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					                    ALASKA CASES AND MATERIALS
                      ON THE LAW OF EVIDENCE
                              Matthew S. Block

                         (matt@alaskamocktrial.org)




970523.0149\49796
                                                                Table of Contents

Table of Contents .............................................................................................................................................. 2
What Is Evidence, and Why Should We Care? ............................................................................................. 3
101-102.     What Are the Rules of Evidence? ............................................................................................. 4
103.    How Does a Lawyer Invoke the Rules?........................................................................................... 5
104-105.     Who Decides Questions of Fact? ............................................................................................. 8
402.    What Evidence Comes In? ................................................................................................................ 9
  B.      The caveat ........................................................................................................................................... 10
401.    What Is Relevant Evidence? ............................................................................................................14
  A.       Probative Value ................................................................................................................................. 14
  B.      Materiality............................................................................................................................................ 15
  C.      Putting it together .............................................................................................................................. 16
403.    What is Irrelevant Evidence? ...........................................................................................................18
404 – 406.        Character as Irrelevant .........................................................................................................20
  An Aside on the Character of a Witness ...................................................................................................... 21
  Back to Character Generally .......................................................................................................................... 23
  406.       Habit................................................................................................................................................ 24
407 – 412.        Evidence Irrelevant Due to Social Policies .......................................................................25
  Subsequent Remedial Measures & Liability Insurance .............................................................................. 25
  Offers of Compromise ................................................................................................................................... 26
  Payment of Medical Expenses....................................................................................................................... 26
601 – 602.        Who May Testify ..................................................................................................................28
801 – 802.        Hearsay ...................................................................................................................................30
803 – 804.        Exceptions To The General Rule ......................................................................................35
805. Hearsay Within Hearsay ....................................................................................................................41
806. Cross-Examining the Declarant .......................................................................................................42
  Attorney/Client Privilege ............................................................................................................................... 43
  Physician or Psychotherapist/Patient Privilege .......................................................................................... 44
  Clergymen/Spiritual Advisee Privilege......................................................................................................... 44
  Spousal Privileges ............................................................................................................................................ 45
  The Purpose of Communications Privileges Generally ............................................................................. 45
  Other Privileges ............................................................................................................................................... 46
701 – 705.        Opinion Testimony ..............................................................................................................47
Documents and Writings ................................................................................................................................49
201 – 203.        Judicial Notice .......................................................................................................................52
Conclusion ........................................................................................................................................................54




                                                                               2
    What Is Evidence, and Why Should We Care?

        In America, it is a cultural norm that we despise prejudgment. It is that norm that
underlies our revolt at concepts like racism and cultural bigotry. The norm has both positive and
negative aspects and effects. At its best, it encourages us to treat neighbors as neighbors
regardless of the color of their skin. At its worst, it encourages us to regard cultures of
intolerance as fundamentally evil (the concept behind statements like, “the only thing of which
we are intolerant is intolerance!”). It is responsible for universal sufferage, affirmative action,
and political correctness. It is also responsible for a heartfelt need to have reason, rather than
preconceived prejudice, motivate our decision-making. Thus it is that we have the invention of
the public trial to decide questions of fact.

        You may well wonder what I mean when I refer to questions of fact. After all, when we
talk about the court system in which trials are conducted, we talk about the “courts of law.”
Doesn‟t the court decide legal questions, questions of law? Of course the answer is that it does,
that the ultimate function of the court is to decide legal relationships. But in order to determine
the legal relationship between two parties you must know facts about the parties. In practice, the
judge or parties reach legal conclusions ahead of time. They decide on a syllogism. 1 Then the
jury2 completes it by finding a fact and announcing the conclusion of the syllogism.

       For example, let‟s say the legal question is which of two people own a particular piece of
land. The parties agree that one of them owns it, but disagree as to which one it is. Terry
Titleholder believes she owns the land because she has a piece of paper called a “deed” that has
been properly registered with the recording office and that states that she owns the land. Peter


1        A syllogism is a set of three statements. Two are premises and the third a conclusion.
The first statement is in the nature of “if a, then b.” The statement “a” is called the “antecedent.”
The second premise in the syllogism is just the statement “a.” The conclusion is the statement
“b.” This logical structure is considered flawless, or “valid,” because it is believed that in the
event that both premises are true, then the conclusion will also be true. For example, “if Joe
Defendant fired a bullet into the head of Danny Decedent and that bullet caused Danny‟s death,
then Joe has committed murder in the first degree.” “Joe Defendant fired a bullet into the head
of Danny Decedent and that bullet caused Danny‟s death.” “Thus, Joe Defendant has committed
murder in the first degree.” The first statement has the form “if a then b,” the second statement
is the antecedent of the first, and the third statement is the conclusion from the first two.
2       To simplify things, I will always refer to the finder of fact as the jury. In practice, this is
decreasingly the case. Very often, the judge is the only finder of fact. No jury is ever empaneled
in the vast majority of cases, either because of early settlement or dismissal, or because the
judgment is summarily rendered by the judge, or because a different dispute resolution
procedure, including a bench trial, is invoked. Of those juries that are empaneled, only a subset
ever hear evidence, and of the subset only a subset are ever asked to reach a verdict. It would be
more accurate for me to consistently talk about the “finder of fact.” Unfortunately, that would
complicate matters conceptually. If you like, substitute “finder of fact” for “jury” everywhere it
appears.


                                                  3
Possessor believes he owns the land because he has lived on it for the last 40 years, and keeps a
working farm on the property that he built with his own hands.

       At heart, the legal question is about the other one-tenth of the law. Does possession of a
piece of land confer ownership as against good title? The parties (and their attorneys) diligently
research the law on the matter and conclude that good title generally wins, but that possession
can confer ownership if it is “open and notorious” and “hostile.” 3 Peter argues that his
possession was both open and notorious and hostile. Terry argues that his possession was not
open and notorious, nor was it hostile. Thus, they start out the syllogism by presenting the
following proposition to the jury:

       1:      If Peter‟s possession was both “open and notorious” and “hostile” as those words
and phrases are defined to you, then Peter is the rightful owner of this property.

        Now it is up to the jury. If the jury finds that the possession was open and notorious and
hostile, then they will supply the second premise, and reason from that to the conclusion. If the
jury finds that the possession was not open and notorious and hostile, then they will supply the
contrary second premise and reason to that conclusion.4

    101-102. What Are the Rules of Evidence?

       Our system of law is an amazingly rich and intricate one steeped in the tradition of
wisdom that can only be found in centuries of practical and philosophical judgments. In other
words, it is an arcane, archaic, outdated throwback to the time of knights, feudal lords, and
immense superstition. Moreover, it is the curious result of deep consideration by hundreds of
English lawyers into how to overcome the problems of English law. 5 It would not be out of

3       This is referred to as “adverse possession.” It no longer really exists in Alaska to much
of a degree.
4        As will be discussed below under the heading “Burdens of Proof,” in most civil trials the
jury is actually presented with two syllogisms, from which they must choose the valid one by
supplying a second premise. In a criminal trial the jury is presented with a single syllogism, but
if the syllogism fails then the defendant is acquitted.
5        Funny story: when America became a new nation, the question arose as to what the law
would be. As it was no longer a collection of English colonies, it was not clear that English law
should have a foothold. Moreover, America had a war-bred distrust of all things English, and
was drenched in blood spilled to throw off the yoke of English tyranny. Thus, a pronouncement
like, “having won the war, we are now free to … adopt the laws of the King! Hurrah!” would
have flown like a lead balloon. Thus, young America immediately abolished English law.

        The trouble was, the only other widely practiced law globally was the “civil code,”
modeled on Roman law. Among other things, civil law countries constructed their criminal
justice systems in ways abhorrent to civil rights minded Americans. Moreover, the entire notion
of a civil code is that only practitioners need to know it. In a country based on the principle that
every common man should be part of his government, the philosophy behind the civil code was
(and remains) disgusting and oppressive. Worse, no one who knew anything about civil law held

                                                 4
place to say that it is a mess. However, it is a wondrous and beautiful mess, that makes full and
fair recognition of human passions, achievements, desires, cunning, reason, and failings. It can
do all of this because it is an evolved system, rather than an imposed system.

         More must be said on those matters, but this is the wrong context. It is enough to note
that, at least in the courtroom, rules are necessary. Hard and fast rules that can be written and
read and argued about. The Rules of Evidence are written “to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of growth and development of the
law of evidence to the end that truth may be ascertained and proceedings justly determined.”
Anything with such lofty goals should apply all over the place: the Rules apply in all formal
judicial proceedings (except for the exceptions, and some apply even then).

                                              HINT

        It is worthwhile here to have a bite of some food for thought. As we‟ll later discover, the
general rule is that any relevant evidence is admissible at trial. That makes sense – we want
juries to have all of the evidence they can get if they are going to be charged with deciding
important fact questions with big implications. But many of the rules are designed to keep
evidence out. Think about that – there are many rules that are expressly designed to hide
relevant evidence from the jury. How can that possibly be in service of the “end that truth may
be ascertained and proceedings justly determined?” Won‟t keeping important evidence out lead
to more situations where juries miss the truth and justice is not done? The answer requires you
to realize that the goals of the evidence rules are antagonistic to one another, so that the rules
present a constant balancing act between finding truth, on the one hand, and securing fair
administration at low cost on the other. You‟ll find that there are other goals as well, including
some social policy goals. To understand the Rules, you should try to understand this balancing
act.

    103.              How Does a Lawyer Invoke the Rules?

       It‟s all well and good to have a set of rules, but what if they aren‟t being played by? Ours
is an adversarial system, so if one lawyer violates the rules and attempts to get evidence
admitted, the other lawyer must make a timely objection. If you think carefully about it, you‟ll




a leadership position in this country: the public figures were all lawyers trained before the
English bench. Thus, America adopted English law (after having explicitly abolished it!), but
determined that it would not use English interpretations of that law. Of course, there were no
American interpretations, and something had to be used. For some time after the Revolution, the
best selling book in the United States after the bible was Blackstone‟s Commentaries on the
Laws of England, the quintessential book of English interpretations of English law. It was cited
as authoritative in every court in America, including the Supreme Court. As we say in free
America, c‟est le vie wot wot!


                                                5
find a chicken-and-egg problem here when it comes to appellate review (it turns out there are a
lot of chickens hiding in the rules of evidence).6 But first, a word on appellate review.

       When a lawyer screws up at trial, her client may have a remedy against her for
malpractice. If it is the court that screws up, however, something must be done to correct the
error. The remedy is to appeal the errant decision of the court to another court, which will
hopefully have enough sense to correct the lower court‟s error.

        In order to evaluate a question on appeal, the appellate court needs all of the facts
surrounding the decision. For instance, when a judge decides that a piece of evidence is
admissible even though it is objected to, he makes that decision on the basis of arguments and
facts. The appellate court needs to have all of those arguments and facts available or it will not
be able to figure out whether the judge messed up.

       Back to chickens and eggs. Let‟s say opposing counsel offers a piece of evidence and
you object to its admissibility, arguing that the rules of evidence say that that piece should be
kept out. The judge disagrees, and allows the evidence to come in. You appeal his decision.
The appellate court is in a great position to decide whether the evidence was or was not
admissible – after all, it has a record of what the evidence was, how it was used, etc.

        But what if you object and the judge grants your objection and excludes the evidence?
The appellate court may have no idea what the evidence would have been. Thus, it cannot
meaningfully examine whether the evidence should have been allowed or not. Take hearsay, for
instance. Below, we will discuss the rule that hearsay evidence – evidence offered by a witness
about the prior statements, out of the court, of someone else in order to prove that what the other
person said is true – are generally inadmissible. There are exceptions to the rule depending on
the content of the prior statement. So say one attorney is about to offer some evidence about
what someone other than the witness said. Say opposing counsel objects, and the Court sustains
the objection – the evidence is going to be kept out. The trouble is, without hearing what the
statement would have been, the appellate court cannot determine if the statement would have
been offered for its truth, or for some other purpose. It cannot tell if the statement would have
been prior and out of court. Moreover, it cannot tell if the content of the statement would allow
the statement to fit under one of the exceptions.

       The solution is to tell the appellate court what the evidence would have been, had it been
allowed. To enforce this solution, appeal is only available to a party if the party offers evidence,
the evidence is objected to, the objection is sustained, and then the party puts into the record
what the evidence would have been. This is called a “proffer of evidence” or an “offer of proof.”

       In practice, it looks like this:

               Q (COUNSEL 1):             Did you speak with the defendant that day?


6       Chickens are funny, but not nearly so funny as penguins. Penguins are hilarious. If
someone would create a system of evidentiary rules based on penguins, the world would be a
happier place.


                                                    6
                   A (WITNESS):           Yes, I did.

                   Q:            And what did the defendant tell you about killing
                   the decedent?

                   COUNSEL 2: Objection, your honor!          That question calls for
                   hearsay.

                   JUDGE:                 Hmmm…..

                   COUNSEL 1: Your honor, may I be heard?

                   JUDGE:                 Yes.

                   COUNSEL 1: Your honor, the defendant is a party opponent. This
CHALLENGE -        statement of desire is an admission. Thus, it is not hearsay and is
What rule is       admissible.
COUNSEL 1
thinking of?.      JUDGE:                 COUNSEL 1, I disagree. This looks like
                   hearsay to me, and I am going to sustain the objection. (Imagine
                   what happens if we stop here. COUNSEL 1 appeals this ruling.
                   The appellate court looks at the record and says, “we can‟t tell if
                   this was going to be an admission or not! We don‟t know what the
                   witness was going to say. Thus, we cannot find any error.”)

                   COUNSEL 1: May I make my record by offer of proof, your
                   honor?

                   JUDGE:                 You may.

                   COUNSEL 1: Thank you, your honor. By way of offer of proof,
                   your honor, the witness would have testified that the defendant told
                   her, “Well now I‟ve gone and done it. I killed the decedent! I
                   killed him dead! Man, if I hadn‟t premeditated it or if it had been
                   in the heat of passion, I imagine it wouldn‟t be quite as bad. But I
                   just up and killed him in cold blood. I sure hope no one ever hears
                   what I‟m telling you, because if this is admissible then I am guilty
                   guilty guilty. Anyhow, how was your day?”

            After this offer of proof, the appellate court has everything it needs. It can determine
    that, in fact, the defendant‟s statement was a pure admission and therefore not hearsay.
    Occasionally, upon hearing the offer of proof, the trial court will reverse itself and overrule the
    objection, allowing counsel to get in the disputed evidence.

