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					Purpose of FRE:
1. efficiency
2. avoid confusing jury
3. protect victim/witnesses
4. consistency – a requirement for predictability in trial and pre-trial prep
5. necessity
6. FRE 102: Purpose and Construction: These rules shall be construed to secure fairness in administration,
   elimination of unjustifiable expense and delay, and promotion of growth and development of the law of
   evidence to the end that the truth may be ascertained and proceedings justly determined.
       a. Fairness
       b. Efficiency
       c. Achievement of truth and justice
7. Interpreting the FRE:
       a. Text of rule
                i. Language
               ii. Structure
              iii. Purpose of FRE overall
       b. Legislative history
                i. Advisory committee – controversial source.
       c. Common law & treatises
                i. Because FRE largely codified common law rules

Trial judge’s authority        Trial judge’s discretion
Rule 104. Preliminary          Rule 103. Rulings on Evidence
Questions
                               (a) Effect of erroneous ruling.
(a) Questions of
admissibility generally.       Error may not be predicated upon a ruling which admits
                               or excludes evidence unless a substantial right of the
Preliminary questions          party is affected, and
concerning the qualification
of a person to be a            (1) Objection. - In case the ruling is one admitting
witness, the existence of a    evidence, a timely objection or motion to strike appears
privilege, or the              of record, stating the specific ground of objection, if the
admissibility of evidence      specific ground was not apparent from the context; or
shall be determined by the
court, subject to the
provisions of subdivision      (2) Offer of proof. - In case the ruling is one excluding
(b). In making its             evidence, the substance of the evidence was made
determination it is not        known to the court by offer or was apparent from the
bound by the rules of          context within which questions were asked.
evidence except those
with respect to                Once the court makes a definitive ruling on the record
privileges.                    admitting or excluding evidence, either at or before
                               trial, a party need not renew an objection or offer of
                               proof to preserve a claim of error for appeal.

                               (b) Record of offer and ruling

                               The court may add any other or further statement
                               which shows the character of the evidence, the form in
                               which it was offered, the objection made, and the ruling
                               thereon. It may direct the making of an offer in
                               question and answer form.




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                             (c) Hearing of jury

                             In jury cases, proceedings shall be conducted, to the
                             extent practicable, so as to prevent inadmissible
                             evidence from being suggested to the jury by any
                             means, such as making statements or offers of proof or
                             asking questions in the hearing of the jury.

                             (d) Plain error

                             Nothing in this rule precludes taking notice of plain
                             errors affecting substantial rights although they were
                             not brought to the attention of the court.



                                If error (on allowing evidence in) is harmless, it is
                                 disregarded.

                                If no objection made at trial, appellate court reverses only
                                 for “plain error.”

                                     o    If basis of an objection isn’t obvious, it’s not
                                          preserved unless the ground is stated. FRE
                                          103(a)(1)

                                     o    Bandera v City of Quincy (Allowing testimony of
                                          Colletta about how she felt about Bandera’s
                                          sexual harassment claims might not have been
                                          harmless error, but the objection wasn’t properly
                                          preserved because defense didn’t object to this
                                          part specifically.

                                Abuse of discretion standard.



