, goes with lack of demeanor.
e. Trust mechanisms
i. have oath
ii. cross-ex, right party with right interest must have had opportunity – should
make the prior stmts relatively reliable
f. Problems (but enough to make worth losing entirely):
i. no demeanor evidence
ii. not necessarily fair to bind a similarly-situated later party to choice of lawyer
made by former (though fed rules tries to avoid this one)
iii. incentives are not the same for prior stages of given proceeding, eg, might be a
waste of time to cross ex heavily at prob-cause hearing most of the time, not just
lazy or inefficient; ALSO, might not have the info necessary to give a good cross
ex at that time, in same way will have later.
But: once rule is there, attys go softly at own risk, only one screwed is the
first time, when rule initially adopted.
3. Dying declaration, R804(b)(2)
a. Why? pseudo-religious solemnity (~oath, assume increased sincerity); necessity
b. Requirements: Declarant must believe in:
i. certainty (near all hope is lost)
ii. of impending death (can’t recant)
iii. at time statement made
c. Problem: knowing Decl’s belief, must prove state of mind –
i. stmts of declarant himself (eg, i’m dying)
ii. stmts of others that would lead declarant to believe dying (eg, you’re dying)
don’t need truth of matter asserted, just that made is enough, so no hearsay
iii. declarant’s own awareness of physical situation, eg, laying in pool of blood,
circumstantial evidence shows state of mind
d. Substance of decl: only with re to cause or circumstances of declarant’s own death
i. Rationale does not admit of this limit, but practical necessity, worry about moral
hazard if limitless.
4. Declaration against one’s own interest, R804(b)(3)
a. Relevant interests: penal, pecuniary, social.
b. Assume sincere because against interest, maybe decreased narration risks, and more
certain about memory and perception
c. Williamson (US 1994, 231): particular stmt must be inculpatory with re to declarant,
cannot look at statement as a whole, evaluate each piece separately. Narrows exception
d. Effects of unavail req’t:
i. party wanting to use must try to bring in live W
ii. if W is there, an otherwise admissible statement is not anymore—kind of
anomalous, if not unavailable, even though can be put under oath, cross-ex,
presence, can’t use stmt, but can if dead.
Exception assumes that decl would testify consistent with prior statement. If
Decl denies, then it destroys our expectations re probative value of prior stmt
e. Must be conscious stmt is vs interest at time made (look at circumstantial evidence to
infer what’s in def’s mind.
f. Penal interest
i. CL: did not recognize, only allowed pecuniary
Concern was w/ fraud, W could lie or declarant lie to exonerate D
ii. Crim vs civil with re to fraud:
Likelihood: crim deals with criminals, criminals lie and know liers
Incentive: D only needs reas doubt, so value very high in crim setting
Incentive: stakes higher, liberty at issue in crim setting.
iii. Fed rules: if to exculpate crim D, need corroborating evidence. See Aguio (?)
5. Tampering, R804(b)(6)
a. recognized even before fit into rules exactly, underlying CL rule that cannot profit by own
wrongs, also have an estoppel justification (effectively waived objection), not necessarily
reliable just because inspires tampering, but probably is probative.
6. Residual Exception, R807
a. ad hoc inquiry might suggest reliable relative to rank hearsay, CL had no catch-all, just
developed new exceptions, most jurisdictions don’t have. FRE have a narrow one, rarely
used, except GJ + unavailable, where other circumstances also suggestion can trust.
G. Confrontation Clause & Admissible HEARSAY
1. Maddox v US (1895), W vs D at 1st trial died by time had second, so used transcript. Held:
Conf Cl vindicated first time around.
