EVIDENCE by mikeholy

VIEWS: 74 PAGES: 58

									                                EVIDENCE OUTLINE
                                 PROF. FEINBURG – SPRING 99


                                            PART I. INTRO

A. WHAT IS EVI? It is (1) oral testimony; (2) writing/letter/doc; (3) material object (ie – bullet); (4)
   other things (ie- chart) present to the senses that are offered to prove (non) existence of a fact at issue.
   1. Purpose of laws of evi. To promote truthful recreation of an external event in the courtroom. We
       want to replicate what happened and find accuracy in the ctrm. Acts as a traffic cop regulating
       what evi will be heard, esp when external event may be disputed.
       a. Search for truth – tempers any pure test of logic. May be logically relevant to show past
            conduct, but it can skew the search for truth.
   2. Tension btwn 3 competing values –
       (1) logical relevance
       (2) truth
       (3) other competing principles of Amer jurisprudence (no self-incrim; rt to have atty)
       These together pose a societal dilemma as to what to admit.
   3. Adversarial system – time-honored Amer way. But, jurors are susceptible to the wiles and
       trickery promulgated by the adversary system. 2 schools of thought about adversary system
       (1) best way to get at the truth (x-exam); and
       (2) the rules of evi inhibit the search for truth.
   4. Themes of course:
       (1) Policy object is to recreate in the courtroom what happened outside and to do it credibly.
       (2) Inherent skepticism about a lay jury to ratify the truth, so the law is designed to ensure that
            jurors won’t be tricked by those presenting the evi.
       (3) Strengths and weaknesses of adversary system. Law of evi is grounded in the notion that
            parties have able counsel who will, when matched against one another, promote the truth. But
            it often seems that the adversary system takes priority over the truth.
       (4) Search for truth isn’t a priority that has no competing priorities. It runs up against other
            cherished priorities: 5th amend right not to testify against self; privileges (atty/client, marital
            privilege, etc).
       (5) Don’t confuse evidentiary rules that govern admissibility of evi w/ rules that govern relevance
            of the evi presented.

B. THE RULES
   1. Steps of Application. Select a jury (usually). Law of evi is very skeptical about juror’s ability to
      find the truth. Want to enhance the reliability of evi so jurors won’t be tricked. [Ex – (1)
      authentication rules – 901; make sure the doc is what it purports to be; (2) best evi (original); (3)
      hearsay – 801-5; either declaration is made in ctrm subject to x-exam or there is a surrogate for x-
      exam in real world that shows reliability.]
      Present evi, summarization, judge instructs jury on the law. 5 evidentiary instructions:
      (1) presumptive validity of admissible evi (very rare): voluntary confessions; testimony of dead
           victim;
      (2) corroboration – testimony is buttressed by a 2nd witness
      (3) cautionary – be wary of accomplice testimony b/c they have a motivation to lie to reduce their
           sentence
      (4) limited instruction – evi admissible for 1 purpose only
      (5) curative instruction – disregard any evi about something.
           Then, case goes to the jury.
   2. History. The rules are a phenomenon of the 1970s. Wanted rules that were general, uniform, and
      predictable. Argument that rules will freeze the law.




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    3.   Analytic Probs in Applying the Rules. Serious probs of omission. No specific rules of privilege
         (are subject to case law).
         a. Internal inconsistencies – Rule 607 (prior inconsistent statements can be offered as
              impeachment evi) – why shouldn’t that statement under 801(d)(1) be offered for its truth?
         b. Vagueness. Ex – 804(3) – if a witness out of ct (hearsay) and is offered for a purpose other
              than truth (Hillman case), is considered circumstantial evi of intent and is admissible.
              Exception to hearsay rule permitting declarations of intent to do something by the declarant.
         c. Inconsistent case law. Conflict among the circuits as to how old a conviction must be before
              they are stale and prejudicial.
         d. Conflict w/ the Const. Rule 703 – can base expert findings on hearsay, but that can go against
              confrontation clause.

C. GENERAL QUESTIONS OF EVI:
   (1) Is the purported evi admissible? Ex – is witness giving evi competent? Is evi probative?
       Authentic? [Admissible = jury can consider it in attempting to refashion the truth.]
   (2) Is the evi sufficient? Ex – is it of sufficient probative value to support jury’s finding? [Sufficient
       = enough for the jury to find the truth.]



                  PART II. RELEVANCE VS. RULES OF EXCLUSION
A. RELEVANCE. (pp. 25-8) Offer relevant evi to help jury reach a conclusion on that issue. The issue
   determines the logical sequence of your evidentiary offer. Imp questions to ask:
       (1) What is the issue?
       (2) From whose point of view do we determine relevance?
       (3) Even if we understand the issue, what should be the substantive test for admitting logically
           relevant evi?
       (4) Conditional relevance – certain conditions are legally essential.
   1. Rules –
       - Rule 401: Definition of “Relevant Evi” – “Relevant evi” means evi having any tendency to
           make the existence of any fact that is of consequence to the determination of the action more
           probable than it would be w/out the evi.
       - Rule 402: Relevant Evi Generally Admissible; Irrelevant Evi Inadmissible – All relevant
           evi is admissible, except as otherwise provided by the Const, by Act of Congress, by these
           rules, or by other rules prescribed by the Sup Ct pursuant to statutory authority. Evi which is
           not relevant is inadmissible.
       - Rule 403 – Exclusion of Relevant Evi on Grounds of Prejudice, Confusion, or Waste of
           Time – Although relevant, evi may be excluded if its probative value is substantially
           outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
           or by considerations of undue delay, waste of time, or needless presentation of cumulative evi.

    2.   Materiality (pp. 28-39)
         a. What is the issue? If the issue is framed incorrectly, it causes probs. Relevance is conditioned
         on your ability to frame the appropriate issue.
                   Prob II-1 - King Solomon’s Judgment (p. 28): 2 women claim a baby is theirs.
                       Solomon said he’d split the baby in half. On the issue of who is the natural mother,
                       we offer the evi of Solomon’s clever ruse. The issue isn’t very probative b/c it
                       doesn’t really go to the issue of who is the mother. If the issue was “who would be
                       the better mother”, the evi would be more pertinent.
                   Tanner v. US (1987) (p. 31) – drugged jurors. Trying to 2nd guess jury’s
                       deliberation. Ct says no (5-4). Don’t want to go down slippery slope. Absent legal
                       errors and rare situations (misinstructions by the judge, etc).




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                   Prob II-2 – Mangled Hand (p. 37) – worker’s comp. Hand hurt and co-worker said
                    he was eating at the time. Admissible? No b/c contrib neg is no defense – worker’s
                    comp is strict liability. Have to know what the end game is.
                Prob II-3 – Defective Unopened Drum of Paint (p. 37) – 1st can was defective, so
                    want to recover for other drum. Evi of drum 1 is inadmissible if case is about
                    unopened drum 2. Issue here isn’t really defectiveness of 2 nd drum, real issue is
                    customer satisfaction and warranty. Breach of warranty can’t be advanced if 2 nd
                    drum was bought after the 1st drum leaked.
     b.    From whose point of view do we determine relevance? Highlight logical relevance to
          conditional understanding of what is the issue. Can say operative concept of relevance is a
          reflection of the underlying social, poli, and econ interests the system is serving.
                Prob II-4 – Dr. Who Visits Old Salem (p. 39) – dunking of witches. Is dunking
                    relevant on the issue of who is a witch? If players believe dunking proves witchery,
                    then it is relevant. Dr. Who has wisdom of hindsight. It’s logically relevant to allow
                    the evi if defs believe that it’s an accurate measure of guilt.

3.   Logical Relevance (pp. 40-52). Deductive reasoning, if valid, is extremely powerful. Inductive
     reasoning requires an inductive leap.
     a. Distinction btwn admissibility and sufficiency. Rule 401 is very loose – “any tendency” to
         advance the search for truth. 401’s presumption is in favor of permissibility.
              Prob II-5 – Burned Butt (p. 50) – car accident and cig butt in car. Def wants to prove
                  P caused the accident. Issue is whether P was lighting a cig. Admissible? Many
                  other ways butt could have gotten there. But, it’s relevant on the issue, but it’s
                  hardly sufficient, which goes to weight, not admissibility.
                       There is a low threshold on relevance, absent a competing interest or question
                  about endgame. If there’s a credible theory of the endgame which justifies
                  admissibility, let it in.
              Prob II-6 – Beer Cans in the Car (p. 51) – issue is intoxication.. Empty, half-open;
                  half-full – alternate theories. Half-empty is probably the most probative.
                  Admissible. May argue it’s relevant, issue is intoxication, and liberal rules of 401
                  say it’s presumptively admissible. But, 403 says may be prejudicial.

4.   Conditional Relevance (pp. 52-60). Relevance of any item of info will depend on assumptions
     about other info.
     - Rule 104 – Preliminary Questions. (b) Relevancy conditioned on fact – When the relevancy
         of evi depends upon the fulfillment of a condition of fact, the ct shall admit it upon, or subject
         to, the intro of evi sufficient to support a finding of the fulfillment of the condition.
     a. Certain conditions are legally essential.
               Prob II-7 – The Rim (p. 53) – accident and headlight rim on the scene 200 ft from the
                   car. Can be offered dependent on if the rim is from a Chevy  conditional
                   relevance. Is it from this 1973 Chevy and is this Chevy missing a rim? There has to
                   be a foundation laid for relevance. How do you satisfy these conditions? Call
                   witnesses, experts – judge probably won’t allow this (time). Judge will exercise her
                   discretion and will probably allow it.
               Romano v. Anne & Hope Factory Outlet (1980) (p. 54) – bike accident. Issue –
                   whether expert can testify about brake failure due to design defect. Ct didn’t allow it
                   b/c expert examined bike 2 yrs after the accident, an engineer had run many tests w/
                   the bike, and the expert lost the bike. W/out the bike, can’t prove that bike was in
                   the same condition immediately after the accident and the exam. Also, danger of
                   prejudice b/c of the kid.




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5.   Prejudice and Probativeness (pp. 60-68). There are other tests of admissibility other than logical
     relevancy. Grounded in skepticism about lay juries.
     - Rule 403 – Exclusion of Relevant Evi on Grounds of Prejudice, Confusion, or Waste of
     Time. Although relevant, evi may be excluded if its probative value is substantially outweighed
     by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
     considerations of undue delay, waste of time, or needless presentation of cumulative evi.

     a.  Weighing Prejudice and Probativeness
              Prob II-8 – A Picture Is Worth a Thousand Words (p. 61) – murders of a few people
                 and wants to put in picture. D said it’s prejudicial b/c it’s gruesome. 403 prejudice
                 is not the equivalent of gruesome, it’s a legal concept that says something may affect
                 a jury and make them less able to follow out their duty.
                      What if D stipulates to the facts in the pictures, so there’s no dispute? 401
                 relevance is not lmtd to the facts in dispute. Can say the pictures are cumulative, so
                 they are too prejudicial. Can make a successful argument that too much
                 gruesomeness will undoubtedly eventually skew the jury.
              US v. Yahweh Ben Yahweh (1992) (p. 61) – goes to whether photos were
                 prejudicial. Ct said photos were probative and admissible – larger size showed
                 detail. Probativeness outweighed danger of undue prejudice.
              Abortion ex – doctor tried for manslaughter for doing an abortion after term. DA
                 wants to offer photo of fetus – is probative. Ct found it was too prejudicial b/c will
                 skew jury fact-finding.
     b. Stipulation
              US v. Grassi (1980) (p. 64) – obscene videos. Videos were cumulative, so def
                 stipulates the obscenity. Stipulation isn’t a substitute for offering the evi. Can’t
                 attempt to short-circuit evi you think may be prejudicial by stipulating. Ct doesn’t
                 make per se rule, but leaves the weight to be given to an offer to stipulate in the
                 balancing process to the trial ct.
     c. Gruesomeness is not the key
              Prob II-9 – Coppertone Corpse (p. 68) – wrongful death suit. Wanted to show pic of
                 tan dead boy in casket. Doesn’t show injury from baseball. Is irrelevant in showing
                 cause of death. Want to show kid was healthy – trying to get a lot of damages.
                 Prejudice isn’t gruesomeness; it is unfair evi that will mislead the jury down the
                 wrong path. Picture is unduly prejudical.

6.   Problems in Circumstantial Proof (pp. 69-87; 93-95). How does evi advance the search for
     truth? Asking the jury to infer the truth from some piece of evi.
     a. Relevant evi on identity. Identifying evi is always highly prejudicial. See if it’s too
          prejudicial or logically relevant and admissible. One principle in guiding the ct is how unique
          the evi is.
                Prob II-10 – Stella’s Stockings [People v. Adamson] (p. 69) – murder. Key bit of evi
                    – stocking tops found in defs rooms and non-matching stocking bottoms were found
                    under the body. Ct found the tops were admissible. Issue is proving def killed
                    Stella. Admissible b/c the def has a use for stocking tops and there’s a sufficient
                    relation to justify circumstantial evi. Probs – skew jury into thinking def’s a sex
                    fiend; stockings didn’t match; may be benign explanation (hair net). Are going to be
                    admissible, but aren’t sufficient.
     b. Remoteness. Imp to see how unique the evi is.
                Prob II-11 – Proving Incest [State v. Stone] (p. 71) – teenager girl accuses dad of
                    incest and said he sometimes used condoms. When arrested, had 2 condoms in
                    wallet. Not admitted. There is a low threshold of admissibility, but this is too
                    prejudicial. Is 7 months later -–a lot of men have condoms in wallet. Remoteness
                    adds fuel to the prejudice argument.




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                     [Feinburg – the ct screws up the standard. Their reasoning sounds like a
               sufficiency argument. The standard is too high, much higher than in Adamson. But,
               still would be unduly prejudicial. Condoms aren’t a particularly unique product.]
           Prob II-12 – Malodorous T-Shirts (p. 72) – attacked by smelly person. D was
               arrested 5 months later wearing 7 smelly T-shirts. Diff from condoms b/c wearing 7
               shirts isn’t common. Danger of prejudice is very high. Will probably be admissible,
               but judge will probably be very wary. Clearly not sufficient.
c.   Foundation – demonstrative evi
           Prob II-13 – Bombs, Bats, and Hammers (p. 73) :
               (1) Victim has an explosion and D had borrowed a clothespin. Evi that pin could
                     have triggered the bomb. Was only one of a number of devices that could be
                     used. There’s no evi that the clothespin was the trigger or that ties D to the
                     crime  no foundation that justifies the link. Not admissible.
               (2) Victim found w/ blunt wounds and someone said there was a bat and hammer in
                     the house. Are common items. The objects that were under the bed are now
                     gone. Are admissible. The witness links the evi to the crime and provides a
                     foundation.
               (3) Victim murdered w/ blunt wounds to head. D construction worker who used
                     drywall hammer, never found such a hammer. Prosecution borrows one.
                     There’s no foundation, is highly prejudicial, lmtd probative value = not
                     admissible.
d.   Delving inside the mind of the accused – Flight. Flight is always admissible as long as you
     satisfy the foundation. If not flight, not admissible. Need to demonstrate scienter. Flight
     requires some knowledge that you’re being charged for crime from which you are fleeing.
     Most circum evi of def’s state of mind will be admitted – flight as circum evi of guilt;
     spoilation of evi; non-flight is NOT circum evi of innocence. When state of mind is an
     essential issue, circum evi will not be sufficient by itself to render a conclusion.
           Prob II-14 – Flight as Circumstantial Evi (p. 75) – prior to arrest, D fled. Could be
               valid explanation for leaving – can show it wasn’t “flight”. If there are conflicting
               inferences that might be drawn, will allow evi (low threshold of admissibility).
               Admit the evi, but let def discredit it.
           Prob II-15 – Non-Flight as Circumstantial Evi (p. 75) – wasn’t handcuffed and made
               no attempt to leave. Not allowed to be offered as evi of innocence. Is too
               speculative.
           US v. Silverman (1988) (p. 76) – drug charges and hidden identity. Ct said it was an
               error to show flight b/c too prejudicial, too speculative to show it on these facts. Ct
               focused on fact that he didn’t know about crime – no scienter – so how fleeing from
               a crime he had no knowledge of?
                     Dissent said DEA agents show that there was a drug issue going on and they
                     were after him for something. Even if there was benign inference to be drawn,
                     let him on the stand to refute.
           Jenkins v. Anderson (1980) (p. 81) – stabbing. D claimed self-defense. D didn’t
               come forward for 2 wks and prosecution wants to enter silence into evi. The pre-
               arrest silence can be used in trying to show guilt (since was before arrest, Miranda
               hadn’t kicked in). Dissent says it undercuts the 5 th amend right of no self-incrim.
           Prob II-17 – Toilet Bowl Evi (p. 87) – drug prescription for non-sick person. Evi
               was missing after doctor examined it and was later found in toilet. Is admissible.
               Spoilation of evi is like flight – conscious of guilt. May be insufficient, but still
               admissible.
e.   State of mind – danger of prejudice. State of mind is always going to based on circum evi
     from which you infer what the person is thinking.
           Prob II-18 – Neither a Borrower nor a Lender Be (p. 93) – P alleges D owes $ on a
               note. P wants to call witness to show D was in debt. D says note was a forgery and
               he didn’t need the $. Witness testimony is admissible b/c it shows D’s state of mind




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                       was one of indebtedness. Danger of prejudice is that jury may think you’re a bad
                       person b/c you’re a debtor.
                            What if def offered receipt that he had repaid P? It would be irrelevant – the
                       issue isn’t accord and satisfaction, but forgery. Repayment is irrelevant as long as
                       you’re arguing forgery.
                      Prob II-19 – Double Indemnity [Hartenstein v. NY Life Ins] (p. 94) – eyewitness
                       testimony said husband drove in front of train, so it was a suicide and ins co isn’t
                       paying double indemnity. May be admissible, but it’s not sufficient. What’s
                       rationale as to why he committed suicide?
                            Ex of evi of bookkeeping probs – shows motive or rationale. Prejudice is jury
                       will find that thief shouldn’t recover, even though there may be alternative
                       inferences. If he had no knowledge of crime, could avoid inference of motive (ie –
                       like no scienter = no flight).

     7.   Probability and Statistical Proof (pp. 95-106). If you’re going to offer stat evi, make sure you
          lay a proper foundation. Even w/ proper foundation, only convict on stats + evi.
           People v. Collins (1968) (p. 95) – used stats to show couple was guilty b/c of probability that
               they matched the description. There are no witnesses that will testify that these defs are the
               same couple from the crime. The odds that it’s not these people is 1 in 12 million – according
               to the statistician. Ct reversed judgment against def b/c “trial by math” distorted the jury’s
               role and disadvantaged counsel.
           Smith v. Rapid Transit (1945) (p. 105) – P was injured by a bus and says def’s bus was on the
               route, but no one saw which bus it was. Statistically the likelihood of it being any other bus is
               overwhelming. Could be admissible b/c not a flawed stat methodology. But, ct found it
               wasn’t admissible b/c “ownership of the bus was a matter of conjecture.”
          a. Policy - As a policy matter, may be a 90% chance it’s the right bus, but the humanizing
               aspect of our system doesn’t want to convict people solely on statistical evi. Better that a
               person be held not liable rather than be held liable solely on the basis of stats. Raw stats by
               themselves will NEVER be sufficient. May be admissible if the methodology isn’t flawed.


B.    CATEGORICAL RULES OF EXCLUSION. Most of these rules exclude evi if offered for one
     purpose, but don’t exclude evi if offered for other purposes.
     1. Subsequent Remedial Measures (pp. 133-40). Better that D make repair than have evi about it
         be admitted. Key to rule of exclusion is “subsequent”, which turns on what the issue is. Safety v.
         truthful recreation of what happened.
         a. Rule
              - Rule 407 – Subsequent Remedial Measures. When, after an event, measures are taken
                   which, if taken previously, would have made the event less likely to occur, evi of the
                   subsequent measures is not admissible to prove neg or culpable conduct in connection w/
                   the event. This rule does not require the exclusion of evi of subsequent measures when
                   offered for another purpose, such as proving ownership, control, or feasibility of
                   precautionary measures, if controverted, or impeachment.
         b. General Application
               Prob III-1 – Locking the Barn Door (p. 135) –
                   (1) P hit by crane, then next day safety rule was posted. Not admissible. Is circum evi
                        of neg, but want to promote safety. [Theory of tort deference would tell you that a
                        judgment against them would promote safety more than being allowed to post a
                        notice.] Sub remedial measures aren’t allowed to show mental state.
                   (2) P2 hit after P1; sign posted before P2’s accident. Admissible b/c construction
                        company was aware of the danger. Is relevant /bc it’s notice of a dangerous
                        condition.
         c. Framing the Issue
               Prob III-2 – Exploding Pinto (p. 137) – fuel tank in rear and Ford redesigned it, and 2 yrs
                   later accident made car explode. P wants to show the redesign. Imp how the issue is
                   framed. Ford will argue the event is purchase of the car and redesign is sub action (cause


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              of breach of warranty). P is going to say issue is neg design leading to the accident, so
              what happened before the accident is admissible.
           Prob III-3 – Dismissed Employee (p. 137) – P suing b/c hurt by truck owned by def.
              Driver was fired after. If fired b/c of accident, it’s inadmissible under 407. If fired b/c of
              something else, out under 403 (not relevant). Either way, it’s inadmissible.
     d.   Can Use for Impeachment Purposes. 407 has a loophole, can show evi of subsequent
          remedial measures to impeach a witness.
           Prob III-4 – D-Craft 184 Crash (p. 137) – design defect case re fuel flow. D wants to call
              expert to say nothing is wrong, and P wants to show they changed fuel system after the
              accident. Sub remedial measures can be admitted to show other than culpability – can be
              admitted to offer impeachment.
     e.   Third-Party
           Prob III-5 - 3rd Party Repairs (p. 138) – P injured by train and after, the State Highway
              Dept installed signal lights. The sub remedial measure was done by 3rd party 
              admissible. If you are def, you would argue that it’s so prejudicial under 403 that it
              shouldn’t be admitted.
     f.   Precautionary Measures
           Prob III-6 – Exploding Pinto: A Reprise (p. 138) –
              (1) P showed evi Ford knew of accidents. Is admissible b/c it shows feasibility of
                   cautionary measures. Here, they knew, and took no action, so 407 is inapplicable.
              (2) Ford knew about fuel tank and didn’t change design. 407 isn’t implicated b/c it’s not
                   subsequent.
     g.   Strict Liability
           Prob III-7 – Aluminum Gear Box (p. 139) – strict liability case. Car accident supposedly
              caused by gear box failure. They amended the rule to cover the prob – 407 added
              language to cover non-culpable strict liability.

2.   Settlement Offers and Payments of Med Expenses (pp. 159-65). Want to encourage people to
     make peace. What’s imp is to make sure it’s a true, formal settlement offer – a simple admission
     broadens 408 too much and will probably be admitted.
     a. Rules
     - Rule 408 – Compromise and Offers to Compromise. Evi of (1) furnishing or offering or
         promising to furnish, or (2) accepting or offering or promising to accept, a valuable
         consideration in compromising or attempting to compromise a claim which was disputed as to
         either validity or amount, is not admissible to prove liability for or invalidity of the claim or
         its amount. Evi of conduct or statements made in compromise negotiations is likewise not
         admissible. This rule does not require the exclusion of any evi otherwise discoverable merely
         b/c it is presented in the course of a compromise negotiation. This rule also does not require
         exclusion when the evi is offered for another purpose, such as proving bias or prejudice of a
         witness, negativing a contention of undue delay, or proving an effort to obstruct a crim
         investigation or prosecution.
     - Rule 409 – Payment of Med and Similar Expenses. Evi of furnishing or offering or
         promising to pay med, hospital, or similar expenses occasioned by an injury is not admissible
         to prove liability for the injury.
     b. Formal setting
          Prob III-8 – Mr. Nice Guy (p. 159) – car accident.
              (1) Comments made contemporaneous w/ the accident – are admissible.
              (2) Comments made in pretrial discovery – not admissible b/c clearly a compromise
                    negotiation.
                    Fed Rules exclude not only compromises and offers to compromise, but also
              accompanying conduct and statements when offered to prove liability. Same protection
              that is given to statements of fact during comp negotiations is denied to statements made
              in connection w/ the furnishing of med expenses.