                                            PRACTICE TIP

           If an objection is sustained against you and the evidence is worth hearing, make
    absolutely certain to proffer the evidence and make your record. It will preserve the right to


                                                        7
appeal, which is important, and it will give the Court the opportunity to reevaluate whether it
made the right call in sustaining the objection. Properly used, it can also make the other side
look silly – COUNSEL 2 in the example, above, looked pretty bright while making the objection,
but he just looked like a desperate and simpering fool, or worse, unprepared, after the offer of
proof was made.

    104-105. Who Decides Questions of Fact?

        The roles in the courtroom are well-known from watching courtroom dramas on
television. We‟ve known since Perry Mason that the judge makes legal rulings on evidentiary
questions and objections, the witnesses break down and admit to all manner of wrong-doing, the
lawyers powerfully direct the thinking of everyone in the room and look snappy in suits, and the
jury makes determinations about the factual issues in the case, or else just does whatever
Raymond Burr directs them to do.

        The real world is not nearly so simple. After all, there are lawyers involved in the real-
world operation of a court, and lawyers are trained to make things needlessly complicated (in
what other profession is one taught to use eight words where one would do?). In particular, it
turns out that before some evidentiary questions can be answered, the Court must be aware of
facts. Since the jury is the fact-finder, this should be easy: the Court submits the fact questions
to the jury, the jury answers the fact question, then the Court makes a legal judgment based on
the jury‟s fact-finding.

       The trouble is that these are threshold evidentiary questions about what the jury should be
allowed to know about the case. Thus, there is a chicken-and-egg problem:7 how can we give the
jury evidence to decide facts about whether the evidence we are providing the jury should be
provided to the jury?

       The answer is that we don‟t. Preliminary questions of fact that are necessary to decide
questions of admissibility are decided by the judge, and they are decided on a very liberal basis. 8




7       Or a penguin-and-egg problem, if you prefer.
8       There is an exception to this in the peculiar case of facts that are necessary to show the
authenticity of a document when the existence or identity of the document are questioned. In
such a case, that preliminary factual determination is made by a jury. See Ak. R. Ev. 1008.


                                                 8
    402.              What Evidence Comes In?

       Probably the most important rule in the Rules is the permissive relevance rule at 402. It
is dangerously simple – Rule 402 provides, in essence, that any evidence that is relevant is
admissible, unless the Rules provide that it is inadmissible. This is of sweeping and astonishing
import. It means that the remaining Rules are rules of exclusion rather than inclusion. The
baseline assumption is that evidence is admissible if it is relevant.

         This provides an astonishing amount of latitude, and betrays an important underlying
judicial philosophy. To see why, consider the alternatives. For instance, a court that cared only
about the efficiency of judicial process might allow only the best evidence in. Let‟s say that a
litigant wanted to prove that a fish had landed in his boat through the fault of another, thereby
damaging his boat (don‟t worry too much about the facts, it‟s the underlying legal point that is
important). The best evidence of this might be the damaged boat itself, with pictures of the fish
falling and landing therein. The court might demand that the litigant produce the damaged boat,
dead fish, and photographs in order to prove its case.

         This would be very efficient. Most boat owners would be loathe to wait to have their
boat repaired, and so would simply avoid litigation. After all, if you have to have the actual
damaged boat in the courtroom, you can‟t get it repaired until after your case concluded. No one
wants to keep a dead fish around for the year or two that pre-trial process can take (some
litigation can take as long as 20 years, although that is a pathological case. Two or more years is
not uncommon). Besides, it is extremely unlikely that any potential plaintiff happened to have
his video camera with him at the time of the “fish dropping incident,” so at least some evidence
would never come through the door. Thus, not many cases would ever hit the court, and those
that did would likely be disposed of very quickly because they wouldn‟t have much admissible
evidence.

        At the other extreme, a court might espouse the policy of finding truth and dispensing
justice. If so, then having as broad a view of the facts as possible might be helpful. The court
would then likely allow any evidence at all, even if it couldn‟t be shown to be relevant. You
may not be familiar with the details of the O.J. Simpson civil trial for wrongful death, and if so
your ignorance is bliss. Suffice to say that O.J.‟s ex-wife and her friend were found dead in her
house, and there was at least some circumstantial evidence (like the presence of DNA matching
O.J.‟s at the murder scene and the presence of blood in his car that matched his ex-wife‟s DNA)
indicating that O.J. may have caused the deaths (where by “caused the deaths” the plaintiffs
more or less meant “hacked up with a knife”). This evidence was apparently sufficient to
convince the jury to award the victim‟s families and estates a substantial sum of money.

        But what if the plaintiffs had felt more evidence was necessary before the conclusion of
the trial? Should they have been allowed to offer evidence, for instance, that O.J. was very
wealthy, and might be able to afford a substantial award of punitive damages? How about
evidence that he was aggressive, a former professional football player, and that he had a
reputation for demanding control over women? How about evidence that his car was a massive
polluter, responsible for more than his share of carbon monoxide emissions each year? Evidence
that his children didn‟t like him? That he could eat all the chocolate he wanted without getting
fat?


                                                9
        On the other side of the case, suppose O.J. wanted to put in evidence that his ex-wife
frequently slept with other men? That she had, on more than one occasion, deliberately taunted
him in public? That she frequently told him things designed to make him extremely angry?
What about evidence that she knew he was prone to violence, and that he might flip his lid, and
that she taunted him nonetheless? Evidence that he was a star running back at USC? Evidence
that his ex-wife was uniquely positioned vis-à-vis him, and that even if he had hacked her throat
open with a knife he was unlikely to ever do that to another person? Evidence that black
children in disadvantaged neighborhoods looked up to him, and even idolized him, as a
wholesome role-model? Evidence that those children would likely become business leaders if he
were found not liable, but would likely start dangerous and violent gangs if he were made to pay
damages? Evidence that a verdict awarding damages to the families might spark rioting in Los
Angeles?

        None of that evidence is particularly relevant to the legal question presented in the
Simpson wrongful death case. But it might be interesting to a jury, and might even sway the jury
one way or the other. Perhaps a jury, even a jury confronted by the evidence presented in that
case, might have been slightly more reluctant to render a verdict for the plaintiff after they heard
that doing so would deprive disadvantaged children of their role-model, and that it may subject
their home town to riots and looting, and that the decedent “knew what she was getting into.”
Perhaps (at least if you are O.J.,) this would have been a more just result. Perhaps it would have
led to a more honest, pragmatic result more premised on “truth” rather than on a limited legal
construct. In any event, it was not the approach taken in that case (or any other).

        Remember that there is a policy tension in the Rules between efficient and fair
administration on the one hand, and dispensing justice and finding truth on the other. Rule 402
is where that tension comes to a head, and it tips toward dispensing justice and finding truth.
While it is true that it would be more efficient to limit the amount and kind of evidence that can
come in, it would dramatically decrease the odds of a plaintiff finding a just result in the courts.
On the other hand, while it would likely lead to more complete, and perhaps more fulfilling,
factual conclusions to have any piece of evidence at all come in to the court, it would not be
efficient and it would interfere with keeping the jury‟s attention focused on the relevant
provisions of law. Rule 402 purports to find the balance, but the balance lets in more evidence
than it leaves out. Thus, the rest of the Rules kick evidence out, and push the entire system
closer to a kind of middle ground between efficient fairness on the one hand, and legality and
justice on the other.

        Of course, the liberalness of the Rule could be a mere illusion, if the courts were to
construe “relevant” very narrowly. Thus, Rule 402 begs a question: what is relevant evidence?
As will be seen, far from being construed narrowly the word “relevant” is construed as broadly
as logic will allow.

      B.       The caveat

        Lawyers and judges wrote the rules of evidence. Rest assured that there is a caveat. In
particular, even under the very general and liberal rule of admission there is evidence that,
although relevant, may just not be good enough to be seen by a jury. The reason is because the



                                                10
evidence may be from such a suspect source that it cannot be trusted. Of what the source is
suspected may surprise you – it usually isn‟t suspected of malice, but merely of forgetfulness.

        To understand why evidence may be kept out even if we think it is relevant, we should
have a framework in mind for what makes some evidence better than other evidence. Good
evidence is accurate and complete. Moreover, evidence must be presented or reported to the
jury, and good evidence is well-reported and comes from a good reporter. A good reporter is one
that can present the evidence well, which means in a manner that is understandable to the jury.
But a good reporter must be more than this, as well. They must have knowledge of the evidence,
and that knowledge must itself be accurate and complete. They must be believable. Also, they
must have good recall of the evidence. In short, they must be informed, credible, and reliable.

         These generalities come together most clearly in a witness. Say we have a case about a
trout and a boat. The boat owner alleges that the boat fell from a great height, and hit the deck of
his boat. It crashed through the deck, leaving a big hold. The estate of the fish alleges that it was
not at fault – although it fell and hit the deck, it did not cause the hole. Instead, a large steel
crane, owned by the boat owner, fell from the dock and caused the hole. The estate of the fish
counter-claims against the boat owner, claiming that it was the falling crane that caused the fish
to fall, and thereby caused its wrongful death. A witness, Shirley, was present on the dock and
saw the fish fall from a great height and strike the deck of the boat. She is called by the defense.
Her direct examination begins like this:

               Q:      Where were you at the time of the incident?

               A:      I was, you know, over on the… umm… when you‟re
               looking at the water from… you know where Captain Jack‟s
               Seafood is? Over there by the … umm… lightpost? Well, there‟s
               a thing near there. Anyhow, I was standing on the other side, over
               by the… umm… you know. Thing.

        We are off to a bad start. It is immediately clear that Shirley is a bad reporter, because
her report isn‟t clear to a jury. The jury has no better of an idea where Shirley was standing now
then they did prior to her opening her mouth. Shirley is dismissed, and Gary, who was standing
next to Shirley, is called to the stand.

               Q:      Gary, did you see the fish fall and hit the deck of the boat?

               A:      No, but Shirley told me all about it a couple of weeks later.

        Gary is an okay reporter, but he is ill-informed. He just doesn‟t personally know
anything helpful to the case. He knows that Shirley knows something helpful to the case, but
there is no guarantee that he will faithfully report what she knows because there is no guarantee
that it was faithfully reported to him (we‟ve already seen that Shirley has trouble reporting
things). Gary, too, is dismissed, and Pete is called to the stand.

               Q:      Pete, did you see the fish fall?

               A:      Yes, I‟m pretty sure I did.


                                                 11
              Q:      Pretty sure?

              A:       Well, the doctors said I was standing underneath where the
              fish fell, and it struck me on the head. I had amnesia for about two
              weeks. But my memory has been returning, and I think I recall
              being on the boat and seeing a fish fall. Or was it a crane? It could
              have been a crane. Either a large steel crane, or a perch I think. If
              it was a perch, it may have had a hat. Or… maybe I‟m thinking of
              a movie.

        Ever have one of those days when no witness seems to go your way? Pete is a good
reporter, clear and articulate. He was present and observed good information. He has good
evidence. Unfortunately, Pete can‟t reliably remember his evidence in order to report it. What
he has is stuck in his head, and we have no guarantee that complete information will get out of
his head. Pete steps down, and Phyllis is called.

              Q:      Phyllis, where were you at the time of the incident?

              A:      I was waiting in the parking lot, 40 yards from the dock and
              with a clear line of sight to the boat deck.

              Q:      And what did you see?

              A:     I saw Pete walking on the deck. At 3:07 PM, a fish fell
              from a beam that came from the dock over the deck of the boat.
              The fish fell directly toward the boat.

              Q:      Then what happened?

              A:      The fish struck Pete, a glancing blow to the left temple.
              Then it struck the deck.

              Q:     Did the fish cause any damage to the deck that you could
              observe?

              A:      No. It bounced.

        Hurrah! Now this is some good testimony. It is reliably reported. It is faithfully
recalled. It was well-observed, so we believe that Phyllis knows the things she is reporting. The
examination continues.

              Q:      And then what happened?

              A:      Well, it bounced about 25 feet up, and finally came to a rest
              on the dock.

              Q:      And then?




                                               12
               A:       Then the fish pulled out a top hat from somewhere, maybe
               its left gill. It also had a cane. I don‟t know where it got the
               monocle. Where-ever the stuff came from, it was fortunate that the
               fish had it because its tap routine would have completely failed
               without the right costume. So it taps right up to me and we get to
               talking and… and then we went to Vegas. Sure, yeah! Vegas.
               And we… uh… started a show. The Phyllis and Dancing Fish
               Show! Yeah, that‟s the ticket. A show! And we got rave reviews.
               We were just about to have our big break and release a blockbuster
               movie when Fish got laryngitis and couldn‟t sing his part. Sure,
               yeah.

               Q:      <groaning slightly> Fish was a singer as well as a dancer?

               A:     Of course! Yeah, a singer! In fact, he was the voice
               double for Rob Thomas in that Santana song. That‟s right!

        Phyllis is a great witness, except she lacks credibility. No one would believe that a tap
dancing fish could get a decent movie contract while starring in a show in Vegas. With the
schedule those entertainers keep, they‟re lucky if they have time for a social life, let alone time to
finish principle filming on a major motion picture. But if Phyllis is willing to exaggerate about
the movie contract, what else in her testimony is false? Maybe Fish didn‟t fall at all. As
graceful as dancing fish tend to be, it certainly doesn‟t seem likely.

       The big caveat to the general rule of admissibility is that even admissible evidence may
be kept out if there is some reason to believe that it is not good evidence, or that it is not well-
reported. The remainder of the rules are designed to help identify in a uniform and objective
way evidence that is likely to be bad or poorly reported.

                                                 TIP

       The quality of evidence is measured by looking at:

       1.      the quality of the information;

       2.      the credibility of the source of the information; and

       3.      the reliability of the report of the information.

       With regard to testimony, this means the testimony must be accurate and complete,
reported in a manner understandable to the jury, based on information known to the reporter, and
accurately recalled, and the witness must be credible. Think about these factors when
considering the rules of evidence, and you will better understand why the rules function the way
they do.




                                                 13
     401.              What Is Relevant Evidence?

        Because so much depends on the definition of what is relevant evidence, the Rules start
off the discussion by defining it. And they define it extremely broadly. According to Rule 401,
“[r]elevant evidence means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Of course, this still requires some refinement.

      A.               Probative Value

         We know what evidence is. What does it mean for evidence to “hav[e] any tendancy to
make the existence of any fact … more or less probable than it would be without the evidence”?
Think of a fact that must be proven as a football field. The ball starts in the middle of the field –
the likelihood that that particular fact is true is exactly equal to the likelihood that it is false. It
could go either way. The jury may as well flip a coin, because it can‟t determine whether the
fact is likely to be true or not based on what is now before it.

        Let‟s say the fact is necessary in order for the plaintiffs to win their case.9 The plaintiffs
have a goal – they want to make the jury believe that the fact is certainly true, that it is 100%
likely to be so. The defendants have the contrary goal – they want to make the jury believe that
the fact is certainly false, that it is 0% likely to be so. In other words, the plaintiffs want to move
the ball forward into the end zone to the North. The defendants want the ball in the end zone to
the South.