Relevance & Irrelevance, p1-42
1. FRE 401: Definition of “Relevant Evidence”: “Relevant evidence” means evidence having any tendency
   to make the existence of any fact that is of consequence to the determination of the action more probable or
   less probable than it would be without the evidence.
2. FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: All relevant
   evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by
   these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence
   which is not relevant is not admissible.
       a. If relevant  admissible. Lots of exceptions to this.
       b. If irrelevant  inadmissible. No exceptions to this.
3. Low threshold for relevance.
       a. “tendency to make the existence” of the fact to be proved “more probable or less probable.”
           (Advisory Committee Note)
                i. A brick, not a wall.
               ii. Advances the ball a little.
              iii. Doesn’t have to “prove” anything to be relevant.
       b. “fact that is of consequence to the determination of the action” is the kind of fact to which proof can
           be directed.
                i. Not just material facts or facts in dispute
               ii. Has to pertain to some fact/element in the case.
       c. Plaintiff/prosecutor wants to keep the frame small.
       d. Defense wants to expand the frame to include character, background, context.
4. Relevant evidence:
                                                                                                                 2
       a. Knapp v State: evidence introduced by State that “old man” (who defendant said had died because
           was beaten by officer who defendant later killed) died of senility and alcoholism.
                i. was relevant because showed that there was no basis for what D was claiming.
               ii. Was relevant because tended to discredit D as a liar.
                        1. our daily background assumption is that everyone tells the truth. We rely on
                            experience and logic, which tells us that people don’t lie. Evidence that shows that he
                            did lie is relevant.
       b. US v Dominguez: evidence that D customs officer owned gun, had barrel replaced after deceased’s
           death, there were scratches on barrel, etc.
                i. Relevant because D’s owning a gun makes it more likely that he killed victim with gun than
                   that he didn’t.
                        1. consider counterfactual: if he didn’t own gun, it’s less probable that he killed M.
               ii. Relevant because barrel replacement makes guilt more probable than had there been no such
                   effort.
       c. State v Larson: evidence that D’s blood alcohol level (on horse) would impair driving
                i. Relevant because allowed jury to compare and understand D’s level of intoxication and apply
                   own logic & experience to the situation.
5. Irrelevant evidence:
       a. Bandera v City of Quincy: Colletta’s opinion testimony about her opinion on Bandera’s claim is
           irrelevant.
6. Probative value and relevance are separate issues.
       a. Evidence can be relevant (low threshold) despite having little probative value.
                i. US v Dominguez: D customs officer HAD to own gun, so that affects probative value (not
                   relevance).
               ii. State v McNeely: where Thompson couldn’t identify D at trial but says he talked to D, it was
                   still conditionally relevant but not very probative.
       b. Evidence that is largely irrelevant and only has marginal probative value can be excluded without
           court abusing its discretion.
                i. US v Noriega: 11th Cir. said lower court didn’t abuse its discretion because even though
                   evidence wasn’t totally irrelevant (like lower court said), its probative value was little.
       c. But if a Court is going to exclude evidence as irrelevant, it will back that up with probative
           value/FRE 403 analysis.
       d. Evidence can still be relevant even though it’s cumulative. See Flitcraft.
                i. Adversarial system affects what comes in:
                        1. Lawyers and the parties make the first decision about whether evidence comes in.
                                a. See Old Chief.
                        2. If party doesn’t object, it comes in.
                                a. See Bandera.
       e. For relevance, it doesn’t matter if it’s cumulative or prejudicial, etc.
                i. See Old Chief.
               ii. See Dominguez – even if D stipulates to owning a gun, evidence that he did was still
                   relevant.
       f. Just because there’s better evidence doesn’t mean the evidence in hand is irrelevant.
                i. See Dominguez: prosecution doesn’t have to offer up the gun in evidence just because it’s
                   better than evidence that D owned a gun, ballistics report, etc.

7. Probative value and prejudice must be weighed.
      a. After determine if evidence is relevant  is it prejudicial?
      b. FRE 105: Limited Admissibility. When evidence which is admissible as to one party or for one
         purpose but not admissible as to another party or for another purpose is admitted, the court, upon
         request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
                                                                                                                 3
c. FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of
   Time: Although relevant, evidence may be excluded if its probative value is substantially
   outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
   considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
        i. Unfair prejudice
               1. because of goal of achievement of truth & justice.
       ii. Confusion of issues:
               1. because of goal of achievement of truth & justice.
      iii. Misleading the jury
               1. because of goal of achievement of truth & justice.
      iv. Undue delay, waste of time, cumulative
               1. because of goal of efficiency
d. State v Larson: probative value (of BAC in driving) outweighs prejudice to D.
e. Trial judge’s discretion
        Benefits                                     Costs
        Saves times and energy for appellate ct      arbitrary & unfair exercise of power
        Individual and flexible decision-making      Unpredictable
        Reflects context – lots of the decisions are Loss of confidence in judicial
        very fact-specific                           system
        Truth-seeking