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     c.   Dispute or Attempt to Negotiate?
           Prob III-9 – Threatening Letters (p. 161) – patent infringement. D said they’d take
              license for less $. Depends on if it’s a dispute to the amount or an attempt to negotiate.
              On balance, should be kept out b/c it’s irrelevant. Denying responsibility, then offer $ in
              good faith (peace). If want 408 to apply, put in code language in letter.
     d.   Other settlements
           Prob III-10 – The Plot Thickens (p. 162) – car accident and P wants to show evi of
              settlement btwn D and another passenger. Not admissible. It arises out of the same
              transaction. 408 wants to encourage settlement by anybody and everybody, so excludes
              the evi b/c excludes compromise of any claim relevant to P’s case.
           Prob III-11 – Thicker Still (p. 163) – D taxi driver wants to show settlements btwn
              himself and driver of other car, and driver of other car and P. Not admissible b/c it’s evi
              of settlement offered by D which still goes back to the 1 st claim.
              Change facts  say O (other driver) is going to testify on behalf of P – evi isn’t barred
              b/c can be used for impeachment.
           Prob III-12 – Even Thicker (p. 164) – sec violations and officers x-claim and get
              voluntary dismissals. Should be admissible b/c the settlement is NOT the claim – there
              are 2 distinct claims: sec violations (fed) and indemnification (state). The settlement of
              the 1st claim is not irrelevant and is not barred by 408.
     e.   Civil v. Crim Cases. Civil settlement are never admitted in crim cases.
           Prob III-13 – Civil Settlements and Crim Cases (p. 165) – salesperson overcharged for
              car and owner of dealer offered to refund the overcharge. Is inadmissible b/c evi of civil
              settlements are irrelevant in a crim proceeding (where you have to show willfulness).
              Diff standards of liability in civil and crim cases.

3.   Proof of Insurance (pp. 165-7). Don’t want jury to hear whether actual payment will be made by
     ins co – afraid about “deep pockets” rulings. [Feinberg thinks 411 is pretty dubious – most juries
     presume there’s plenty of insurance.]
     - Rule 411 – Liability Ins. Evi that a person was or was not insured against liability is not
          admissible upon the issue whether he acted neg or otherwise wrongfully. This rule does not
          require the exclusion of evi of ins against liability when offered for another purpose, such as
          proof of agency, ownership, or control, or bias or prejudice of a witness.
      Prob III-14 – Deep Pocket Approach (p. 166) –
          (1) Arm injured and suing company. P asked about company’s ins. Inadmissible – want to
               discourage juries from finding neg just b/c a company has ins.
          (2) Asks expert if he’d been retained by Ins. Co. Admissible in order to show that the expert
               is biased. Probably can also get in amount of coverage, b/c it shows the extent of the ins
               co’s interest in the case.
      Prob III-15 – Hit and Run (p. 167) – car accident. D wants to show he has ins. Admissible
          b/c it goes to D’s state of mind – if he has ins, he wouldn’t have willfully left the scene. Not
          offering it to show deep pockets.
               411 has very limited applicability in crim cases. In crim case, it’s highly unlikely that D
          would be prohibited from presenting evi that would help him.
      Prob III-16 – Absence of Coverage (p. 167) – company truck hurt P’s arm. P was asked if he
          got worker’s comp and D was asked if it had ins. Inadmissible – 411 speaks to item of ins 
          if you have it OR don’t have it. This would be kept out, b/c jury could conclude no liability
          b/c company can’t afford it.




                                                                                                         8
    4.   Pleas and Related Statements (pp. 172-4). Crim law companion to settlement offers.
         - Rule 410 – Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related
             Statements. Except as otherwise provided in this rule, evi of the following is not, in any civil
             or crim proceeding, admissible against the def who made the plea or was a participant in the
             plea discussions:
             (1) a plea of guilty which was later w/drawn;
             (2) a plea of nolo contendere;
             (3) any statement made in the course of any proceedings under Rule 11 of the FRCP or
                  comparable state procedure regarding either of the foregoing pleas; or
             (4) any statement made in the course of plea discussions with an atty for the prosecuting
                  authority which don'’ result in a plea of guilty or which result in a plea of guilty later
                  w/drawn.
             However, such a statement is admissible (I) in any proceeding wherein another statement
             made in the course of the same plea of plea discussions has been introduced and the statement
             ought in fairness be considered contemporaneously w/ it, or (ii) in a crim proceeding for
             perjury or false statement if the statement was made by the def under oath, on the record and
             in the presence of counsel.
          Prob III-17 – Plea Bargain (p. 173) – D made incrim statements, but no plea was arranged.
             Won’t exclude admissions made to DEA agents – don’t have the requisite degree of formality.
             Statement made to atty – don’t have formal R411 plea discussions, so may be admissible.
             But, 410(4) is violated, so statement to atty is inadmissible.
          Prob III-18 – Is Turnabout Fair Play? (p. 173) – D charged w/ selling heroin, D offered
             testimony of former atty to show govt was willing to compromise. 410 isn’t applicable b/c it
             is not “against the def”. 408’s inapplicable b/c it’s civil. Govt can still argue 403 (prejudice).
          US v. Mezzanotto (1995) (p. S531) – D said “Let’s talk and I’ll waive 410.” Negotiations
             broke down. Sup Ct said waiver was okay, since it was knowing and voluntary. Sup Ct
             grafts onto 401 that if def takes the stand and argues in manner contrary to what he said to
             govt, he can be impeached by his statement.
                  Feinburg queries whether as a practical matter the waiver is truly conscionable or
             whether the govt is in the driver’s seat.


PART III. CHARACTER AND CREDIBILITY
A. GENERALLY (pp. 175-8). Character – is the person a “good” or “bad” person? (Rules 404 & 405)
   Cred – is the person truthful? why is the person allegedly a liar? (Rules 608 & 609)
       The fundamental rule of char in Fed Rules is an obvious point – want to make sure we truthfully
       recreate what happened, so keep out stuff that would convict someone based on his reputation and
       character – 404. Before 404, there was a common law rule that we keep “bad apple” stuff out.
   1. Building blocks. There are 3 major building blocks when talking about char and cred which set
      out the structure:
      (1) propensity rule – 404 & 405
      (2) cred evi – “messenger is a liar” – 608 & 609. 609 – what is the crime? how old? what is the
           cts obligation to per se accept the crime or balance it?
      (3) specific attack on the specific ability of the witness in this case to exhibit testimonial
           capacities.

B. THE PROPENSITY RULE (pp. 178-201; 210-4; 219-31). Is the tendency to commit bad deeds
   sufficient to convict D on the charges in front of us?
   1. Common Law –
         People v. Zakowitz (1930) (p. 178) – D was walking home w/ wife and victim propositioned
            wife. Went home, then went back down to where guys were to set things straight. There was
            a scuffle and he shot and killed someone. DA offers as evi that D had box of weapons in his
            apt. Cardozo says box of weapons wasn’t relevant and goes more to char.
                  In dissent, Pound said evi was admissible b/c it shows premeditation – he chose one
            weapon over another. Shows contemplation of the crime (state of mind).



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2.   Codification. 404(a) – Cardozo: won’t convict people for being bad. 404(b) – Pound: can admit
     bad conduct for another reason.
     - Rule 404 – Char Evi Not Admissible to Prove Conduct; Exceptions; Other Crimes.
     (a) Character evi generally. Evi of a person’s char or a trait of his char is not admissible for the
         purpose of proving that he acted in conformity therewith on a particular occasion, except:
              (1) Character of the accused. Evi of a pertinent trait of his char offered by an accused,
                  or by the prosecution to rebut the same;
              (2) Char of victim. Evi of a pertinent trait of char of the victim of the crime offered by
                  an accused, or by the prosecution to rebut the same, or evi of a char trait of
                  peacefulness of the victim offered by the prosecution in a homicide case to rebut evi
                  that the victim was the first aggressor;
              (3) Char of witness. Evi of the char of a witness, as provided in Rules 607, 608, and
                  609.
     (b) Other crimes, wrongs, or acts. Evi of other crimes, wrongs, or acts is not admissible to prove
         the char of a person in order to show action in conformity therewith. It may, however, be
         admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
         knowledge, identity, or absence of mistake or accident, provided that upon request by the
         accused, the prosecution in a crim case shall provide reasonable notice in advance of trial, or
         during trial if the ct excuses pretrial notice on good cause shown, of the general nature of any
         such evi it intends to introduce at trial.

3.   Application
     a. Generally
               Prob IV-1 – A Return to the Scene of the Crime (p. 184) – theft from safe. Evi that
                  def did theft from safe month before. Admitted - shows knowledge that he knew
                  how to open the safe and knew what was in it – 404(b). Def could still argue 403
                  prejudice, though.
               Prob IV-2 - Res Gestae (p. 189) –
                  (1) Charged w/ violating firearms statute. Evi of forged prescription, ran out, and
                       dropped gun. 404(b) allows in b/c it shows the whole story (why he’s running).
                       List in 404(b) is not exclusive.
                  (2) Charged w/ selling drugs. Evi that 2 agents bought drugs – testimony from 1
                       agent. Evi of prior sale is inadmissible. But, if def defends charge by claiming
                       entrapment, can rebut it be showing he did it before.
     b. Modus Operandi. Post-arrest similar crimes aren’t prohibited by 404. 404 doesn’t require
         the govt to wait for the def to challenge i.d. The evi had better be distinctive, or you get too
         close to Zachowitz and violation of 404(a).
               Prob IV-3 – “Money or Death” (p. 190) – bank robbery. Evi of other robbery done
                  the same way. Efforts to show prior crimes using the same modus operandi (MO)
                  will be let in to show identity (not character). The MO has to be so distinctive that it
                  marks the def’s work like a signature. It bears on identity w/out any logical
                  necessity to draw a conclusion about the def’s char. Evi that shows MO doesn’t
                  need to be buttressed by a conviction.
               US v. Danzey (1979) (p. 191) – def charged w/ bank robbery – had a specific way of
                  doing it. Evi that same MO occurred in diff robbery. Ct admitted it b/c it was so
                  distinctive so as to prove identity. Should have a limiting instruction. Raises the
                  question of how distinctive --> uniqueness isn’t the key, relevance is.
         c. Defendant’s use of evi
               Commonwealth v. Jewett (1984) (p. 196) – rape; victim picked def out of photos. D
                  wants to offer evi that he was acquitted of a similar crime b/c of mistaken i.d. Ct
                  said he could admit evi. If going to use distinctiveness to prove i.d., require more
                  distinctiveness when govt uses 404 as a sword than where def tries to use it as a
                  shield.




                                                                                                        10
             d.   Design or plan
                   Prob IV-4 – Brides in the Bath (p. 200) – woman dead in bath after married to def.
                      Evi that 2 other bath deaths occurred after def got married. Def’s argument is that
                      the evi shows he’s a bad person. Ct admits it – 404(b) design, plan, intentional
                      killing of lives, absence of mistake.
                   FL v. William Kennedy Smith (p. 210)- accused of raping a woman. Govt wants to
                      offer evi of 3 other similar acts. Ct didn’t admit it – highly undistinctive and
                      disputed – dangerous propensity.
             e.   Acquittals
                   Oliphant v. Koehler (1979) (p. 219) – P was twice acquitted of rape and was charged
                      again. Govt wants to bring in the first 2 women. Ct said these are diff cases.
                      Whether charged, acquitted, convicted is irrelevant b/c using prior bad acts to show
                      MO. Can use it unless its 403 too prejudicial. Ruled that the evi was allowed. His
                      MO was he rapes women, then goes to police and says the woman is crazy.
                   Dowling v. US (1990) (p. 223) – bank robbery. DA tried to get in evi that this def
                      had been involved in other crime of which he was acquitted. The acquittal doesn’t
                      bar the evi. Offered in unrelated offense to show some 404(b) action.
                           Dissent says can’t show design or plan b/c def was found not guilty of prior act.
                      [But, can be acquitted for many reasons.]


C. WHEN CAN YOU PROVE CHARACTER – AND HOW? (pp. 231-42). In law of evi, there are 2
   ways to use char evi: (1) by offering a witness who gives testimony about general reputation of def in
   the neighborhood w/out reference to specific examples [405(a)] or (2) by offering testimony as to a
   specific example of good/bad char [405(b)].
        405(b) – “how” also encompasses “when” (but “when” is primarily in 404). 405(b) is much more
   probative and more damning. Number of situations where you can offer this testimony is much more
   limited than 405(a) – more potential to be prejudicial in violating propensity rule.
        1. Common Law
              Michelson v. US (1948) (p. 231) – def is charged w/ bribing fed agent and declares
                 entrapment. Puts on witnesses to show he was a good guy. On x-exam, prosecution asks
                 about specific crime in the past. D objects. Sup Ct said P’s line of questioning was
                 completely valid. It was offered to show what the witnesses know. D on own initiative
                 put general rep witnesses on the stand and opened up the issue of char – 404 has nothing
                 to do w/ this. Offering specific instances of bad char to impeach witnesses credibility.
                          Michelson can now be found in 405(a), If def offers char evi, P can undercut
                 cred by challenging them w/ specific instances of bad char.

        2.   Codification
        -    Rule 405 – Methods of Proving Char.
             (a) Rep or opinion. In all cases in which evi of char or a trait of char of a person is
                 admissible, proof may be made by testimony as to reputation or by testimony in the form
                 of an opinion. On x-exam, inquiry is allowable into relevant specific instances of
                 conduct.
             (b) Specific instances of conduct. In cases in which char or a trait of char of a person is an
                 essential element of a charge, claim, or defense, proof may also be made of specific
                 instances of his conduct.

        3.   Application
                 Questions on p. 239 – What type of char evi can be used for purposes other than
                     impeaching a witness’s cred:
                     (1) By the DA as part of case-in-chief? 404(a) prohibits DA from using char evi as
                         case-in-chief. DA can use it not to show char, but to show list of things from
                         404(b). But, 405(b) – when char is an essential issue of the claim, can bring in
                         char evi.



                                                                                                          11
                      (2) By the accused as part of case-in-chief? 404(a)(1) – Can only prove char of the
                           accused by reputation or opinion [405(a)]. Can also show under 404(a)(2) –
                           char of victim.
                      (3) By the DA on x-exam of D’s witnesses? Michelson. May ask specific acts to
                           test validity of testimony – isn’t required to come in simply to impeach cred –
                           jury will hear it w/out a limiting instruction. B/c def started, govt can take
                           advantage.
                      (4) By the DA to rebut D’s case-in-chief? Govt can bring up gen rep witness to
                           counter D’s gen rep witness (can’t do it right off, though) – 404(a)(1). 405(b) –
                           if it relates to an essential element of a charge, claim, or defense. 404(a)(2) –
                           show evi about the victim.
                      (5) By D to rehabilitate its case after attack by the DA? Depends on how far judge
                           will let D go – can use gen or specific examples if judge will allow it. Must
                           have symmetry.
                      (6) In a civil side, by either side? Debate right now: (a) Some say not at all b/c 404
                           implicitly refers to crim cases. (b) Can do it when a civil case is so analogous to
                           a crim case. (c) When char is the essential element in a civil case – connection
                           w/ a specific claim, defense, argument.
                                 In 95% of civil cases, can’t use char evi. 5% - if pertinent and relevant to
                           prove type of issues found in crim context analogized to civil case.
                     Prob IV-5 – Proof of D’s Good Char (p. 240) – robbery (crim).
                      (1) P calls witness who testifies D is bad. Not allowed – 404(a) propensity rule.
                      (2) D calls witness for rep. Allowed under 404(a)(1).
                      (3) X-exam. Allowed under 405(a) – P may able to testify about specific instances
                           once D opened the door.
                      (4) P allowed to reopen case? No – govt may not offer on rebuttal a witness to
                           testify about specific instances of bad conduct. But, govt can put on witness to
                           testify about general char.
                     Prob IV-6 – Proof of D’s Violent Char (p. 240) – murder (crim).
                      (1) P testimony of D as a bully – not allowed (Zackowitz). P can’t open the door.
                      (2) P testimony of robbery – not allowed (Zackowitz).
                      (3) P offers records of D’s conviction – not allowed (Zackowitz).
                      (4) Judge admitted prior conviction, is D deprived of due process? Propensity rule
                           is violated. Sup Ct said it was harmless error (but Feinberg thinks they’re
                           wrong).
                     Prob IV-7 – The Effete Intellectual Snob (p. 241) – libel (civil). This is evi that is
                      essential to D’s case - truth is a defense to libel. This isn’t being offered to show that
                      P is a bad guy, but to show that allegations are true. Evi is allowed under 405(b).
                      405 isn’t limited to crim cases, 404 is.


D. PROOF OF CHAR AND PRIOR SIMILAR OCCURRENCES IN CIVIL CASES (pp. 242-57).
   1. Generally. General rule is NO, NO, NO!!
        Prob IV-8 – Tit for Tat (p. 242) – assault and battery. D says P was aggressor and pleads self-
          defense.
          (1) D offers evi of good char. Not admissible. Unless there’s specific char evi that goes to
               claim, gen evi will never be admitted.
          (2) D offers evi of P’s bad char – not admissible.
          (3) D offers evi of his good rep – not admissible. Rare exception to all gen rep in civil case.
          (4) Rebuttal, P offers evi of P’s rep. B/c ct let in D’s good rep evi, will probably let P have a
               fair shake.
        Crumpton v. Confed Life Ins (1982) (p. 243) – ins policy holder murdered by neighbor
          allegedly after sex assault. Ins co says it wasn’t an accidental murder. Beneficiary argues
          good rep – 405(a) gen rep, buttressing 404(a)(2) – rep of victim of shooting. But, 404(a)(2)
          has no application since this is a civil case. Evi was admitted --> civil case so akin to crim
          case (minority view). [“Derelict on the waters of the law.]


                                                                                                             12
            Ginter v. Northwestern Mutual Life Ins (1984) (p. 246) – don’t pay b/c insurer lied on
             application about being depressed. P wants to bring in char witness. Ct said not admissible
             (maj view).
            Prob IV-9 – The Acrobatic Driver (p. 248) – P wants to have witness say D drove recklessly
             before in specific instances and another to talk about gen recklessness. Neither are admissible
             in a civil case, plus it would be a Zackowitz violation.

    2. General evi v. state of mind
         Phinney v. Detroit United Railway (1925) (p. 248) – train hit car. P sues RR for recklessness
           for their motorman. Want to prove it by testimony by other employees about motorman’s
           recklessness. Not admissible – won’t allow gen rep evi to infer conformity now w/ that gen
           recklessness. [Will show D company was neg on notice that motorman was reckless – totally
           diff theory.]
         Dallas Railway & Terminal Co v. Farnsworth (1950) (p. 250) – wants to submit evi of
           recklessness on that specific day. Seeks to prove the driver was neg – state of mind. Show
           culpability of motorman. Proof isn’t offered to show a gen propensity of recklessness like in
           Phinney.
                We say that in civil cases, evi of propensity is barred b/ c we don’t want to use gen evi
           (Phinney), but if there are specific immediate examples related just like this (very narrow and
           specific evi) that motorman was reckless, there’s a lot better chance it’ll get in.

    3. Notice. Fine line btwn gen evi of propensity (barred) v. much narrower, specific evi of propensity
    to show specific 404(b) exception (allowed, even in civil cases).
          Prob IV-10 – The Why Concert (p. 251) – wrongful death. Witness to say concerts have been
             oversold before. Admissible. Can say it put the D on notice. If D, can argue contrib neg that
             the kid knew about the crowds. Argument is char evi in civil case is offered for very specific
             category of notice (ie – also mental state of tortfeasor), then it’s not general.
          Clark v. Stewart (1933) (p. 252) – car accident. P asks D of knowledge of prior bad char of
             kid. Theory (under 405(a)) that mom and dad are neg b/c they were on notice. Evi on kid’s
             prior recklessness is highly relevant. Narrow use of evi to show parent’s mental state.
          Prob IV-11 – The Soo Line Smash (p. 254) – kid hit by train. Parents sue train co for neg –
             want to show high accident rate. Not admissible b/c it’s too general. Even too general to be
             offered as evi of notice.
          Exum v. GE Co (1987) (p. 255) – suit for neg design. Kid burnt by french fryer – want to
             show evi of similar injury. Allowed b/c put GE on notice that design is dangerous. Appeal Ct
             let 1 similar case in after accident, not to show notice, but to show dangerousness. Appellate
             Ct let all cases in.


E. CHAR AND HABIT (pp. 257-65). Key is the ability to prove action is habitual. Habit manifests
   itself by narrow range of behavior, so not covered by char rules of 404 or 405. Most habit cases are
   civil. Repetition of an act isn’t necessarily habit.
        - Rule 406 – Habit; Routine Practice. Evi of the habit of a person or of the routine practice of
             an organization, whether corroborated or not and regardless of the presence of eyewitnesses,
             is relevant to prove that the conduct of the person or org on a particular occasion was in
             conformity with the habit or routine practice.
    Prob IV-12 – Careless Smoker (p. 258) – garage burned and person dies. Had done it 3 times
        before. Don’t admit under 405 b/c not an indiv who has a gen rep for smoking dangerously. Isn’t
        habit – 3 times is not habitual. If not gen rep and not habit, can use 403 prejudice to not let it in.
    Prob IV-13 – Pothead v. Daredevil (p. 259) – car accident. Testimony that one driver smoked pot
        before seeing movies and was cited 8 times for going through red lights. Not clear it’s a habit, so
        not clearly covered by 406. 403 is safety valve for admissibility. Can argue that pot is not a habit,
        but is an addiction.




                                                                                                           13
         Prob IV-14 – Acrobatic Driver: A Reprise (p. 259) – driver goes through certain intersection all
          the time and doesn’t stop. Is habit – concerns the same location as the accident and deals directly
          w/ not stopping at the sign.
         Meyer v. US (1979) (p. 262) – dentist. Case about informed consent. Ct found dentist’s speech
          before surgery was habit. D using habit as a shield against P’s claim. Doesn’t matter who uses
          406, as long as it’s narrowly drawn. Isn’t type of gen char evi of 404 & 405.


F.   CHAR AND CREDIBILITY (pp. 265-6).
     1. Rules
        - Rule 608 – Evi of Char and Conduct of Witness.
            (a) Opinion and reputation evi of char. The credibility of a witness may be attacked or
                supported by evi in the form of opinion or reputation, but subject to these limitations: (1)
                the evi may refer only to char for truthfulness or untruthfulness, and (2) evi of truthful
                char is admissible only after the char of the witness for truthfulness has been attacked by
                opinion or reputation evi or otherwise.
            (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the
                purpose of attaching or supporting his cred, other than conviction of crime as provided in
                Rule 609, may not be proved by extrinsic evi. There may, however, in the discretion of
                the ct, if probative of truthfulness or untruthfulness, bu inquired into on x-exam of the
                witness (1) concerning his char for truthfulness or untruthfulness, or (2) concerning the
                char for truthfulness or untruthfulness of another witness as to which char the witness
                being x-examined has testified.
        - Rule 609 – Impeachment by Evi of Conviction of Crime.
            (a) General rule. For the purpose of attacking the cred of a witness,
                (1) evi that a witness other than an accused has been convicted of a crime shall be
                     admitted, subject to Rule 403, if the crime was punishable by death or imprisonment
                     in excess of one year...and if the ct determines that the probative value of admitting
                     this evi outweighs its prejudicial effect to the accused; and
                (2) evi that any witness has been convicted of a crime shall be admitted if it involved
                     dishonesty or false statement, regardless of the punishment.
            (b) Time limit. Evi of a conviction under this rule is not admissible if a period of more than
                10 yrs has elapsed...unless the ct determines, in the interests of justice, that the probative
                value...substantially outweighs its prejudicial effect.
            (c) Effect of pardon, annulment, or certificate of rehab. Evi of a conviction is not admissible
                under this rule if (1) the conviction has been the subject of a pardon, annulment,
                certificate of rehab...
            (d) Juvenile adjudication...generally not admissible. The ct may, however, in a crim case
                allow evi of a juvenile adjudication of a witness other than the accused if conviction of
                the offense would be admissible to attack the cred of an adult...
            (e) Pendency of appeal...does not render evi of a conviction inadmissible. Evi of the
                pendency of an appeal is admissible.