        Evidence that has the tendency to make a fact more or less true is any evidence that
moves the ball North or South. Any at all. It does not matter whether it moves it only a little
tiny bit – if it moves it closer to one goal or the other, it has the appropriate tendency. This is
true even if the ball moves twenty yards East and then thirty yards West before moving only an
inch North.10

        As usual, an example is helpful. Say the fact to be proved is that a lake trout damaged a
boat deck when the trout was dropped from a great height. Say it is the plaintiff who wants this
fact proved. The defendant stood up in his opening argument and told the jury, “at the end of
this case, I will ask you to look closely at the evidence and ask yourself whether a small little
soft-bodied trout could possibly cause a hole the size and shape of the plaintiff‟s crane in the hull
of the plaintiff‟s metal boat, and ask yourself whether it is more likely that a trout caused this
damage, or that the plaintiff‟s crane falling off the dock caused it.” The plaintiff seeks to
introduce evidence that a man in Homer, Alaska once caught a halibut that weighed over 400 lbs.
He also wants to introduce evidence that a dog once fell out of an airplane and landed on a car,

9       I‟m picking on the plaintiffs because they usually have the burden of proof. Of course,
this could go either way. For instance, when a defendant wants to prove an “affirmative
defense,” it carries the burden of proof. This will be explored in more depth elsewhere.
10     Or, escaping the analogy, if the evidence tends to prove obscure, tangential facts that
may have nothing at all to do with the case, and has only a small tendency to prove the fact at
issue.


                                                  14
and in so doing it crushed the car and split the vehicle‟s welds. The defendant objects that both
pieces of evidence are irrelevant because they have no tendency to prove that it is more or less
likely that the falling trout caused the hole at issue in the case. How should the judge rule?

        Going only by Rule 401, the judge should rule that the evidence comes in. The plaintiff‟s
evidence demonstrates that some fish can reach enormous size. It seems reasonable that an
enormously large fish might cause severe damage to a boat if it fell from a great enough height.
Moreover, the dog evidence indicates that a soft, fleshy animal can cause severe damage and
even holes in metal vehicles if it falls on them from a sufficiently great height. If the jury
believes this evidence, it might believe that it is more likely than it was prior to the introduction
of this evidence that the trout caused the crane-shaped hole.

        Note that this does not for a moment mean that the jury does believe the trout caused the
hole. The evidence should come in if it tends to make it more believable, whether or not it
actually makes it more believable. If it even has the tendency to advance a litigant‟s cause, in it
comes.

        Nonetheless, it is clear that evidence may have a greater or lesser tendency to prove a
fact. In a criminal case, DNA evidence may make the case appear lock-tight against a particular
defendant. Say it is relevant that a particular hair found at the grisly scene of a double homicide
contained DNA matching the DNA of a famous running back and juice pitchman. Say that the
particular DNA test employed used several different sites on the DNA to make a match, and thus
could conclude that the odds against this DNA matching the DNA of the defendant were 1 in
800 million. Say a statistician explained that it was more likely that the judge would
spontaneously combust in front of the courtroom than it was that someone other than the
defendant left the offending hair. One might conclude that the DNA evidence had a huge
tendency to prove the disputed fact. Lawyers and judges, because of their inborn (inbred?) need
to engage in overblown hot windiness, would say that the evidence is “highly probative,” or has
considerable “probative value.”

         In fact, evidence always lies somewhere on a continuum of probative value. Some
evidence won‟t move the ball very much at all. The fact that both the defendant and whomever
left the hair at the scene have hair doesn‟t make it much more likely that the hair is the
defendant‟s. It is pretty close to the unhelpful end of the spectrum. But conjoin it with another
piece of evidence, that only ten people in the city have hair and the other nine are blond, and it
starts to look probative. Maybe it is slightly less probative if there are 100 people with hair in
town. And so on.

      B.       Materiality

       This does not finish the definitional inquiry. Evidence is not relevant if it has the
tendency to make any fact more or less likely to be true than it would be without the evidence.
Instead, evidence is only relevant if at least one of the facts it has a tendency to advance is “of
consequence to the determination of the action.” What does that mean?

       The determination of the action is generally the verdict, at least when the rules are
applied to a suit in court. So in the initial stage of a criminal trial, for instance, a fact is of


                                                 15
consequence to the determination if, and only if, the fact has some bearing on whether the
defendant is guilty. This, in turn, is determined by the rule of law at issue. For instance, if the
only relevant law says that the defendant is guilty of vandalism if he dropped a lake trout from a
great height with the intent of causing damage or destruction to property and did cause
destruction to property valued at more than $100, then the only facts that are of consequence
have to do with people dropping lake trout, valuing property, destroying property, or intending to
damage or destroy property. Facts about the color of trout, or about its flavor when lightly
grilled with butter and fresh ground pepper over a campfire, probably are not “of consequence to
the determination.” Certainly the song it was singing as it fell does little to advance the case
(“…just like the ocean, under the moon, it‟s the same as the emotion that I get from
yooooouuuuuu…”).

        Just like probative value, the degree to which a particular fact is “of consequence” lives
on a continuum. Maybe it is absolutely key to the prosecution‟s murder case that the putative
decedent is, in fact, dead. You can prove a lot of things about motive and opportunity, but if no
one is dead then it is very difficult to prove murder. This may be at one end of the continuum.
On the other hand, proving that the defendant ate soy beans on the night of the murder may not
be very important at all. Perhaps it would be helpful (a witness thought they remembered
smelling soybeans in the room at the time the killer entered, maybe), but it isn‟t necessary. That
may be closer to the other end of the continuum. Somewhere along the continuum there is a line.
It‟s closer to the “more important” end than to the “less important” end. Facts that are beyond
that line are “material.” Facts prior to it are immaterial.

      C.       Putting it together

       It may already be apparent to you that relevance must also be on a continuum. Highly
probative evidence of material facts are is very relevant. Evidence with very little probative
value may be less relevant, particularly if it tends to prove only immaterial facts. But if it has
any probative value at all, and if the fact is material, then it comes in subject only to the caveat.

        Recall that the caveat to the admission of relevant evidence is that relevant evidence will
not be admitted if it is not good evidence. The rules go on, at some length, setting out what
counts as “not good evidence.” But first, the drafters took some time to poke holes in “relevant.”
In particular, they determined that, as a matter of judicial fiat, some sorts of evidence would be
considered irrelevant regardless of their probative value.

                                CRITICAL PRACTICE NOTE

       Whether something is probative, and therefore admissible, depends on whether it makes a
material fact more likely true than not true. That means that evidence may be admissible to
prove one thing, but inadmissible to prove something else. That is, it may be probative of one
material fact, but not probative of another.

        When considering whether evidence is admissible or not, thus, it is absolutely critical
that the proponent of the evidence be able to clearly articulate the purpose for which the
evidence is offered. If the proponent cannot articulate what the evidence is supposed to prove,
then the evidence cannot be admitted.


                                                 16
       This means two things to you, as a practical, technical matter. First, when you are asking
questions and trying to get in evidence, you need to have a good reason for asking each question.
Otherwise, you may get hung up by your failure to articulate a permissible purpose.

         Second, when you are defending and someone else is asking questions, if it is not
blatantly obvious to you why a piece of evidence is coming in, you can object that the evidence
is irrelevant. The person asking the question will then have to articulate the permissible purpose
for which the evidence is coming in. If they cannot do so, very often you will win your objection
and the evidence will stay out.




                                               17
    403.                What is Irrelevant Evidence?

        The first class of “not good” evidence is evidence that, while good, is just not “good
enough.” More specifically, Rule 403 provides that otherwise relevant evidence may be kept out
if “its probative value is outweighed by the danger of unfair prejudice,” among other things.
This means about what it appears to – if the evidence will advance the ball only slightly to the
North or the South, but will move dramatically into areas that are “unfair[ly] prejudicial” to the
other side, the evidence will be excluded.

       Evidence causes “unfair prejudice” if it reveals facts that would case the jury to reach its
decision based on something other than the applicable law to more than an appropriate degree.
As you may guess, this is another continuum. To see it in action, let‟s go back to our trout.

        The plaintiff boat owner has alleged that the falling fish hit the deck so hard that several
rivets popped out of the steel deck plate. This caused the plate to collapse, and fall on the lower
decking, which also collapsed. Eventually, this chain reaction of falling fish and steel caused a
puncture in the boat‟s hull, which caused the boat to sink. By amazing coincidence, the holes in
the deck, lower deck, and hull were in precisely the shape of the plaintiff‟s own 80-ton crane.
There is no dispute that the fish did, in fact, fall and strike the deck. It fell because the plaintiff‟s
crane tipped over. After the fish struck the deck, the crane followed shortly after and violently
struck the deck. The plaintiff alleges that the crane simply passed easily through the hole caused
by the fish‟s fall. The defendant alleges that the fish hit the deck, bounced, and hit the dock, and
the crane actually caused the holes.

        The defendant seeks to introduce evidence that the deck of the boat had rust on it. The
purpose of this evidence is to prove that even if the fish caused a hole, it is extremely unlikely
that it would have caused the particular hole the plaintiff alleges – instead, the fish would have
fallen through a small, fish-shaped hole.

       First, the defendant attempts to do this by offering the testimony of an eyewitness, a
former ship‟s mate who worked on the deck and recalls seeing extensive rust damage to it.
Should the defendant‟s evidence get in (looking only at Rules 401 – 403)?

        First, under Rule 401, the evidence is relevant. Whether the fish caused the particular
hole is the heart of the case – certainly a material fact. If the deck was rusty, that might tend to
make it less likely that the fish caused the particular hole. Thus, it has some probative value.
Under Rule 402, absent an exception, the evidence should come in.

        Next, under Rule 403, this seems unlikely to cause any prejudice. The jury is supposed
to be deciding, based on the evidence, whether it is more likely true than not true that the fish
caused the hole as plaintiff alleges. This evidence will help them do that. Thus, there is no
unfair prejudice that outweighs the probative value of the evidence, and it should come in.

       Next, the defendant seeks to introduce the testimony of a dock worker, who recalls seeing
the deck from the dock. He noted that the surface of the deck was colored rust-orange, which
might indicate that it was rusty (or might indicate that it was painted rust-orange). Should it
come in?



                                                   18
        Under 401 and 402, this is still admissible evidence. It does not have as much probative
value as the eye-witness testimony, but it still moves the ball. Again, this does little to cause the
jury to decide the case except on an appropriate basis, so 403 will not keep the evidence out. In
it comes.

        Finally, the defendant seeks to introduce the testimony of the plaintiff‟s ex-wife, who will
recount that the plaintiff was such a colossal jerk that, after the divorce, he regularly put road salt
underneath her car, even when it was not icy out, in order to encourage rust on the underbody.
The salt was so corrosive to steel parts that it ate through the frame of her car. Because he lied to
the court during the divorce proceeding, she did not get anything except for the car from their
marital property. Moreover, he never made any child-support payments, and his three children
and their mother had to walk through two winters, while she earned enough money to buy a new
car. By a stroke of tremendous bad luck, the new car was shipped in to town on the plaintiff‟s
boat. The ex-wife will testify that she believes he may have, once again, put road salt on the
underside of her car while it was sitting on the deck of his boat. Some of it may have fallen onto
the deck.

        Under 401 and 402, this is still probative and admissible. Admittedly, it has only limited
probative value – the ex-wife cannot, and does not, testify that she actually knows some of the
corrosive salt to have landed on the deck or caused any rust on the boat. She cannot and does not
testify as to whether the plaintiff may have washed the deck after her car was removed,
eliminating any danger from the salt. In fact, she cannot even testify for certain that there was
any salt anywhere near the boat. Nonetheless, her testimony does tend to prove that it is more
likely that there was some salt, and therefore some rust, on the deck of the boat. That is enough.

        On the other hand, in order to push the ball forward this modest amount, the testimony
wanders all over. It hits a dozen issues that are almost totally unrelated to the deck. A
sympathetic jury might, hearing this evidence, think that the plaintiff is a jerk who mistreats his
ex-wife and his children. They might think him cruel, conniving, and far from credible. They
might think that he does not deserve, in a moral sense, to win the case. They might even be
willing to ignore the legal questions, and decide the case based on their sense of moral outrage.
If the judge believed that this was the case, he might determine that the evidence was unfairly
prejudicial.

        If so, the judge would then be forced to weigh the probative value of the evidence against
this potential prejudicial effect. Here, the defendant has other, and better, evidence to offer. The
contested evidence is frankly not very good – it has little probative value. On the other hand, the
potential for prejudice is fairly substantial – juries do not like people who mistreat their spouse or
children. Thus, a judge in this case might well conclude that Rule 403 should operate to keep the
evidence out.

       Note that “unfair prejudice,” while the heart of Rule 403, is not all of it. Rule 403
generally provides that evidence that could cause delay, waste of time, or simply be needlessly
cumulative (that is, repetitive) will also be kept out.




                                                  19
    404 – 406.         Character as Irrelevant

        Unfairly prejudicial evidence is kept out under the Rule 403 balancing test for obvious
reasons. Less obvious, but no less important, reasons animate other of the relevance rules.
There are two reasons that underlie the rest of the 400-series: either the drafters perceived a
historical problem with evidence that, although irrelevant, was frequently misused and wrongly
admitted; or the drafters made a judgment that social policies required them to consider certain
kinds of evidence as irrelevant (even if it otherwise appeared to meet the standard in Rule 401).
Rules 404 – 406 fit within the first set of reasons. Rule 407 – 411 are in the second.

       Rule 404(a) sets out the general rule with regard to character evidence. “Evidence of a
person‟s character or a trait of character is not admissible for the purpose of proving that the
person acted in conformity therewith on a particular occasion…” Again, to understand it is
important to first take it apart analytically, then see some examples.

        First, by “a person‟s character or a trait of character,” the drafters meant the general
tendency of the person to choose to act in a particular manner. For instance, say the singing,
dancing trout really likes steel boats. When he sees a steel boat, very often he will try to get
closer to it. If he is out with his friends or the music is hot, he won‟t break away to check out the
boat. On the other hand, if he has nothing else to do and he sees a cool-looking steel hull, he will
likely wander over to have a look. The trout has a character for getting close to boats. At trial,
the more common character traits that people might be interested in are one‟s character for
truthfulness, honesty, violence, aggression, or negligence.

        Rule 404 provides that evidence of a general character cannot be used to prove action in
conformity. Say the plaintiff‟s crane operator has a character for negligent operation. He very
often swings the arm of the crane out too far, causing the crane to tip off its bearings. He has
always been successful, in the past, in correcting the crane‟s position in time to keep it from
tipping over. Say the defendant had evidence of these facts. Rule 404 says that, in general, the
defendant‟s evidence would not be admissible for the purpose of proving that the crane operator
was negligent this time.