2. Barber v Page (1968), W vs D at preliminary hearing, by trial, W was in prison outside juris
so state used transcript vs D. Held: even if prelim hearing sufficient, Conf Cl required
unavailability (ie, “good faith effort” and that state “took all reasonable efforts” to produce
3. Calif v Green (1970): at prelim, W testifies got drugs from D, at trial, claimed no
recollection of what happened because on LSD at time, so state used transcript.
a. today: falls under prior incons stmt exception. Even though functionally not really
“available” for cross-ex, Owens said sitting on the stand is good enough.
b. then: held W was “not available” for purposes of Confrontation Clause, preliminary
hearing was sufficient for cross-ex.
4. Ohio v Roberts: Conf Clause requires unavailability (now: sometimes) and reliability (but:
presume if firmly rooted)
a. 1) Conf Clause is rule of necessity, live testimony is preferred
i. Inadi severely limits this holding, only true now if was true historically (thus,
for co-conspirator stmts, historically, did not require unavail)
b. 2) if unavail shown, still must show substantial indicia of reliability or cannot have
evidence. If within firmly rooted exception though, reliability is presumed, otherwise,
need particularized showing.
5. Conf-Clause categories:
a. prior stmts by Ws: no problem
b. prior stmts of unavail declarants, need good reason
c. firmly rooted exception, hearsay exceptions in rules
d. not within exception, must be clearly reliable.
H. Double-Hearsay rule, R805 (okay if each link falls within exception)
A. Competency, R601
1. incompetentancy is problem with one or more testimonial risks to point that can’t just trust
jury to discount testimony as it sees fit, but that outcome actually more reliable if exclude
2. CL: incomp was rule, not exception, did not trust juries
3. Modern trend: still don’t trust juries, but dramatically broadened comp.
4. Competence is gone, all about relevancy now. See notes to R601.
5. Justification: adversarial system, cross can sort out weight that ought to be given
6. Oath is the basic protection, CL, had to believe in vengeful god to be allowed to testify.
Today, just affirm meaningfully that recognize a moral duty to testify truthfully.
a. let jury deal with people who make a big deal out of swearing, and have perjury stick
b. no oath, no testify, in most jurisdictions today – See R603
a. problems: susceptible to suggestion, may not understand duty to tell truth, perception
problem manifest in narration problem
i. like any other W, let jury sort it out
ii. bright line, based on age – below that, incomp
iii. ad hoc, look at individual kid in each case
c. predictability may be a concern, but states are all over the place
8. Basic Crazy Person: must be real defect, not just doubt about whether has indep
recollection or trustworthy – also a good approach for kids.
9. Dead Man’s Rule: a party is disqualified from testifying regarding a transaction with a
person since deceased in a suit prosecuted by dead person’s estate.
a. Reliability is not the problem (lack of someone to contradict happens all the time)
b. But uniquely likely ground for fabrication, or just plain unfair
c. Alternatives to strict CL:
i. FRE: abolish rule entirely.
ii. Farley: limited to transactions narrowly defined
iii. ok if corroboration
iv. ok if necessary to prevent “manifest injustice”
v. abolish, except let in dead man’s writing
B. Perception, R602
1. W may not testify to matter unless evidence shows had personal knowledge of it. Kind of
restatement of 701, since W’s own testimony can show requisite knowledge, but also kind of
a foundation requirement.
2. Typically comes up as, hearsay or lay W claiming expert perception about what was really
going on (see Kemp and Vissar), or W claiming to have observed what could not possibly
have seen – in last, let in and let cross and jury sort it out.
3. Rely on educating jury – corroboration, cross-ex, expert testimony, cautionary instructions.
4. Rock v Arkansas (US 1987, 292): D has constitutional right to testify on own behalf, and
right to present evidence. Any exclusionary rule pushes up against D rights.
a. Wa v Tex: cannot bar accomplice from testifying on D’s behalf because rule was
“arbitrary” (let testify against D, but not for)
b. Holding of Rock: per se bar on hypnotically refreshed testimony is unconst.
c. Chambers v Miss: unconst to prevent D from showing X had made declarations vs penal
interest, even though X was not unavail, as hearsay exception required.
d. Scheffer (US 1998, 299): okay for state to per se bar polygraph evidence, because present
evidence , not testimony of D.