     2.    What is the Difference btwn Char and Credibility? (pp. 267-82). 404 & 405 deal w/ char –
          evi offered to prove what happened; gen rep for good/evil. 608 & 609 deal w/ cred – not the
          message, but the messenger. Really concerned w/ whether or not witness has a gen propensity to
          lie – separate from reasons of bias, self-interest, etc (specific reasons to lie in this case). Have to
          first decide if it’s char or cred b/c method of proof is very different. 2 rules under 608: (1) are we
          attacking the witness b/c he’s generally untruthful?; (2) don’t get into subject of bolstering
          truthfulness unless witness has been attacked as untruthful.
                    Witnesses’ testimonial capacities include: (1) his perception; (2) his memory; (3) his
          ability to communicate clearly, and (4) his sincerity.
          a. Extrinsic evi and the differences btwn 404 & 405 and 608 & 609
                     US v. Beechum (1979) (p. 270) – postman w/ silver coin and 2 credit cards. Govt
                         wants to introduce evi of credit cards. D said he was going to return the coins. Is
                         testimony designed to impeach cred of Beechum, or designed to show an exception


                                                                                                               14
            to the propensity rule [404(b)]? If to impeach, not allowed in. If 404(b), allowed in
            to show MO and intent.
                 If 608 & 609, may inquire, but may not offer extrinsic evi to buttress your claim.
            W/ 404(b), can offer extrinsic evi.
         Prob IV-15 – “A Nice Piece of Change” (p. 279) – supposed oral agreement w/ real
            estate broker. Evi that P has done this 8 times, saying same things. Want to show P
            says this all the time – MO. P’s argument is that it’s inadmissible under 608. Try to
            show it’s a 404(b) exception to the propensity rule. Want to offer transcripts
            themselves w/out violating 403 – this evi is admissible.
                  If char, you may not only inquire in x-exam, you may actually offer stuff into
            evi. If went to cred, it would preclude offer of evi.
         Prob IV-16 – The Worrisome Witness (p. 281) – W testifies to D’s alibi. In rebuttal,
            DA wants to call witness to say W stole a case a Remy Martin. Inadmissible under
            608(b) – specific instances may not be admitted unless on x-exam, can’t do it on
            rebuttal.
                 2d part – prior conviction on x-exam. Allowed under 609 – conviction goes to
            W’s cred. If W denies it, govt may offer extrinsic evi of that conviction. If the issue
            concerns char, W or D gen rep in community, prohibited unless there’s a 404(b)
            exception. Not so if it’s cred – if attacking truthfulness of messenger, not permitted
            to offer extrinsic evi to corroborate and buttress your challenge.
b.   General application and “attack”
         Prob IV-17 – Fracas at Fenway Park (p. 281) – assault & battery. This lays out the
            rule of attempting to establish character by gen rep.
            (1) Testimony by A about what he saw. Other testimony of B to say A has a good
                 rep. Very irrelevant and not admitted. We’re looking for truthfulness, not
                 peacefulness, under 608.
            (2) A’s rep for truthfulness. A’s cred hasn’t been attacked. So, not admissible –
                 608(a) no reasons to bolster char.
            (3) A is asked about conviction for possession of pot. Inadmissible – 609(a)(1)
                 possession is a misdemeanor, punishment is not over 1 yr.
            (4) A is asked about conviction for perjury 12 yrs ago. Is over 10 yr, but is a crime
                 a veracity. Under 609(b), most judges would allow that testimony in.
            (5) B is asked if he knew of A’s perjury conviction after he testified about A’s rep
                 for truthfulness. Admitted.
            (6) Testimony of C about A’s filing false 10K 11 yrs ago. This is rebuttal trying to
                 offer evi of prior bad act – not allowed. Can’t offer extrinsic evi to challenge
                 cred.
            (7) B is recalled to stand to testify about A’s rep. Admitted under 608(a)(2) b/c A’s
                 cred was attacked – can now offer extrinsic evi to bolster cred.
            (8) A says he’s P’s bro. B called to testify about A’s rep for truthfulness. Depends
                 on if witness was being attacked about char for truthfulness, but he wasn’t.
                 Whether can offer extrinsic evi on issue of cred has no bearing – 608(b). 608
                 has no application.
            (9) A says he saw D drink 3 lg beers. D says he ate a lot of other stuff – no beer.
                 Can B testify to A’s rep for truthfulness? This is impeachment by contradiction.
                 Not a gen attack on truthfulness. If it’s an attack on veracity of witness, can
                 bolster, but it’s technically not an attack. Unless it’s attack, not going to trigger
                 right to call an extraneous witness.
         Overview. 1st ask why – 404 or 608/609? The, 608 – no extrinsic evi, but 609
            allowed limited. 3rd: under what circum can cred by attacked (what constitutes
            attack?) and when can it be bolstered?




                                                                                                   15
3.   The Use of Prior Convictions (pp. 282-96; S539-46). What can you do w/ a prior conviction?
     Rule 609 held that the only reason for introducing prior convictions is for their probative value on
     the question of whether the D (who has taken the stand) is a liar. Presumption is in favor of
     exclusion – need to show that probativeness outweighs prejudice. Under 608(b), if witness denies
     conviction, extrinsic evi may be offered under 609 to show conviction.
     a. Charge v. conviction
           Old exam question – D was charged 4 yrs ago w/ perjury, an inquiry is made on x-exam
              about it and D denies it. On rebuttal, govt calls witness to offer evi – is it permitted?
              NO!!! 609 is about people who are charged AND convicted of a crime.
     b. State’s use of prior convictions
           Prob IV-18 – Robbery of the Mom & Pop Spa (p. 286) - state cannot bring up D’s prior
              convictions b/c D didn’t take the stand and admit or deny prior convictions. Evi of prior
              convictions only occur: (1) by admission of witness; or (2) x-exam of that witness. Can
              only put the clerk on to rebut denial of the conviction by a witness under 608.
     c. Factors for admitting prior convictions
              US v. Alexander (1995) (p. S539) – bank robbery. Want to show evi of home robbery.
              Ct said it was properly admitted – 5 factors to be considered in balancing the probative
              value of a prior conviction against prejudicial impact for purpose of 609(a)(1):
                        (1) the impeachment value of the prior crime;
                        (2) the point in time of conviction and D’s subsequent history;
                        (3) the similarity btwn the past crime and the charged crime;
                        (4) the importance of D’s testimony; and
                        (5) the centrality of Ds cred. Burden is on the govt.
              If regular witness, presumption of admitting. If def witness, presumption of excluding.
           US v. Estes (1993) (p. S543) – prior conviction (12 yrs old) of impersonating a govt
              official for govt reg witness  misdemeanor. Ct didn’t admit evi – probative value is
              outweighed by its prejudicial effect.
           US v. Amaechi (1993) (p. S544) – wanted to admit petty shoplifting as crime of
              dishonesty. Ct said no. Wasn’t allowed under 609(a)(1) b/c it was a misdemeanor.
           US v. Paige (1978) (p. 286) – possession of stolen goods. Whether under 609 can admit
              evi of prior conviction to impeach D. Inadmissible. In crim case where witness is D, too
              liberal entry of prior convictions might keep D off the stand. Ct will be more restrictive
              in allowing x-exam on borderline convictions of D – looked to the 5 factor test.
           US v. Fearwell (1978) (p. 287) – petty larceny is not a vintage crime of dishonesty or
              false statement. Is a misdemeanor, so is 609(a)(1). This crime doesn’t bear on
              “accused’s propensity to testify truthfully.” Construe 609(a)(2) narrowly.
           US v. Sims (1978) (p. 292) – prior conviction for burglary and stolen car. Ct said they
              were inadmissible b/c over 10 yrs old. For 609(a)(1) crime, if over 10 yrs old, you
              balance. Sims ct seems to apply per se rule of exclusion.
                   Open question – if perjury [609(a)(2)] and over 10 yrs old, do you balance (“shall” =
                   “may”) or is it per se admitted?

4.   Rehab of Credibility of Witnesses (pp. 296-99). If there’s been an attack on gen veracity, that
     triggers rehab. Ways to persuade jury that the witness shouldn’t be believed:
     (1) have a 2nd witness testify to the 1st witnesses bad rep for truthfulness or give his opinion that
          1st witness is untruthful  attack on char that can be met w/ a rehab char witness;
     (2) have 2nd witness testify in a way that can’t be reconciled w/ testimony of the witness being
          attacked;
     (3) introduce evi that in the past the witness had made statements contradictory to her testimony
          at trial.
     If (2) & (3) aren’t deemed to be attacks, rehab witness isn’t allowed.




                                                                                                         16
            Prob IV-19 – Assault & Battery (p. 296) –D denies the assault.
             (1) D calls W to testify about his gen rep for truth and veracity. Inadmissible b/c char hasn’t
                  been attacked.
             (2) W to testify about D’s rep for peace and quietude. Admissible b/c D can always offer
                  char evi in issue – isn’t going to rep or veracity.
             (3) DA shows D was convicted of grand larceny 9 yrs ago in rebuttal. D recalls W to testify
                  about rep for truth. DA should’ve brought it up on x-exam. Rep has been attacked , so
                  can rebut (but should never have gotten this far).
            Prob IV-20 – Impeachment by Specific Contradiction and Self-Contradiction (p. 297) –
             (1) Murder. D produces an alibi witness, J. This testimony impeaches S b/c it’s a direct
                  contradiction. 2 witnesses w/ conflicting testimony – probably constitutes an attack
                  under 403 b/c it’s a major contradiction (balancing by judge).
             (2) J said S said the person that beat her father wasn’t def. Inconsistency btwn witnesses
                  current and prior statement. Extrinsic evi is permitted (look at Rule 613). Need to see if
                  it’s an attack on gen char for veracity.
            Prob IV-21 – Rehab After Contradiction (p. 298) – car crash. P said he didn’t see doctor b/c
             no $. D showed P had ins. P wants to introduce witness to show truth. Not allowed b/c not
             attack on gen rep. Contradiction by diff witnesses usually not admitted unless super material.
            Prob IV-22 – Red Light/Green Light (p. 298) – car crash. Disagree about who had green
             light. Hasn’t been an attack on W’s rep – just a contradiction. Not allowed. Witnesses
             testimonial capacity differs, is not a gen attack on truthfulness.


G. USING EXTRINSIC EVI TO PROVE CHAR AND CREDIBILITY (pp. 299-310; S546-54).
   Really talking about a relevance prob. If challenge witness’s testimonial capacity in this case, can we
   offer new evi disagreeing w/ witness? It depends on how relevant it is to the case-in-chief. Forget 404
   & 405 and 608 & 609, back to 403. See how imp, material, collateral, tangential it is.
   1. Testimonial capacity – bad memory; perjurer
         Prob IV-23 – Bijou Blues (p. 299) – stolen car. W testified that movie playing was Aladdin,
            but diff movie was playing. D tried to attack W’s testimonial capacity. Not an attack on gen
            veracity. Want to cast doubt on rest of W’s testimony – bad memory. Is allowed. [Easy for
            x-exam; diff if it was in D’s case-in-chief.] Probably won’t be allowed to introduce extrinsic
            evi to show it was another movie b/c it’ll waste too much time – doesn’t go to the gravaman
            of he recreation of the truth. It’s really a memory case, not lying case.
         Prob IV-24 – The Wind River Ranch (p. 300) – W testifies about basic info of name and
            address. D wants to show W changed name and lives at diff address. D lied on witness stand
            – perjurer. Is not a gen 608 attack on veracity, but is a specific attack and is material. Maybe
            get it in through 611.

    2.   Bias
          Prob IV-25 – Harry’s Harborside (p. 301) – barfight. Bar owner testified for P. D tries to
             show owner was bitten by Ds dog on x-exam and he said no. Allowed to show bias. In
             rebuttal, D offers W who said he was fishing all day. Shows alibi. Extrinsic evi permitted b/c
             isn’t attack on gen veracity, 608 not applicable.
          US v. Abel (1984) (p. 301) – advances the bias rule. Abel was in Aryan Brotherhood w/
             Mills. Gen veracity has no application in rebutting or promoting a claim of bias. D can try to
             keep evi out b/c of 403. 608 & 609 don’t deal w/ bias.

    3.   Ways to try to get extrinsic evi in – 404(b); 608; 609; prior inconsistent statement.
          Prob IV-26 – Cutting Through an Alibi (p. 305) – robbery w/ knife. Govt wants to show evi
            of robbing drug dealer w/ a knife. Not admissible b/c there’s no distinctive MO under 404(b).
            Can’t get it in rebuttal even if D denies it b/c barred by 608 and is not a conviction, so not
            609. Can’t ask about robbery on x-exam b/c has nothing to do w/ truthfulness.
                 Should the agent who D told the story to be able to testify? Show def said a prior
            inconsistent statement – Rule 613. Allowed. But, current statement should never have been



                                                                                                          17
             admitted. The 1977 prior bad act is so collateral, it shouldn’t have been permitted at all. 613
             trumps 608(b).
            US v. Pisari (1981) (p. 307), the ct reversed D’s conviction b/c agent’s rebuttal testimony was
             improperly admitted. It didn’t go to identity and only addressed a collateral matter, so it was
             improperly admitted as impeachment evi.

    4.   Minimization  admission
          US v. Valencia (1996) (p. S546) – drug offenses. Govt couldn’t offer evi of previous drug
            convictions. D admitted them, but minimized his guilt. Govt wants to put in evi of
            convictions. D brought it up himself and purpose of govt’s evi is to impeach cred – 609 prior
            conviction case. BUT, D did admit he was convicted – not a case of denial which triggers
            extrinsic evi. However, by minimizing his involvement, the admission was undercut.
            Admitted.

    5.   D’s Use of Evi
          US v. Conlogue (1984) (p. S549) – D charged w/ child abuse. Appealing exclusion of evi of
             expert testimony of abused child syndrome and neighbors; ct allows evi of wife abusing the
             kids. Ct says it’s not under propensity rule. Maj allows it b/c goes to ultimate question of
             who abused the children. Doesn’t go to propensity, but to witness cred in this case.
                  Dissent says evi is inadmissible unless it “clearly links the other person to the
             commission of the crime.” Shows that give the D fair leeway to offer evi. Dissent says it
             doesn’t matter if def uses it as a sword or a shield  violated propensity rule.


H. PROVING CHAR AND CRED IN SEXUAL ASSAULT CASES (pp. 310-22; 343-9; S555-69).
   412 – when and how much can you delve into the past sexual history of the alleged victim in order to
   convince the jury the victim is promiscuous? Versus argument that don’t want to discourage victims
   from coming forward and prosecuting. Versus def being on trial facing life imprisonment for rape, so
   don’t shackle right of effective x-exam.
   1. Codification – have amended 412 and new 413.
       - Rule 412 – Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or
            Alleged Sexual Prediposition.
            (a) Evi Generally Inadmissible. The following evi is not admissible in any civil or crim
                proceeding involving alleged sexual misconduct except as provided in subdivisions (b)
                and (c):
                (1) evi offered to prove that any alleged victim engaged in other sexual behavior; and
                (2) evi offered to prove any alleged victim’s sexual predisposition.
            (b) Exceptions.
                (1) In a crim case, the following evi is admissible, if otherwise admissible under these
                     rules:
                     (A) evi of specific instances of sexual behavior by the alleged victim offered to
                          prove that a person other than the accused was the source of semen, injury, or
                          other physical evi;
                     (B) evi of specific instances of sexual behavior by the alleged victim w/ respect to
                          the person accused of the sexual misconduct offered by the accused to prove
                          consent or by the prosecution; and
                     (C) evi the exclusion of which would violate the const rights of the D.
                (2) In a civil case, evi offered to prove the sexual behavior or sexual predisposition of
                     any alleged victim is admissible if it is otherwise admissible under these rules and its
                     probative value substantially outweighs the danger of harm to any victim and of
                     unfair prejudice to any party. Evi of an alleged victim’s rep is admissible only if it
                     has been placed in controversy by the alleged victim.
            (c) Procedure to Determine Admissibility.
                (1) A party intending to offer evi under subdivision (b) must:




                                                                                                           18
                    (A) file a written motion at least 14 days before trial specifically describing the evi
                         and stating the purpose for which it is offered unless the ct, for good cause
                         requires a diff time for filing or permits filing during trial; and
                    (B) serve the motion on all parties and notify the alleged victim or, when approp, the
                         alleged victim’s guardian or rep.
              (2) Before admitting evi under this rule the ct must conduct a hearing in camera and
                    afford the victim and parties a right to attend and be heard. The motion, related
                    papers, and the records of the hearing must be sealed and remain under seal unless
                    the ct orders otherwise.
     -    Rule 413 – Evi of Similar Crimes in Sexual Assault Cases.
          (a) In a crim case in which D is accused of an offense of sex assault, evi of D’s commission
              of another offense(s) of sex assault is admissible, and may be considered for its bearing
              on any matter to which it is relevant.
          (b) In a case in which the Govt intends to offer evi under this rule, the atty for the govt shall
              disclose the evi to D, including statements of witnesses or a summary of the substance of
              any testimony that is expected to be offered, at least 15 days before the scheduled date of
              trial or at such time as the ct may allow for good cause.
          (c) This rule shall not be construed to limit the admission or consideration of evi under any
              other rule.
          (d) For purposes of this rule and Rule 415, “offense of sex assault” means a crime under Fed
              law or the law of a State that involved –
              (1) any conduct proscribed by chapter 109A of title 18, USC;
              (2) contact, w/out consent, btwn any part of D’s body or an object and the genitals or
                    anus of another person;
              (3) contact, w/out consent, btwn the genitals or anus of D and any part of another
                    person’s body;
              (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
                    physical pain on another person; or
              (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

2.   Application –
      Commonwealth v. Bohannon (1978) (p. 343) – rape charge and he said she consented. Wants
        to show she made unsubstantial rape allegations in the past through hospital records. Ct said
        you can ask about that. 412 says can’t look into sexual conduct history, but this isn’t about her
        history, this is to show she’s a liar. The sex aspect is almost irrelevant. The extrinsic evi isn’t
        barred by 608 (gen attack) b/c this is specific – propensity to lie about rape.
      Commonwealth v. Stockhammer (1991) (p. S555) – university rape and didn’t claim it for
        awhile. Want to show history w/ boyfriend – show she wants to deny what happened in front
        of her parents. Def wants to bring in outside evi of relationship w/ boyfriend. Ct lets it in –
        buys D’s bias argument. If read 412, would probably keep it out. But, can argue that Const
        trumps 412  6th amend. Close call.
      Commonwealth v. Fuller (1996) (p. S563) – tried to get records for previous rape counseling.
        Ct allowed in, then wouldn’t turn over the records. Higher ct reversed. Previous rape
        counseling can be seen to going toward char and gen sexual history. Should have a specific
        reason if need them  don’t just want to have a “fishing expedition” into victim’s records.

3.   Response to Rule 413. Very controversial. Designed to help victims who face a one-on-one
     situation by loosening power to get in similar bad acts of the def (response to William Kennedy
     Smith).




                                                                                                        19
   PART IV. COMPETENCY OF WITNESSES – THE RULES OF THE ROAD
A. GENERALLY (pp. 359-61). Peculiar characteristics of Amer trial system: (1) the adversarial
   presentation of proof (2) by live witnesses (3) before a lay factfinder. Rule against hearsay are just
   another device to promote reliable fact-finding.
   1. Witnesses. Ws are asked to testify b/c we believe they have something to add in recreating truth
       in courtroom. It’s imperative to be able to add that W exhibit some testimonial capacity – clarity,
       memory, perception, sincerity. The sum of them is competency.

B. THE PURPOSES OF CROSS-EXAM (pp. 361-6). Attacks on x-exam should be: (1) upon the
   honesty and integrity of the witness; (2) upon his ability to observe accurately at the time the incident
   occurred; and (3) upon his accuracy of recollection of the past events. Purpose of x-exam is to destroy
   cred of witness  attacks perception, memory, clarity, or sincerity.
    Prob V-1 – B & G Bar and Grill (p. 362) – questions are to show exactly what happened.
       Designed to impeach cred of messenger; testimonial capacity of the waitress. Attacking her
       ability to observe – too busy to observe. Also, her memory. At the end, tried to show bias against
       D.
    Berger v. US (1935) (p. 364) – US atty badgered witnesses – put words in their mouths; stated
       things inaccurately – basically crosses the line in x-exam. Goes way beyond permissible
       boundaries, so Sup Ct tossed it b/c it violated Ds rights.

C. COMPETENCY OF WITNESSES (pp. 366-74; 388-98). Boils down to a question of the capacity
   of the witness to testify.
   1. Rules
        - Rule 601 – General Rule of Competency. Every person is competent to be a witness except
            as otherwise provided in these rules. However, in civil actions and proceedings, w/ respect to
            an element of a claim or defense as to which State law supplies the rule of decision, the
            competency of a witness shall be determined in accordance w/ State law.
        - Rule 602 – Lack of Personal Knowledge. A witness may not testify to a matter unless evi is
            introduced sufficient to support a finding that he has personal knowledge of the matter. Evi to
            prove personal knowledge may, but need not, consist of the testimony of the witness himself.
            This rule is subject to the provisions of rule 703, relating to opinion testimony by expert
            witnesses.
        - Rule 603 – Oath or Affirmation. Before testifying, every witness shall be required to declare
            that he will testify truthfully, bu oath or affirmation administered in a form calculated to
            awaken his conscience and impress his mind w/ his duty to do so.
        - Rule 610 – Religious Beliefs or Opinions. Evi of the beliefs or opinions of a witness on
            matters of religion is not admissible for the purpose of showing that by reason of their nature
            his cred is impaired or enhanced.

    2.   Heavy presumption of admissibility.
          Prob V-2 – The Intoxicated Informer (p. 370) – selling heroin. Want to have drug buyer
            testify, but D says he was incompetent b/c of drug use under 601. Would be allowed to
            testify, absent some clear indication of incompetency. Heavy presumption of witness
            competency under the Rules.
          Prob V-3 – Little Archie, The Child Witness (p. 370) – little boy hurt, not allowed to testify
            b/c 3 yrs old. Refiled suit and is 9 yrs old now and judge allows him to testify. Archie at 3
            doesn’t appreciate importance of oath, but now can possibly appreciate it. But, could prohibit
            it b/c of his recollection.
          Prob V-4 – The Aphasic Witness (p. 371) – car crash and guy can only answer simple
            questions. Probably would allow testimony – witness is competent and understands the oath.
            Probably too collateral to challenge capability of witness by expert. The difference btwn
            competency and sufficiency to testimony. Injury didn’t affect testimonial capacity, but his
            articulateness is doubtful.




                                                                                                          20
             Prob V-5 – Knee-Jerk Witness (p. 372) – can’t talk, but can answer by raising her knee.
              Admissible b/c very probative b/c only witness. Heavy presumption of competency. Hard to
              x-exam her, though.
         a.    Limitations
                    Prob V-6 – The Medium is the Message (p. 373) – witness can’t talk, but wants to
                      testify through a medium. Not admissible. The medium has no personal knowledge,
                      no way to verify witness testimony.
         b.    Interpreters.
                   - Rule 604 – Interpreters. An interpreter is subject to the provision of these rules
                      relating to qualification as an expert and the administration of an oath or affirmation
                      that he will make a true translation.
         c.   Hypnotists. Cts are all over the place on this.
                    Prob V-7 – “You Feel Very Sleepy…” (p. 373) – witness was hypnotized and said
                      def was guilty. Allow in and def atty can point out all the flaws. Query – is there a
                      distinction btwn hypnotically induced or hypnotically refreshed?
                    Rock v. Arkansas (1987) (p. 388) – def was hypnotized about gun. What about
                      refreshing recollection? Allowed in and invalidated Arkansas’ per se rule excluding
                      all post-hypnosis testimony. Said hypnosis was a valid therapeutic technique. Can
                      reduce inaccuracies by procedural safeguards – done only by person w/ special
                      training; conducted in neutral setting; tape or video recorded. Can reveal
                      inconsistencies by x-exam.


D. FORM AND SCOPE OF EXAM OF WITNESSES (pp. 398-404).
   1. Rule. Generally, no leading questions on direct and allowable on cross. Switch around for
      adverse witness.
      - Rule 611 – Mode and Order of Interrogation and Presentation.
          (a) Control by ct. The ct shall exercise reasonable control over the mode and order of
              interrogating witnesses and presenting evi so as to (1) make the interrogation and
              presentation effective for the ascertainment of the truth, (2) avoid needless consumption
              of time, and (3) protect witnesses from harassment or undue embarrassment.
          (b) Scope of x-exam. X-exam should be lmtd to the subject matter of the direct exam and
              matters affecting the cred of the witness. The ct may, in the exercise of discretion, permit
              inquiry into additional matters as if on direct exam.
          (c) Leading questions. Leading questions should not be used on the direct exam of a witness
              except as may be necessary to develop his testimony. Ordinarily leading questions
              should be permitted on x-exam. When a part calls a hostile witness, an adverse party, or
              a witness identified w/ an adverse party, interrogation may be by leading questions.