        Rule 404 contains its own exceptions, and you must read and become familiar with them.
The first exceptions, in Rule 404(a)(1) & (2), apply only in criminal trials. There, Rule 404(a)(1)
says that the accused may offer evidence as to a relevant character trait. If she does so, the
prosecution may then offer evidence to rebut the accused‟s evidence. For instance, say the
defendant is accused of lying on a government form. The defendant seeks to offer evidence of
her character for truthfulness – she is well-known in the community as an honest person, and has
never before been caught lying. Thus, she suggests, it is very unlikely that she lied on this form.
This evidence is permissible. On the other hand, once this evidence is offered the prosecution
may then offer evidence that, as a matter of fact, her character for truthfulness is not as good as
people think – she is a man, a well-known former mobster, and has been forging passports in the
basement for years. She has 37 convictions under various names in various countries for
forgery. This evidence, too, is admissible but only after the defendant “opens the door” by
offering her own character evidence.




                                                 20
        Rule 404(a)(2) allows, but puts limits on, the use of character evidence about the victim
of a crime. Again, the accused may offer relevant character evidence and the prosecution may
rebut it. Also, the prosecution may offer evidence that the victim was peaceable (and thus
probably acting peaceably) if the accused raises a justification of self-defense to a murder
charge.11 When the allegedly relevant evidence to be offered is evidence relating to the victim‟s
conduct in a sexual assault (rape) case, only the last year is relevant.

        You can see the policies at work, here. Criminal cases are the most important cases tried
in courts – not just money is at stake, but the accused‟s liberty, reputation, and sometimes life.
Thus, it makes sense that the accused would have more leeway to try to prove the truth in such
cases – the balance between the competing goals of the rules of evidence is different in criminal
cases than it is in civil cases. So, in criminal cases, the accused is given the opportunity to open
the door to character evidence, if she believes that that will be helpful to finding the truth. Once
the door is opened, however, the prosecution is permitted to pass through as well.

        Similar, the evidence of victim‟s character reflects a balancing of interests. There is no
guaranty that the victim will be involved in a criminal case, or will testify. In murder cases the
victim is no longer even available. Still, the victim‟s character may be relevant to finding the
truth, and the stakes are high enough that finding the truth is more important than the competing
interests. On the other hand, the victim is not necessarily there to defend himself, and if the
accused is actually guilty it would be horrible for her to victimize the victim again by parading
evidence of bad character through a public trial. Thus, such evidence is squarely limited.

      An Aside on the Character of a Witness

        Rule 404(a)(3) deals with evidence about the character of a witness. This is some of the
most fun you can have on cross-examination, and deserves an aside. Rule 404(a)(3) refers to
Rules 607 – 609. Those rules, in turn, allow you to “impeach” a witness by showing that the
witness is a liar-liar-pants-on-fire. In particular, you can show that the witness is not credible by
showing that the witness does not have a truthful character, and therefore is likely lying on the
stand. Rule 608(a). The particular evidence of character you may use is testimony that the
witness has a reputation for being untruthful, or else testimony that in some other witness‟s
opinion the impeached witness has a character for being untruthful. When one side introduces
evidence that a witness has a character for being untruthful, the door is opened to such evidence
and the proponent of the witness may offer evidence that the witness actually has a character for
being truthful.

        Now think carefully about this. Witness A testifies for the plaintiff. The defense calls
Witness B, who testifies that Witness A has a reputation for being a liar. Witness C is called in
rebuttal by the plaintiff, and testifies that Witness B is a liar, and that Witness A, in his opinion,
is very honest. All of this testimony is admissible under Rules 404(a)(3) and 608(a). Two
questions arise: first, could the plaintiff call Witness C before the defense calls Witness B? and
second, is there any other way to poke holes in Witness B‟s testimony (given that the plaintiff



11      This is as specialized an exception as it sounds. It almost never comes up.


                                                 21
may not know that Witness B will call Witness A a liar until it is too late for her to get a rebuttal
witness lined up)?

        As to the first question, the answer is, “no.” Rule 607 provides that the credibility of a
witness may not be supported by testimony about their good character for truthfulness until their
credibility is attacked. This is meant to prevent “bolstering,” the practice of offering a fact
witness and then offering a dozen witnesses who testify as to how very honest the fact witness is,
and how much he should be believed. In essence, the drafters have surmised that it is the jury‟s
duty to decide whether a fact witness is credible or not, and they don‟t need someone else‟s
testimony to make that call (unless there is some crucial and relevant information, like the fact
that the witness is a known liar-liar-pants-on-fire).

        As to the second question, Rule 608 readily answers, “yes,” but the method is very
specific. On cross-examination (and not through another witness), the plaintiff is permitted to
ask Witness B about specific instances of Witness A‟s conduct that demonstrate his truthfulness.
This is hardly ever useful. On the other hand, the same is true for the defense. On cross-
examination of Witness C, the defense is permitted to ask questions about specific instances
when A lied. Imagine the examination:

               Q (COUNSEL 1):         In your opinion, is Witness A truthful?

               A (WITNESS):           Yes, absolutely. I‟ve known Witness A for
               years, and he never lies, even when it would help him to do it.

               COUNSEL 1:             Nothing further.

               Q on cx (COUNSEL 2):           It is your testimony that Witness A
               is, in your opinion, truthful?

               A:                     Yes.

               Q:                     Did you know that in fifth grade, Witness A
               lied to his teacher about putting a frog in her chair?

               A:                     No.

               Q:                     Does that change your opinion?

               A:                    No. I mean, fifth grade was a long time ago,
               and that doesn‟t seem like much of a lie.

               Q:                      Would it change your opinion if you knew
               that Witness A flunked fifth grade 37 times, and just managed to
               get into sixth grade last week?

               A:                       Umm… well, no. I mean, so it wasn‟t a
               long time ago, it still seems like a small lie.



                                                 22
               Q:                   Would it change your opinion if you knew
               that the frog was a poisonous arrow frog, and it caused Billy
               Hicklemacker to die?

               A:                     Umm….

               Q:                    Would it change your opinion if you knew
               that Witness A lied about putting the frog in the teacher‟s chair and
               instead accused Sally Whifflebottom of doing it, and of doing it
               deliberately, and that as a result of Witness A‟s lie Sally was
               sentenced to death by hanging?

               A:                     Uh. Umm….

        At this point, it doesn‟t much matter how the witness answers. If Witness C claims that
knowing that Witness A lied in order to protect himself, and thereby caused an innocent 10-year-
old girl to be hung by her neck until dead, would not change his view of whether Witness A is a
liar then Witness C looks like an ass. The jury will know how much stock to put in Witness C‟s
credibility determination. If, on the other hand, Witness C says that knowing these new facts
changes his view of Witness A‟s character for truthfulness, then his prior opinion testimony is
completely washed away. This pattern comes up again under the discussion of specific instances
under Rule 405(a).

       Finally, Rule 609 sets out that some evidence of prior criminal acts may be used to
impeach witnesses. In particular, a conviction for a crime involving dishonesty or a false
statement is admissible to demonstrate to attach credibility.

      Back to Character Generally

        Rule 404(b) sets down specific limits, above and beyond the normal character limits, for
evidence of what are called “prior bad acts” (or, in the language of the rule, “other crimes,
wrongs, or acts.” In particular, evidence of prior bad acts is inadmissible if it is offered to prove
character and action in conformity with character. There are exceptions for child sexual abuse
cases and domestic violence cases (two areas of particularly atrocious crimes that are notoriously
difficult to prove except by “pattern evidence” – evidence of a pattern of behavior). Note that
Rule 404(b) is explicit about the purpose for which the evidence is offered – it is inadmissible if
offered to prove character and action in conformity, but prior bad acts evidence is totally
permissible to prove motive, opportunity, knowledge, intent, identity, absence of mistake or
accident, and any other purpose. In other words, except for the exceptions you cannot use
evidence that the plaintiff ran over his own dog a few minutes before the alleged accident just to
show that he is the kind of person who hits things with cars, and therefore probably hit your car
with his car. You can use the evidence to show that the plaintiff was in his car at about the time
your car was struck by his, though. Whether the evidence is admissible will depend almost
entirely on the purpose for which it is offered.

       Rule 405 explains how to prove character, in the circumstances when character evidence
is admissible. In particular, Rule 405(a) provides that the only way to prove character is by
using reputation or opinion evidence. This is critically important. Say you are the prosecuting

                                                 23
attorney in a burglary case, and the accused has put on evidence that he is not a thief – he does
not have a character for stealing – by calling his mother to the stand. You want to call a witness
who knows the accused and has worked with him in the past in a car-heisting operation. You
may call your witness, and ask whether, in his opinion, the accused has a character for stealing.
You may ask your witness if the accused has developed a reputation as a thief. But you may not
ask your witness about specific instances when the accused actually stole.

        On the other hand, Rule 405(a) provides that on cross-examination, specific instances of
conduct are admissible. This will follow the same pattern as for impeaching a witness with
specific instances of untruthful conduct. For instance, in cross-examining the accused‟s mother
you could ask:

               Q:     Ma‟am, you have testified that your son does not have the
               character of a thief.

               A:       That‟s right! My boy is a good boy. He would never steal.

               Q:      Would it change your opinion if you knew that he had
               stolen 41 cars over a 6 year period and sold them to a “chop shop,”
               and that one of the cars was your own powder blue Cadillac
               convertible, and that he used the money from the sale of the
               Cadillac to buy a pair of sneakers?

       It really does not matter how mom answers this one. Either she is unbelievable because
she will never believe her son is a thief no matter what, or else she is believable but her prior
opinion testimony is worthless.

        Rule 405(b) says that you may break from the need to use reputation and opinion
evidence only in a very particular circumstance. When the character of a person is actually an
element of the case, then obviously you can offer evidence on it – otherwise you couldn‟t prove
the case! This comes up only in a very few, atypical situations. For instance, there is a civil tort
called “negligent entrustment” that basically creates liability if the defendant negligently loaned
something to a person he should have known would have caused an injury with it. For instance,
if you give your weed wacker to a four-year-old, or your car keys to a drunk, you can expect
someone to get hurt. When they do, they will sue the four-year-old or the drunk, but they can
sue you, too, for enabling the injury. In order to prove that your “entrustment” was “negligent,”
the plaintiff will have to prove that the person to whom you entrusted your lawn care or car was
someone with a tendency (or character) to misuse such stuff and cause injury. There are a few
other circumstances where 405(b) might come up, but not very many.

      406.     Habit.

        Not all “tendencies” are “character traits.” As I indicated above, a “trait of character” is
the general tendency of the person to choose to act in a particular manner. If the person cannot
choose – if the behavior is so ingrained and routine as to have become compulsive and habitual –
then evidence as to it is admissible. The reason is obvious – if a person cannot help but to
behave in a particular manner, then it is almost certain that they behaved in that manner in the
particular circumstance at issue.

                                                24
        It should be obvious that there is a continuum between preferences and habit, with
character somewhere in between. This leads to a major difficulty, because character evidence is
impermissible to show action in conformity, but habit evidence is totally admissible for the same
purpose. Thus, it becomes important to distinguish between character and habit, a subtle
distinction at best. There are two distinctions between the two: first, character is a general trait
that applies in many situations, whereas habit is a specific behavioral response to a particular
stimulus; and second, character is wholly volitional and reasoned, whereas habit is reflexive and
automatic.

       A better scholar than I put it this way:

               "Character and habit are close akin. Character is a generalized
               description of one's disposition, or of one's disposition in respect to
               a general trait, such as honesty, temperance, or peacefulness.
               'Habit,' in modern usage, both lay and psychological, is more
               specific. It describes one's regular response to a repeated specific
               situation. If we speak of character for care, we think of the person's
               tendency to act prudently in all the varying situations of life, in
               business, family life, in handling automobiles and in walking
               across the street. A habit, on the other hand, is the person's regular
               practice of meeting a particular kind of situation with a specific
               type of conduct, such as the habit of going down a particular
               stairway two stairs at a time, or of giving the hand-signal for a left
               turn, or of alighting from railway cars while they are moving. The
               doing of the habitual acts may become semi-automatic."
McCormick, § 162, p. 340.

    407 – 412.         Evidence Irrelevant Due to Social Policies

        As indicated above, character evidence is excluded at trial because it is considered
irrelevant based on the judicial system‟s long experience with it. But the rules have been drafted
to make some policy judgments, as well. In particular, the rules deem certain classes of evidence
to be irrelevant as a matter of definition, even though they meet the general definition in Rule
401. The specific classes of evidence are subsequent remedial measure, offers of compromise,
payment of medical expenses, plea discussions, liability insurance, and evidence that was
illegally obtained. These classes of evidence are deemed to be irrelevant not because they fail to
advance the ball either North or South, but because the drafters of the rules want to promote or
discourage certain behaviors that have little or nothing to do with trials and courts. Rules 410
and 412 are pretty clear just by reading them, and are not explained below.

      Subsequent Remedial Measures & Liability Insurance

         Rule 407 provides that the efforts to make accidents less likely may not be used as
evidence that the particular accident in a particular case is the result of negligence. For instance,
if a fish tosser is accused of tossing a trout into the air near a crane and, as a result, causing the
trout to fall from a great height and strike someone‟s boat, the fact that the fish tosser decided,



                                                  25
after the incident, to never again toss fish near cranes is not relevant to demonstrate that he was
negligent in doing so in the first place.

         This is clearly a fiction. Of course the evidence is relevant. The fish tosser has realized
something any reasonable person would know, that throwing things up in the air around
vulnerable equipment could lead to an accident. His realization of this fact is probative that any
reasonable person would have known it, and that he was therefore negligent in failing to realize
it earlier. Nonetheless, the evidence is deemed to be irrelevant and therefore inadmissible. The
reason for this fiction is obvious – the drafters want people to solve problems and institute
remedial measures. If the fish tosser thought that he might lose the lawsuit if he moved his
operation, he would be less willing to move it. That might cause him to toss more dangerous
fish, and cause more injuries. The rules provide that nothing bad will happen to the fish tosser if
he institutes remedial measures in order to encourage him to do so.

         Rule 411 provides that evidence about whether someone was or was not insured against
liability is not admissible to demonstrate negligence. Again, this is a narrow rule intended to
encourage people to get insured. It has little other purpose.

      Offers of Compromise

        Rule 408 is similar to Rule 407, but broader – it applies not only in negligence cases, but
in any case at all. As a general rule, settlement negotiations are not admissible to prove liability,
whether liability is premised on negligence or some other theory. This is to encourage parties to
settle. Lawsuits are a huge waste of social and financial resources. Settlement is a much more
positive outcome than litigation, and is to be encouraged wherever reasonably possible.