C. Credibility and Impeachment, R607, 608, 609
1. Universal rule: no bolstering if not attacked, because presumption of good character, time
consuming, probative value is low
2. R607, anyone may impeach. See Webster
a. rejects CL “voucher rule,” whereby understood to vouch for own witness
b. don’t expect would try to get a W to testify just so could impeach, because best can do is
get back to zero – but if call jst to show impeachment evidence that is otherwise
inadmissible, trying to get that evidence in for truth, not credibility and, under judicially
created exception, could be barred.
i. Posner: ok to impeach own if called in good faith
ii. Alt: surprise, and affirmatively damaging to proponent’s case – no calculated
avoidance of rule (vs. impeachment used substantively)
iii. Either way, get to same place.
3. Grounds for Impeachment (other than Character):
a. defects of W, like competency, capacity to observe
i. cannot use extrinsic evidence to show contradiction if issue is collateral (ask
whether W is likely to be mistaken about detail if story were true)
c. motive or bias (~ competency, loosely) See Harvey (2d Cir 1976)
i. extrinsic evidence admissible if W denies (must ask on cross first)
ii. NO RULE PROVIDES FOR THIS, but even some evidence that is otherwise
barred may be permitted to show bias.
4. Impeachment for bad character, R608
a. Bad char with respect to veracity
b. Ok to ask W2, “do you believe W1?”
c. Subject to judicial discretion re time and value
d. Bolstering only allowed after impeachment (that is, other party may follow up with
evidence of truthfulness, if un- raised first)
e. Tie between impeachment and bolster: just has to be a sensible response.
i. divide: responding to evidence of bias with evidence of veracity
ii. divide: whether can rehab prior inconsistent by showing other prior consistent
(better rule is no, even if add consistent, incons still remains)
i. extrinsic evidence, only reputation or opinion to impeach or bolster, R608(a)
ii. on cross-ex, may ask about specific acts (but no extrinsic except convictions)
g. Prior bad acts, R608(b)
i. problem of proof, so worry about use even to impeach
ii. some courts: any act of moral turpitude
iii. most, including fed: act showing dishonesty
iv. Major difference from crimes: no extrinsic evidence if deny (prob value too low to
bother with, unlike prior bad acts for other than propensity, under 404(b))
v. Rule incorporates 5th am: taking witness stand does not waive W’s privilege
against self-incrim, tho does waive for D with re to instant crime. See Gusafson
vi. Proponent may bring response W showing basis of impeachment was flawed (eg,
prior incons not really incons; bias, not really biased)
h. Problems with re to use against D:
i. Still just propensity, you lied before, you’re lying now.
BUT, better than trying to show committed crime itself with char evidence
STILL, low probative, prej may be high, especially for 609. Best you can get is
propensity, which outside this context is per se not enough, 404(a)
ii. Cumulative, Ws have clear self-interest, defensive testimony is expected, jury is
already skeptical about D’s credibility anyway, and big prej effect
iii. Impact on D’s ability to exercise right to testify in own behalf – must have effect
on D decision, comes in ONLY if takes the stand (assuming not otherwise
admissible under 404(b) or the sex crime rules)
don’t let jury be fooled by D not testifying, if it’s relevant let it in (but that’s
silly, if not testifying, then jury not being asked to accept his version directly)
but unfair burden, D will look bad if doesn’t testify, or bad if does.