    2.   Application
         a. Direct Exam
             Prob V-5 – Direct Exam: Accident (p. 399) – personal injuries; D pleads contrib neg.
                 The 1st question asking where she was is fine. The 2nd question is if D drove his car into
                 her. No foundation has been laid. Haven’t shown person was there.
             Prob V-9 – Direct Exam: Car Theft (p. 399) – alleged conversion that D denies. P lays
                 foundation, but isn’t allowed to ask a leading question on direct, so objection is sustained.
             Prob V-10 – Direct and X-Exam: High Sticking (p. 399) – assault and battery w/ stick.
                 Leading question on direct is not allowed. But, witness recollection appears exhausted,
                 so more leeway by ct. Questioning on x-exam, can ask leading questions. If call on
                 direct exam a hostile witness, can ask leading questions. 611 is not a rigid rule.
             Prob V-13 – Opium (p. 401) – direct exam about opium, asked if he was employed and
                 said D bought drugs. Answer is non-responsive, but only person who can object on this
                 is questioner. Can object b/c no foundation.




                                                                                                           21
b.  X-exam
     Prob V-11 – X-Exam: Charles Atlas (p. 400) – mayhem charge, little guy beat up big
        guy. On x-exam, cannot ask argumentative questions and use a legal standard of proof
        (beyond a reasonable doubt).
     Prob V-12 – X-Exam: Lover’s Quarrel (p. 400) – wife shot hubby. X-exam by P:
        (1) What had your husband done to cause you to kill him? Not allowed b/c assumes a
             fact.
        (2) Did you have any reason for taking that man’s life that you said you loved? Same
             as (1).
        (3) Can you give the jury any reason why you shot your husband and killed him? Same
             as (1) & (2).
        (4) Did he threaten you? Permissible b/c can show motive.
        (5) Did he draw a gun? Just answer yes or no… Not permissible b/c cts don’t like
             lawyers telling witnesses how to answer questions.
c. Hostile Witness
     Prob V-14 – Hostile Witness (p. 401) – car accident, personal injury on agency theory.
        On D’s x-exam of company driver:
        (1) Show S was detouring to check in w/ bookie. Allowed b/c shows S was acting
             beyond scope of agency.
        (2) Show S came to full stop at light. Outside scope of x-exam b/c doesn’t go to agency
             – fault wasn’t part of direct case.
        (3) Show P ran light and hit S. Outside scope b/c case isn’t about contrib neg. [Will
             come out in D’s case-in-chief.]
     Prob V-15 – Death at the Awahee (p. 402) – ins claim on death. Witness is caretaker of
        lodge and D wants to get in C’s personal knowledge. 611(b) – ct will allow in as
        additional matters in its direct and try witness as hostile. Or, can wait for redirect and
        recall C. [It’s going to come in anyway, so who cares?]
d. Bias
     Prob V-16 – Powder-Puff Killer (p. 402) – killed by spider and injection.
        (1) X-exam of toxicologist – leading question about demerol, which is allowed b/c it’s
             on x-exam and doesn’t go beyond scope of the direct.
        (2) Mrs. D’s mom said she saw D put spider in compact. X-exam about will disowning
             D. Allowed b/c it shows bias – is a cred attack – has nothing to do w/ 611.
e. Cumulativeness of Direct Testimony
     Prob V-17 – Showdown at the W-Q Ranch (p. 403) – contesting ownership of ranch. Sec
        said he saw Quarrel sign deed.
        (1) X-exam about time he saw papers. Probably allowed b/c even though it goes beyond
             the scope of direct, but the subject matter was brought up on direct by a prior
             witness. Direct testimony is cumulative, so if direct was covered by another witness,
             ct will allow it. BUT, ct may limit ability to ask leading questions.
        (2) Proposal to make M def’s witness. Ct will allow it – so D may examine him as if on
             direct.




                                                                                               22
                                        PART V. HEARSAY
A. THE RULE AGAINST HEARSAY (pp. 404-8; 413-25). Want to get at the truth. Do it by putting
   witnesses on the stand, then the x-exam will crystalize the truth. Don’t want to allow out-of-ct
   statements not subject to x-exam being offered for their truth. Presumption that out-of-ct statements
   offered in ct are inadmissible hearsay --> not reliable. Need sufficient indicia of reliability in eyes of
   the law.
   1. Issues.
        (1) What type of statement are we talking about? Oral? Written? Conduct? Unless a statement,
            hearsay rule doesn’t apply.
        (2) May an out-of-ct statement be offered in ct? Of course. Often are, if not offered for truth (ie
            – state of mind, capacity, etc.)
        (3) What if out-of-ct statement has other indicia of reliability? Presumptively credible even if
            made out-of-ct? Dozens of exceptions to the hearsay rule. Other indicia of reliability act as
            surrogate for x-exam.

    2.   Structure for dealing w/ hearsay probs:
         (1) See if offered evi raises a hearsay issue;
         (2) See if offered evi is hearsay. Consider:
             (a) what the evi is offered to prove (relevancy);
             (b) whether the evi is a “statement”;
             (c) whether the statement was made by someone other than the witness testifying;
             (d) whether the statement is offered to prove the truth of the matter asserted;
         (3) See if evi may be admitted for another, nonhearsay purpose;
         (4) If evi is hearsay, see if the evi fits w/in one of the many hearsay exceptions; and
         (5) See whether the evi, even if not hearsay, ought to be excluded b/c of prejudice or const
             considerations.

    3.   Rule.
         - 801(a)(b)(c) – Definitions.
             (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a
                 person, if it is intended by him as an assertion.
             (b) Declarant. A “declarant” is a person who makes a statement.
             (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying
                 at the trial or hearing, offered in evi to prove the truth of the matter asserted.

    4.   Application
         a. Statement
             Prob V-18 – Arsenic and Hors d’Oeuvres (p. 406) – wife and father-in-law dead.
                 (1) DA calls druggist to say he sold D a tube of rat poison. Admissible b/c the statement
                      is made in ct on own personal testimonial capacities. Not hearsay.
                 (2) DA wants to call druggist’s sister. Not admissible b/c hearsay b/c testifying about
                      statement W made out-of-ct. Get around it by calling W to testify.
             Prob V-19 – Murder at the Seaside Bistro (p. 406) – officer interviewed owner H who
                 signed a paper saying D killed V. H dies. Statement is inadmissible b/c statement can be
                 written and there was no x-exam. The fact that H is dead makes no difference – would
                 violate 6th amend right to confront accuser.
             Prob V-20 – Assault on Mass Ave (p. 406) – someone threw brick in car. (see also
                      conduct as statement)
                      (1) P testifies Andy said Dora did it. Inadmissible as hearsay.
                      (2) P testifies that Andy pointed to Dora. Hearsay b/c nonverbal conduct by Andy
                           intended to be an assertion. Conduct may be viewed as an out-of-ct statement
                           offered for its truth, BUT that conduct has to be intended at time made to be
                           viewed as an assertion for truth. Can get tricky.




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b.   Personal observation v. hearsay
      Prob V-21 – Murder in the Ajax Bldg (p. 407) – 4 people in office and Clair either fell
          out window or was pushed.
          (1) 1st witness was coroner who said Claire wasn’t pregnant. Not hearsay b/c he’s
               testifying about what he personally observed.
          (2) 2nd witness is Nosey who works across street and saw man’s face in window. Not
               hearsay b/c testifies about what she saw.
          (3) 3rd witness was officer who says Agnes says David pushed Claire. Hearsay b/c he’s
               testifying about statement other party made out-of-ct.
          (4) 4th witness is Belle who testifies about what she told officer on day of crime. Out-of-
               ct declarant is now in-ct witness. Hearsay b/c is still an out-of-ct statement which
               wasn’t subject to x-exam. Can’t bootstrap w/ declarant’s presence in the courtroom.
               However, if Belle testifies on direct and on x-exam, is told she made the story up,
               she can rebut w/ out-of-ct declaration – 801(d)(1) – admissible to rebut charge of
               recent fabrication.
          (5) Exhibit A – note from Claire to David. It’s relevant for motive. Offered for truth of
               matter aserted --> that she’s pregnant (this is what D says). Objection by DA -->
               offered as circum evi to show what David believed. It’s hearsay ONLY IF offered
               for it’s substantive truth. Is allowed.
c.   Offer for truth of the statement
      Prob V-22 – Hot Goods (p. 413) – D wants to testify that he was holding earrings for
          Jenkens. Not hearsay b/c not offered for truth --> goes to mental state of what def knew.
          Substantive truth of statement is irrelevant.
      Prob V-23 – Loathsome Leper (p. 413) – defamation. P wants to testify that D said P was
          a loathsome leper. Not hearsay b/c not meant to show the truth of the statement. P is just
          showing statement was made.
      Prob V-24 – Trespass Per Quod Servituim (p. 413) – damage to kid’s vocal chords. D
          offers W to say he heard kid say “I can speak.” See if offered as truth or that it was
          made, but they overlap. Is not hearsay b/c statement isn’t offered for its truth --> the
          making of the statement through the vocal chords is key. (** was on old exam).
      Prob V-25 – “Palming Off” (p. 413) – knife competition. Statement by the Gifts
          Company was not hearsay. It is just offered to show their confusion. It’s precisely b/c
          the statement is not true that it’s admissible.
d.   Summary Judgment. Hearsay rules have no bearing on pre-trial, legal motions.
      Prob V-26 – Summary Judgment (p. 414) – search of newspaper office. Reporter said
          searches chill news sources. Hearsay rules don’t apply in summ judgment. Affidavit is
          hearsay, but so what. The judge will decide whether it’s reliable. Look at 804 and 104(a).
e.   Establishing a Legal Relationship. Statements that by themselves effectuated a legal
     relationship are not hearsay. Legal relationship trumps hearsay rule.
      Prob V-27 – Contractual Terms and Hearsay (p. 414) – action for price of TV. Exhibit 1
          is assignment of claim from Acme to P. Offered as evi of a valid and binding contract.
          Relevant to show legal relationship existence. Contractual terms to show a contract
          exists are not hearsay. Any time statement is made that has a legal effect of promoting
          this relationship, we’ll allow it. Can also say assignment gives standing to client and has
          sufficient indicia of reliability.
      Prob V-28 – Dissatisfied Purchaser (p. 415) – wants return of payment for land.
          (1) Submit an ad. Not offered to show the truth, just show that the guarantee was made.
               Statements in ad are verbal acts regardless of truth – not hearsay.
          (2) Letter from Sucker asking for $ back. Not hearsay, show P duly notified D about the
               claim. Triggers legal relationship. But, the part of the letter that says “I inspected
               my lot” is hearsay. So, partial hearsay.
      Prob V-29 – The “Corn-Crib” Case (p. 415) – [Hanson case] claims that banks’
          foreclosure of Schrik’s prop was wrong b/c part of it (corn) was his.
          (1) Schrick pointed to corn and told Hanson which corn cribs were his. This is an oral
               contract in law of sharecropping (contracts rarely in writing). Saying it made the



                                                                                                  24
               partition so. Creates a legal relationship, so there’s indicia of reliability. Held –
               verbal act creating legal relationship binding on both parties and independently
               reliable. Is offered for truth, but isn’t hearsay (or is exception) b/c it has indep
               indicia of reliability.
          (2) Called bystander to say he overheard conversation. Is hearsay. No verbal act, no
               legal relationship --> not coming in. Would be diff if Hanson heard it.
f.   Intent - Conduct as Statement. 801(a)(2) excludes non-assertive conduct. “Where evi of
     non-verbal conduct is relevant only as supporting inferences from the conduct to the belief of
     the actor and thence to the truth of his belief, prevailing doctrine stigmatizes the evi as
     hearsay, inadmissible unless accomodated w/in one of the exceptions to the rule.” (p. 417)
               Analysis:
                    (1) look at facts of case;
                    (2) how ambiguous is the intention;
                    (3) how prejudicial would it be to allow that conduct into evi.
           Prob V-30 – Captain Cook and Davey Jones (p. 420) – [Wright v. Tatum] action for
               loss of goods when Ds ship went down. Evi that Cook has 30 yrs of seaworthiness
               and his family was on board. Deals w/ conduct intended as an assertion – not
               intended as an assertion of seaworthiness. Is relevant to show that captain believed
               ship was seaworthy – show belief through conduct. Conduct has various
               interpretations. Nothing to corroborate P’s claim that he intended to show
               seaworthiness. Is admissible.
                    If not conduct intended as an assertion, is not hearsay b/c there are a lot of other
               constructions. Question of intent is for the judge. Bottom line: you don’t know the
               captain’s intent, so it’s not hearsay.
           Prob V-31 – Black Crepe (p. 420) – life ins; P says H died before May 31.
               (1) P calls White to say on May 31 house had black crepe. Can say it’s conduct
                    intended as an assertion that Howard is dead. Is prob hearsay, but can argue
                    other way. The sincerity is suspect.
               (2) P calls witness to say he saw doctor pull sheet up over Howard’s head. Can say
                    it’s more normal conduct. Probably not hearsay --> ritual assertion, almost
                    reflex. No need to question doctor’s sincerity or motive.
           Prob V-32 – Hot Pursuit? (p. 420) intruder stabbed doctor, doctor drove to hospital,
               saw man and hit him. Doctor later died and man was charged. DA wants to offer
               wife’s testimony on issue of identity. Hard to tell if doctor was unconscious – if so,
               wasn’t an assertion. If he said “That’s him”, it’s hearsay. Ct let it in b/c it was very
               ambiguous if he was capable of forming an intention.
     g. Non-conduct intended as an assertion. Presumption that it is NOT intended as an
          assertion unless there’s some other conduct.
           Prob V-33 – Ptomaine Poisoning at the Greasy Spoon (p. 421) – testimony that there
               was a pot of beans that 20 others were served from and there were no other
               complaints. Non-conduct intended as an assertion. But, is not clear that mere failure
               to complain is intended as an assertion of food poisoning.
           Cameron v. Walton-March (1990) (p. 421) – P complains D didn’t warn about
               product. D’s employee wants to testify there are no complaints, showing there is no
               duty to warn. No warning label b/c no one gets allergies. Ct lets it in b/c it’s not
               offered to show product was safe, but to show people aren’t allergic. 3 ways of
               going about this: (1) can say failure to complain is so ambiguous that it’s not
               intended as anything and is not hearsay and is admissible; (2) can also say is hearsay
               b/c absence of complaint is intended as an assertion of non-allergy (loser position);
               and (3) hearsay – product is safe.
           Prob V-34 – “Thieves Will Out” (p. 424) – murder. Govt calls W to testify that V
               gave him paper w/ D’s name and phone number and said to call police if not home
               later. Relevant in that it shows V was mtg w/ D and was scared. Can say hearsay
               b/c out-of-ct statement offered for truth of assertion --> to wit, that D killed me. A
               reasonable alternative inference is not that D killed him, but as a powerful piece of



                                                                                                     25
                      circum evi that V knew and associated w/ D. Not offered for its truth. Was
                      admitted.
                           Dissent said it was offered only for the truth, otherwise it’s irrelevant. [Fienberg
                      thinks it was wrongly decided. The only relevance of note is to tie V & D for
                      purposes of murder. Should keep the whole thing out.]
                     Prob V-35 – The Briefcase (p. 425) – pot in briefcase in huge office. I.d. on case is
                      monogram. Can say it’s hearsay b/c assertion that he owns the briefcase. Can say
                      monogram is offered to prove it’s on the briefcase. BUT, can say as circum evi, D
                      owns the briefcase. Would usually have an argument over authenticity of the
                      briefcase. But here, there’s no statement accompanying it --> offered as evi of
                      ownership (association btwn D and briefcase). If arguing truth of matter asserted
                      (that WGM is on the briefcase), it’s hearsay.


B. STATEMENTS OF A PARTY OPPONENT (pp. 425-49). Out-of-ct statement is of a party or
   agents; x-exam of declarant sometimes isn’t possible or practical, but if other conditions are satisfied,
   the statement is admitted.
   1. Rule
        - Rule 801(d)(2) – Definitions.
            (d) Statements which are not hearsay. A statement is not hearsay if –
                (2)Admissions by party-opponent. The statement is offered against a party and is (A) his
                own statement, in either his individ or a rep capacity, or (B) a statement of which he has
                manifested his adoption or belief in its truth, or (C) a statement by a person authorized by
                him to make a statement concerning the subject, or (D) a statement by his agent or
                servant concerning a matter w/in the scope of his agency or employment, made during
                the existence of the relationship, or (E) a statement by a co-conspirator of a party during
                the course and in furtherance of the conspiracy.

    2.   Application –
         a. Generally
                  Prob V-36 – He Who Laughs Last... (p. 426) – value of prop.
                     (1) State offers Cheat’s abatement request filing. Admissible b/c it is a statement of
                          party-opponent. Party’s interest when making the statement is irrelevant.
                          Doesn’t matter if was adverse or beneficial to the party’s interests.
                     (2) State says value is $30K. Cheat offers abatement filing. Not admissible b/c
                          hearsay b/c it’s his own statement.
                     (3) Cheat offers city tax assessment. Not sure city is agent of the state. Is so, it’s
                          admissible. If not, hearsay.
         b. Lay a Foundation.
                  Prob V-37 – “If You’re Gonna Get Hit, Get Hit by a Rolls” (p. 426) – chauffeur hit
                     P, P has amnesia.
                     (1) P offers letter by D that says C was neg. Admissible. But, D’s letter is his
                          opinion. Still comes in b/c personal knowledge isn’t required.
                     (2) P rests and D moves for nonsuit. Letter isn’t sufficient. Have to prove C is D’s
                          agent.
                     (3) P calls bystander who heard C say it was his fault. Admitted, said he was his
                          agent and he was at fault.
         c. Silence
                  Prob V-38 – Silence as Statement (p. 427) – theft.
                     (1) Witness testify D said there wasn’t anything of value, but S saw $. S is dead.
                          Admissible b/c D on these facts adopted S’s statement by his silence –
                          801(d)(2)(B).
                     (2) Officer said he made comments and D didn’t respond. Admissibility depends
                          on whether he’d been read his Miranda rights. If not, he’s adopted officer’s
                          statement as truth.



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             Fletcher v. Weir (1982) (p. 427) – Weir stabbed person, left scene and didn’t turn
              himself in. Claimed self-defense. DA asked why he didn’t tell police. Lower ct said
              was inadmissible. Ct held this didn’t deal w/ Miranda warnings and didn’t violate
              due process. Silence is deemed to be a statement of a party-opponent, to wit, “I’m
              guilty.”
d.   Agency
         Prob V-39 – Omar the Disappearing Cat (p. 430) – cat went to sanitarium and
             escaped. D says never had Omar.
             (1) P calls manager who said Omar was checked in. Allowed in b/c manager is
                  agent of def and was in scope of employment.
             (2) P testifies that tablemate said he was manager. Admissible, but want proper
                  foundation that declarant is agent. The statement can be the foundation.
         Prob V-40 – P v. Greed Power & Light Co (p. 430) – dam collapsed.
             (1) P wants to call Pres of Homeowners to testify that engineer said repair was bad.
                  Admissible b/c engineer is agent.
             (2) P wants to call engineer’s husband. Admissible – doesn’t matter who statement
                  is made to.
             (3) P proposes to call reporter who talked to Pres of Greed. Admissible b/c Pres is
                  agent of company. Also, statements of party opponent are liberally construed.
             (4) P wants to call employee of Greed that consulting firm talked to about collapse.
                  Admissible b/c agent of company. If not hired by company, can admit it to
                  show notice and silent adoption.
             (5) D wants to call its employee. Admissible b/c it’s not offered to prove that
                  system was safe, but to show Ps were on notice and assumed the risk.
        i. Personal opinion v. knowledge. Personal opinion doesn’t preclude statement of party-
        opponent. Rule will liberally construe agency relationships.
                   Mahlandt v. Wild Canid Survival & Research Center (1979) (p. 431) –
                       alleged wolf attack. 3 statements excluded at trial: (1) note by wolf’s
                       guardian; (2) statement made by guardian; and (3) abstract of minutes from
                       directors mtg. Excluded b/c guardian didn’t have personal knowledge. Cir
                       Ct says doesn’t matter – opinion is fine. About corp minutes, not allowed
                       against def, but are allowed against corp.
        ii.. Atty as agent.
                   US v. Harris (1990) (p. 436) – bank robbery. Man saw def after and
                       identified him. Atty visited man and showed him picture of def’s brother
                       and tried to get mistaken i.d. Atty w/drew. Atty’s out-of-ct statements can
                       be offered against def --> atty is def’s agent. Admitting statements was
                       okay. Harris didn’t have to take the stand, self-incrim rights still protected.
e.   Required statements
         Prob V-41 – Recall Letters (p. 440) – car accident and died. After, wife got letter
             saying there was a defect in car. Company was required to make the statement.
             Should mandated recall letters fall w/in statements of party-opponent? Sup Ct has
             never decided this issue – there are cases both ways.
f.   Double hearsay problem
         Prob V-42 – The Rat Roommate (p. 440) – issue of intention to kill. Roommate says
             D was going to “get” V. Cop may not testify about what party-opponent said b/c it’s
             double hearsay --> 805, each separate hearsay objection must be independently dealt
             w/. If R takes the stand, he can testify about what D said b/c it’s statement of party-
             opponent.
g.   Conspiracies
         Prob V-43 – Incident (p. 441) – robbery and man says girl made him do it; girl
             denied. Call victim to testify about man’s statement. Woman is on trial. Since man
             isn’t on trial, is inadmissible. If joint trial, that statement cannot be offered against
             the woman b/c there’s no conspiracy. Bruck says can’t even use it against the man in




                                                                                                   27
                      joint trial b/c it will damage the woman’s chance to a fair trial and instructions from
                      the judge won’t cleanse the problem.
                           Victim’s statement in response to woman’s denial at woman’s trial is also not
                      admissible --> is out-of-ct declaration offered for it’s truth = rank double hearsay. Is
                      hearsay even if def is on the stand.
                     Bourjaily v. US (1987) (p. 442) – testimony re co-conspirator. Have to prove
                      conspiracy in order to get evi in under conspiracy exception. Allow statements of
                      one to be offered against the other. Can prove conspiracy by bootstrapping evi that
                      otherwise wouldn’t be admissible. You don’t need indep evi of a conspiracy.
                           Evi of a conspiracy are prelim questions of fact that must be resolved by the ct
                      under Rule 104(a). When prelim facts are disputed, the offering party must prove
                      them by a preponderance of the evi.


C. PRIOR STATEMENTS (pp. 465-72; S571-8). All hearsay involves prior statements. Need
   preconditions to take them out of the realm of hearsay.
   1. Rules
       - Rule 801(d)(1) - Definitions
           (e) Statements which are not hearsay. A statement is not hearsay if –
                (1) Prior statements by witness. The declarant testifies at the trial or hearing and is
                     subject to x-exam concerning the statement, and the statement is (A) inconsistent w/
                     his testimony, and was given under oath subject to the penalty at a trial, hearing, or
                     other proceeding, or in a deposition, or (B) consistent w/ his testimony and is
                     offered to rebut an express or implied charge against him of recent fabrication or
                     improper influence or motive, or (C) one of identification of a person made after
                     perceiving him.
       - Rule 613 – Prior Statements of Witnesses
           (a) Examining witness concerning prior statement. In examining a witness concerning a
                prior statement made by him, whether written or not, the statement need not be shown
                nor its contents disclosed to him at that time, but on request the same shall be shown or
                disclosed to opposing counsel.
           (b) Extrinsic evi of prior inconsistent statement of witness. Extrinsic evi of a prior
                inconsistent statement by a witness is not admissible unless the witness is afforded an
                opportunity to explain or deny the same and the oppision party is afforded an opportunity
                to interrogate him thereon, or the interests of justice otherwise require. This provision
                does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
       - Rule 804 – Hearsay Exceptions; Declarant Unavailable
           (a) Definition of unavailability. “Unavailability as a witness” includes situations in which
                the declarant –
                (1) is exempted by ruling of the ct on the ground of privilege from testifying concerning
                     the subject matter of his statement; or
                (2) persists in refusing to testify concerning the subject matter of his statement despite
                     an order of the ct to do so; or
                (3) testifies to a lack of memory of the subject matter of his statement; or
                (4) is unable to be present or to testify at the hearing b/c of death or then existing
                     physical or mental illness or infirmity; or
                (5) is absent from the hearing and the proponent of his statement has been unable to
                     procure his attendance (or in the case of a hearsay exception under subdivision
                     (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.
                A declarant is not unavailable as a witness if his exemption , refusal, claim of lack of
                memory, inability, or absence is due to the procurement of wrongdoing of the proponent
                of his statement for the purpose of preventing the witness from attending or testifying.




                                                                                                            28
     a.   Overview –
                        801(d)(1)(D): Prior Statement                           804(b)(1) - Unavailability
                        1. Oath                                                 1. X-exam (grand jury)
                        2. Inconsistent                                         2. Adversarial
                        3. Declarant                                            3. Unavailable
              Both are deemed substitutes of in-ct testimony. Prior statements can be said to be more
              reliable. Oath gives credence to policy choice of admissibility. 801(d)(1) – if want to
              offer prior statement into evi, if under oath, was inconsistent, and offered for its truth. To
              impeach, use 613.