        Unlike Rule 407, the policy choice is not the only reason animating Rule 408. It also
recognizes a fundamental truth about litigation. In particular, parties are very often willing to
settle even though they are not actually liable, and do not believe themselves to be. A typical
civil case might cost $100,000 or more to actually take through trial, and the outcome is never
certain until after judgment is entered (and sometimes not even then). If the amount being
claimed is only $25,000, the defendant may choose to simply pay off the claim and make the
plaintiff go away, rather than spend the money to go to trial (and risk losing). Plaintiffs think the
same way – even if they are certain that the Defendant actually is liable, they cannot be certain
that they will be able to prove it to the satisfaction of a jury. If they have a $50,000 claim, they
may be willing to take $20,000 to settle the matter and be done with it. In other words, the
motivations of the parties in settlement are never clear, and almost never have anything to do
with actual liability. They are typically economic decisions, not admissions. Thus, aside from
the general principle that settlement should be encouraged, Rule 408 exists because settlement
negotiations are just plain lousy evidence of liability. This second reason explains why Rule 409
is broader than Rule 407.

      Payment of Medical Expenses

       Rule 409 is very much like Rule 408, and premised on the same reasoning. First, the
courts want people to try to solve as much of a problem as they can before walking into the court
room, and paying an injured person‟s medical expenses reduces their damages and therefore


                                                 26
reduces the likelihood that they will sue and the amount in controversy if they do so. Second, an
offer to pay medical expenses just is not very good evidence that a person actually did anything
wrong. People may have all sorts of reasons for wanting to help defray the expense of medical
care, including simple charity as well as the desire to protect a public image. Imagine, for
instance, that a kid broke his arm at Disneyland, because he was running too fast and tripped.
Disney Corporation may have absolutely no liability for the kid‟s injury, but it might,
nonetheless, be willing to pay for his cast. After all, it does not want to gain the reputation as
The Happiest Place On Earth Unless You Fall Down In Which Case You Can Suffer.

        Note, however, how narrow Rule 409 (and secretly, all of the relevance exclusions) really
is. It protects only against evidence of “furnishing or offering or promising to pay medical,
hospital, or similar expenses”. It does not cover factual statements made at the same time. So if
Mickey Mouse accompanies the child to the emergency room, pulls a wad of bills out of his
pocket, and pays the medical expenses that is not admissible to prove liability. If, while doing it,
he says in a shrill little voice, “Ha HA! I‟ll pay the bills!” that statement is inadmissible – it is a
promise to pay. If, however, Mickey says, “Ha HA! I‟ll pay the bills! I‟m so sorry you fell in
my park, little Jimmie! Gee, I sure wish we got that pothole fixed – kids have tripped on it a
thousand times! It‟s all my fault, I suppose! Ha HA!” then the majority of his comments will
get in.

                                                 TIP

       Never let a rodent handle your corporate medical claims.




                                                  27
    601 – 602.        Who May Testify

        As you have already probably gathered, almost all of the evidence that comes in at trial
comes in through witness testimony; either the evidence is the witness testimony, or else a
witness is used to admit the document or thing that is the evidence. Thus, the Rules must explain
who is permitted to testify. As you might imagine, the Rules are very liberal in this regard.
According to Rule 601, a person is competent to testify unless they are so incomprehensible that
their testimony cannot be understood even with a translator, or they are incapable of
understanding their duty to tell the truth. That is it – provided you speak a language that
someone else in the world can translate for the jury and you can state that it is bad to lie, you
qualify.

        Because it is so broad, Rule 601 only comes up when it looks like it might be violated,
which is never. The Rule no longer (it did at one time) puts a lower limit on the age of witnesses
– even small children may testify. The jury is permitted to view their testimony with suspicion
because they may be too young to really understand or explain facts about the world, but they
will be allowed to give it a shot.

        On the other hand, Rule 602 tightens up the pool of witnesses a bit. In particular, fact
witnesses must have personal knowledge of the facts to which they will testify, and this personal
knowledge must be demonstrated. Rule 602, like Rule 403, is much broader than it appears and
is the source of a ton of objections. These come in two varieties: lack of personal knowledge,
and lack of foundation.

        The first kind of objection is made when it appears that the person is testifying to
something they do not actually know anything about – their information came to them second-
hand. An example might be the parent of a school child who is testifying about a school-yard
fight. The parent was not present, and did not personally see anything – he just heard about the
fight from various sources, and saw the after-effects. A better witness would be the child who
actually witnessed the fight. The objection is often used defensively, in cross-examination – the
opposing party asks a question of your witness that calls for the witness to speculate. You do not
want this witness to have to speculate (or to answer speculative questions). You can object that
the question calls for speculation by the witness, which is just another way of saying that the
witness does not personally know the answer.

       The second kind of objection is made when it is not clear whether the person actually
knows or not. Remember, the rule requires not just personal knowledge, but that the personal
knowledge be demonstrated (in the words of the rule, that “evidence is introduced sufficient to
support a finding that the witness has personal knowledge”). Before any question may be asked
of the witness, an adequate foundation must be laid demonstrating that the witness actually has
the personal knowledge necessary in order to answer the question. This is called “laying a
foundation” for the question. If it is not done, the other side may object.

       As a practical matter, there are a few questions that already have a foundation laid (just
by nature of the witness being a person). For instance, you can ask someone‟s name without
laying any foundation. In general, you can ask broad, open-ended questions that make no
assumptions about the person‟s knowledge without laying any foundation. Also, most courts


                                               28
will not be terribly picky about introductory questions, even if they should technically have a
foundation. Thus, most courts will permit you to ask “What do you do for a living?” without
first asking “Do you do anything for a living?”. But such lenience is limited, and the court has
little patience with questions that appear to come from nowhere.

                                      PRACTICE NOTE

        Always lay a foundation, or at least plan one out. Do not be the attorney who tries to take
advantage of the court‟s lenience, because it will come back and bite you. I once saw an attorney
start a direct examination with a question that assumed some evidence (which had not yet come
in). The other attorney lazily rose to his feet and objected to the lack of foundation. The trouble
was, the examining attorney simply had not planned a foundation for the question. He stumbled
for a bit, and then asked the same question phrased a different way. Opposing counsel, sensing
vulnerability, objected again and was sustained. The examining attorney started casting around,
looking desperate. Finally, after struggling to get the evidence that he needed, he just sat down,
defeated. Because he had not adequately planned the foundation for the evidence he needed, he
ended up being unable to get it. Do not be that guy.




                                                29
    801 – 802.         Hearsay

        You have heard of hearsay. It is discussed in an earlier section of this booklet, for
instance. The definition of hearsay is somewhat complicated – it is defined in Rule 801, which
has four distinct parts. The general definition, however, is easy to state (if somewhat difficult to
clearly understand): hearsay consists of prior, out-of-court statements offered for the truth of the
matter asserted therein. That definition is as clear as mud, but before we clarify it another
definition is needed: the person who actually uttered the hearsay is called the “declarant.”

         First, hearsay must be a “statement.” That is, it must actually state a fact. This is actually
a huge limitation (although few attorneys or judges actually recognize it). For instance, a
question is not hearsay, unless the question also makes a statement. (“Are you flunking
chemistry?” is not a statement. “Do your parents know that you are flunking chemistry?”
probably is.) Also, a grunt is not usually a statement. In general, a statement is anything,
whether or not verbal, that can be understood to state a fact. In the words of the rule, a statement
is “an oral or written assertion” or “nonverbal conduct … intended by the person as an
assertion.” So a statement must assert a fact. A fact is something that can be either true or false.
So “I ate the last cookie” is a statement. So is “yes,” if in answer to the question “Did you eat
the last cookie?”. So is nodding, if in answer to the same question.

        In order to be hearsay, a statement must be “prior” and “out-of-court.” Prior will always
be true – obviously, no one will testify to a future statement, and the jury can hear any
contemporaneous statement that a witness can hear. “Out-of-court” does not mean out of court.
It means “not in the present proceeding, and without the trappings of a formal proceeding.” The
distinction is important because depositions, which are not taken in the court room, may be
admissible as non-hearsay in some circumstances.

       The biggie is that hearsay must be “offered for the truth of the matter asserted therein.”
Let me give you an example that will make it clearer why this is an important distinction.
Counsel wants to prove that Witness knew, or at least thought, that he was late for class.
Witness has just finished testifying that the principal stopped him in the hall on the way to class
in order to talk to him. As a matter of fact, the principal stopped him to say, “Where are you
going? You are already late for class!” Is this evidence hearsay?

         The answer is, “no.” Neither sentence is hearsay. The first, a question, is not hearsay
because it is not even a statement. Therefore it cannot be a prior, out-of-court statement offered
for its truth. The second sentence is non-hearsay as well. Although it is a statement, it is not
offered for its truth – it is simply offered to show that the witness had been told that he was late
for class. It does not matter whether he actually was late for class. The statement shows his
awareness even if it is not true.

         Note that nothing in the hearsay definition requires that the declarant be unavailable to
testify, or even that he be different from the person on the stand. Sometimes the declarant and
the witness are the same person. Say Witness responded to the principal by saying, “I am going
to class – I know I am late, but I need to get there anyway.” In that case, the statement “I know I
am late” would be hearsay if offered to prove that Witness knew he was late.



                                                  30
       Exceptions To The Hearsay Definition

        The general definition of hearsay is “a prior, out-of-court statement offered for the truth
of the matter asserted therein.” But the rule explicitly sets out certain kinds of prior, out-of-court
statements that are not hearsay, even if offered for their truth. In Alaska, there are 3 of these
exceptions to the hearsay definition.

        First, 801(d)(1) provides that certain prior statements by a witness who actually took the
stand at trial are not hearsay. In particular, prior inconsistent statements are not hearsay. For
example, Phyllis is interviewed on direct examination by the defendant and testifies that a certain
singing and dancing trout fell from a great height and hit the deck of a boat, but caused no
damage because it bounced right off. The plaintiff, in his rebuttal case, then calls George to the
stand. George is going to testify that Phyllis told him the trout fell from a great height. He will
then testify that Phyllis told him the trout did not bounce, but continued falling through the deck.
Is George‟s testimony hearsay?

         The first sentence is hearsay under the rules we have learned so far. George is going to
testify to a prior consistent statement – Phyllis testified today that the fish fell, and George wants
to testify that she told him a long time ago that the fish fell. Those statements are consistent with
one another. The second sentence, however, is not hearsay because it is a prior, inconsistent
statement. Phyllis testified on the stand that the trout bounced. George will testify that she told
him it did not bounce. Those two statements are inconsistent with one another.

        There is an interplay between this definitional matter and Rule 613. Rule 613 states that
prior inconsistent statements of a witness are admissible to impeach the witness. Rule 801(d)(1),
then, excepts those statements from the definition of hearsay in order to facilitate their use. The
logic of this is obvious: the other side should be able to point out to the jury that the witness‟s
credibility and reliability may be suspect, because the witness changed her story. On the other
hand, the mere fact that someone says a story has changed is not, by itself, very good evidence.
In our example, George may be the lying witness, not Phyllis. Phyllis deserves some opportunity
to redeem herself to the jury.

        Thus, both Rule 613(b) and Rule 801(d)(1) require that Phyllis be given the opportunity
to confront her prior inconsistent statement before George is allowed to testify about it. In
particular, Rule 613(b) requires that before any “extrinsic” evidence (that is, evidence about
Phyllis‟s testimony that comes from a source other than Phyllis (like George, for instance)) can
come in to impeach Phyllis, Phyllis must be asked, on cross-examination, about the prior
statement. This looks like:

               Q:      Your testimony today is that the fish bounced off the deck?

               A:      Yes.

               Q:      Isn‟t it true that you spoke with George on July 17?

               A:      Yes.




                                                 31
               Q:      And isn‟t it true that you told George at that meeting that
               the fish did not bounce, but instead went through the deck?

       Now it does not matter how Phyllis answers, here – she is permitted to explain the prior
statement, or deny that it happened, or whatever she wants to do. But she must be given the
opportunity to confront it.

       There is a subtle but significant difference between 613(b) and 801(d)(1). Rule 613(b)
requires that this confrontation occur before the matter is discussed with George if the reason the
evidence is coming in is to impeach Phyllis. Even if Phyllis will be recalled after George‟s
testimony and given an opportunity to respond, the fact that she will eventually have the
opportunity to respond does not satisfy the requirement that she actually confront the statement
before George is allowed to testify about it.

        Rule 801(d)(1) does not say anything about timing. In fact, it explicitly says that the
prior statement is non-hearsay and admissible so long as the witness may be recalled and asked
to testify about the matter in the future. Because of this interplay, if the prior inconsistent
statement is offered for any reason other than to impeach, it will be admissible without
confrontation provided the witness may be recalled.12 In practice, this subtlety is completely
ignored.

                                       PRACTICE NOTE

        Always give the witness the opportunity to confront their prior inconsistent statement,
unless it is your goal to draw an objection. Even if, technically, the confrontation is not required
under Rule 801, the judge is still likely to require it to happen.

        Rule 801(d)(1) provides that prior consistent statements are also admissible, but only in
select circumstances. Again, this is to prevent bolstering – having the witness testify to how
believable they are when their credibility has not been specifically challenged.

        The particular mechanism is that prior consistent statements are admissible to combat a
charge of “recent fabrication,” or improper motive (that is, a motive other than telling the truth).
Take this apart a bit, and you‟ll see the underlying mechanics – first, Phyllis testifies that the
trout bounced. Then she is cross-examined, and admits she told George on July 17 that the trout
did not bounce. It comes out, in fact, that she consistently told several people that the trout
bounced, including one in one conversation the week before trial. One week before trial, she

12       There is actually quite a bit more subtlety going on here. Technically, prior inconsistent
statements under 613(b) would not be hearsay anyhow, because they would not be offered for
their truth – they would be offered to impeach. In other words, the goal of the evidence is not to
prove that the witness is lying now but was telling the truth back then. The jury can decide for
itself which statement is true, if either of them are. Instead, the point of the questioning is to
demonstrate that the witness must have lied, either while on the stand or at some prior time, and
therefore is not a reliable reporter. For that purpose, it simply does not matter if the prior
statement is true or not.


                                                32
was contacted by the Defendant‟s accountant. A sizeable wire transfer from the Defendant‟s
account to Phyllis‟s was made. At trial she testified that the trout bounced.

        All of this evidence is designed to charge Phyllis with lying in court – changing her story
and fabricating a new one right before trial. It is designed to raise in the jury the suspicion that
Phyllis is testifying that the trout bounced because she was paid to do so, not because it is true.