5. R609, can bring in extrinsic to show specific instances of prior convictions
a. subject to 403 balancing, prior felonies (ie, one year in prison).
i. See US v Nururdin (7th Cir 1993, 315):
ii. Impeachment value of prior crime (easier to get in vs W than vs testify’g D)
iii. Point in time of conviction and W’s subsequent history
iv. Importance of D’s testimony
v. Centrality of credibility issue
b. Dishonesty crimes are per se admissible (not bank robbery)
c. In civil suits, not usually admissible, but ok if party takes the stand (??)
d. Misc points
i. If W admits prior crime, can ask about day and place, but cannot cross on details
ii. Not necessary to ask about it, can use extrinsic (bad practice though)
iii. Neither pending appeal or pardon precludes
D. R610, no mocking W’s religion
E. R613, prior inconsistent statements
a. okay on cross, but for credibility not truth of stmts
i. (unless within R801, ie, formal proceeding under oath)
b. have to show statement to counsel if asked
c. if denies, no extrinsic evidence if collateral issue
d. if admit extrinsic evidence of prior stmt, must give W a chance to explain (only for
inconsistent, not consistent)
e. not always clear contradictory (prior may have been omission that does not actually
conflict), standard is whether reasonably would want explanation for disparity
2. Note: sometimes, can get in stmts without foundation, eg, as an admission – evidence may be
admissible under multiple rules, just have to pay attention to req’ts and limits on use.
VI.WRITINGS: AUTHENTICATION AND BEST EVIDENCE RULE
1. Rule: real evidence, must be authenticated despite relevance – extrinsic evidence of auth.
necessary for admissibility. R902.
2. Limitless ways to auth, via circumstantial evidence.
3. Easiest: stipulation
4. Other methods:
a. deemed auth if purports to be official report or record and proved came from proper public
office; public office is depository for private papers, accept it
b. Ancient documents (20 years or more, so long as not suspicious), necessity rationale
c. Reply Doctrine: X leter to Y, Y purportedly replies to X (??)
d. Handwriting analysis
i. W familiar with handwriting
ii. jury given genuine specimen, evaluate itself
iii. expert who has training and skill in detecting forgery
5. Auth is about reducing opportunity for fraud, not necessarily going to fall to zero
B. Best Evidence Rule [SEE RULES 1001 through 1005 and flow chart on 347]
1. Applies only to writings, original is usually necessary to prove content of a writing
a. Prevention of fraud (but, can just lie and say original does not exist)
b. Fineness of detail of writings, accuracy benefit in pushing towards original
2. Issue: what counts as writing? Even chattel writings count if trying to prove writing itself
3. Other media: Tape recordings can count sometimes; Photos add problems
4. N/a if not trying to prove content of writing, eg, W can testify about what D said at hearing
(if otherwise admissible), even though transcript might be “better” record, because point is
not to prove what transcript says, but rather, what D said.
5. Expand to cover oral statements?
a. any time contemporaneous better written evidence, must present
b. dump rule entirely
c. redefine rule to capture complicated oral statement question, but not sales receipts (??)
d. Stone suggestion: whenever party attempts to prove content of an oral statement, must
present transcript or recording if it exists.
6. Issue: what is “original”? photocopy should be just as good, roots of rule are pre-carbon paper
7. Preferences among secondary evidence:
a. English and FRE: if original not available, no degrees, all secondary is equal
b. Amer CL: distinct hierarchy (mechanical copies, handwritten copies, testimony.
VII. OPINIONS & EXPERT TESTIMONY
A. R701: no lay opinions, unless firsthand knowledge of facts underlying opinion and helpful to the
jury, see Knight (3d Cir, 1993)
1. System wants W to give facts, jury to draw inferences, but line not so sharp in practice.
2. Still no hearsay, no speculation
3. CL: “shorthand renditions” of what W saw are admissible
a. let in where matter is such, no effective way to express observations without opinion
b. or based on specific observations, opinions that people commonly express that make more
sense than the description, eg, he was angry, sleeping, etc.
c. hard to deal with in practice, W confused and did not know what was being asked of them
4. Modern: Rely on adversarial system to give jury tools it needs to evaluate lay opinion’s prob
value; but CL model of exceptions still guides the rule
5. Point of R701: ease problems of communication
a. More coherent narration
b. 1st hand observation requirement lets be tested for perception and memory problems.
c. Reliable, or at least transparent.