2.   Application
     a. Oath
         Prob V-44 – The Stolen BMV (p. 467) – W said before “D took car” and on trial said “T
             took it.” Nonsuit would be granted b/c 1st statement not admissible b/c not under oath.
             Can use prior statement to impeach. If under oath, nonsuit not granted b/c admissible as
             to its truth. Diff btwn 601 and 801(d)(1)(A) – oath.
     b. Grand Jury Testimony
         Prob V-45 – The “Forgetful” Witness (p. 467) – mail fraud. Co-conspirators called and
             said can’t remember a thing, wants to bring in grand jury testimony.
             (1) The statements are “inconsistent” only if lying - shady. If witness is faking, he’s
                   unavailable – have 804 option as well as 801 option.
             (2) Testimony before grand jury falls w/in 801(d)(1)(A) – it’s specifically covered.
             (3) If W were present in ctrm, but not called to testify, it would make a difference to the
                   admissibility of W’s grand jury testimony. Must testify! Can’t offer grand jury
                   testimony unless declarant has taken the stand – but, don’t have to do it exactly in
                   symmetry.
             (4) W is “subejct to x-exam” concerning grand jury testimony b/c he’s on the stand.
             (5) D’s 6th amend rights have not been violated b/c still have confrontation and x-exam.
             (6) If DA tried to introduce W’s testimony at a prelim hearing, analysis would be the
                   same as grand jury testimony – it was under oath and he was x-examined. If said he
                   forgot, could bring it in under 804(b)(1).
                   If tried to introduce W’s statements to the arresting officer, it wouldn’t be
              admissible. If impeach, is allowed – 613.
     c. Impeachment: 613 v. 801(d)(1)
         Whitehurst v. Wright (1979) (p. 470) – shooting. Ct didn’t allow testimony in of Officer.
             Humphrey is on the stand. Ct said can’t impeach by prior inconsistent statement.
             Challenges distinction btwn 613 and 801(d)(1). On the stand, wants to say gun wasn’t
             fired, but before he said it was fired. Normally admitted to impeach – 613. Ct decided it
             was a subterfuge and inadmissible. Prior inconsistent statement to impeach, but allowed
             as substantial evi offered for truth b/c not made under oath. [Derelict on waters of the
             law.]
                    [What if change 801(d)(1) and take out requirement of the oath? Then evi would be
             let in. Do you really need oath even though def is now on the stand and is subject to x-
             exam? By only 1 vote did the oath stay in the rule.]
     d. Recent fabrication and 801(d)(1)(B) –
         Prob V-46 – Prosecution’s Patsy (p. 471) – testimony about nephew, wasn’t in grand jury
             testimony. Govt wants to introduce old testimony. Admissible – under oath. Since def
             is trying to make mischief by reading part of testimony, will permit govt to read rest of
             grand jury testimony – tit for tat. Prior statement under oath, consistent to rebut charge of
             recent fabrication.
         Tome v. US (1995) (p. S571) – def charged w/ sexual abuse of daughter. Out-of-ct
             statements. Sup Ct says they are inadmissible. Motive is custody of the kid. Lawyer
             wants to show consistent statements 801(d)(1)(B) – told the babysitter. Must be prior to
             motive to fabricate.




                                                                                                         29
                              Statement is admissible if made before the alleged fabrication, influence, or
                   motive came into being, but is inadmissible if made afterwards --> this temporal
                   requirement is embodied in 801(d)(1)(B).
         e.   Identification and 801(d)(1)(C). Theory: the immediate identification of def is more
              reliable than the one made in ct. Declarant is available for x-exam.
               Prob V-47 – Blind Justice (p. 471) – robbery of blind man. Officer testimony admitted
                   under 801(d)(1)(C). Not inconsistent and no motive to fabricate. Key is identification –
                   nothing in (C) talks about consistency.
               Prob V-48 – Erring Eyewitness (p. 472) – robbery. Eyewitness asked to pick out robber
                   in ct and points to US Marshal. DA gets testimony from W about W’s selection of a
                   photo of def. Should 3rd-party testimony re out-of-ct i.d. by a witness be admissible if
                   witness can’t recall prior i.d.? No - declarant is not available for x-exam. There is no
                   subject to x-exam declarant concerning statement --> there is no statement. Try to close
                   up a little bit the loophole made by (C). There’s no statement about eyewitness if don’t
                   remember the process.


D. FORMER TESTIMONY (pp. 472-5). Under 804(b)(1), test is whether the party against whom the
   testimony is offered was a predecessor in interest. Has to be unavailable. See if there’s similarity of
   interests, parties, issues.
   1. Rule
        - Rule 804(b)(1) – Hearsay Exceptions; Declarant Unavailable
             (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant
                  is unavailable as a witness:
                  (1) Former testimony. Testimony given as a witness at another hearing of the same or a
                        diff proceeding, or in a depo taken in compliance w/ law in the course of the same or
                        another proceeding, if the party against whom the testimony is now offered, or, in a
                        civil action or proceeding, a predecessor in interest, had an opportunity and similar
                        motive to develop the testimony by direct, cross, or redirect exam...

    2.   Application
          Prob V-49 – Speaking from the Grave: Dead Witness, I (p. 473) – P v. Supermarket for
            falling. W said ketchup on floor. Mistrial. W dies. Admit testimony – 804(b)(1). Similar
            motive, same trial, same subject matter.
          Prob V-50 – Dead Witness, II (p. 474) – car accident. P v. D, W testifies for P. W dies.
            Then , G (guest in P’s car) v. D. Admitted – was opportunity to x-exam, same motive.
          Prob V-51 – Dead Witness, III (p. 474) – arson. P is sued by state. W testifies for state. P v.
            D Ins Co. D wants to admit W’s testimony. Admit b/c P could x-exam witness. What if civil
            trial went first? Diff standards of proof – ct less willing to find predecessor in interest, similar
            motive.
          Prob V-52 – Dead Witness, IV (p. 474) – injury out of bus. H v. D (for loss of wife’s
            services), then P v. D. W dies after testifying for D in 1st case. D wants to admit W’s
            testimony. Admissible - suing on similar theories, related by marriage.
          Prob V-53 – Dead Witness, V (p. 474) – car accident, and bystander W is injured. P v. D,
            then W v. P. D testifies, then dies. W wants to admit D’s testimony. Like offensive v.
            defensive theories of estoppel. The use in the 2 nd trial (offense) may be diff than in the 1 st trial
            (defense). Close call.




                                                                                                               30
E. STATEMENTS AGAINST INTEREST (pp. 475-8). Rationale – people aren’t likely to make
   statements damaging to themselves unless they believe them to be true. Requirements: (1) declarant
   must be unavailable; (2) must be “against interest” when made, that’s why it’s reliable; (3) has to be
   based on personal knowledge of declarant. This is very diff from party-opponent – which is a huge
   exception; this is much more narrowly circumscribed.
   1. Rule
        - Rule 804(b)(3) – Hearsay Exceptions: Declarant Unavailable.
           (c) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant
                 is unavailable as a witness:
                 (3)Statement against interest. A statement which was at the time of its making so far
                 contrary to the declarant’s pecuniary interest, or so far tended to subject him to civil or
                 crim liability, or to render invalid a claim by him against another, that a reasonable man
                 in his position would not have made the statement unless he believed it to be true. A
                 statement tending to expose the declarant to crim liability and offered to exculpate the
                 accused is not admissible unless corroborating circum clearly indicate the trustworthiness
                 of the statement….

     2.   Application
           Prob V-54 – Fraudulent Transfer (p. 476) – transfer of assets.
             (1) W1, Jr testify his dad W1 is dead, but before he died, told W1 Jr that he owed D $5000.
                  Admissible – unavailable and against interest.
             (2) W2 Jr testify his dad W2 is dead, but before he died, told W2 Jr that he conveyed prop to
                  D. Admissible- unavailable and against proprietary interest.
           Prob V-55 – Speeding Chauffeur (p. 476) – accident. B said Jeeves was driving fast and ran
             stop sign. Can say chauffeur is agent of B and could be brought in suit – BUT, B is not a
             party. Also, statement against interest has to be based on personal observation by declarant.
           Prob V-56 – Thick as Thieves (p. 478) – murder.
             (1) D offers Joe’s statement he killed V. Admissible – against interest.
             (2) D offers letter by Joe saying he killed V, then Joe commits suicide. May be admissible as
                  statement against penal interest, but not suffer any consequence b/c he committed suicide.
                  Maybe let it in, but there’s no enhanced reliability b/c he’s dead.
             (3) D offers Joe’s statement that D isn’t guilty. Not admissible b/c not against Joe’s interest.
                  Legal opinion  not based on personal knowledge.
             (4) D offers Joe’s statement that Frank and Joe killed V and D had nothing to do with it. 1 st
                  part admitted b/c subject to crim liability; 2 nd part probably redacted b/c it’s gratuitous.
             (5) DA offers Joe’s statement that Joe and D killed V. Can be admissible b/c statement
                  against interest. But, no opportunity to x-exam and violated Brucken. Co-def
                  implications. Clearly inadmissible.


F.   DYING DECLARATIONS (478-82). Rationale – believed that impending death induces a person to
     speak the truth. Has to be made under sense of “impending doom”, which requires a subjective
     determination of declarant’s state of mind, and subject matter has to do w/ that death. Don’t have to
     actually die, just think you’re dying. Declarant must be unavailable. Lmtd to certain kinds of crim
     cases (homicide).
     1. Rule
         - Rule 804(b)(2) – Hearsay Exceptions: Declarant Unavailable.
              (c) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant
                    is unavailable as a witness:
                    (2) Statement under belief of impending death. In a prosecution for homicide or in a
                         civil action or proceeding, a statement made by a declarant while believing that his
                         death was imminent, concerning the cause or circumstances of what he believed to
                         be his impending death….




                                                                                                            31
    2.   Application
          Prob V-57 – Voice from the Grave (p. 479) – shooting. While dying at hospital, V says sister
            D shot her. Admissible b/c witness unavailable, homicide case, imminent death, and about
            cause of death. Victim believed he was under the shadow of imminent death.
          Shepard v. US (1933) (p. 479) – [Cardozo] murder of wife by poison. Wife told nurse she
            thought D poisoned her and died a lot later. She had no sense of impending death and was
            merely suspicious about fact that he killed her.
          Prob V-58 – Dying Like Flies (p. 481) – murder – D & E were there. Victim said it was D
            and dies. Next day, E was dying and said he did it and dies. V’s statement admissible –
            refers to cause of death. E’s statement – inadmissible as dying declarant b/c heart attack was
            cause of his death. Can come in as statement against interest, but he’s not worried about
            going to jail b/c he’s dead.
          Prob V-59 – Double Death (p. 482) – V hit by car. V said D hit her, but only A (another
            patient) heard it. Doctor told A death was imminent, so A told doctor what V said. A’s
            statement relates to somebody else’s cause of death, so inadmissible.
          Prob V-60 – “Speak Up, Please” (p. 482) – murder. V said “D did it” after doctor told her she
            was badly wounded. Doesn’t say V knows she’s dying. Judge decides as matter of law it’s
            admissible. What does judge have to be satisfied about? Make 104 finding that jury should
            hear this.


G. STATEMENTS OF PRESENT SENSE IMPRESSIONS, THEN-EXISTING MENTAL,
   PHYSICAL, EMOTIONAL, OR MED CONDITIONS, AND EXCITED UTTERANCES (pp.
   482-92). Unavailability is not a prerequisite. Statement reliable if at time was made was
   contemporary of some event and is used as corroboration of mental state of declarant (whether true or
   not). Rationales: If in excited moment, no time to fashion a lie. You don’t lie to your doctor. Out-
   of-ct statement offered as evi of mental state is more reliable than trying to reconstruct that mental
   state in the courtroom. [Tip: read the verbs in the problem sets: future, present, past tenses.]
   1. Rule
        - Rule 803 – Hearsay Exceptions: Availability of Declarant Immaterial.
             The following are not excluded by the hearsay rule, even though the declarant is available as a
             witness:
             (1) Present sense impression. A statement describing or explaining an event or condition
                  made while the declarant was perceiving the event or condition or immediately thereafter.
             (2) Excited utterance. A statement relating to a startling event or condition made while the
                  declarant was under the stress of excitement caused by the event or condition.
             (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s
                  then existing state of mind, emotion, sensation, or physical condition (such as intent,
                  plan, motive, design, mental feeling, pain, and bodily health), but not including a
                  statement of memory or belief to prove the fact remembered or believed unless it relates
                  to the execution, revocation, identification, or terms of declarant’s will.
             (4) Statements for purposes of medical diagnosis or treatment. Statements made for
                  purposes of medical diagnosis or treatment and describing medical history, or past or
                  present symptoms, pain, or sensations, or the inception or general character of the cause
                  or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

    2.   Application
         a. Mental Impressions
              Prob V-61 – Stage Fright (p. 483) – stagecoach accident.
                 (1) V said D hit horse right after the carriage turned over. Admissible – (1) present
                     sense impression, but could also be (2) excited utterance.
                 (2) G told B (butler) that D did it after she drank brandy and fell asleep. Inadmissible
                     b/c of the lag time, not (1) present sense impression. But, it’s a close call – was
                     distraught, fell asleep, woke up. Issue is whether 2–hour time gap is “spontaneous.”




                                                                                                         32
       Prob V-62 – Stagger P (p. 483) – P hit by car. W said P was staggering (show contrib
        neg). Admissible – (1) present sense impression and is contemporaneous. Lay person
        can tell when somebody’s drunk, doesn’t require “expert” training.
      Prob V-63 – Husband Harry (p. 484) – passenger said D’s husband said accident was
        their fault. Fault is a legal conclusion. Harry’s not a party opponent and doesn’t have 1 st-
        hand knowledge. Statement about knowing that the brakes were bad comes in b/c it’s an
        excited utterance.
      Prob V-64 – Snowmobile Slaughter (p. 484) – P says D ran him over w/ his snowmobile
        while he was skiing.
        (1) P calls W to say they were in same room in hospital and that he said D ran him over.
             Not made to doctor, so not for purpose of treatment or diagnosis. Not present sense
             impression, nor a then-existing condition. Hearsay – not admissible. “Now my legs
             are throbbing” – is in under (3) then existing physical condition.
        (2) P makes same statement to doctor. All in, except fact that D did it. (Statement
             doesn’t have to come in through the doctor – someone can overhear it and testify
             about it.)
        (3) Same statement, but made to doctor for testimonial purposes. Controversial. Law
             seems to allow it in. Rule is more liberally construed [Wigmore says to not allow it
             in].
      Prob V-65 – Strong Feelings and Future Plans (p. 485) –
        (1) Alienation of affections – statement about how she stayed w/ D and despises P.
             Allow in the dislike (present sense impression – 803(3)), but not that she was w/ D.
        (2) Worker’s comp. Statement about going to airport for biz. Admissible under
             Hillmon, allowed to admit statement of immediate future plans to show those plans
             were carried out. Offered to show mental state of H’s future intention. Permitted b/c
             it’s statement w/ current intent.
b.   Immediate Future Plans – intention.
      **Mutual Life Ins v. Hillmon (1892) (p. 485) – life ins. Question of whose body it was.
        D tried to introduce letters from Walters talking about going w/ Hillmon. Sup Ct allowed
        them in – best proof of intention to go and to go w/ Hillmon. Relevant to Walters was
        there. Walters’ state of mind wasn’t the issue; the issue was whose body is in Colorado.
                   Exception to hearsay about allowing contemporaneous out-of-ct statement about
        what declarant plans to do in the future. Reasons: (1) made at time declarant intends to
        do something; (2) not offered for truth, but as circum corroborating subsequent action;
        and (3) no testimonial capacities involved.
      US v. Pheaster (1976) (p. 489) – statement to show victim went to meet D, should it be
        admitted to show D met victim? It is one step removed, b/c leap to rely upon perception
        of declarant in stating what somebody else is going to do. Requires testimonial capacity
        that needs x-exam. Let it in  this is a derelict on the waters of the law.
      Prob V-66 – Threats (p. 489) – murder and defense of alibi. O had said before that he
        hates V and will kick him. But, not as certain and is ambiguous, remote statement. Is an
        idiomatic statement. Could be out of realm of reference.
      Prob V-67 – Accusing Hand (p. 489) – murder by poison. Same as Shepard v. US (1933)
        (p. 490) – testimony that victim said her husband poisoned her. If she says this to the
        doctor, is this admissible? Doesn’t satisfy Hillmon b/c talking about what someone else
        did in the past. Drawing a conclusion about what someone else has done to you. If
        Shepard is admissible, there’d be no hearsay rule.

         [Key: Hillmon looks forward based on present mental state (okay). Shepard II looks
         back based on recent mental state (no). Pheaster looks forward, but was presented to
         show mental state of somebody other than declarant (no).]




                                                                                                  33
H. TWO PROCESSES OF PROOF: REFRESHING RECOLLECTION AND PAST
   RECOLLECTION RECORDED (pp. 492-4). Two ways to get in evi when witness doesn’t
   remember details: (1) refresh witness’s memory w/ doc that describes event; or (2) offer
   contemporaneous record of past event in place of witness’s testimony. Is considered if lay foundation
   w/ person on the stand. Doesn’t have to be offered into evi – just show something. But if W says it
   doesn’t refresh memory, then want to offer into evi. Availability of declarant is irrelevant.
   1. Rules
       - Rule 803(5) – Hearsay Exceptions: Availability of Declarant Immaterial.
            The following are not excluded by the hearsay rule, even though the declarant is available as a
            witness:
            (5) Recorded recollection. A memo or record concerning a matter about which a witness
                 once had knowledge but now has insufficient recollection to enable him to testify fully
                 and accurately, shown to have been made or adopted by the witness when the matter was
                 fresh in his memory and to reflect that knowledge correctly. If admitted, the memo or
                 record may be read into evi but may not itself be received as an exhibit unless offered by
                 an adverse party.
       - Rule 612 – Writing Used to Refresh Memory.
            Except as otherwise provided in crim proceedings…if a witness uses a writing to refresh his
            memory for the purposes of testifying, either –
            (1) while testifying, or
            (2) before testifying, if the ct in its discretion determines it is necessary in the interests of
                 justice, an adverse party is entitled to have the writing produced at the hearing, to inspect
                 it, to x-exam the witness thereon, and to introduce in evi those portions which relate to
                 the testimony of the witness. If it is claimed that the writing contains matters not related
                 to the subject matter of the testimony the ct shall examine the writing in camera, excise
                 any portions not so related, and order delivery of the remainder to the party entitled
                 thereto. Any portion w/held over objections shall be preserved and made available to the
                 appellate ct in the event of an appeal. If a writing is not produced or delivered pursuant
                 to order under this rule, the ct shall make any order justice requires, except that in crim
                 cases when the prosecution elects not to comply, the order shall be one striking the
                 testimony or, if the ct in its discretion determines that the interests of justice so require,
                 declaring a mistrial.

    2.   Application
          Prob V-68 – Neg Entrustment (p. 493) – packing boxes. Issue is what was in boxes. List of
            contents.
            (1) Mrs. P takes stand and authenticates M’s list. P can’t adopt a list that she didn’t write and
                 she doesn’t know what went in the boxes.
            (2) M takes stand, can’t remember what’s in box, list to refresh memory. Admissible under
                 612 b/c refreshes her recollection and then testifies from memory. 612 – can refresh
                 memory any way you want. Doesn’t have to come in.
            (3) Same as (2), but doesn’t remember content. Lists offered into evi. Can’t remember even
                 w/ 612 refresher. Foundation that has been laid is that she remembers making the lists
                 contemporaneous w/ the packing, so it comes in.
            (4) M & P packed together. P made oral statements and M wrote it down. M can testify
                 about accuracy of list, but not what went into the boxes. P can testify that made
                 statements contemporaneously as she was packing  present sense impression 803(1).
                 List comes in – double hearsay. Need the list b/c P doesn’t remember every single thing
                 that was packed. (good exam question)




                                                                                                            34
I.   BIZ RECORDS (pp. 494-500). Comes up all the time. Reliability surrogate for x-exam. Under
     803(6) the test for admitting biz records is “trustworthiness” rather than “routineness”. Remember to
     lay foundation. If the record is made in the ordinary course of biz, it’s admissible b/c of indicia of
     reliability.
     1. Rule
          - Rule 803(6) & (7) – Hearsay Exceptions: Availability of Declarant Immaterial
               The following are not excluded by the hearsay rule, even though the declarant is available as a
               witness:
               (6) Records of regularly conducted activity. A memo, report, record, or data compilation, in
                   any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by,
                   or from info transmitted by, a person w/ knowledge, if kept in the course of a regularly
                   conducted biz activity, and if it was the regular practice of that biz activity to make the
                   memo, report, record, or data compilation, all as shown by the testimony of the custodian
                   or other qualified witness, unless the source of info or the method or circum of prep
                   indicate lack of trustworthiness. The term “biz’ as used in this papr included biz, inst,
                   assoc, profession, occupation, and calling of every kind, whether or not conducted for
                   profit.
               (7) Absence of entry in records kept in accordance w/ the provisions of para (6). Evi that a
                   matter is not included in the memo, reports, records, or data compilations, in any form,
                   kept in accordance w/ the provisions of para (6), to prove the nonoccurence or
                   nonexistence of the matter, if the matter was of a kind of which a memo, report, record,
                   or data compilation was regularly made and preserved, unless the sources of info or other
                   circum indicate lack of trustworthiness.

     2.   Application.
          a. Regular compilation – regardless of person
              Prob V-69 – Window Washers’ Witnesses (p. 495) – P suing for $ for washing windows
                  and D said they weren’t washed. Records of windows washed and has a biweekly
                  printout. The bookkeeper who ran the computer program didn’t wash a window. Under
                  803(6) is a regular compilation kept in course of regularly conducted biz activity.
                  Witness knowledgeable about way record-keeping is done. Get it in by calling someone
                  who has knowledge of how P does its biz on everyday basis.
          b. Routine vs. reliability
              Palmer v. Hoffman (1943) (p. 496) – train accident and company makes accident report.
                  Not in reg course of biz b/c reports are prepared w/ an eye toward litigation. Even if
                  Amtrak had a policy of always filling one out after an accident that it’d be inadmissible.
                  Don’t think just b/c it’s rote, it’s admissible – look to reliability. In accident reports,
                  people will try to minimize their responsibility.
              Prob V-71 – Loss Memos (p. 499) – list of inventory for credit made after termination.
                  Inadmissible b/c not trustworthy. If value of prop is an estimate, prob won’t come in 
                  done w/ eye toward litigation. Have to know more about value – is it coming out of
                  book?
          c. Party-opponent
              Prob V-72 – Hospital Records (p. 499) – D hits boy and takes him to hospital. P tries to
                  get in hospital records detailing the accident and what D had said. Is double hearsay – Ds
                  statement and hospital report. D’s statement is coming in as statement of party-opponent
                  – 801(d)(2). The report would be a biz record under 803(6). Doesn’t matter if in ord
                  course write down what D says, have to get in what D says (party opponent).
          d. Timing
              Prob V-73 – Computer Records (p. 500) – premium under liability policy. Computer
                  stores formula and makes printout. Admissible. The printout itself is apparently made
                  only w/ respect to litigation. But, data was gotten in ord course of biz – all the computer
                  record is is a convenient summary.




                                                                                                           35
          e.   Business requirement
                Prob V-74 – Giving Them the Biz (p. 500) – P, Viza Credit Cards, sued D for $. Viza
                   offers billing records and accounts and invoices. D offers register from checking
                   account. Let in P’s records, but not D’s (b/c not a biz). [But, Feinberg thinks it’ll come in
                   and the fact that it’s a personal account isn’t imp.] If D had company, would be in.
                   [Query: Is home biz sufficiently reliable so as to be exempt under 803(6)?]


J.   PUB RECORDS AND PAPERS (pp. 500-510). Assumption that a pub official will perform his duty
     properly and the unlikelihood that he will remember details independently of the record.
     1. Rule
         – Rule 803(8), (9), (10) – Hearsay Exceptions: Availability of Declarant Immaterial
              The following are not excluded by the hearsay rule, even though the declarant is available as a
              witness:
              (8) Pub records and reports. Records, reports, statements, or data compilations, in any form,
                   of pub offices or agencies, setting forth (A) the activities of the office or agency, or (B)
                   matters observed pursuant to duty imposed by law as to which matters there was a duty to
                   report, excluding, however, in crim cases matters observed by police officers and other
                   law enforcement personnel, or (C) in civil actions and proceeding and against the Govt in
                   crim cases, factual findings resulting from an investigation made pursuant to authority
                   granted by law, unless the sources of info or other circum indicate lack of
                   trustworthiness.
              (9) Records of vital stats. Records or data compilations, in any form, of births, fetal deaths,
                   deaths, or marriages, if the report therof was made to a pub office pursuant to
                   requirements of law.
              (10) Absence of pub record or entry. To prove the absence of a record, report, statement, or
                   data compilation, in any form, or the nonoccurence or nonexistence of a matter of which
                   a record, statement, or data compilation, in any form, was regularly made and preserved
                   by a pub office or agency, evi in the form of a certification in accordance w/ rule 902, or
                   testimony, that diligent search failed to disclose the record, report, statement, or data
                   compilation, or entry.