        If, in response, the Defendant seeks to admit evidence that Phyllis actually told people
that the trout bounced beginning on June 6, and that after the July 17 meeting with George she
called him on July 18 and told him that she thought he was thinking of a different trout and that
this trout bounced, that evidence would not be hearsay. It is evidence of prior consistent
statements offered to rebut a charge of recent fabrication or improper motive.

       Rule 801(d)(2) is another big hole in the general hearsay definition. In particular, certain
statements by an actual party to the case are not hearsay, even though they are prior, out-of-court
statements offered for the truth of the matter asserted therein. In order to fit within the hole, a
statement must be chargeable to the party against whom it is used. Such statements are called
“admissions of a party opponent.”

        A statement is “chargeable” to a party if the statement was actually made by the party or,
if the party is an organization instead of a person, by a representative of the party. For instance,
say the defendant in our falling trout case told someone at a party a week before trial that the
trout fell and hit the boat‟s deck. That statement is chargeable to the defendant, because it was
actually made by the defendant. Say the defendant is Disney Corporation, and the statement was
made by Disney‟s press secretary. Still chargeable – the press secretary is the representative
authorized by Disney to speak on its behalf.

       Very similar to this latter usage, a statement is chargeable if it is made by a person
“authorized by the party to make a statement concerning the subject,” or by the party‟s agent
concerning a matter within the scope of the agency. The first of these would be triggered if the
defendant told Phyllis, “I don‟t want to talk about the stupid trout anymore. You do it – you
answer questions about the trout situation,” and Phyllis then made a statement about the trout.
The second is usually triggered by an employee – Disney‟s press secretary, again. Note that a
statement about Disney‟s corporate earnings statement made by Disney‟s auto mechanic is not
an admission of a party opponent under this section, because talking about corporate earnings
statements is not part of an auto mechanic‟s job description – it is not “within the scope” of his
employment.

        A statement is also chargeable to a party if, after the statement is made, the party agrees
with or assents to the statement. So, at a press conference, someone in the press corps says,
“Disney should have gotten that pothole filled before the kid tripped.” Disney‟s press secretary
agrees, “Yup.” Both statements are admissions of a party opponent if used by the kid against
Disney – the first because the press secretary assented to it (in the language of the rule,
“manifested an adoption or belief in its truth”), the second because it was made by Disney‟s
agent in the scope of his agency.




                                                33
        There are two other holes in the hearsay definition, but they are specialized and you will
not see them much or often. The first is that statements of identification by the witness now on
the stand are not hearsay – if the witness saw the defendant in a line-up, they can testify that they
said, “That‟s the guy!” at the line-up without it being considered hearsay. The second is that
child victims of crimes may give their testimony through a recording instead of in person. The
first hole is probably just a rule of convenience – it is cumbersome to rebuild the atmosphere of a
line-up in the court room. If it were done, though, the witness could just testify “that‟s the guy!”,
and it would certainly not be hearsay. Better to do away with the needless formalism. The
second reflects another social judgment – child crime victims may be intimidated in a full court
room. There are a number of safeguards for this latter hole, including that the recording cannot
have been made in the presence of the prosecutor or the defense attorney.

        The general hearsay rule is simple. Hearsay is inadmissible. If it meets the definition of
hearsay, it stays out. But there are exceptions to the general rule. The reason hearsay is
excluded is because, in general, there are insufficient guarantees of reliability, and no way to test
the credibility of the declarant. In particular, there is no way for the opposing party to cross-
examine the declarant contemporaneously with the statement, so there are no good ways to poke
holes in the statement.




                                                 34
    803 – 804.         Exceptions To The General Hearsay Rule

        Hearsay is generally excluded because, as evidence goes, it is generally very poor. It
does not prove much because it the jury cannot point to anything to indicate the hearsay is
reliable (in lawyer-speak, it lacks “indicia of reliability”). But not all hearsay suffers from this
lack – some hearsay has indicia of reliability (although not the same kind we get from normal
witness testimony). Thus, there are exceptions to the general hearsay rule for hearsay evidence
that has something else to recommend it.

       Rule 803 lists 22 separate kinds of hearsay that are admissible, plus a catchall:

       1)         Present Sense Impression – this is a statement about what a person was
                  sensing, while they were sensing it (or immediately after). For instance, “It‟s
                  red!” is admissible, even though hearsay, to prove that the object referenced
                  was red. The fact is, people seldom lie about what they are seeing, or hearing,
                  or tasting, or whatever, and they are even less likely to do so while they are
                  sensing it. So present sense impressions have pretty good indicia of reliability.

       2)         Excited Utterance – in the same vein, statements made about something
                  exciting while the person is being excited by it are likely to be true. So, for
                  instance, “the car is coming too fast!!” is probably admissible to prove that the
                  car was coming too fast. Excited utterances almost always should have
                  exclamation points after them. This is because statements made after the
                  person recovers and calms down are no longer excited utterances. They are
                  just utterances.

       3)         Then Existing Mental, Physical, or Emotional Condition – this is almost the
                  same animal. If someone says, “Yowch, my arm hurts” they are probably
                  telling the truth. Anyhow, there is no better way to test it. Think about this –
                  these first three exceptions not only carry their own indicia of reliability, but
                  they are also evidence that would be no better if offered on the stand. If the
                  declarant were actually called to testify and they said, on the stand, “my arm
                  hurts” the opposing party would have absolutely no way to test that. “Isn‟t it
                  true that your arm DOESN‟T hurt?! Ah ha!” You pretty much have to take
                  someone at their word about their then-existing conditions, present sense
                  impressions, and excited utterances. So this evidence is just as good when
                  hearsay as it is when not hearsay.

       4)         Statement Made For Purposes of Medical Diagnosis or Treatment – when you
                  go to a doctor and tell the doctor what hurts, you almost never lie. After all,
                  you really, really want the doctor to know the truth because you want the
                  doctor to fix it. Thus, we usually trust statements made for medical diagnosis
                  or treatment. On the other hand, not all statements made to your doctor will
                  count, particularly if you hired the doctor for litigation purposes. Also, as you
                  will learn below, this hearsay exception is of little value because such evidence
                  is usually privileged.



                                                35
5)        Recorded Recollection – this is a very specific exception, and it interplays with
          Rule 612. It works like this – when a witness says they cannot remember
          something, Rule 612 says that you may use a writing (or something else) to
          help them remember by refreshing their recollection. If that doesn‟t work, and
          the witness absolutely cannot remember, then you can use a prior recording (or
          writing, or whatever) of the witness stating the evidence, even though it is
          hearsay. Looks like this:

     Q (COUNSEL 1):            Phyllis, what song was the trout singing?

     A:       Oh it was… umm… I don‟t remember.

     Q:       You made a statement to the police after the incident?

     A:       Yes.

     Q:     Would seeing that statement help refresh your memory as
     to what song the trout was singing?

     A:       It might, yes.

     << Phyllis looks at the statement >>

     Q:     Okay, Phyllis, now do you remember what song the trout
     was singing?

     A:   I can‟t read the policeman‟s handwriting. No, I still don‟t
     remember.

     Q:       The report is typed, Phyllis.

     A:       I can‟t read.

     Q:     Your honor, in light of the fact that the witness cannot
     remember, I move the admission of her statement to the police to
     prove that the trout was singing “All of Me”.

     COUNSEL 2: Your honor, I object. That statement is hearsay – it
     is a prior, out-of-court statement offered for its truth.

     JUDGE:           Counsel, do you have a response?

     COUNSEL 1: Yes, your honor. Counsel is correct that the
     statement is hearsay. Rule 803(5) applies, however – the statement
     is a recorded recollection of the witness.

     JUDGE:         So it is. The objection is overruled and the
     statement shall be admitted.



                                         36
         Incidentally, that is also how you object to hearsay, and how you respond to a hearsay
objection. But the point of the example is to demonstrate the interplay between Rules 612 and
803(5) – first, you try to refresh the witness‟s recollection. If that fails, then you may move to
admit a hearsay recorded recollection. Recorded recollections are not admissible unless the
witness cannot be made to remember. There are other technical limits as well, the most
significant of which is that the hearsay statement generally must be read into the record (unless
offered in cross-examination) instead of the actual document being made an exhibit, for the jury
to read at its leisure.13 The reason for that particular conceit is so that the recorded recollection
will not be better evidence than the witness‟s testimony would have been – the jury can take
exhibits with them into the jury room while they are deliberating, but they can‟t take witness
testimony. If you could get in recorded recollections as exhibits, then clever lawyers would tell
all of their witnesses to record their testimony and then “not remember” it. This would have the
happy side-effect of making cross-examination virtually useless, as well.

          6)       Business Records – records normally kept in the ordinary course of business
                   are admissible despite the fact that they are hearsay. For instance, in my office
                   a log is kept that states when each fax arrives in the office. If you send a fax,
                   when it reaches my office the clerk will make a notation in the fax log with the
                   time and the “from” and “to” information. If my firm ever had to, it could
                   probably get the fax log in under the business-record exception to the hearsay
                   rule. The idea is that if you write down that information every time, and every
                   time it is accurate, then that fact alone provides some indicia of reliability as to
                   the information found in the record.

          7)       Absence of Record – similarly, the absence of a record that is normally kept is
                   itself evidence. For instance, if there was no line in my firm‟s fax log showing
                   an incoming fax on the day and at the time that you claim to have sent me a
                   fax, you are probably lying.

          8)       Exceptions 8 – 15 in the rule are similar to business records. They are
                   considered reliable because they are typically kept, and are typically reliable.
                   In some cases, they are required to be kept and are carefully monitored for
                   reliability. Besides, they come, for the most part, from trusted sources that
                   have no reason to favor one side or the other of any particular controversy.

          9)       Exception 16 is interesting, because it actually makes very little sense. That
                   exception says that a statement is not hearsay if it appears in an authentic
                   document that is more than 20-years-old. Such an “ancient” document, the
                   drafters believed, would be reliable because it likely came to exist prior to the
                   controversy that gave rise to the current litigation. The trouble is, first, that this
                   may no longer be true – although it was almost unheard-of, even to the middle
                   of the 20th century, for litigation to last more than a decade, it is now not so
                   terribly unusual. Second, and more significantly, even if the assumption were

13        Believe it or not, parties will often hire actors to read recorded recollections into the
record.


                                                   37
                  true it would seem odd to trust an old document more than a modern one,
                  particularly if the author of the old document is no longer available to testify,
                  or does not remember the impetus for writing what they wrote (the reasons that
                  one would think to resort to their 20-year-old writings rather than their in-court
                  testimony).

       10)        Note, too, that reputation evidence (for instance, reputation as to character,
                  which is one of two ways to get character evidence in the door), while
                  technically hearsay, fits within one of the exceptions (19 – 21). The same is
                  true of learned treatises and other such records. Basically, these are included as
                  hearsay exceptions in order to facilitate expert and other kinds of testimony
                  (discussed above and below).

       11)        Exception 22, when it refers to “judgments” means a technical judgment from a
                  court of competent jurisdiction, not a person‟s informal and individual opinion.

       12)        Exception 23 is probably the most interesting after the first seven or so. It is a
                  catchall exception – in essence, the judge is permitted to allow in any hearsay
                  he likes, provided it goes to prove a material fact (and not merely any old fact-
                  at-issue), it is the best evidence of that fact (more probative than any other
                  reasonably available evidence,) and justice so demands. “Justice so demands”
                  is shorthand for “the court decides it would like to hear the evidence.”

       You should learn these exceptions generally, and the first seven you should learn well
enough to recite. Almost all hearsay that is admissible is admissible under one of these seven
exceptions.

        The 803 exceptions apply to any hearsay statement. For instance, if the statement was, at
the time it was made, a then-present sense impression then it is admissible for its truth under
803(1), even if the declarant is sitting in the courtroom, capable of testifying. The drafters
apparently felt that this evidence either had to come in in order that other admissible testimony
(expert testimony, character evidence, etc.) could, or else bore sufficient indicia of reliability that
the inability to cross-examine the declarant did not diminish its usefulness too much to
undermine the goals of finding truth, and the fair and efficient administration of justice.

       It should be understood that this was a choice, however, and that a different choice could
have been made. The 803 exceptions could conceivably have been much narrower, or much
broader. They were set to be relatively narrow, so that unless the hearsay evidence is nearly as
good as hearing it “first-hand” from the declarant, the litigants will choose to produce the
declarant instead of his hearsay prior statement.

        The rules must change if the litigants have no choice in the matter – if the declarant is
unavailable and cannot be made to testify. For instance, if the declarant is dead the plaintiff
cannot choose to produce him instead of his out-of-court statements. The statements are all that
is left! Thus, the rules provide for a limited set of exceptions that serve to broaden the 803
exceptions in the event that the declarant is unavailable.




                                                  38
       First, Rule 804 defines “unavailable,” and the definition is quite narrow. To be
unavailable, the declarant must be completely out of the court‟s and parties‟ control – either
dead, mentally or physically infirm, unable to remember even after prompting, refuses to testify
despite a court order, or is privileged by the law to not have to testify. Moreover, if it can be
shown that the party offering the hearsay evidence is responsible for the unavailability of the
witness, then the witness will not be considered unavailable and the Rule will not apply.

        Assuming the Rule applies to the hearsay statement, it will be admitted if it fits within
either of four special categories (or a catchall fifth category, very like 803(a)(23)). The first
three categories are:

       1)             Former testimony – if the declarant gave sworn testimony, either earlier in
                      the present proceeding or in a different proceeding, that testimony is
                      considered to be nearly as good as current testimony would be, even
                      though the cross-examination was by a different party. The judgment here
                      appears to be that people do not generally lie in formal proceedings, and if
                      they do the crucible of cross-examination may find it even if the cross-
                      examiner has different goals than the present litigant.

       2)             Statement Under Belief of Impending Death – people do not make false
                      deathbed confessions. Thus, there is at least some trustworthiness
                      attached to statements that the declarant made believing (even if he was
                      wrong) that he was on his death bed. However the subject of the
                      statement is limited to what the declarant believed was causing his
                      impending death. “I‟m dying! He shot me!” would be admissible (the
                      first as an excited utterance, the second under belief of impending death,)
                      but “I‟m dying! It‟s so cold… so very cold…” would not (actually,
                      although not under this exception, it would – why?).