6. Interaction with other rules:
a. Don’t confuse with personal knowl rule, which is always there (can’t pose hypos to Ws)
b. Lay may never give in legal terms, also true (mostly) for experts, 704 does not change this
c. CL: neither type of W can give opinion on ultimate issue in the case; modern relaxes, 704
applies to both – admissible if otherwise okay
B. R702: expert testimony--Qualifications
1. IS EXPERT ALLOWED: appropr for expert test? is there a body of specialized knowledge
2. IS WITNESS SUCH AN EXPERT: is W personally qualified?
a. (by, eg, training, education, knowledge, skill, experience)
3. Montas (1st Cir, 1994, 392): no expert test re matters within understanding of the average
juror bc low probative value and high risk of prej (wt of expert could unduly influence jury)
4. Paul (11th Cir 1999, 396): expert testimony must be helpful to jury and more prob than prej,
suggests ability of jury to do same thing expert did makes it less threatening (contrary to
Montas), expert must be qualified in body of special knowl, personally.
5. Justification for being careful with qualifications:
a. don’t waste time
b. don’t confuse jury
c. don’t give stamp of expert approval if no special knowl brought to bear;
d. BUT trust adversary system (ie, cross ex), dist weight of testimony from qualifications.
6. No personal knowl requirement, ok to give expert opinions special weight
a. Key: whether will assist jury. Could even be necessary in some cases to use an expert,
without it, jury can’t understand.
b. CL: okay to use experts if essential to jury understanding
c. Modern: okay if helpful
7. Dangers of flexible approach:
a. Risk of usurpation of jury prerogative (an expert vs factual finding, theater vs substance)
b. expensive, experts cost $$, determines which cases go to trial
c. May baffle rather than help jury, changes focus of litigation, confusion/distraction risk
8. Basis of Expertise: expert must give basis for opinion, judge can justify admission, let jury
decide how much weight to accord
9. R705: don’t have to start with underlying basis for conclusions, let strategy and adversarial
methods determine order of testimony and how best to support conclusions.
10. R703: Permissible bases for opinion/knowl:
i. personal – no problem, jury can ignore if rejects expert’s view of facts
ii. evidence presented at trial
iii. info made known before trial
11. Rule allows W to take into account evidence that is not itself admissible, but presumption is
against letting such underlying evidence go to the jury.
12. Such underlying evidence otherwise inadmissible may be let in to help jury evaluate expert’s
opinion, subject to 403.
13. Hearsay issues:
a. Ignore it: Expert’s opinion will always be based on hearsay to some extent (background is
classes, teachers, books, etc.), if does not specify any of it, can ignore issue.
b. Trust expert opinion: If expert relies on hearsay, indicates that it is reliable.
c. CL: expert can’t rely on inadmiss hearsay
d. Impeachment/credibility use:
i. Permit specific reliance, where citing authorities in field and such – but only to
demonstrate W is really an expert. Asking what is said in a book that supports
the W is basically hearsay, citing book for truth of matter asserted.
ii. Ask expert about authorities did not rely on? Sure, but can’t bring another W up
to testify about them.
e. Note hearsay exception for authoritative treatises
14. CL: all hypotheticals, told experts to assume certain things true and then linked
assumptions to expert’s own findings – more complicated cases created more complicated
hypos, confusion, hypos can be loaded or shaded, end up fighting over hypo, experts hated it,
structure of hypo approach too rigid. But had some clarity going for it.