     2.   Application
           Johnson v. Lutz (1930) (p. 502) – accident –see if put in policeman report. Considered
             generally inadmissible and ct excludes it. Worried about double hearsay – statements of
             bystanders. Police report can come in – 803(8)(B), but bystander statements can’t.
                  If report doesn’t involve an accident, but involves a crime, it is much harder to get it in.
             803(8)(B) – crim proceedings provide a higher standard of admissibility.
           Prob V-76 – Aircrash (p. 503) – wrongful death case. P wants to offer:
             (1) Policy manual of air traffic control. Admissible – 803(8)(a).
             (2) US Meteorological Service records of the weather. Admissible – pub record 803(8)(b).
             (3) Report of FAA investigational team. Admissible. Facts – 803(8)(c). Conclusions –
                  Beech Aircraft v. Rainey (1988) (p. 504). Under pub records exception, expert opinion
                  gleaned from facts may be admitted. If opinion is grounded in trustworthy facts, you
                  have a foundation. If grounded in hearsay for which there is an exception, it’ll come in.
                  But, won’t come in if there’s no exception for the hearsay it’s grounded on.




                                                                                                             36
K. “OTHER EXCEPTIONS” (pp. 510-49). There have always been exceptions based on common law.
   Worried that didn’t formalize every single exception, so Congress made a catch-all if ct in its
   discretion finds the evi reliable. The only time that the catch-all exception of 807 kicks in is when
   declarant is unavailable, even though it can technically be used when declarant is available (also used
   to get in grand jury testimony under oath). Whole debate revolves around issue of how reliable.
   Common sense  let it in. [Remember to first see why the named exceptions don’t apply.]
   1. Rules
        - Rule 807 – Residual Exception:
             A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial
             guarantees of trustworthiness, is not excluded by the hearsay rule, if the ct determines that (A)
             the statement is offered as evi of a material fact; (B) the statement is more probative on the
             point for which it is offered than any other evi which the proponent can procure through
             reasonable efforts; and (C) the gen purposes of these rules and the interests of justice will best
             be served by admission of the statement into evi. However, a statement may not be admitted
             under this exception unless the proponent of it makes known to the adverse party sufficiently
             in advance of the trial or hearing to provide the adverse party w/ a fair opportunity to prepare
             to meet it, his intention to offer the statement and the particulars of it, including the name and
             address of the declarant.

    2.   Application
         a. Reliability
             Dallas Co. v. Comm. Union Assurance Co (1961) (p. 511) – tower fell. See if there was
                 a fire. Ins co says there was no lightning. Def wanted to get in newspaper about fire that
                 happened 60 yrs ago. Ct let it in. What can be a more reliable piece of evi than article
                 from 1901? No motive to lie. No “newspaper” exception, but is like ancient docs
                 exception.
             Prob V-77 – Accusing Finger (p. 516) – want to introduce pic of guard pointing at def.
                 Lots of hearsay probs w/ pic: (1) non-verbal conduct of pointing – intended as an
                 assertion; (2) caption; (3) picture (even w/out pointing). Cannot come in. Caption is
                 clearly gone. Maybe could get photo in as authentic (if not pointing), but sure looks like
                 an assertion and there’s no exception to allow this in.
             Brookover v. Mary Hitchcock Memorial Hospital (1990) (p. 516) – fall by epileptic and
                 retarded patient; was unrestrained and no one helped him. Family offered Ronald’s
                 statements 11 hrs after accident and nurse’s statement and her notes. Is allowed in.
                 Patient is unavailable b/c doesn’t have the ability to testify. Statement was corroborated
                 by nurse’s notes. Foundation’s been laid showing reliability.
                      Dissent (Breyer) said the boys and the mom both had reason to lie – vested interest
                 in being unreliable. Boy – doesn’t want to get in trouble; mom – wants $.
             Prob V-78 – Emergency Evi (p. 523) – murder, def of alibi. Gov offers 911 phone call
                 about stabbing and testimony of W who got description of assailant before V died. Tape
                 seems admissible – could be excited utterance or present sense impression. W’s
                 testimony – was not a dying declaration. Doesn’t seem that her testimonial capacity is
                 dimmed. Feinburg wouldn’t let it in.
         b. Issues concerning 804 & 801
             US v. Bailey (1977) (p. 524) – charged w/ armed robbery. Accomplice had given
                 statement against D, but then refused to testify. Govt wants to admit prior written
                 statement now that declarant is unavailable. Lower ct allows it in after giving defense a 3
                 day recess.
                      Issues – how reliable is the statement? Can’t use former testimony b/c no oath or x-
                 exam. Can’t use prior statements b/c he’s not available. Shouldn’t be a catch-all for
                 everything you can’t get in. There’s inherent unreliability here.
                      Bailey II (p. 527) – reverse lower ct. Statement could be self-serving to please
                 prosecutors. Catch-all won’t work here. [Feinburg agree – allowing this would swallow
                 up the hearsay rule.]




                                                                                                            37
              1. Grand jury testimony
                  US v. West (1978) (p. 533) – heroin. W was killed before trial – try to get in his
                      grand jury testimony. Can’t get in under 804 b/c no x-exam and not 801(d)(1) b/c he
                      isn’t available. See if fits in 807 – ct found that it did and was admissible. There
                      was a lot of other corroborating evi – watched; taped; worked w/ DEA agents.
                      Agents were on the stand and could be x-examined.
                  US v. Garner (1978) (p. 537) – heroin. Robinson, co-conspirator, made statements
                      implicating D in grand jury. Refused to testify at trial. Statements made by co-
                      conspirator are rarely x-examined. But, was made in plea bargain. Not statement
                      made by co-conspirator exception b/c not made in furtherance of the conspiracy.
                      None of the exceptions will work. Lower ct said 807 applies. Prob – Robinson
                      testified 2x saying 2 diff things. He renounced his grand jury testimony. Ct still let
                      it in.
              2. Notary
                  Prob V-79 – Turnabout is Fair Play (p. 544) – robbery. Notice to use unavailable
                      declarant’s statement given under oath to a notary. Offered by D to prove alibi. Not
                      prior consistent statement under 801 b/c declarant is unavailable. Not 803 b/c no
                      proceeding and no x-exam. Catch-all? Do we want to give def more leeway when D
                      offers it as a sword? Feinburg says probably admit it.
         c.   Double hearsay
               Prob V-80 – Mystery of the Available Declarant (p. 547) – mail fraud and racketeering.
                 Testimony of C (council member) – said other councilors said Mayor “would not mind”
                 if B Bus Co was recommended. Can be a double hearsay prob – would rather hear from
                 the unidentified councilors.


                                 PART VI. CONFRONTATION
A. GENERALLY (567-688). 6th amend doesn’t mean only evi that can be offered is evi that’s offered in
   ct – doesn’t require contemporaneous, physical presence. Cases say Conf Clause limits power of state
   to offer testimony that’s not subject to x-exam. Want to rely on live testimony, if we can.
   1. Issue – what is the relationship of hearsay rule to the 6th amend confrontation clause? Conf clause
        –def has a right to confront witnesses against him.

    2.   Views of confrontation/6th amend –
         a. Counselors of the day views:
            (1) rt to x-exam;
            (2) availability/reliability;
            (3) actual x-exam.
         b. Other views:
            (1) can say it means can’t be convicted by live witness unless you confront him  very
                 narrow interpretation;
            (2) can say out-of-ct declarant must appear if available, so hearsay is okay if unavailable;
            (3) def can’t be convicted on basis of unreliable hearsay statements (if reliable  okay);
            (4) if evi is critical, then the def has right to confront his accuser.

    3.    X-examination
         a. Actual x-exam. 6th amend does not mean that the only out-of-ct declaration allowed is when
             declarant is in the courtroom.
              Mattox. v. US (1895) (p. 569) – if witnesses were x-examined at earlier trial about same
                 issue and are now unavailable, the testimony is admissible. There was actual x-exam.
                 Can get in through past recollection recorded of the stenographer.




                                                                                                           38
b.   Effective x-exam. Have to have an adequate opportunity, in or out of ct, to x-exam the
     hearsay declarant.
      Pointer v. TX (1965) (p. 571) – def at prelim hearing could x-exam witnesses, but w/out
         attys. Ct reverses convictions b/c said it wasn’t effective x-exam and weren’t represented
         by counsel. Declarations could be deemed to be unreliable. Justice Black seems to say
         6th amend equates w/ an effective right to x-exam.
c.   Interlocking Confessions
      **Bruton v. US (1968) (p. 573) – 2 people convicted and one gives confession. Is Evans
         confession admissible against Evans? Yes, statement against interest and of party-
         opponent. It was def’s options and he’s the declarant. Ct said confession of co-def is not
         admissible against co-def. Not admitted as statement of co-conspirator b/c not in
         furtherance of a conspiracy. Can’t use statement of co-def against the other, unless
         there’s some other hearsay exception.
      Harrington v. Cal. (1969) (p. 576) – robbery and murder. Confessions by alleged co-
         conspirators, only 1 had been x-examined. They were interlocking confessions and 1 had
         taken the stand and implicated Harrington. Ct allows all 3 in to implicate Harrington.
         Basically bootstraps one out-of-ct declaration where there was actual x-exam in 1.
      Parker v. Randolph (1979) (p. 588) – D charged w/ murder. Co-defs confessed, but used
         5th amend to avoid taking the stand. Ct distinguished this from Bruton b/c everyone
         confessed, including the def. Said Bruton doesn’t require reversal of def’s conviction
         when the def has confessed and his confession “interlocks” w/ and supports the
         confession of his co-def. [This case is overruled later.]
      Cruz v. NY (1987) (p. 608) – [overruled Parker; by 1 vote] 1 def confesses about murder.
         3 brothers tried together and allowed tape of Benjamin’s confession and Eulogio had
         confessed. Interlocking confessions. Sup Ct reversed – non-testifying co-def confession
         can’t be used against other defs. Bruton is violated -- even though interlocking,
         corroborating confessions, still undercutting right of def to get a fair trial.
      Richardson v. Marsh (1987) (p. 614) – [limits Bruton]. Confession of co-def that is only
         against other co-def w/ other evi. Had redacted any reference in confession to other co-
         def. Can use the confession – redaction is not a violation of Bruton. Two options: sever
         the 2 defs or redact the confession. Conf Clause is not violated by the admission of a
         confession (6-3). Dissent is worried b/c jury can put 2 and 2 together.
d.   Prior statement more reliable than x-exam
      US v. Owens (1988) (p. 622) – correctional counselor was beat up. Head injuries and
         memory loss. Remembers making i.d., but doesn’t remember why he made the i.d. Prior
         i.d. and now subject to x-exam. Prior statement is considered more reliable than the x-
         exam. If can x-exam about out-of-ct declaration that is reliable, doesn’t violated Conf
         Clause. [Kind of is about availability.] Ct let witness in.
               Here, can say there wasn’t real x-exam b/c person couldn’t remember basis for
         making orig i.d.  it’s like he’s unavailable. But, x-exam can show witness’s
         testimonial capacity.
e.   Virtual x-exam – closed-circuit TV testimony
      Maryland v. Craig (1990) (p. 628) – child abuse by day care provider. MD has special
         statute for child witnesses that they can testify via closed-circuit TV and are x-examined.
         Def says needs face-to-face confrontation. Sup Ct says procedure is okay as long as
         there’s showing of necessity. Essentially there’s confrontation, just the face-to-face
         aspect is missing. Can say heart of Conf Cl isn’t face-to-face conf, but is testing the truth
         of the testimony.
                   Scalia is upset. He thinks dying declarations are fine b/c at least there’s
         somebody to x-exam. No live x-exam of child – need someone to testify in flesh and
         blood. But, exam is on live video w/ x-exam, oath, and presence to jury.




                                                                                                   39
4.    Availability
     a. Memory problems
          Cal v Green (1970) (p. 579) – 2 defs: drug dealer and buyer. At prelim hearing w/ x-
             exam, buyer made statements against Green while he was on acid. He was under oath
             and subject to x-exam. At trial, didn’t remember much. Can say he was unavailable b/c
             he doesn’t remember b/c he was on acid. Ct allowed the prior testimony in.
     b. Test
          **Ohio v. Roberts (1980) (p. 595) – at prelim hearing D’s counsel calls witness, who
             doesn’t support D’s theory of the case  looks like x-exam. Govt sits on its hands on
             cross. Govt wants to offer the testimony (she’s unavailable). Ohio Sup Ct said mere opp
             to x-exam wasn’t enough. Sup Ct said as long as witness was unavailable and there was
             indicia of reliability at the prelim hearing, it was fine.
                   The heart of Ohio is availability. Govt had sent 5 unanswered subpoenas. Sup Ct
             views her unavailability as extremely important. Govt had made a good faith, Const
             required effort to find her. The testimony is also reliable b/c def called the witness and
             had asked all the questions, just like x-exam.
                   Even though preference is for live testimony, got to go w/ best we’ve got if declarant
             is unavailable. [Prob w/ this test  there are 24 hearsay exceptions that aren’t dependent
             on whether declarant is unavailable or not.]
     c. Denial of unavailability test – Child Abuse Case
          White v. Ill (1992) (p. 670) – 4 yr old child was sexually abused and made 3 statements.
             Issue – was it necessary that she be unavailable as a witness? Ct said no (9-0) – they
             were sufficiently reliable as hearsay exceptions. Will not graft onto Fed Rules that
             witness be unavailable – excited utterance, med exam. Here, they don’t require the kid to
             testify b/c they have hearsay declarations admitted through others, who do testify.
     d. Corroboration - child
          Washington v. Swan (1990) (p. 657) – upheld the conviction; med corroboration of
             statement of the kid. Allowed in statements of two 3-yr olds made to child care and
             social workers. Unlike most adults, the kid is readily available. Also, plenty of other
             facts corroborate the statement.

5.   Reliability
     a. Test
          US v. Inadi (1986) (p. 600) – Ct says unavailability rule of Ohio is not applicable to out-
              of-ct co-conspirators statements. Don’t require availability as a prereq for hearsay.
              Statement by co-conspirator at the time, recorded on tape, is inherently reliable.
              Statement made during planning of bank robbery was let in. Ct doesn’t care whether
              witness is available or not  went too far in Ohio, that inquiry is inappropriate. All that
              matters is reliability. Don’t inquire into x-exam.
     b. Corroboration can’t show reliability
          Idaho v. Wright (1990) (p. 640 ) – testimony of 3 yr old girl who’s unavailable. Ct said
              prosecution couldn’t use corroborative evi to show reliability. Out-of-ct declaration is
              made to a pediatrician for med diagnosis. Trial ct admitted it under catch-all exception.
              Doctor didn’t take sufficient note and asked leading questions, so there’s an indicia of
              unreliability. Maj doesn’t allow the statements to come in. Corroborative evi can’t be
              used to establish the reliability and admissibility of nontraditional hearsay.
                       This is not MD v. Craig b/c doctor is on the stand. Scalia is very dubious about
              these kids and that they’re truthful.




                                                                                                       40
                                      PART VII. PRIVILEGES
A. GENERALLY (pp. 689-705). There may be certain situations where, even though we want to get at
   the truth, there may be other competing values in which we say, as a matter of pub policy, the truth is
   key, but so is the right to not testify against oneself, the right to x-exam, etc. The truth is not the only
   priority.
   1. Rules. When Rules were drafted, Chapter 5 was meant to deal w/ privileges, but they were
        dropped. All these privileges are a matter of common law. Congress decided that it was a
        constantly-changing area best left to the courts.

    2.   Prerequisites. Wigmor’s 4 prereqs are:
         (1) Communication was intended to be confidential.
         (2) Confidentiality btwn the 2 parties is deemed essential by society.
         (3) The privilege relationship should be protected.
         (4) A breach of that confidentiality would be of much greater danger than the refusal to require
             the info to be presented.

    3.   Other justifications:
         (1) Wigmore’s utilitarian approach: it makes society a better-functioning place to allow the
             privilege. (doctor/patient; lawyer/client)
         (2) Humanistic reason: human dignity and freedom are important priorities. (spouse/spouse; no
             self-incrim).

    4.   Press
          In Re Farber (State v. Jascelevich) (1978) (p. 696) – NY Times reported conducted
             investigations w/ Dr. Harris; refused to turn over the docs. D is being tried for murder. Govt
             brought murder charges based on Farber’s investigative reporting article. Govt didn’t know
             who the anonymous sources were, but D’s atty sought disclosure in order to get them to take
             the stand so he could discredit them.
                  Farber’s basis for not disclosing is 1st amend (US Sup Ct had already said no), and a
             shield statute which allowed press to shield their sources. Right to trial trumps. How do you
             balance D’s ability to get a fair trial w/ reporter’s “right” to w/hold sources? An in camera
             inspection of the notes by the judge, who will then decide whether info is relevant.
                  [Real life – Farber went to jail, never disclosed his sources, and D was acquitted.]
         a. Possible Remedies:
             (1) If won’t disclose info, charges dismissed.
             (2) Neither party can use privileges info.

    5.   Farber Variations.
          Prob VII-1 – Clergymen, Psychiatrists, Lawyers: The Farber Variations (p. 704) – Const was
            drafted at the time those privileges existed. But how about changing times? It’s a poli prob
            decided who gets the privilege – the loud, powerful lobbyists win. That’s the real prob of
            Farber.
                 It doesn’t come up very often – the privileges are in such equipoise, there’s an attempt to
            avoid the confrontation in the poli process.




                                                                                                              41
B. THE LAWYER-CLIENT PRIVILEGE (pp. 705-16). Most solidly entrenched privilege. Issue is
   whether one’s expectation of privacy is subjective or objective (reasonable person). Communication is
   privileged, not subject matter. Can only be waived by client.
   1. Rule (PROPOSED – NEVER PASSED)
        - Proposed Rule 503 – Lawyer-Client Privilege.
            (a) Definitions. As used in this rule:
                 (1) A “client is a person, pub officer, corp, assoc, or other org or entity, either pub or
                      private, who is rendered professional legal services by a lawyer, or who consults a
                      lawyer w/ a view to obtaining professional legal services from him.
                 (2) A “lawyer” is a person authorized, or reasonably believed by the client to be
                      authorized, to practice law in any state or nation.
                 (3) A “rep of the lawyer” is one employed to assist the lawyer in the rendition of
                      professional legal services.
                 (4) A comm is “confidential” if not intended to be disclosed to 3 rd persons other than
                      those whom disclosure is in furtherance of the rendition of professional legal
                      services to the client or those reasonably necessary for the transmission of the comm.
            (b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent
                 any other person from disclosing confidential comm made for the purpose of facilitating
                 the rendition of professional legal services to the client, (1) btwn himself or his rep and
                 his atty or his atty’s rep, or (2) btwn his atty and the atty’s rep, or (3) by him or his atty to
                 an arrt representing another in a matter of common interest, or (4) btwn reps of the client
                 or btwn the client and a rep of the client, or (5) btwn attys representing the client.
            (c) Who May Claim the Privilege. The privilege may be claimed by the client, his guardian
                 or conservator, the personal rep of a deceased client, or the successor, trustee, or similar
                 rep of a corp, assoc, or other org, whether or not in existence. The person who was the
                 atty at the time of the comm may claim privilege but only on behalf of the client. His
                 authority to do so is presumed in the absence of evi to the contrary.
            (d) Exceptions. There is no privilege under this rule:
                 (1) Furtherance of Crime or Fraud. If the services of the atty were sought of obtained to
                      enable or aid anyone to commit or plan to commit what the client knew or
                      reasonably should have known to be a crime or fraud; or
                 (2) Claimants Through Same Deceased Client. As to comm relevant to an issue btwn
                      parties who claim through the same deceased client, regardless of whether the claims
                      are by testate or intestate succession or by inter vivos transaction; or
                 (3) Breach of Duty by Atty or Client. As to comm relevant to an issue of breach of duty
                      by the atty to his client or by the client to his atty; or
                 (4) Doc Attested by Atty. As to comm relevant to an issue concerning an attested doc to
                      which the atty is an attesting witness; or
                 (5) Joint Clients. As to comm relevant to a matter of common interest btwn 2 or more
                      clients if the comm was made by any of them to an atty retained or consulted in
                      common, when offered in an action btwn any of the clients.

    2.   Application
         a. Generally
              Prob VII-2 – Blackacre Fund (p. 709) – D sued for fraud. While W is testifying, D is
                 whispering to his atty.
                 (1) P’s atty called to stand, asked about what D said to him. The basic rule – the
                     statement is privileged.
                 (2) Calls D to stand – still the statement that is privileged.
                 (3) P’s atty asks what D said to trustee of trust; D says he just told that to his atty.
                     Privileged? No – what he said to atty was privileged, but the statement to trustee
                     isn’t.
                 (4) D’s notes that he wrote to atty – protected, b/c oral and written are protected.
                 (5) P asks for deed that D gave to atty. Not protected b/c the material isn’t the
                     communication, it’s the substance.




                                                                                                               42
         b.   Objective v. Subjective (Proposed 503) Standard
               Prob VII-3 – Eavesdropper (p. 709) – Action for breach of promise of marriage. W
                 overheard conversation btwn D and atty. Can W testify? The issue is what is the
                 standard by which you determine whether D’s expectation of privacy should be
                 recognized. Is it “reasonable person” standard. Or is it subjective? Proposed 503 is
                 subjective test  W can’t testify. Under Hoy v. Morris (1859) (p. 709), have objective
                 test  W can testify.
               Prichard v. US (1950) (p. 710) – D went to presiding judge on election frayd to ask
                 advice about his own indictment on ballot box stuffing. Ct says that D couldn’t have had
                 expectation of L-C privilege, b/c he knew that judge was about to convene grand jury.
                 Uses objective standard.
               Prob VII-4 – Energetic Investigator (p. 713) – D’s private investigator says he’s “working
                 on the case as PI.” Under proposed 503, would find privilege. Under objective standard,
                 reasonable person would think privileged. The distinction here is that when the ct is
                 aware of an attempt to skew privilege to hide the truth in the courtroom, it will bend over
                 backwards to get around the privilege.
         c.   Waivers
               Prob VII-5 – Tania’s Tale (p. 714) – D sues atty for malpractice b/c he insisted that she
                 invoke privilege against self-incrim. Atty countersues for allegedly unpaid bill, tried to
                 introduce evi of work done. The privilege is waived, b/c the atty has the right to defend
                 self w/out one hand ties behind his back (see proposed 503(b)(3)).
               Prob VII-6 – Evanescent Privilege (p. 714) – motion for new trial based on incompetent
                 atty. Trying to keep out prior crim convictions (which would have happened under 609,
                 anyway). Issue: what is the scope of the waiver? Ca client waive only part of privilege?
                 Doctrine of completeness may require that privilege be waived for anything that’s
                 relevant to what’s being waived. Look at totality of circum  case-by-case
                 determination.
         d.   Loaded Questions
               Prob VII-7 – Name That Client (p. 715) – Grand jury investigation into income tax
                 evasion.
                 (1) Can ask if any of Ds had employed atty. Privilege doesn’t apply to formal retainer
                      btwn lawyer and client – it’s not really a communication, it sort of sets ground rules
                      for assertion of privilege. Rule doesn’t kick in until you can establish the
                      relationship has been set up.
                 (2) Did anybody make arrangements for you to represent a named D, and if so, who?
                 (3) If you posted bond for a named D, who paid for the bond?
                 (4) If you’ve been paid fees, who paid them?

                       Big diff btwn (1) and other questions. The other 3 are a way to find out everybody
                  elese who’s involved I the conspiracy. These are loaded questions. You may get the
                  info, but Feinburg tends to think that all of these questions run up against the privilege.
                  Depends on how you look at the question, whether it’s “just” to find out who’s the atty
                  and who’s the client (let it in), or whether it’s to really get at more info.