f. Confusion of issues > Probative value  excluded.
       i. US v Noriega (on appeal): risk of confusion high (would have shifted focus of trial from
          drug-trafficking to geo-political intrigue) and probative value marginal (because jury
          wouldn’t have known whether his work worth 10M or not).
      ii. Flitcraft (tax evasion literature) listed “confusion of jury” (about whether tax law is settled)
          as a reason.
              1. counterargument: really the Court is worried that the literature is TOO convincing
                   and jury will think Ds were legit in not paying their taxes.
g. Cumulative evidence > Probative value  excluded.
       i. US v Flitcraft (tax evasion literature): evidence was cumulative because D had already
          testified about what he read in the literature.
      ii. Cumulative vs corroborative:
              1. hard to distinguish.
              2. cumulative = same type of evidence (witness, document, etc.)
h. Undue delay, waste of time > Probative value  excluded.
       i. Abernathy v Superior Hardwoods, Posner (bad sound recording of video reenactment of
          accident). Undue delay and little probative value.
      ii. must consider not just the minutes wasted but the detour it will send the trial one. Abernathy.
i. Unfair prejudice < probative value  included.
       i. US v McRae (photos of dead body). Probative because establishes elements of offense (re
          whether was accident or not, as D claims) and that outweighs grossness. No parade of
          horrors.
j. Unfair prejudice > probative value  excluded.
       i. Old Chief v US (stipulation of prior conviction instead of naming it).
              1. Majority (Souter): Unfair prejudice because of bad character/propensity reasoning of
                   jury outweighs probative value (because it’s stipulated to re predicate offense for
                   felon-in-posession case)
                       a. Foreshadows FRE 404b on character evidence.
                       b. This is limited to evidence of status (that was a predicate for the offense), not
                           the issue-in-chief
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                2. Dissent (O’Connor): to reduce unfair prejudice, should give limiting instruction. FRE
                    105.
                3. both are concerned about the jury’s ability to be fair and put aside emotions.
k. Considerations:
        i. Undue delay: consider the detour it would take the trial on, not just the minutes.
       ii. Unfair prejudice: consider that gov’t / prosecution gets to present its case how it wants.
                1. all evidence is prejudicial in some way.
                2. unfair prejudice leads to an undue tendency to suggest a decision on an improper
                    basis – an emotional basis (per Advisory Committee) .
                3. unfair prejudice has to substantially outweigh the probative value.
                        a. Bias towards keeping evidence in.
     iii. This rule grants lots of deference to the trial judge. He is uniquely positioned to know the
           facts and decide.
                1. exclusion isn’t required, it’s allowed, under this rule.
      iv. Bloody photographs are rarely excluded. Emotion can’t be taken out of trial.
       v. Asking for a limiting instruction might actually have the counter-effect of highlighting that
           evidence.
      vi. This issue is about whether juries can be fair, put aside emotion, etc.
     vii. If Court excludes evidence as irrelevant, it will usually back that up with a FRE 403 reason.
           See Noriega.
    viii. For unfair prejudice, confusion of issues, misleading the jury: Judge is more likely to exclude
           gov’t evidence than defense evidence.
                1. gov’t has burden of proof and if gov’t loses, it can’t appeal.
                2. judge more inclined to help the defense.
                3. gov’t has harder time excluding evidence than defense does.
      ix. For undue delay, waste of time, needless presentation of cumulative evidence:
                1. judge more likely to let it in. there’s no risk on appeal. If he excludes it, there’s a risk
                    on appeal that it should’ve been let in.
l. Conditional Relevance
        i. FRE 104(b) Relevancy conditioned on fact: When the relevancy of evidence depends upon
           the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the
           introduction of evidence sufficient to support a finding of the fulfillment of the condition.
       ii. If Evidence is admissible based on answer to a preliminary question of fact…
                1. Judge decides on sufficiency standard.
                        a. Sufficient evidence to permit a reasonable jury to conclude that the fact
                            exists? Yes  allowed. No  excluded.
     iii. State v McNeely (testimony by fellow inmate saying he talked to D but couldn’t identify D at
           trial). Admissible because reasonable jury could find that D was the person with whom
           Thompson inmate had spoken in jail.
                1. probative value is less since Thompson can’t identify him. But it’s still relevant.
      iv. Considerations:
                1. judges don’t often exclude evidence because of this.
                2. Judge can later strike the evidence if the fact isn’t made out.
                3. probative value of the evidence allowed in is separate consideration. McNeely.
       v. Compare to questions of admissibility generally.
                1. ex: was the confession voluntary? Is the expert qualified?
                2. FRE 104a.
                3. judge decides. Preponderance of the evidence standard.