C. Expert Reliance on Specific Methodology (R702)
1. have an added problem with relying both on EXPERT and on expert’s TECHNIQUE
2. CL: Frye test, scientific techniques must be generally acceptable to be relied upon by
a. Plus: Judges don’t have to pass on scientific value of technique
b. Plus: Cost benefits, less likely to trigger competing experts (jury confusion) which parties
have to pay for ($$)
c. Minus: precluded reliance on sound, but novel techniques yet to be accepted in field
3. Daubert & Merrell Dow Pharm (US 1993, 402)
a. R702 overrules CL, the Frye rule of general acceptance
b. R402 is background presumption, all relevant is admissible
c. Scientific under 702 must be:
i. RELIABLE: does test reflect “scientific knowledge” derived by “scientific method”
and is it “good science”? Reliable = scientifically valid.
ii. RELEVANT: does it advance a material aspect of proponent’s case, the FIT req’t
i. is it testable
ii. peer review and published
iii. error rate
iv. general acceptance
e. Focus is on methodology, not conclusion
f. Trust jury common sense and adversarial system, judicial power (JNOV), judge as
gatekeeper protects jury (time and confusion), purpose is to decide case, not find truth
4. Daubert on remand (9th Cir 1995, 413, Kozinski)
a. Prong 1, reliability:
i. was expert’s work pre-litigation? presumptively reliable because
less likely to be biased
record, so harder to skew results
indep indicia of reliability (because, eg, got funding)
fewer such scientists to choose from
ii. if not, has it been peer-reviewed and published
iii. if no, expert must explain how conclusions reached, and point to objective source
vouching for method.
b. Prong 2, relevance: tie to legal claim, must further proponent’s case in a legally significant
way, confusion concern is key, and careful about narrative risks
i. here, can’t give to jury because evidence does not show that 1 party loses and
other wins, since testimony does not say increased risk of birth defect from
chemical is at least 2:1 (thus failing POE)
5. Kumho Tire (US 1999, 420):
a. Daubert applies to all 702 testimony
b. factors are flexible, trial court just has to satisfy self that relevant and reliable
c. Prong 2 means, relevant to legal liability, in this case.
D. Opinions on Ultimate Issue, R704
1. Torres (6th Cir 1985, 436): ok to testify re state of mind based on observation of relevant
conduct (lay or expert), and ok to testify re ultimate fact at issue, but not simply to give legal
conclusions (must be helpful, 701, 702; and not waste of time, 403). If legal terminology is a
term of art, then exclude.
2. Thigpen (11th Cir 1993, 441): cannot testify under 704(b) if D had legally necessary mental
state, but MAY testify regarding effects of a disease on a typical person’s mental state – that
is, ok to say, D had disease and what effects would be. The goal is to help jury, more
explanation, rather than bare link of disease to legal criteria.
A. Privileges may be asserted or waived (like other rules, eg, hearsay, of don’t object, basically
B. Difference compared to other evidence excluded by rules:
1. not excluded based on probative value, reliability problem, or prejudice problem
2. excluded because of external social policy
a. other examples of this: repairs, compromises, rape shield (but that also prejudice)
C. Asserting inadmissibility: usually it’s counsel that does it, W can’t object to a question; privilege,
W asserts it [counsel may raise the point though, no?]
D. Erroneous rulings on whether privilege applies:
1. if wrongly allowed W not to answer, appealable error
2. if wrongly forced W to answer, not, if W not a party, because party not deemed prejudiced
since W could have waived the privilege and party could not have stopped it.
a. problem: if used against W in another proceeding
E. Privilege is a matter of federal CL or state law (Congress rejected proposed article 5 in fed rules).
F. Spousal privilege:
1. Testimonial Privilege: social policy in favor of marriage, can’t force to testify against
a. CL: one spouse deemed incomp to testify for or against the other.
b. Rationale of remaining privilege: forcing to testify against spouse, lie, or be held in
contempt puts strain on marriage.