C. THE LAWYER-CLIENT PRIVILEGE IN THE CORPORATE CONTEXT (pp. 767-89). Corp is
   a legal fiction. Who is the client? How far does the privilege extend in context of litigation?
   1. Subject matter v. control group tests for privilege
         Prob VII-12 – Corp Client (p. 767) – class action for injuries. Atty interviewed a lot of
             employees. If use subject matter test, any employee involved in subject matter of litigation is
             covered by that privilege. If test is control group (who makes the policy), those people have
             the privilege (narrower group).
                  Under control group test, the fact that you don’t fall w/ in the privilege doesn’t mean you
             don’t have to talk to the atty  best thing to do is retain own atty and get the privilege that




                                                                                                                43
         way. Subject matter test is the min view – is too broad. Control group was maj view. Not
         sure today.
        Prob VII-13 – Assiduous Atty (p. 767) – atty interviews driver and only eyewitness. Gathered
         maintenance and driver records. P asks for these docs – like Hickman – work product.

2.    Work Product
     a. Test –
         Hickman v. Taylor (1947) (p. 768) – tug boat accident. Atty interviewed survivors. P
            asked for interviews. Atty tried to claim privilege. Ct said it was work product – notes
            he took were protected. Witnesses were still available.
         Rule 26(b)(3) FRCP = work product privilege….a party may obtain discovery of docs
            and tangible things otherwsie discoverable under subdivision(b)(1) of this rule and
            prepared in anticipation of litigation or for trial by or for another party or by of for that
            other party’s representative (including his atty, consultant, surety, indemnitor, insurer, or
            agent) only upon a showing that the party seeking discovery has substantial need of the
            materials in the prep of his case and that he is unable w/out under hardship to obtain the
            substantial equivalent of the materials by other means. In ordering discovery of such
            materials when the required showing has been made, the ct shall protect against
            disclosure of the mental impressions, conclusions, opinions, or legal theories of an atty or
            other rep of a party concerning the litigation.
                     A party may obtain w/out the required showing a statement concerning the
            action or its subject matter previously made by that party. Upon request, a person not a
            party may obtain w/out the required showing a statement concerning the action or its
            subject matter previously made by that person…
     b. Problems and implications. Hickman runs afoul of broad discovery rules. Ex – tobacco.
        How much can P’s atty’s get at the legal memos drafted by the tobacco co’s attys? Now,
        work-product privileges were found inapplicable and those memos buried the industry 
        huge verdicts for P.

3.   People v. Corporations – Case-by-case approach for privilege
      Radiant Burners v. Amer Gas Assoc (1963) (p. 774) – ct says corp can’t make claim to
        privilege. Have to be a person to invoke it. Integral part – comm is confidential  doesn’t
        happen in a corp. Everyone disagrees w/ this case- derelict on the waters of the law.
      Upjohn v. US (1981) (p. 777) – illegal payments to foreign govts. Upjohn gave employees
        questionnaires. Sup Ct founf they were work-product and there was an atty-client privilege.
        Key to asserting privilege –
              (1) corp employees;
              (2) comm was requested by superiors;
              (3) w/in scope of duties;
              (4) told they would be confidential
              Case-by-case, practical approach to applying priv in context of a corp. Don’t need a
             general control group or subject-matter test.

4.   Privilege v. work-product. Client enjoys atty-client privilege, which is absolute; lawyer enjoys
     work-product, only if adverse party shows undue hardship can they get the atty’s notes. Privilege
     doesn’t only come in in anticipations of litigation, unlike work-product.
      Prob VII-14 – Hickman meets Upjohn (p. 787) – tugboat accident – 1 survivor. Company
         atty interviews survivor, who is told to be candid, is tape recorded, signed statement.
         Survivor dies and P wants written statement. Atty-client privilege under Upjohn is met. But,
         person can’t be deposed and P can’t get info any other way. Brot doesn’t waive the privilege,
         so might not get around it.
               In re to work product, the priv isn’t absolute, so can probably get it in. Is statement of
         the deceased.
              Feinburg thinks atty-client privilege keeps evi from being given to P. If it is given over,
         work-product isn’t a prob – can redact questions by atty.



                                                                                                       44
   PART VIII. OPINIONS, SCIENTIFIC PROOF, AND EXPERT TESTIMONY
A. LAY OPINIONS (pp. 818-23). Is an efficiency device so we don’t waste time. Is not lmtd to
   statements of fact. Need to speak in a natural way at a level of specificity helpful to the fact-finder.
   1. Rule
        - Rule 701 – Opinion Testimony by Lay Witnesses. If the witness is not testifying as an
           expert, his testimony in the form of opinions or inference is lmtd to those opinions or
           inferences which are (a) rationally based on the perception of the witness and (b) helpful to a
           clear understanding of his testimony or the determination of a fact in issue.

    2.   Application.
          Commonwealth v. Holden (1957) (p. 820) – def charged and convicted of murder.
            Questioned friend about alibi – def supposedly winked. Wink = “please make up alibi”. At
            trial, ask detective to explain what witness thought the wink meant. Def says it’s speculative.
            Ct lets opinion in – 701 is liberal.
                  Dissent – ridiculous to be convicted of murder by wink interpreted into 21 words. [Is this
            a rational, fair, lay opinion?]
          Prob VIII-1 – Mrs. Jones’s Baby (p. 822) – W testified that he saw Mrs. Jones walking w/ her
            baby 300 yrs away. Opposing counsel objects. Too far away. Can give a lay opinion about
            identification, but the distance here poses a big prob. Not doomed, have to lay out more
            specificity.
                  If the alternative is no testimony at all, it’s probably preferable to allow it in and allow
            the jury to decide whether W is credible.
          Prob VIII-2 – Presidential Debate (p. 822) – asked to tesitfy about Pres debate. Can comment
            on composure, politeness. If say Kennedy won, is more problematic, but who cares?
          Prob VIII-3 – Murder at the Hotel Thoreau (p. 823) – night clerk saw victim before he died.
            (1) 1st question – said victim’s expression was one of “ineffable sadness”. Lay person can
                  perceive this – comes in. 2d question – said conduct was of disorientation  need more
                  specificity. The specific details are let in.
            (2) Calls Y to testify about body. Let description in, but don’t allow in the time of death.
                  Have forensic scientist come in. Opinion has to be the type that is rationally perceived by
                  a lay person.


B. EXPERT TESTIMONY, SCIENTIFIC PROOF, AND JUNK SCIENCE (pp. 828-93; 919-29;
   S591-605).
   1. Generally expert testimony.
      a. Rule 702. [This rule is considered the new standard of admissibility, replacing Frye (infra).]
          - Rule 702 – Testimony by Experts. If scientific, technical, or other specialized knowledge
               will assist the trier of fact to understand the evi or to determine a fact in issue, a witness
               qualified as an expert by knowledge, skill, experience, training, or education, may testify
               thereto in the form of an opinion or otherwise.
      b. Preminary questions. 2 basic issues:
           (1) Who is an expert? What is the standard to determine an expert (Frye  Daubert). See if
                evi offered by expert will help the trier of fact
           (2) What are the legal principles governing admissibility of such testimony? Underlying
                data on which expert relies need not be admissible. Just has to be reasonably relied upon
                by the expert.
      c. Frye test. [Was preeminent case in deciding expert testimony to be admitted for 70 yrs.]
           Frye v. US (1923) (p. 829) – Def convicted of murder, appealing error that ct didn’t let lie
               detector evi in. Ct test – has to be generally accepted in scientific community. If
               colleagues don’t go along w/ your philosophy, don’t let it in.




                                                                                                           45
             “Perjury Case Goes to Dogs…” (p. 832) – govt prosecuting guy for perjury about photo.
              Brought in astronomer to show pic could not have been taken that day b/c of the
              shadows. 7th Cir reversed conviction b/c astronomical calculation shouldn’t be tested at
              ct. The methodology used was wrong.
           Prob VIII-5 – Fried by Frye (p. 833) – murder, claimed self-def. Def wants to offer
              polygraph. If test is deemed to be unreliable, def can’t use it – junk science. Const rights
              are not violated by not allowing this evi in.
           Prob VIII-6 – The Dowser (p. 833) – see if there’s water below land. Dowser said
              dowsed the land and there’s no water. Is like voodoo, not admitted.
                   Say claim is breach of contract and issue is whether or not there’s water 400 ft below
              land. Is dowser testimony admissible now? What if stipulated in contract it’s to be
              determined by dowsing? Might be diff issue if was contractual expectation.
     d.   Establishing Expertise - Experience
           Prob VIII-7 – Good Buddy (p. 833) – P wants to show load shifted. Offers W (trucker)
              who says can shift at 30 mph. Not a lay witness under 701 b/c he wasn’t there at the
              time. Might be an expert under 702 b/c has experience driving that type of truck.
              Experience is fine under 702 – jurors will be helped.
           Prob VIII-8 – Abortion or Manslaughter? (p. 834) – determine when fetus died. Doctor
              said fetus took breath of air. D can x-exam doctor on his qualifications before he gives
              opinion. Judge will decide whether W is qualified before admitting testimony, jury will
              decide whether W is qualified when judging sufficiency of testimony.
     e.   Changing Frye test
           US v. Johnson (1979) (p. 834) – govt needs to show marijuana came from outside
              country. W gives testimony based on use and dealing it. Ct allows testimony. Diff
              standard than Frye  not general accpetance. Here, standard is whether testimony under
              702 is so inherently implausible so as to not be admitted. This test is too liberal 
              basically allows in everything.

2.   Bases of Expert Opinions
     a. Rules
         - Rule 703 – Bases of Opinion Testimony by Experts. The facts or data in the particular
             case upon which an expert bases an opinion or inference may be those perceived by or
             made known to him at or before the hearing. If of a type reasonably relied upon by
             experts in the particular field in forming opinions or inferences upon the subject, the facts
             or data need not be admissible in evi.
         - Rule 705 – Disclosure of Facts or Data Underlying Expert Opinion. The expert may
             tesitfy in terms of opinion or inference and give reasons therefor w/out 1 st testifying to
             the underlying facts or data, unless the ct requires otherwise. The expert may in an y
             event be required to disclose the underlying facts or data on x-exam.
     b. Ways to get facts or data. Facts or data can be gotten from 3 sources:
         (1) by supposition at trial (the hypothetical question);
         (2) by listening to the testimony of other witnesses at trial;
         (3) by personal experience before the trial; or
         (4) by being informed of data by others before the trial (hearsay).
     c. Hearsay- Underlying Evi
          Prob VIII-9 – Engineer’s Investigation (p. 840) – car accident. P wants expert to testify
             steering wheel was defective. Prob – some of the basis of expert’s opinion is hearsay.
             That’s fine – experts don’t have to rely on admissible evi. Since can do this, the
             substitute test is reasonable reliable by the expert.
             (1) Base opinion on statement of the driver. Further away from time of accident, less
                  likely to let it in. See if engineers usually base investigation on driver’s statement.
                  Reasonably relied upon data even though data is inadmissible. BUT, don’t let in evi
                  that is relied on by expert.




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        (2) State opinions w/out revealing data is fine under 705. Other side still has discovery.
        (3) Would it be diff if case was crim? Might change b/c stakes are higher. Judge may,
              in her discretion, require party to turn over data. Heightened scrutiny.
     Prob VIII-10 – Pediatric Poison (p. 840) – sick kid, doctor prescribes med, pharmacist
        fills prescription, kid dies. P shows pharmacist for wrongful death. Show in treatise that
        med would cause death. Either introduce treatise or call expert. Better for expert to rely
        on treatise b/c can rely on hearsay grounded in reasonable belief of underlying data. Get
        inadmissible evi in through the back door. Might be able to get in treatise under 803
        (learned treatise) w/out expert. Either way, gonna get it in.
d. “Unreasonable” testimony
     State v. Saldana (1982) (p. 841) – state offers expert to offer post-rape symptoms. Ct
        finds it’s not type of scientific test that accurately shows a rape occurred. Not helpful
        under 702. Also, didn’t base her opinion that P didn’t lie about anything. Will not allow
        such “unreasonable” testimony, esp here w/ like in prison on the line. [Also, may not
        even be an expert  merge.]
        1. Insanity claims. Hinckley shot Reagan. Expert who met w/ H 52x and made report.
              Testimony is admissible and he got his conclusory opinion about H’s insanity in.
              Now, 702 says can’t give conclusions about insanity  that’s the jury’s function. 2
              types of insanity claims:
              (1) “Did you slice up your wife 57x w/ carving knife?” “I don’t remember, but I
                   remember making a fruit salad.” Psychiatrist’s testimony is essential b/c D’s
                   testimony lacks intent.
              (2) Same question. “Yes, God told me to do it.” Intended to kill her – only meed
                   psychiatrist for mitigation.
e. Experts, but still must “assist trier of fact.”.
     State v. Chapple (1983) (p. 846) – D convicted of murder and says mistaken i.d. Said
        unreliable b/c of time difference and that witnesses smoked pot on day of i.d. Def offers
        expert on i.d. – talk about specifics on memory and i.d. process. State stipulated to her
        qualification, but says it’s irrelevant b/c jury is supposed to find value of eyewitness i.d.
        Comes down to see if such testimony will in fact aid the jury in deliberation, or does it
        impinge upon jury’s province. Maj allows it.
                   Dissent says that the issue isn’t whether or not the expert opinion is grounded in
        hearsay or inadmissible evi, but is whether or not the testimony is relevant, too
        prejudicial, and usurps jury’s fact-finding function.
     US v. Downing (1985) (p. 861) – D’s indicted for mail fraud. Identified by 12 people
        and wants to offer expert testimony on the reliability of eyewitness identification. Ct
        rejects Frye general acceptance standard. Establish test where first require a threshold
        inquiry, then admission depends on “fit.” Ct decides that lower ct abused its discretion in
        excluding the testimony, so remand to see if in under more liberal “assist trier of facts”
        standard. Test:
                   (1) soundness and reliability of the process or technique used in generating the
                        evi;
                   (2) the possibility that admitting the evi would overwhelm, confuse, or mislead
                        the jury, and
                   (3) the proffered connection btwn the scientific research or test result to be
                        presented, and particular disputed factual issues in the case.
        1. Downing II (1985) (p. 874) – on remand, trial ct says on, (1) reliability, (2)
              prejudice, and (3) fit, the case still fails. Said underlying methodology isn’t reliable,
              danger of misleading the jury and the fit is the weakest part. Is this closer to case of
              junk science or good science/bad methodology?
        In Re Agent Orange (Lilley) (1987) (p. 876) – P’s suing for wrongful death b/c of Agent
        Orange. D’s granted m.s.j. P’s showed wrongful conduct, but did not prove causation.
        Doctor was qualified as an expert. 703 prob – is underlying data reasonable P’s doctor
        based expert opinion on wife of the dead guy; scientific studies based on animals – none
        conclusively said Agent Orange causes cancer in humans; doesn’t look to Ranch Hand



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        experiments. See whether or not expert’s opinion has a reasonable basis. Ct kicks the
        case.
        1. Class action. 2.5 million peopole in class of veterans settled the class action suit.
              Can all show exposure, not one can show causation. What’s legal rationale on issue
              of causation that justifies this settlement? Incident rate is too high to be normal
              probability. May not be evi of indiv causation, but there is evi of statistically
              significant causation among entire group.
f. Not an Expert.
     Barrel of Fun v. State Farm Fire & Casualty Co (1984) (p. 856) – fire at store, ins co
        claims arson by owner. Polygraph test not admitted. Arson investigator based entire
        opinion of PSE, so wasn’t allowed.
        1. Reasonable data. One thing to talk about testimony of expert relying on reasonable
              data  those probs go to whether acknowledges expert has based opinion on
              reasonable data whether or not admissible.
        2. No expert. Real issue here is we don’t have an acknowledged expert  this
              testimony won’t be helpful to jury (just like lie detector won’t). No matter what
              underlying methodology, he’s not an expert  don’t recognize competence of expert
              to testify.
f. No More Frye  Daubert.
     Daubert v. Merrell Dow Pharmaceuticals (1993) (p. 919) – kids born w/ birth defects,
        said it was b/c of Bendectin. Is Frye still valid w/ promulgation of FRE 702? No. Has to
        fit 2 prongs of 702: (1) scientific knowledge (2) helping to assist the jury.
        1. New test. 9-0 Sup Ct holds Frye is trumped by 702. Judge must act as a gatekeeper.
              Much more lax standard of helpfulness. 702 – just assist trier of fact.
        2. Standards. Stevens and Rehnquist (dissent) don’t want to outline gen standards.
              Maj standards:
                   (1) has sceince been tested in scientific community;
                   (2) subjected to peer review;
                   (3) known or potential rate of error
                   (4) “general acceptance” - Frye
        3. 3 possibilities of life about Daubert:
                   (1) Daubert is more restrictive than Frye.
                   (2) Daubert is less restrictive the Frye.
                   (3) Daubert is same as Frye.
              In theory, Daubert is less restrictive that Frye. In practice, can be more restrictive
              b/co f guidelines – can have more ways to challenge junk science.
     Daubert II (on remand) (1995) (p. S591) – 9th Cir decided expert testimony didn’t satisfy
        new test. Said expert testimony doesn’t go to causation. In practice, doesn’t take much
        for ct to say: new standard, same result.
     Glaser v. Thompson Medical Co (1994) (p. S601) – P are appealing summ judgment in
        product liability cases – Dexatrim. Dist Ct found insufficient evi for causation. Ct of
        App reversed, citing Daubert.
     Kum-Ho Tire v. Carmichael (1999) – gatekeeping function of judge applied to non-
        scientific test. Daubert standards may apply if trial ct in its discretion chooses to use
        them. Reaffirmation of gatekeeping function of trial judge. Daubert principle governs
        any expert under 702  not just scientific/med experts. Here, doesn’t allow expert to
        testify. Breyer said in this case, expert didn’t demonstrate background and expertise to
        get in this testimony.
     Trend. Daubert has created a cottage industry. Trend seems to be psychological  trial
        judges are willing to exhibit more spine in keeping out junk science. Trend of limiting
        expert testimony. Far cry from more liberal standard.




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C. COURT-APPOINTED EXPERTS (pp. 929-37)
   1. Generally. To what extent where have an issue where expert testimony is conflicting, should ct
      be able to appoint own expert?
      a. Rule 706. Ct Appointed Experts.
          (a) Appointment. The ct may on its own motion or on the motion of any party enter an order
               to show cause why expert witnesses should not be appointed, and may request the parties
               to submit nominations. The ct may appoint any expert witnesses agreed upon by the
               parties, and may appoint expert witnesses of its own election…A witness so appointed
               shall advise the parties of his findings, if any; his deposition may be taken by any party;
               and he may be called to testify by the ct or any party. He shall be subject to x-exam by
               each party, including a party calling him as a witness.
          (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in
               whatever sum the ct may allow…
          (c) Disclosure of appointment. In the exercise of its discretion, the ct may authorize
               disclosure to the jury of the fact that the ct appointed the expert witnesses.
          (d) Parties’ experts of own selection. Nothing in this rule limits the parties in calling expert
               witnesses of their own selection.
      b. Policy Implications. Pro – likely to promote settlements. Con – jury will give too much
          deference to expert’s opinion. Appointment of 706 expert doesn’t necessarily mean he’ll
          testify at trial.


                                       PART IX. WRITINGS
A. GENERALLY (pp. 939-40).
   1. Overview: Doc can be used in a variety of ways: resfresh recollection (612); impeach (613);
      experts (703); past recollection recorded (803(5)); pub docs and biz records (803-805). More
      powerful than oral testimony.
      (1) Is writing authentic (what it purports to be)? Parallel to witness credibility. Rule 901 & 902.
      (2) Best evi rule – Is the doc the orig? the best evi? Ch. 10 of Fed Rules.

    2.   Basic Issues:
         (1) Basic question of how you authenticate is pretty simple: personal observation, obvious
             circum; identification of doc by someone based on lay experience; distinctive character.
         (2) Unlike qualification of experts, authentication requires use of admissible evi.


B. AUTHENTICATION (pp. 940-52; 955-70).
   1. Rule
      - Rule 901. Requirement of Authentication or Identification.
          (a) General provision. The requirement of authentication or identification as a condition
              precedent to admissibility is satisfied by evi sufficient to support a finding that the matter
              in question is what its proponent claims.
          (b) Illustrations: examples of authentication or identification –
              (1) Testimony of witness w/ knowledge.
              (2) Nonexpert opinion on handwriting.
              (3) Comparison by trier or expert witness.
              (4) Distinctive characteristics and the like.
              (5) Voice identification.
              (6) Telephone conversations.
              (7) Pub records or reports.
              (8) Ancient docs or data compilations.
              (9) Process or system.
              (10) Methods provided by statute or rule.



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     -   Rule 902. Self-Authentication. Extrinsic evi of authenticity as a condition precedent to
         admissibility is not required w/ respect to the following:
         (1) Domestic pub docs under seal.
         (2) Domestic pub docs not under seal.
         (3) Foreign pub docs.
         (4) Certified copies of pub records.
         (5) Official publications.
         (6) Newspapers and periodicals.
         (7) Trade inscriptions and the like.
         (8) Acknowledged docs.
         (9) Commercial paper and related docs.
         (10) Presumptions under Acts of Congress.
     -   Rule 903. Subscribing Witness’s Testimony Unnecessary. The testimony of a subscribing
         witness is not necessary to authenticate a writing unless required by the laws of the
         jurisdiction whose laws govern the validity of the writing.

2.   Questions:
     (1) Can you use inadmissible evi to authenticate a doc? 901(a) – No, has to support a jury
         finding, so must be admissible.
     (2) Retain common law chain-of-custody requirement? 901(a) – doesn’t mention it. Just has to
         be what its proponent claims.
     (3) Does 901 require showing that an offered doc tends to prove the issue or only that it’s
         “genuine”? Only that it’s genuine – not concerned about admissibility.
     (4) What other types of proof will satisfy 901(a)? (besides 901(b)). 902. Also, 901(b) isn’t all
         inclusive  it’s just illustrative.
     (5) How does 901 relate to 703? Interfaces w/ expert opinion – can authenticate a doc only
         through admissible evi. Wise atty might put an expert on the stand to authenticate a doc b/c
         expert can rely on hearsay.
     (6) Should voice i.d. be treated more like eyewitness i.d. than authentication of handwriting?
         Eyewitness id – lay person can do it.
     (7) What justifies distinction btwn 901 and 902? In 902, some items are inherently more reliable
          presumption of authenticity.

3.   Application
     a. Laying a Foundation
          Prob IX-1 – Blackacre (p. 945) – Title dispute.
             (1) Unrecorded deed from G to P. Witness has knowledge of signing. The signature
                 could also authenticate it – 901(2).
             (2) 1954 recorded deed. 902(4) & (8) – pub records – self-authenticating.
             (3) List of expenditures or receipts. Call a witness to say these receipts demonstrate who
                 owns Blackacre  lay a foundation –901(b)(1).
             (4) Newspaper from 1978 describing a picnic. Self-authenticating – 902(6). Newspaper
                 isn’t being offered for its truth, just to show that it was printed.
             (5) Tax records and receipts offered by D. Call a witness: D or his accountant.
             (6) Cancelled checks by D for utilities for Blackacre over past 25 years. Call a witness –
                 D. Distinctive cancellation mark – 901(b)(4).
             (7) Letter from G to D, offered by D. Can use one letter to authenticate another letter.
                 901(b)(4) – reply letter technique.
             (8) Telephone call witness had w/ G. 901(b)(6) – phone call, witness identifies number
                 called and G self-identifies.

     b. Handwriting
          Prob IX-2 – Problematic Promissory Note (p. 946) – income tax evasion. D offers
            promissory note from brother. Authenticate:
            (1) Testimony of W that he was familiar w/ Bs handwriting. 901(b)(2) – might be
                admissible. Maybe not admissible if got familiarity for purposes of litigation.