       3)             Statement Against Interest – people do not typically lie in order to hurt
                      themselves. Thus, if a statement was, at the time it was made, detrimental
                      to the declarant‟s interests it will be admissible. The standard is actually
                      laid out clearly in the rule – a statement fits into the exception if it is so
                      likely to cause a problem for the declarant, and it is such a major problem,
                      that no reasonable person would make the statement unless it were true.
                      “I‟m going to kill you!” probably is not admissible as a statement against
                      interest when it is a 14-year-old sister to her 10-year-old brother. Even
                      though it might subject her to serious criminal liability, a reasonable 14-
                      year-old would still make it if her brother hung up the phone while she
                      was talking to a super-cute-OMG!-boy-who-SO-has-his-license. There is
                      a huge problem with this rule, of course. It not only assumes, but
                      demands that the declarant must have been reasonable at the time the
                      statement was made. The declarant‟s reasonability is the only guarantee
                      of truth. If the declarant happened to be stark raving mad, the statement
                      may well be completely false. See if you can think of some situations in
                      which this might go catastrophically wrong.



                                                39
         The fourth category isn‟t terribly important – statements about family history are usually
admissible. The big hole is the catchall at the end, which duplicates the catchall under 803. (As
a personal aside, I have never understood the 804(b)(5) catchall. If a piece of hearsay meets the
criteria for the 804(b)(5) catchall, then it automatically meets the criteria under 803(a)(23). In
my opinion, having both just muddies the waters. Perhaps that was the intention.)




                                                40
    805.       Hearsay Within Hearsay

       Have you ever played the game “Telephone”? This is where one person, call them
person A, tells another, B, some piece of information. Then B tells C and C tells D and so on.
After the message has passed through several hands, it comes back around and is told to A.
Invariably, A is shocked because the message that is delivered back to her is totally different
from the one she told B.

        The same can be true in court, of course, which is the central problem with hearsay.
When you are dealing with hearsay, you have person A, the declarant, who has said something to
person B, the witness, who is now telling it to the jury. There are two opportunities for
distortion, here, neither of which can be easily tested. First, the declarant could have distorted
the statement when telling it to the witness – for instance, by lying outright – and cannot be
cross-examined to discover this issue. Second, the witness could have distorted the statement
when reporting it to the jury – for instance, by lying outright about what was said – and no one
but the declarant may be able to set things right. When the declarant is unavailable, this is a
huge problem.

       To cure these sorts of problems, we rely on the alternative indicia of reliability, both
external and internal, that are outlined in the exceptions to the hearsay rule. This mostly works,
because the indicia are mostly pretty good.

        The rules had to contemplate Telephone, however – a situation in which the declarant is
not giving a first-hand account, but is recounting something he has heard from still an earlier
declarant (who may have heard it from an earlier, and an earlier, and so on). In such situations,
the rules need to guarantee that the information was reliable when transmitted from the very
earliest declarant, and that it stayed reliable through all of the further transmissions. To do this,
the court requires that every level of hearsay separately have an exception to the general rule.
An example will help.

        Say you have a police report of an incident involving a trout, a tophat, and a crane. A
police report is kept in the normal course of an officer‟s business. It fits within the business
records exception to the hearsay rule, 803(6). So far so good, but what if the police report also
contains the statement of a witness to the accident, a pedestrian who was on the dock at the time
of the incident? Is the police report still admissible?

       The answer will depend on the statement of the witness. If it fits into an exception – for
instance, say the statement was, “That trout, my brother, was killed in the fall” and the eye-
witness is not available to testify. Then the statement might fit into 804(b)(4), and therefore be
separately admissible. If so, then the police report, including the witness statement, is
admissible.

       If parts of the police report are admissible and other parts have unexcused hearsay, then
the portions of the report that are inadmissible will probably just be deleted – usually just
blacked out with a permanent marker – and the remainder of the report entered into evidence.
The key point is that hearsay within hearsay is admissible just so long as every level of hearsay
would be admissible if it were standing on its own.


                                                 41
     806.      Cross-Examining the Declarant

        The great problem with hearsay is that there is no way to cross-examine the declarant.
But that does not mean that the evidence is immune from any sort of verification. Rule 806
provides that any evidence that would be admissible to attack the credibility of the declarant if
the declarant were the witness may come in. Once again, this is a door-opening issue – once the
credibility of the declarant is attacked with evidence, any evidence that would be admissible to
support the declarant‟s credibility if the declarant were a witness is also admissible.

        This gives the opposing party some means of testing the quality of the evidence arrayed
against them even though the declarant cannot be cross-examined. Specifically, when put
together with Rule 801 and 404(a)(3) (and by reference, Rules 607-09), Rule 806 permits the
opposing party to bring in evidence of prior inconsistent statements of the declarant, and of the
character of the declarant for untruthfulness. Once these things are attacked, Rule 806 permits
the party defending the declarant‟s testimony to develop evidence in response.

        In practice, this rule is not invoked as often as you might imagine. The fact is, hearsay
evidence doesn‟t sit any better with juries than it sits with legal scholars – they are (rightly)
suspicious of the quality of hearsay evidence. For this reason, the evidence is rarely used for
points central to a case. When it is used, it is doubtful as soon as it pours from the witness‟s
mouth. There is, thus, rarely any good strategic value to starting down the path of developing the
side-issue of the declarant‟s credibility (and opening the door to potentially strong evidence that
the declarant was a stand-up guy, entirely credible). The rule is unlikely to get invoked unless
the hearsay goes to a material issue in the case.

       Despite the fact that hearsay is a huge issue in many trials, that is all there is to say about
the matter – it comes down to six simple rules.14




14      That is not all there is to say about the matter, and six rules do not even scratch the
surface of the issues. The statement in the text is what is known, in the legal industry, as a “lie.”
The biggest remaining issue that we will largely ignore deals with a case called Crawford v.
Washington, which dealt with the interplay between the hearsay rules and the United States
Constitutional right of a criminal defendant to confront the witnesses against him or her. Suffice
to say that the hearsay rules do not provide enough protection to guarantee a criminal
defendant‟s rights in at least some cases.


                                                 42
    501 – 511.         Privilege

         As a rule (literally – Rule 501), no one has any right to avoid being a witness, and
testifying if they are called to do so. This is highly offensive. It means that you have no inherent
right to protect your privacy, or to just mind your own business. Say, for instance, you were
driving through an intersection and the car ahead of you got side-swiped by a truck. If you get
called-upon to testify in court, you may not refuse to do so. You must go to court. You must
testify. If you don‟t, you may be held in contempt of court and jailed or fined or both.

        Certain kinds of information, however, are protected. People have the privilege of
deciding to keep such information out of court. The reason for privileges is to encourage a
certain kind of behavior, even at the acknowledged cost to the effort to find truth. Be aware of
this, because it informs the scope of the privileges – every single privilege acts in direct
derogation of the goals of the rules of evidence. Privileges do not assist in the finding of truth,
they do not contribute to efficiency, and they are rarely fair. Nonetheless, they represent a social
judgment-call that certain behaviors are more valuable than truth, efficiency, and fairness.

        Privilege is a choice. Every evidentiary privilege under the rules can be waived – the
holder of the privilege may choose to give it up, and allow the evidence to come in. Thus, there
are certain key concepts that must be understood in order to understand any privilege. First, you
must know who the holder of the privilege is – this it he person whose rights are being protected,
and who has a right to waive the privilege. Second, you must know the scope of the privilege.
That is, you must know exactly what kinds of information it covers. Third, you must know who
is bound by the privilege. Most evidentiary privileges arise out of certain kinds of protected
communications. One party to the communication is typically the privilege holder. The other
party is bound by the privilege not to reveal its contents. Fourth, you must know the exceptions
to the privilege. Fifth, and finally, you must know how the privilege is waived. That is, what
must the privilege-holder do in order to waive the privilege, and allow the information to be
admitted. Typically very little must be done. If it is helpful to you, the first letters of each of
these five elements spell “wewsh” backwards. To me, that is not the least bit helpful.

        As to waiver, the rules generally provide in Rule 510 that if the holder of a privilege leaks
the privileged information, then all privilege is lost over the information leaked. For obvious
reasons, Rule 511 says that these consequences do not follow if the holder is forced to leak the
privileged information. But the general rule is that if the privilege holder does not value the
secrecy of the information enough to keep it confidential, then the court will not do so either.

      Attorney/Client Privilege

       Holder:                 Client.

       Scope:                When a person makes contact with an attorney in an effort to
secure or further legal representation, that person is privileged to keep the content of any
confidential communications with the attorney in furtherance of the legal representation from
being aired.

      Who is Bound:           The attorney, her staff, her representatives, etc. Almost anyone
who was directly involved in the furtherance of the legal representation.

                                                 43
        Exceptions:           There are five. First, the crime/fraud exception holds that no
privilege exists over communications that were themselves in furtherance of a criminal or
fraudulent endeavor. That is, if your lawyer is giving you advice on how to commit a future
crime, the content of that conversation is not privileged. Second, the joint clients exception
holds that no privilege exists when more than one client retains an attorney for a common
enterprise, and then the joint clients get in a dispute with one another. There are three more
exceptions that are each more obscure than the joint clients exception.

      Physician or Psychotherapist/Patient Privilege

       Holder:                 Patient.

        Scope:                  When a person makes contact with a physician or psychotherapist
in an effort to secure or further medical treatment, that person is privileged to keep the content of
any confidential communications with the physician or psychotherapist in furtherance of the
treatment from being aired.

       Who is Bound:           The physician or psychotherapist, his staff, etc.

        Exceptions:             There are seven. First, the crime/fraud exception holds here just
like in the attorney/client context. Many of the remaining exceptions deal with situations in
which the information is not just interesting or relevant, but absolutely necessary in order to
decide a dispute (like the joint clients situation in the attorney/client privilege context).

      Clergymen/Spiritual Advisee Privilege

        The name of this privilege represents political correctness run hilariously amok. It used
to be called the “priest/penitent privilege.” In an effort to be inclusive and expand it beyond
Catholicism, it became known as the “Clergymen Communications Privilege.” The joy of this,
of course, is that now it is sexist. Can‟t there be clergy women? As the number of religions
abounds and the types of “spiritual advisors” multiply, this privilege is becoming increasingly
frustrating and therefore vulnerable. For now it continues to be on the books, albeit with a sexist
name.

       Holder:                 Penitent.

        Scope:                 The privilege covers any communication to a religious person in
that person‟s capacity as “spiritual advisor.” Thus, comments about Barry Bonds‟s current home
run streak to His Holiness over hot dogs at the Papal baseball game do not cut the mustard (so to
speak,) but a soul-searching conversation with a Crystal Energy Life Coach about how jealous
one is of the Giants and what one should hum while chewing quartz in order to be free of such
negative emotions certainly is.

       Who is Bound:           The Crystal Energy Life Coach.

       Exceptions:             There are none. Perhaps there should be some.




                                                 44
      Spousal Privileges

        There are two spousal privileges, the so-called “Husband-Wife Privileges” (but I presume
that they would also protect gay couples in Massachusetts and Iowa, assuming they have a
similar privilege rule in those states). The first is designed to protect marriage itself – it holds
that a spouse may not be forced to testify against her spouse (except for the exceptions). It is
usually called “spousal immunity,” or the “spousal testimonial privilege.” Because the privilege
is designed to protect the marriage, it holds only for so long as the marriage exists – if the couple
divorces, the privilege is eliminated as the divorce decree is entered. This used to be used by
mobsters: their best girl, often an employee, might overhear something truly devastating. Just
before she was called to testify by the prosecutor, the mobster would marry her. She would then
refuse to testify against her husband, and the dismayed prosecutor would be forced to drop the
charges.

        Note that the holder of this privilege is not, as you might expect, the mobster. Instead,
the holder of this privilege is the testifying spouse. This makes some sense, given the goal of the
rule – if the mobster‟s wife wants to testify against him, their marriage has already pretty well
tanked. At that point, there is no need for a judicial system to protect the marriage any more.

       There are numerous exceptions to the spousal testimonial privilege, almost all of which
are obvious and make sense given the goal of the privilege itself.

       The second privilege, called the “Spousal Communications,” “Confidential Marital
Communications,” or “Pillow Talk” privilege, is similar to the attorney/client and Energy
Coach/Seeker privileges. It protects one spouse from disclosures by the other spouse of their
confidential marital communications. This is true even after the marriage has ended.

      The Purpose of Communications Privileges Generally

        It is important to understand the purposes of the communications privileges, because
judges will sometimes rule on privilege questions based on the purpose rather than the language
of the rules, and because it will help you understand the privileges more deeply. The idea behind
a communications privilege is to encourage healthy communication in areas that society values.
So, for instance, in the United States we value the relationship between attorney and client. We
think it is very important that people be able to consult with their attorney and obtain good
advice without any fear that their communications will later be used against them in court. Thus,
provided they take reasonable effort to protect those communications, society will also protect
them by conferring on them a privilege not to have the communications disclosed.

        The idea behind healthy attorney/client communications is that people will be encouraged
to get good advice. The thought is that this will lead to a better, happier society. More people
will understand their rights and obligations, and therefore more people will actually follow the
laws. That is seen as a good thing. Critical to its functioning, of course, is that people be honest
and forthright when they talk to their lawyers – something that is most easily guaranteed if
people think that their honesty will not be used against them.

       Similarly, society values the relationships between people seeking medical advice and
people giving it. We want people to be healthy, because that leads to a better, more ordered

                                                 45
society. If people thought they had to lie to their doctors and psychotherapists, they wouldn‟t be
able to get the treatment they might need. Society also believes that souls need as much care as
bodies and minds. And society believes that marriages will be healthiest, and contribute most to
a healthy society, when they are based on honest communications.

      Other Privileges

        Finally, a couple of other kinds of information are protected by privilege. Political votes
by secret ballot may be kept secret (you never have to admit that Clinton was your fault). Also,
of particular importance in commercial disputes, trade secrets are privileged. I will neither
define or explain this important, but incredibly complex area of law in this short booklet.

       There is one final privilege under the Alaska rules – the government may refuse to
disclose the identity of an informer who assisted in the investigation of a criminal case. This,
again, relates to the mob. When influential mobsters were “ratted out” by an informer, the
informer very often got dead. Many people came to relate the two events, and refused to inform
on mobsters for fear that it would cost them their lives. This rule was created, so that the
government could claim that it would keep the informer safe, and encourage more people to
come forward.15




15      I haven‟t checked, but I suspect this privilege was, at least in the case of highly
organized crime, totally worthless. Informers probably still got killed, because the mob probably
had connections deep in the government investigatory agencies who had little respect for the
privilege. But it was a cute thought, anyhow.


                                                46
    701 – 705.        Opinion Testimony

        It is the jury‟s job to come to an opinion as to what the evidence shows. The jury may
not be able to do that, however, particularly if the evidence is so highly technical or specialized
that a particular kind of training or background is helpful to understanding it. In such cases, an
expert may be called upon to offer their opinion, in order to assist the jury.

        The rest of the time, opinion testimony is pretty limited. A non-expert, or “lay,” witness
is allowed to offer his or her opinions, but only innocuous ones. In particular, such opinions
must be based on the facts of which they actually, personally have knowledge; it must be the
kind of opinion that any reasonable person could reach based on those facts; and it must actually
be helpful to the jury in understanding the fact evidence.