c. Modern rules:
i. in all jurisdictions, spouse may testify FOR other
ii. ~ 2/3 retain privilege of not testifying against for criminal matters
iii. most have abolished privilege for civil matters
d. holder of privilege may waive it, held by testifying spouse (if want to testify, marriage is
not going to be preserved by state policy) See Trammel (federal)
i. ~ 2/3 of states say privilege belongs to either, so party spouse can block waiver,
which makes sense in real life – W spouse is not making a free decision, given
pros pressure and such
e. if not married at event and are by trial, privilege does not apply (sham marriage worry)
i. opposing view: still have a marriage to protect, some jurisdictions grant privilege,
but allow pros to prove it was a sham (probably by judge determination POE)
f. divorce between event and trial, priv n/a
g. waiver by extrajudicial statements: not deemed to have waived by talking to 3d parties
about event prior to trial; trial is different, still implicates social policy
h. Privilege does not apply to crimes against spouse or spouse’s child
2. Communication Privilege: confidentiality rationale
a. rationale is core of impenetrable privacy is necessary to sanctity of relationship
b. recognized in vast majority of states, civil and crim, whether or not spouse is a party
c. oral, written, assertive acts count, but not acts that are not assertive when made, though
performance may sometimes suggest reliance.
i. test: would they have done it in front of strangers?
d. Overheard communications: circumstances must show important to parties that
communication be private; indifference to being overheard = no privilege
i. not expected to protect against the intentional breaching of privacy
e. Privilege is in the disclosing spouse, not the listening spouse (this is not about
relationship destruction, so the other one does not have privilege)
i. if listening spouse discloses to 3d party, that party swept within privilege,
because there has been no waiver by disclosing spouse
f. not married at time of communication, no privilege; married at time of communication but
not at trial, privilege applies (opposite of testimonial privilege)
g. Privilege does not apply to joint criminal activity (Estes).
h. Privilege does not apply to crimes against spouse or spouse’s child
G. Attorney-Client Privilege: right against disclosure
1. Basis: encourage candor and full disclosure, necessary for atty to do a good job, full and
efficient representation, especially since client is not one who is trained to judge what atty
needs to know, so must just disclose all.
2. Bentham view that just protects perjurers and liars is a bit harsh, may protect innocent too
(just as priv against self-incrim does)
3. Scope: when seek advice from atty, communications relating to that purpose, made in
confidence, are permanently protected from disclosure by atty or client, unless waived by
client (atty cannot waive, and cannot prevent waiver)
4. Client may assert the priv whether or a party
5. Prosecutor cannot force waiver by giving immunity, right is against disclosure, not prosecut’n
6. Client must be pursuing legal advice form an atty, if not an atty, no priv (unless client has
mistaken but reasonably belief)
7. Must be confidential, does not attach if other people are around whose presence is not for
purpose of assisting in the provision (or solicitation?) of legal advice; if others are present for
such purpose, they are swept within the privilege.
8. Matters that set-up privilege, eg, name or address, not privileged, unless would be equivalent
to substantive disclosure.
a. Fee arrangements are not protected. Anderson (10th Cir 1990, 499)
b. Substance of the communication is protected, not the fact that there was one, not the
client’s physical characteristics. Kendrick (4th Cir 1964)
9. Client’s intent at time of communication whether it is confidential determines whether the
privilege attaches. In re Grand Jury (4th Cir 1984, 509)
a. Illegal intent = no privilege; mixed intent is a problem (eg, advice, but also cover-up)
b. Attorney-client privilege and work product privilege may be breached in case of fraud or
when communication is made to aid future crime. See Caldwell.
c. Evidentiary basis: do not need independent evidence, the privileged material itself may
establish the situation is within the exception (~ hearsay exception for conspiracy), but do
need to have some evidence lawfully obtained to show to judge to trigger in camera review
of priv. material. See Zolin (US 1989, 529)
d. Clark rehearing opinion is wrong on the facts, attorney may have behaved illegally and
gave unprofessional advice, but was not asked for such, client’s intent appeared clean, so
should have been privileged (notwithstanding rule on eavesdropping)
10. Turning over evidence:
a. California law requires counsel to turn over physical evidence taken from initial resting
place. Clutchette (9th Cir 1985, 506)
b. Client sends attorney preexisting doc to hold onto it for safekeeping
i. no advice sought, just depository, no privilege
c. Client writes attorney for advice
i. paradigm, letter is within privilege
d. Client sends attorney preexisting doc or object to get advice
i. if discoverable had client kept, it is discoverable from attorney (even though does
disclose that client gave to atty, the alternative would provide a bad incentive)
11. Corporate Client: Upjohn (US 1981, 509)
a. if employee is being treated as duty-bound to respond to corporate counsel, because he is a
member of the corporation and the conversation goes to matters within the scope of
employment, privilege attaches.