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         (2) Testimony of B’s atty about recognizing handwriting. Not of purposes of litigation –
              okay – pure 901(b)(2).
         (3) Testimony of D who say B sign the note. 901(b)(1) – in; eyewitness account.
         (4) In prep of trial. Not in under 901(b)(2), but can try to get it in under 901(b)(3).
         (5) Offer by D’s atty to submit note and valid exemplars for comparison. In – 901(b)(3).
c.   Distinctive Characteristics
      Prob IX-3 – Intl Bank of Commerce Mail Scam (p. 946) – govt wants to admit into evi 22
         letters for mail fraud. Admissible – 901(b)(4): distinctive characteristics – signature,
         come from him, his address, his letterhead.
d.   Process/System
      Prob IX-4 – Viva Card (p. 947) – D denies ordering the tix. Bank offers proof of opera’s
         ticket office data-storage system. All can come in. 901(b)(9) – process/system; call
         someone to authenticate.
e.   How to get evi in.
      Prob IX-5 – Cudia City Wash (p. 947) – action by homeowners b/c water damaged their
         homes. Huge storm. Water assoc said storm like this would only happen every 100 yrs.
         Ps want to introduce doc about rainfall in 1939 and 1943 found in association’s files – is
         unsigned and not dated. In under ancient docs – 901(b)(8). Maybe in under 901(b)(4).
         Authentication must be based on admissible evi – how to get it in? Show that def was on
         notice  hearsay exception.
      Threadgill v. Armstrong (1991) (p. 948) – personal injury re asbestos. Sumner Simpson
         docs – letters from Pres and legal counsel – knew product was dangerous. Docs were
         allowed in in Ct of Appeals. How do we get them in? Testimony by Simpson’s some
         about how docs were in vault and there’s no suspicion about docs. 901(b)(8) – ancient
         doc exception. And it didn’t go to the content of the doc, but just that it’s what it
         purports to be. Allowed in as exception to hearsay rule.
f.   Prove absence of a doc.
      Prob IX-6 – Unregistered Gun (p. 955) – Govt offers testimony of agent who wants to
         introduce a doc under seal w/ signature saying no evi that gun was registered. Should
         come in 902(1) . Offering doc to prove absence of a doc. Rule 44 of Civil Procedure
         applies to crim proceeding.
g.   Phone calls.
      Prob IX-7 – “Reach Out and Touch Someone” (p. 956) – failing to file tax returns. IRS
         wanted to say she got Ds phone number from D’s husband and called and talked to D.
         Okay under 901(b)(6) – circum evi allows ct to show inference that call was authentic.
         Got number from D’s husband (not some stranger).
      Prob IX-8 – The Set-Up (p. 956) – stolen checks. D said he was entrapped by informant.
         D seeks to introduce evi of co-def’s mom saying informant called a lot – she doesn’t
         know Jimmy or his voice. At trial, she said she recognized the voice. Is inadmissible –
         can’t use representation on the phone that it’s Jimmy b/c it’s hearsay  offered for the
         truth of the matter for which it is asserted.
         - If can try and tailor testimony that it might have been Jimmy, maybe can get it in a
              circum evi.
         - Say Jimmy testifies at trial that he called a couple of times, but didn’t entrap D. Can
              mom come up and say she recognized voice and he called a lot? Yes, voice i.d.
      Prob IX-9 – 4 Unknown, Named Narcotics Agents (p. 957) – P is police informant.
         Arrested and beaten up by officers. Officer he worked for tried to call arresting officers/
         Statement from unnamed person who said he was a partner. 901(b)(6) – called police
         station, but trying to authenticate call through hearsay statement, “I am a partner.” Is a
         statement of party-opponent  admission by one of the defs. How do you get around the
         4 defs? Statement of co-conspirator, but not in furtherance of a conspiracy. (Need to
         find a way to authenticate through admissible evi.)
      Prob IX-10 – “Joe Sent Me” (p. 959) – pornos w/ kids. K said placed order for porn w/
         “Joe” at J-E’s place and got the porn. FBI testified sign on door said “Joe Espinoza.”
         Feinburg thinks admissible, but close call. If going to authenticate the conversations



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          through circum evi through 901(b)(6), what’s there about the circum evi that makes it
          problematic? Phone number that was called wasn’t to Joe, it was to J-E Inc. Probably
          will come in. No hearsay prob.
h.   Foundation – Chain of Custody? No longer required by Fed Rules, but easiest way to show
     object was same one seized in outside world. Tag, i.d., chronological mention evi from
     outside world. If don’t have that, lay a foundation through distinctive markings, etc.
      Prob IX-11 – Case of the Nosy Neighbor (p. 960) – assault w/ deadly weapon (baseball
          bat). Neighbor testifies about B swinging bat at him. P introduces a bat. Not in – no
          901(b)(1) foundation. Eyewitness needs to identify the bat.
      Prob IX-12 – Careless Cop (p. 961) – Cop Obie stopped D for speeding and sees open
          bottle of alcohol. Obie testifies. P’s attys enter bottle of alcohol into evi after identified
          by Obie. D atty showed bottle w/ ice tea for Obie to i.d. How do you know the 1st bottle
          was the one seized? What if there’s a distinguishing char? No chain of custody, but it
          gets in. Don’t require a chain of custody b/c is not mentioned in 901 – just needs to be
          sufficient to support finding that evi is what it purports to be.
      US v. Mahecha-Onofre (1991) (p. 961) – was on plane stopped by customs and suitcases
          were made of cocaine. Evi prob is chain of custody. Witness identified suitcase and the
          scratch marks. Marks and initials, w/ unique type of suitcase makes it hard to argue it’s
          not authentic.
      Miller v. Pate (1967) (p. 963) – murder and sex assault. DA had offered “bloody” shorts
          that were type O. Later, found out stains weren’t blood. Sup Ct reverses conviction.
          Govt suppressed true nature of this evi. No chain of custody, no nothing  outrageous!
      Prob IX-13 – Where the Rubber Meets the Road (p. 966) – defects in tires. 1st witness is
          P. Lay foundation for products case  he bought tires, brand new, haven’t been off the
          car, introduce the warranty. Laid foundation.
i.   Live exhibits. Can bring them in, but cts frown on the idea b/c no way to accuractly portray
     that evi in the record.
      Prob IX-14 – Live Exhibit (p. 966) – paternity suit. Resemblance of kid. Want to bring
          kid into ct. Can do it. In normal course, judges don’t like bringing in kids (prejudice
          concerns). But, people can be live exhibits.
j.   View. May be authentic evi, but due process protections are necessary. Make sure there’s no
     unfairness.
      Prob IX-15 – Spite Fence (p. 967) – see if fence is a spite fence, which is illegal. Jury
          gets a view. D moves for a nonsuit. A view is evi – allowed. Wooried about rights of
          D? Maybe if D wasn’t there  due process probs.
k.   Photos. Okay if have foundation.
      Prob IX-16 – Spite Fence: Reprise (p. 967) – same prob w/ ugly fence. Ps atty shows a
          photo. Question legitimacy of phot – D says there’s no foundation for photo. Someone
          has to attest to photo  lay a foundation: (1) witness – does photo accurately portray
          scene? Personal observatio; (2) expert taker of the photo.
      Adamczuk v. Holloway (1940) (p. 968) – evi in dispute is photo of scene of crime. Not
          thetaker and no one knew who was. Witness is allowed to authenticate photo by
          identifying the scene.
      Prob IX-17 – Hidden Camera (p. 970) – call someone who testifies about the process by
          which the hidden camera is set up and worked, then it will come in.




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C. THE “BEST EVI” RULE (pp. 978-1015).
   1. Generally. If bring in an item, bring in the item, unless can’t, then bring in next best thing.
      Applies to writings/docs and other similar things to writings – 1001. Only concerned about
      authenticity. Content of doc is what’s sought to be proven.
      a. Questions:
          (1) What is an “orig”?
          (2) When is a duplicate admissible?
          (3) What excuses will allow for duplicate?
          (4) What applies to pub records?
          (5) Interrelationship to document admissions?
          (6) Is summary of 10,000 pieces of paper okay? 1006.
          (7) What is role of judge and jury about sufficiency? 1008.

    2.   Rules
         - Rule 1001 – Definitions. For purposes of this article, the following definitions are
             applicable:
             (1) Writings and recordings. “Writings” and “recording” consist of letters, words, or
                  numbers, or their equivalent, set down by handwriting, typewriting, printing,
                  photostating, photgraphing, magnetic impulse, mechanical or electronic recording, or
                  other form of data compilation.
             (2) Photographs. “Photos” include still photos, X-ray films, video tapes, and motion
                  pictures.
             (3) Original. An “orig” of a writing or recording is the writing or recording itself or any
                  counterpart intended to have the same effect. An “orig” of a photograph includes the
                  negative or any print therefrom.
             (4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the orig, or
                  from the same matrix, or by means of photography, including enlargements and
                  miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or
                  by other equivalent techniques which accurately reproduces the orig.
         - Rule 1002. Requirement of Original. To prove the content of a writing, recording, or
             photograph, the orig writing, recording, or photograph is required, except as otherwise
             provided in thses rules or by Act of Congress.
         - Rule 1003. Admissibility of Duplicates. A duplicate is admissible to the same extent as an
             orig unless (1) a genuine question is raised as to the authenticity of the orig or (2) in the
             circum it would be unfair to admit the duplicate in lieu of the orig.
         - Rule 1004. Admissibility of Other Evi of Contents. The orig is not required, and other evi
             of the contents of a writing, recording, or photograph is admissible if –
             (1) Originals lost or destroyed. All orig are lost or have been destroyed, unless the proponent
                  lost or destroyed them in bad faith; or
             (2) Orig not obtainable. No orig can be obtained by any available judicial process or
                  procedure; or
             (3) Orig in possession of opponent. At a time when an orig was under the control of the
                  party against whom offered, he was put on notice, but the pleadings or otherwise, that the
                  content would be a subject of proff at the hearing, and he does not produce the orig at the
                  hearing; or
             (4) Collateral matters. The writing, recording, or photgraph is not closely related to a
                  controlling issue.
         - Rule 1007. Testimony or Written Admission of Party. Contents of writing, recordings, or
             photographs may be proved by the testimony or deposition of the party against whom offered
             or by his written admission, w/out accounting for the nonproduction of the orig.
         - Rule 1008. Functions of Ct and Jury. When the admissibility of other evi of contents of
             writings, recordings, or photographs under these rules depends upon the fulfillment of a
             condition of fact, the question whether the condition has been fulfilled is ordinarily for the ct
             to determine in accordance w/ the provisions of rule 104. Howeverm when an issue is raised
             (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or
             photgraph produced at the trial is the orig, or (c) whether other evi of contents correctly



                                                                                                           53
         reflects the contents, the issue is for the trier of fact to determine as in the case of other issues
         of fact.

3.   Application
     a. Generally
          Prob IX-19 – Whiteacre (p. 983) – action of ejectment. P wants to testify that D executed
             a deed. Need deed  no explanation why it’s not there – 1002.
          Prob IX-20 – Sparkplugs (p. 983) – plane gas. P v. D prop damages. Aeronautics expert
             took sparkplugs, wanted to describe appearance. Is not a writing of other similar thing.
             Best evi rule doesn’t apply.
     b. About contents of the doc??
          Prob IX-21 – Accident Report Forms (p. 983) – car accident. D filed out accident report
             form.
             (1) D wants to testify. Allowed to testify b/c talking about what he saw at the accident,
                  not the contents of the accident report form.
             (2) D is charged w/ recent fabrication. On redirect, asked about contents of form. Bring
                  in the form.
          Prob IX-25- Arson Interrogation (p. 991) – D wanted to tell A story. DA asks A to talk
             about D’s statement. D said need transcript. Don’t need transcript. If didn’t say
             statement, but just wrote it, A would only be testifying about what statement said, so need
             to bring in the doc. If tape recording, A can relate the essence w/out the doc.
          Meyers v. US (1949) (p. 991) – appeal from perjury conviction. Summarized P’s
             testimony, then submits transcript. Maj states this is okay – don’t need transcript. No
             element of a transcript in perjury. [Rightly decided.]
             - Dissent – why go w/ recollection when transcript is right there?
          US v. Ratliff (1980) (p. 995) – misrepresented value of German bonds. There was a
             master list of these bonds and it wasn’t brought into evi/ Expert testified about it. Ct
             says expert wasn’t trying to prove contents of list, was really talking about the bonds.
             Also, master list was unavailable – 1004.
     c. Duplicates
          US v. Carroll (1988) (p. 984) – bribery case. Checks come through on microfilm from
             the bank, w/ testimony that they are exact duplicates of orig. D said checks were diff b/c
             were marked up later. Govt witness destroyed orig, but govt didn’t make him do it.
             Duplicates come in.
          Prob IX-22 – No Ticket, No Laundry (p. 990) – fill out laundry slip for pick-up on 12th.
             Shirts weren’t ready till 15th.
             (1) P attempts to testify to terms of contract. Not in b/c need ticket.
             (2) D used ticket book. P offers carbon, it’s okay b/c it’s a duplicate under 1001(4) –
                  made up same impression as orig.
          US v. Taylor (1981) (p. 1003) – fraudulent letter for a loan. Was telecopied or
             photocopied, put copy in evi. Orig not obtainable, even after subpoenas had been served
             – 1004. So, other evi was okay.
     d. No original
          Prob IX-23 – Barnyard Justice (p. 990) – D put picture of P’s head on top of animal. P is
             asked to describe the photo. Need photo. No explanation for failure to produce the orig.
          Prob IX-24 – Dangerous Druggist (p. 990) – neg filling of a prescription. D said W
             ordered formaldehyde. D says had a record, but threw it away. D can tesitfy about what
             W said – it’s admissible.
         (1) Not destroyed in bad faith.
              Prob IX-28 – Electronic Scrivener (p. 997) – breach of contract; terms are allegedly
                  in telex. Offers photocopy of telex, but doesn’t say why the orig wasn’t there.
                  Burden on D to raise a genuine issue about the duplicate, w/out this, P’s failure to
                  explain doesn’t matter. If Ct is conviced orig was destroyed in bad faith, duplicate
                  would be inadmissible. If question is colorable, judge would submit to the jury.
                  Person who’s submitting the evi would have the burden of proving its accuracy.



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                  Prob IX-29 – Guarantor (p. 997) – breach of contract. Typewritten letter, but was
                   thorwn out.
                   (1) Cashier was asked what letter said  admissible b/c 1004 – orig was lost or
                         destroyed not in bad faith.
                   (2) D made longhand copy of letter and wanted to testify about it (it is in office far
                         away). Testimony is admissible. There’s no hierarchy of secondary evi. Not
                         testifying about contents of longhand copy. Secondary evi can be oral
                         testimony. Once best evi rule doesn’t apply, anything relevant can come in.
               Prob IX-32 – Close Enough for Govt Work? (p. 1002) – unpaid taxes; govt said D
                   signed waiver of statute of limitations. Don’t have waiver. Testimony of IRS agent
                   saying waiver was destroyed – okay b/c explains standard process. No hierarchy of
                   secondary evi.
          (2)Destroyed in Bad Faith.
               Prob IX-31 – Burning Romeo (p. 1001) – libel; fiancee showed letter by D and P
                   burned to. P to testify about contents of letter. Since it was destroyed in bad faith,
                   the testimony isn’t allowed.
     e.   Summaries
           Prob IX-26 – The Tapes Case (p. 994) – surveyed 3,000 phone calls. Derived total of
              gambling from calls. Expert testimony allowed in – providing a summary and an
              analysis  1006 summary. Need 2 foundations: (1) make tapes available to the other
              side; and (2) summary has to be based on admissible evi.
     f.   Show absence of doc. Legis history surrounding 1002  doesn’t apply to testimony about
          absence of doc. Can’t require that doc be provided showing the absence of the entry,
           Prob IX-27 – The Unlisted Number (p. 994) – stolen car. FBI agent couldn’t find body
              shop that D supposedly bought car from. Ct rules that 1002 didn’t apply to docs that
              don’t contain any reference to the matter.
     g.   Contemporaneous writings
           Prob IX-30 – Cocaine Connection (p. 997) – FBI agent testifies about contents of piece of
              paper, which she lost., but had written the phone number down. D has 1002 best evi
              objection. It is okay that she lost the orig, but where is the other writing (which was
              made contemporaneously w/ losing the orig)?
           US v. Marcantoni (1979) (p. 998) – bank robbery w/ bait $. Cop searched home,
              examined $, and wrote down serial numbers. Returned, but bills were gone  lost.
              What about testimony? He wrote it down, but remebers nothing from memory. Wants to
              offer list he wrote down. 803(5) prob – past recollection recorded. Bait $ isn’t the best
              evi  best evi is past recollection recorded of bait $. Evi was allowed in.

4.   Public Records.
     a. Rule 1005. The contents of an official record, or of a doc authorized to be recorded or filed
        and actually recorded or filed, including data compilations in any form, if otherwise
        admissible, may be proved by copy, certidied as correct in accordance w/ rule 902 or testified
        to be correct by a witness who has compared it w/ the orig. If a copy which complies w/ the
        foregoing cannot be obtained by the exercise of reasonable diligence, then other evi of the
        contents may be given.
     b. Application.
         Amoco v. US (1980) (p. 1006) – quiet title to mineral rights. Orig deed and all copies are
             lost. D says practice shows they kept an interest. Deed in courthouse – D says that’s the
             wrong deed. 1005 – does it have relevance for recorded deed? Yes, but doesn’t exclude
             testimony as to orig deed. Can testify anout orig b/c one doesn’t preclude the other.




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    5.   Summaries
         a. Rule 1006. The contents of voluminous writings, recordings, or photographs which cannot
            conveniently be examined in ct may be presented in the form of a chart, summary, or
            calculation. The originals, or duplicates, shall be made available for examination or copying,
            or both, by other parties at reasonable time and place. The ct may order that they be produced
            in ct.
         b. Application.
             US v. Scales (1979) (p. 1011) – charge for mail fraud; double assigned mortgages. Govt
                 offered testimony of postal inspector who made a summary of records. Can testify  if
                 lay foundation that underlying evi is admissible. (The evi doesn’t have to actually be
                 admitted.)
                 - Expert – if he’s an expert, doesn’t have to be based on admissible evi.
                 - Summary needs to be produced, can’t just testify about it. Can be an exhibit.
                      Witness doesn’t have to be qualified as an expert to testify about summary evi.


   PART X. ALLOCATION, INFERENCE, BURDENS AND PRESUMPTIONS
A. GENERALLY (pp. 1017-9). Who has burden of proof?
   1. Diff btwn Presumptions and Inferences. Goal of presumptions is to advance jury’s
      conclusions. Goal of inferences is to promote acceptable probability. Presumptions are much
      more valuable than inferences (“shall” presume  stronger than inference).

B. INFERENCE AND SPECULATION: WHAT IS THE DIFF BTWN “REASONING” AND
   “GUESSING”? (pp. 1026-8)
   1. Generally.
       Prob X-2 – Big-Time Charlie (p. 1026) – counterfeit bills. Only evi is he lit a cigar w/ $20
         bill. May one infer that he knew $ was counterfeit? Not really – other explanations (drunk,
         prank).
       Prob X-3 – Prison Yard (p. 1026) – 25 prisoners attack guard and only 1 retreats. May you
         charge 1 of 25 w/ crime? Chances of charging right guy are high. BUT, no way is this
         statistical analysis let in.
         - If govt calls W who said he was the 1 prisoner, let in b/c it’s more than stats. Stats alone
              aren’t enough.

C. STRATEGIES FOR BRIDGING THE GAP (p. 1028-30)
   1. Generally. Evi is so speculative, don’t allow juries to hold people on the basis of such guessing.
      Displace guessing w/ considered, determined reasonable inferences.
      a. Ways to Bridge the gap:
          (1) explanation seeking presumption – burden is on 1 party to explain what happened (ex –
              RR accident).
          (2) Allocation shifting presumption- shift burden of proof to a party to disprove certain
              uncertainty.
          (3) Issue switching presumption – euphemism for the ct changing the law.

    2.   Explanation seeker
          Prob X-4 – Family Car (p. 1029) – car accidents w/ minors driving. Use explanation seeker
             up to parent to show there wasn’t permission. May conclude kid had permission
            otherwise.

    3.   Allocation shifting
          Prob X-5 – Post Office (p. 1030) – P proves he mailed letter and D says he never got it. P
             proved mailed it, so burden shifts to D to show that he didn’t get it. If D fails to explain it,
             assume that D received the letter. Show non-receipt by preponderance of the evi. (Want to
             encourage integrity of US mails and want to encourage contracts.)



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    4.   Issue switching
          Prob X-6 – Last Carrier (p. 1030) – ships parts by rail through many companies. Parts get
             damaged. Explanation seeking. Why isn’t explanation presumption going to help the 1 st
             carrier? Sue the last transport b/c they are the most amendable person to sue. Consumer
             shouldn’t bear the burden of showing who broke it. Issue presumption  presume it was the
             last carrier.


D. CIVIL PRESUMPTIONS AND RULE 301 (pp. 1030-50; S607-16).
   1. Rule 301. Presumptions in General in Civil Actions and Proceedings. In all civil actions and
      proceedings not otherwise provided for by Act of Congress or by these rules, a presumption
      imposes on the party against whom it is directed the burden of going forward w/ evi to rebut or
      meet the presumption, but does not shift to such party the burden of proof in the sense of the risk
      of nonpersuasion, which remains throughout the trial upon the party on whom it was originally
      cast.

    2.   Application.
         a. Title VII Cases – Bursting the Presumption
              TX Dept of Community Affairs v. Burdine (1981) (p. 1032) – P wasn’t promoted, got let
                 go, sues under Title VII. D only must explain actions, burden is still on P. What would
                 be a presumption that would help the P? McDonnell Douglas Corp test – (1) P offers evi
                 of discrim, then (2) D has to articulate a reason, (3) if doesn’t do so, presumption it was
                 discrim. D can burst presumption by showing non-discrim.
                 - If D doesn’t rebut presumption, case will go to jury only for damages (shall infer
                      discrim).
                 - If D can raise a genuine issue of fact, the burden shifts back  may infer evi of
                      discrim.
              St. Mary Honor Center v. Hicks (1993) (p. S607) – discrim case. D in trying to burst the
                 presumption gave a reason that one couldn’t believe. Burden of persuasion stays w/ P the
                 whole time. If there’s a presumption of discrim, burden shifts to D and he burst the
                 bubble (offered a colorably valid rationale). Once P lost presumption, still has burden of
                 proof. P lost the case. [Burden of proof and presumption are 2 diff things.]
         b. Disparate Impact – Stats
              Wards Cove Packing v. Atonio (1989) (p. 1036) – case of disparate impact. Lousy jobs
                 go to Native Americans and good jobs go to whites. Show discrim statistically. Need
                 some sort of intent – show link btwn stats and malevolence of company. [Can say
                 specific intent is too much of a burden on P.]
              Congress’s reaction  overturns Wards Cove and says disparate impact is enough. Big
                 diff: can presume on stats it’s discrim, or burden is on P to show intent to discrim.
         c. Unknown Defs – Market Share
              Sindell v. Abbott Labs (1980) (p. 1042) – birth defects due to DES. P couldn’t identify
                 certain manufacturer. Can P hold liable all makers? Ct holds yes, based on their market
                 share – liable based on proportionality.
                 - Making law. Ct here is making law  maybe should leave it to legis. Usually, in
                      our system, P has burden of showing which product caused the harm.


E. ALLOCATION AND PRESUMPTIONS IN CRIM CASES (pp. 1050-5).
   1. Legis Drafting
       Mullaney v. Wilbur (1975) (p. 1051) – (this case belongs in legis drafting calss). Murder,
          required element of malice in statute. Shift burden to D to disprove malice. If D proves
          provocation  manslaughter. Sup Ct throws the statute out (9-0) – putting burden on D takes
          away Ps duty of proving malice. Statute is unconst. Govt must prove each element of the
          crime beyond a reasonable doubt.



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             Patterson v. NY (1977) (p. 1052) – (5-4 decision). NY reads Mullaney and drafts statute w/
              malice and gratutiosly gives D a break. Says affirm def is D has burden to show provocation,
              then it’ll be manslaughter.

     2.   Policy. How far are you going to go in deferring power of legis to draft any crime they want, any
          way they want? Don’t just argue semantic b/c legis could take away all affirm def.


F.   CRIM PRESUMPTIONS: ARE THERE PROBS W/ THE 5TH AMEND AND THE
     PRESUMPTION OF INNOCENCE? (pp. 1063-9)
     1. Cases.
         Yee Hem v. US (1925) (p. 1065) – concealed opium. Is it const to allow jury to infer
           knowledge of importation based on ownership? Ct found that it wasn’t an illogical inference.
         Griffin v. Calif (1965) (p. 1067) – murder; const right to remain silent. Will not allow
           inferences from that silence. (This is unlike flight or spoilation, which aren’t in the Const 
           but right to remain silent is).


G. CRIM PRESUMPTIONS AND RATIONALITY (pp. 1073-96)
   1. Cases
       US v. Dube (1975) (p. 1073) – bank robber attempts to put on defense of insanity. Under
         statute, D is presumed sane, has to offer evi of insanity. Govt had burden of disproving
         insanity, but did nothing. But, he was found guilty. D offered weak evi of insanity.
       County Ct of Ulster City v. Allen (1979) (p. 1077) – guns in bag in car. D said since stuff
         was in handbag, should belong to owner of bag. Presumption is that they are in possession of
         anyone in the car. Presumption prevails.
       Medina v. Calif (1992) (p. 1087) – who has burden of showing D is incompetent even to stand
         trial? Unless burden of proof on D offends justice, there’s no violation. Can shift this
         presumption to D in drafting.




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