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HEARSAY, p43-90
1. FRE 801(a)-(c)
      a. (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person,
          if it is intended by the person as an assertion.
                i. See Implied Assertions
      b. (b) Declarant. A “declarant” is a person who makes a statement.
      c. (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the
          trial or hearing, offered in evidence to prove the truth of the matter asserted.
                i. Advisory Committee Note: If the significance of the offered statement lies in the fact that it
                    was made, it’s not hearsay. Excluded from hearsay is the entire category of verbal acts in
                    which the statement itself affects the legal rights of the parties..
               ii. Hearsay is an out-of-court statement introduced to prove the truth of the matter
                    asserted.
2. Hearsay rule bars the use of “out-of-court statements” to prove the truth of the matter asserted.
      a. Witness: person under oath, testifying in court. Can also be a document (Raleigh)
      b. Declarant: person who made the statement the witness is now relaying
                i. Witness & declarant can be same person.
      c. Matter asserted: matter asserted in the statement offered into evidence. Matter asserted by declarant.
      d. Out of court: outside of current proceeding where witness is testifying.
      e. Doesn’t matter how it’s proven – by witness, tape recording, etc.
3. How to Identify Hearsay. Test the statement to see if this chain of inferences is true:
      a. (1) Did declarant say X? (Did he make the statement someone says he made?)
                i. (see Implied Assertions)
               ii. If only this step is what’s important  not hearsay.
      b. (2) Did declarant believe X to be true? (What was his belief when he spoke?)
      c. (3) Is X, therefore, true?
      d. If all Yes, it’s hearsay.
      e. Journey through head of declarant because it’s dependent on declarant actually believing this.
                i. If don’t have to look into speaker’s brain, it’s not hearsay.
4. Rationales for excluding Hearsay:
      a. Basic premise is that factual disputes in criminal and civil cases should be decided based on live,
          sworn testimony, not secondhand accounts of what other people said outside of court.
                i. Preference for vive voce evidence.
                        1. See Trial of Sir Walter Raleigh, 1603, p45: witness testified that Portugal gentleman
                           said Raleigh was going to kill King. Raleigh found guilty of treason, not allowed to
                           cross-examine because Court feared that Portugal gentleman would feel pressure to
                           recant.
      b. Value of testimony depends on (McCormick on Evidence):
                i. Perception of witness
               ii. Memory of witness
              iii. Narration by witness
              iv. Sincerity of witness
      c. Live testimony encourages the above values through:
                i. Oath
                        1. increases sincerity
               ii. Personal presence at trial
                        1. increases sincerity
                        2. might increase narration, perception, memory
              iii. Cross-examination
                        1. increases sincerity, narration, perception, memory
5. Example of Hearsay:
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      a. Leake v Hagert, p46 (testimony from witness Gross that Leake’s son (declarant) told him red lens on
          small rear light was out = hearsay. Admission was error but not prejudicial.)
6. Categories of Non-Hearsay purposes (Hearsay but not introduced for the truth of the matter asserted):
      a. Demonstrably false statements.
               i. Unlikely that something obviously false is being used to show the truth of it.
              ii. Ex: “I am the king of Mars” used to prove declarant mentally ill.
                       1. “I think I am the king of mars” is probably the same even though technically hearsay.
             iii. Lyons v Morris Costumes (testimony of witness principal that kids & newspapers
                  (declarants) called him Barney when he wore Duffy the Dragon costume). Evidence was
                  offered not to prove that he was Barney (he wasn’t) but to prove that declarants thought he
                  was.
             iv. US v Saavedra, p58 (testimony of witness victims that declarants unknown males said they
                  were law enforcement and got victims’ credit card info). Evidence was offered not to prove
                  that thye were law enforcement (they were inmates) but to show how info was fraudulently