b. privilege protects disclosure of communications, not underlying facts (so okay to let
privilege sweep broadly, it does not create a “zone of silence”)
c. work product, especially such revealing an attorney’s thought process is protected
i. ~ right to assistance of counsel? to be effective, wk prod must be confidential?
d. client has the privilege, so in corporate setting, that’s the corporation, not the employee
12. Joint Defense (or Common Interest) rule is outgrowth of atty-client priv, in case of multiple
clients, with multiple attorneys and professional assistance (eg, an accountant), privilege
attaches to communications between any of them, including the profs, if point of
communication is ultimately to facilitate giving of legal advice from atty to client. See
Schwimmer (2d Cir 1989, 516)
a. Evidence of a communication between atty and client from 3d party is admissible when
obtained by eavesdropping. Clark. (hearsay, but admissible as party admission)
b. traditional rule put burden on client, if accidental or even purposeful overhearing,
privilege did not apply because:
i. should take all precautions to show really care about confidentiality
ii. doesn’t come up that often, so the rule won’t chill reliance on privilege
c. Modern rule: priv covers overheard, so long as can see that Client intended confidentiality
and took reasonable steps to that end (but modern jurisdictions are all over the place,
some drawing lines, eg, between intentional ad accidental overhearing)
a. disclosure to 3d party waives privilege
b. Waiver by implication: Selective extrajudicial disclosures that do not prejudice opponent
do not waive the priv re: the rest of the partially-disclosed conversation, or regarding the
rest of communications on that subject. See In re Von Bulow (2d Cir 1987, 529)
IX. MISCELLANEOUS TECHNICAL POINTS
1. burden is on lawyer, failure to make in timely and proper manner is waiver of point
2. if sustained, atty will make an offer of proof as to what answer would have been, to:
a. persuade trial judge to change mind
b. harmless error review
c. help appellate tell whether ruling erroneous
d. ~ 1/2 states require this offer of proof, good idea in all cases though
3. Plain error: Failure to object = waiver, except in cases of plain error (eg, crim con-law rights)
4. Specific objections are preferred, general can be okay, but on appeal, judge will get every
presumption in her favor.
B. Harmless Error and standard of review: benefit of doubt to trial judge, no reversal if
C. Tactical issues:
1. juries view objections as efforts to suppress, so looks bad
2. if overruled, jury will, (a), think you’re obstructionist; and (b) perk up for answer
3. motion to strike is even worse, juries don’t really disregard anything
4. best to cast objections as substantive, not just technical complaints (make it sound to jury
like, they don’t even want to hear the answer, just misleading and unreliable)
5. On direct, have issue of whether to allow narrative, or Q & A – narrative flows better, but
might miss things, and no warning for objections; Q&A looks led
D. Leading Qs:
1. No leading Qs on direct, unless hostile, reluctant, adverse, young or hard to communicate
with, memory exhausted, or preliminaries (eg, name and address)
2. Ok to lead on cross, unless really friendly witness
3. Always within judge’s discretion
E. Scope of Cross Ex
1. CL & fed rules: limited to matters raised on direct and impeachment
a. rationale: order of proof, give each side chance to set it up, don’t let cross disrupt that
2. Modern: wide open approach
a. rationale: haggling over scope is waste of time, and more convenient for W not to have to
b. proposed federal rules were this way, but Congress rejected in favor of CL
F. Most rules are presumptions