       For instance, a lay witness could testify like this:

               Q:     Did you notice anything about the trout?

               A:     Yes. He had a top hat and a cane, and was making a noise.

               Q:     Describe the noise.

               A:       Well, it varied in pitch and timbre quite a bit. It rose and
               fell in volume. It raised in me an impression of meaning.

               Q:     What meaning did it raise?

               A:      It had both an emotional and a rational component. The
               rational component was of concepts that I attach to the words
               “smooth,” “ocean,” and “moon.”

               Q:     Have you heard the noise before or since?

               A:     I have.

               Q:     When have you heard the noise before or since?

               A:   Whenever I hear the song “Smooth” by Santana with Rob
               Thomas.

But everyone in the courtroom will be much happier if the witness just testifies:

               Q:     Did you notice anything about the trout?

               A:      Yes. He had a top hat and a cane, and was singing. He
               sounded just like Rob Thomas singing “Smooth” with Santana, and
               I think that was the song he was singing.

     Technically, this testimony expresses two opinions – first, that the trout sounds “like Rob
Thomas singing „Smooth‟ with Santana,” and second that “Smooth” was, in fact, the song the


                                                 47
trout was singing. Nonetheless, any reasonable person would form the same opinions based on
the facts that the witness personally knew, and it is helpful to the jury to hear these two opinions.
They will be admissible (even though the witness is not an expert in trout, singing, or Latino
guitar slingers).

        Other than these innocuous forms of opinion, not much is admissible from lay witnesses.
The really valuable opinions come from expert witnesses. Under Rule 702, if opinions based on
specialized knowledge will be helpful to the jury, then a person who is qualified (by showing
that they have such helpful specialized knowledge) will be permitted to testify as to those
opinions. This is huge. Say it is critical to understanding that the trout probably did not cause
the crane-shaped hole in the deck that you understand physics and material science. The
defendant will be permitted to hire a physicist and an engineer to inspect the hole, the trout, and
whatever else is necessary in order to come to an opinion as to whether the trout could have
caused such a hole. Then, best part, the defendant will be allowed to ask the engineer and the
physicist to offer their opinion on the stand.

         In fact, it‟s even better than that: Rule 703 says that experts may base their opinions on
any evidence at all that they receive, including inadmissible evidence. Rule 705 says that, at
least sometimes, the basis of the expert‟s opinion will be admitted, even if it is otherwise
inadmissible. For instance, an expert may base their opinion on hearsay evidence, and then
testify that they did so. The jury will hear the inadmissible hearsay, not for its truth but in order
to understand how the expert came to have the opinion that they have.

        Expert testimony is becoming increasingly important in the modern courtroom.
Typically, if one side produces some the other side feels compelled to produce some as well.
Thus, many modern trials feel like a battle between the two sets of experts, and the jury gets lost
in the middle. Worse, some attorneys (with questionable ethics) use their expert witnesses as a
tool for getting in through the backdoor the evidence that is otherwise inadmissible. Despite
these ugly trends, expert testimony continues to be an incredibly useful tool for helping juries
understand complex or technical topics.




                                                 48
     901, 902, 1002 – 1004. Documents and Writings

        Almost all of the evidence that comes in at trial will come in through testimony. Either it
will be testimony, or else it will be documents, writings, or things that are introduced during
testimony.16 You have already learned all of the rules that bear on taking testimony. 17 It turns
out that the court will generally let admissible documents speak for themselves – the jury is just
as able as counsel or a witness to interpret the document (unless it requires an expert‟s
interpretation, in which case the normal expert rules will apply).

         Rule 901 says that, before a document may become admissible, it must be authenticated
(or at least identified). This sounds simpler than it is in many situations. In order to authenticate
evidence, the proponent of that evidence must offer testimony or other evidence sufficient to
show that the evidence offered is what it purports to be. Clear as mud, so here‟s an example:

        Say plaintiff wants to get a dead trout into evidence. In particular, he wants to submit the
dead trout that fell on the boat deck. So he brings in a dead trout and asks the court if he can
hand it to the jury. The defendant will object, and rightly so: there has been no showing that this
dead trout is the dead trout. Plaintiff must authenticate or identify that this dead trout is the one
we care about.

       How can plaintiff prove this? Well, after the trout got dead, someone must have picked it
up (dead trout don‟t just walk to the courtroom, after all). If this is the dead trout that whomever
picked up, then it is almost certainly the dead trout. So plaintiff may try to get the testimony of
whomever picked up the dead trout, to demonstrate that this dead trout was the dead trout that
person picked up from the docks.

       In more general terms, one great way of authenticating evidence is to show a “chain of
custody” – show exactly who possessed the evidence, and offer some reliable evidence that the
evidence being presented to the jury is the same evidence that that person received. Obviously,
some chains of custody can stretch out, or be pretty complex. For instance, the police very often
authenticate evidence in criminal trials using a chain of custody that requires them to
demonstrate that the evidence not only passed through certain hands, but that it was absolutely
secured and free from taints while in police custody.18

        Showing a chain of custody is not the only way to demonstrate the authenticity or
identify of something, though. In particular, a document may be authenticated based on some
distinguishing marks on the evidence itself. That is, certain documents are “self-authenticating”
based on the contents of the document.


16      In fact, the only ways to prove facts in court is to use testimony, documents and writings,
things (physical evidence) or for the court to take judicial notice of the fact (discussed below).
17      You have learned a few of the rules.
18     Actually, this is an independent requirement of the rules in criminal trials. See Ak. R.
Ev. 901(a).


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        Rule 902 provides a list of documents that the rules regard as self-authenticating, but as a
matter of fact that list is probably incomplete. It includes certain kinds of public documents,
official publications, newspapers, and certified records of regular business activity. It also
includes documents that are deliberately made self-authenticating – in particular, documents that
carry with them a separate acknowledgement of their authenticity. This is a trick commonly
used with contracts, including especially commercial leases and secured transactions, and
especially with wills and other testamentary statements – together with the contract or will
forming the actual agreement or testament, there will be a separate signed acknowledgement that
provides that the contract or will is authentic.

        In fact, there are other kinds of self-authenticating evidence, although they are not usually
thought of as self-authenticating (because they require witness testimony). In particular,
anything that is unique or very difficult to duplicate is naturally self-authenticating. If there is
only one orange-breasted blue jay in the world, and there is an orange-breasted blue jay being
offered into evidence, then in all likelihood this orange-breasted blue jay is the one and only
orange-breasted blue jay. In fact, even if there are more than one of something, if the one you
are interested in has been marked in some special and unique way, then that mark may be used to
identify the evidence.

        Very commonly, this technique is used in conjunction with showing a chain of custody,
particularly by police in criminal cases. As soon as the evidence comes in to the evidence room,
it is uniquely marked in some fashion. When it is used at trial, the police can use this unique
mark to give an additional guarantee as to the identify of the evidence, and its authenticity.

         There is one final note on written evidence. As a very general rule, the court requires that
the best version of written evidence be used (except that there are so many holes in this rule that
it is no longer worth very much). This is called the “best evidence rule,” and is something of an
artifact. Rule 1002 says that the original writing should be used to prove the contents of the
writing. So, for instance, a witness‟s testimony about what the original document said will not
generally be admissible.19 Instead, you are supposed to get the original document.

       Rule 1003 says, “just kidding! A copy of the original will do just fine unless admitting a
duplicate would be unfair or a question is raised as to whether even the original was authentic.”
Rule 1004 says, “hahahah! Just kidding. If you don‟t have the original, or even a duplicate, you
can get in other evidence of the contents if you want. Also, even if you have the original, if the
writing was being used to prove some immaterial point20 you can get in other evidence of the
contents.” Finally, Rule 1006 says that you may offer a summary of original writings, instead of
the writings themselves, in certain circumstances (in particular, if the originals would be too
voluminous or complex to examine in court, and the originals are available to both parties). As




19      Why wouldn‟t this necessarily be inadmissible as hearsay, anyway?
20      Why might Rule 402 not keep such evidence out?


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you can see, the best evidence rule is an absolute and strict guideline that must be observed with
constant vigilance.21




21      Lies like that one are not regarded as lies – instead, they are known as “sarcasm,” which
is French for “lie.”


                                               51
     201 – 203.        Judicial Notice

        “Judicial Notice” refers to the court taking something that has not been proved as having
been proved. It exists to simplify judicial undertakings by keeping the parties from having to
engage in stupid and wasteful exercises. There are two kinds of things that the court can notice –
facts, and law. The court is permitted (and in some situations must) take notice of facts that are
generally known or easily found in an accurate source, and not subject to reasonable dispute. For
instance, facts about the geography of the state are not subject to reasonable dispute. Some of
them are generally known (Fairbanks is north of Sitka). The rest can be readily ascertained by
looking at a map (Fairbanks Street is west of Stika Street).

        Similarly, the court is expected to know the law. For this reason, the court can take the
law as being what it is – it may take judicial notice of the law without requiring the parties to
actually take testimony on what the law is.22




22       This would happen even without a rule. The courts would be a stupid and unwieldy
place if we had to get a lawyer to testify as to what the law is. It would also be a pain for juries –
they are supposed to take their legal instruction from the judge, not from the witnesses, so the
court would have to kick the jury out to take the “evidence” on what the law is. The rule just
makes it all formal and pretty-like.


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     301 – 302.        Burden of Proof

               The 300-series of evidence rules claims to concern itself with “presumptions.”
As a matter of fact, it does not – “presumption” is a technical, legal term of art that refers
to proving one thing by something else. That is, if the party proves one thing, another
thing is regarded as true. Presumptions may be rebuttable or not – that is, it may be the
case that by a showing of evidence, the party against whom a fact is presumed may prove
that the fact shown is not actually true.

               The 300-series of evidence rules have absolutely nothing to do with
presumptions in this sense. Instead, the deal with the classical, archaic meaning of
“presumption” that we invoke when we claim that people are “presumed innocent.” That
is, they deal with who must prove what in order to win at trial.

               The burden of proof actually has several elements, but for our purposes it is
enough to look at two: the burden of production, and the burden of persuasion. The
burden of production is the burden to make a bare minimum showing. As a matter of law,
the burden of production is on a plaintiff in a civil trial, and on the government in a
criminal trial. Before the case will even be allowed to move forward to the point of
reaching the substantive merits, the plaintiff or government must produce some bare
minimum quantum of evidence. It does not take much, particularly in a civil case – all that
is necessary is that the plaintiff allege facts that are consistent with a lawsuit. The only
evidence necessary is the plaintiff’s own allegations. They do not even have to be “verified”
or sworn in Alaska’s courts.23 In a criminal case, the prosecution must provide enough
evidence that a grand jury is persuaded that probable cause exists to bring a charge of
indictment.

               One critical fact about the burden of production is that it is separate from,
and prior to, any obligation by the other party. So the defendant does not have any
opportunity to dispute (or, in a grand jury investigation, even be present at the proceeding)
anything the plaintiff or prosecution alleges. The time will come for the defendant to
defend, but it is not at this stage – the plaintiff or prosecution gets to produce the minimum
quantum of evidence, and the objective trier of fact evaluates it.

               The deeper issue is the burden of persuasion. This is the burden to produce
sufficient, and sufficiently compelling, evidence to persuade the trier of fact that one’s view
is correct. On most issues in a civil case, that quantum is the “preponderance of the

23       They are not completely without guarantee, though. Every pleading, including the
Complaint, in which the plaintiff makes her allegations, must be signed. The signature is a
verification that the factual allegations in the pleading are made in good faith, and that there is a
factual basis for them. If it is proved that there is no good faith factual basis, the party may be
sanctioned, including by tossing the suit out and making the offending party pay a fine, to the
court or the innocent party, and paying the innocent party‟s attorney fees. This is the infamous
Rule 11 (of the Alaska Rules of Civil Procedure) that strikes fear in the hearts of attorneys (the
sanctions may come out of the attorney’s pocket, rather than his client‟s).


                                                 53
evidence.” In other words, in order for the jury to find for the plaintiff in a civil case, the
plaintiff must generally produce a “preponderance of the evidence.” The same goes for the
defendant. A “preponderance of the evidence” means “more persuasive evidence then the
other guy.”

                Think of our football analogy. The ball starts in the middle of the field. The
plaintiff tries to move it north. He pushes and pushes, putting on his evidence. The
defendant tries to block it from moving north. She also tries to move it south. She pushes
and pushes, and the plaintiff tries to block her. At the end of the game, the ball is either
north or south of the middle, if only by a little teensy bit. If it is north, the plaintiff wins. If
it is south, the defendant wins. Thus, the defendant and the plaintiff each have positions in
a civil trial, an each must try to prove their positions. Thinking of it as an argument, each
side has its own syllogism – the jury just decides between the two syllogisms that are
provided.

              In a criminal case, the defendant has a much bigger section of field. The
evidentiary standard there is generally “beyond a reasonable doubt”. That means that the
prosecution must prove every element of its case beyond any doubt that a reasonable
person might reasonably entertain. It does not have to prove anything “beyond a shadow
of a doubt”. There are always people who doubt, and some who doubt everything. 24
Proving something beyond any doubt, let alone beyond the shadow of any doubt (do doubts
leave shadows?), is impossible. But if there is a reason, any reason at all, to doubt whether
someone committed a crime, they should not be convicted under the American system.

               This means that, in a criminal case, the accused does not need to take any
position at all. He can, if he chooses, take the position of not having a position. It then
becomes incumbent upon the prosecution to prove its claim, its syllogism, beyond the
evidentiary standard. If it cannot carry this burden, the defendant wins. This is called
“holding the prosecution to its proof” – the defendant does not put on any evidence, or even
question any of the prosecution’s evidence, but simply demands that the prosecution
actually prove what it says it can prove.

              There is much, much more to be said about evidentiary standards and
burdens of proof. Indeed, there are several more levels of evidentiary standards that apply
in particular kinds of cases, including, most importantly, “clear and convincing” evidence.
Even a cursory discussion of this material is out of the scope of this text. Burdens of proof
and standards of evidence are only nominally questions of evidence, which is why they are
given such short shrift in the rules. They are the stuff of substantive and procedural law,
not mere rules.




24      That said, even people who claim to doubt everything, including the existence of doors
and people, typically open the door before walking through it. But the court tries to avoid
digressions like this one.


                                                54
    Conclusion

        We have covered, or at least given a cursory treatment to, all of the Alaska Rules of
Evidence. You have seen how the rules interact, and should have some understanding and
appreciation for the meanings of all of the words used. More importantly, you should have a full
grasp on how and why the rules operate to accomplish the various competing policies and goals
of society, and of the rules themselves.




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