                  obtained.
      b. Statement where the content doesn’t matter; the fact that the statements were made is what matters.
               i. Ex: an overheard conversation to prove someone was there.
              ii. Ex: the language making a contract.
      c. Statements were verbal act is part of the crime committed, or is the crime itself.
               i. Like in fraud, threats, defamation.
                       1. The very words used to commit a crime are not hearsay.
              ii. Saavedra. Crime was fraud (wire fraud).
      d. Statements used to show knowledge or state of mind (what someone was thinking/intending)
               i. US v Parry (testimony of witness D’s mother that declarant D had told her that people on
                  phone were narcs agents). Evidence was introduced as evidence of D’s knowledge.
              ii. Ex: person’s motivation for committing a crime, like in response to a threat “do this or I”ll
                  kill you”; truth or falsity of threat unimportant.
             iii. Statements used to prove notice, since notice affects state of mind.
                       1. Southerland v Sycamore Community Sch. District, p56 (evidence of rumors and notes
                          that declarants (X) said that stalker and Southerland (P) were having a relationship).
                          Evidence used to show not truth of rumors but that school dist officials had
                          knowledge of problem and thus notice (is a negligent retention case against employer)
                       2. US v Johnson, p57 (testimony of witness Chapman that declarant Dr Uppal told
                          Johnson he would have to stop writing illicit prescriptions). Evidence used to show
                          not the truth of matter asserted (that Uppal thought Johnson had to stop) but rather
                          that D Johnson had knowledge/notice that he was prescribing medicine wrongly.
             iv. for these statements to matter, they have to be statements made at the time the crime was
                  committed to show what the state of mind at the time was. If it’s retrospect/goes back in
                  time, more likely to be hearsay. If statements made while crime is occurring, less likely to be
                  hearsay bc they reflect state of mind/knowledge.
              v. Contrast this to exception to hearsay where availability of declarant immaterial for state of
                  mind. The exception is triggered if statement re mental state introduced for truth of matter
                  asserted. Where used as circumstantial evidence of state of mind of declarant, it falls into this
                  category of nonhearsay purposes.
                       1. See US v Harris, 2d Cir, 1984, p145.
      e. Statements used to show their effect on someone else.
               i. Subramaniam v Public Prosecutor (Malaya case. Evidence of declarant bandits/terrorists
                  telling D threatening to take him to their leader). Evidence isn’t introduced to show the
                  threats were true, but to show that the fact that they were made affects mental state of D and
                  caused him to carry ammo.
              ii. US v Johnson might fit here as well.
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       f.  [Statement used to identify, where fact that the statement/identification was made is what’s
          important. People v Freeman, Cal Ct App 1971, p396. Impeachment by prior inconsistent statement
          case.]
      g. Note: Need a limiting instruction (FRE 105) where the evidence can be used to prove both a
          hearsay and a nonhearsay purpose. Limiting instruction might need to limit use of hearsay evidence
          to prove the mens rea, not the actus reus.
               i. Old Chief
              ii. Parry: limiting instruction to tell jury that evidence isn’t used to show that D actually was
                  working with narcs agent, just that he thought/intended to.
             iii. Southerland: limiting instruction needed to tell jury that rumor/notes evidence isn’t used to
                  show stalker & Southerland had a relationship (this is an issue in the case) but to show that
                  employer was on notice.
             iv. US v Johnson: limiting instruction needed to tell jury that phone convo doesn’t establish that
                  Johnson was prescribing medicine wrongly (actus reus) but that he was on notice (mens rea).
              v. if the evidence is really prejudicial because of hearsay purpose, judge can exclude it despite
                  its nonhearsay purpose.
7. Major category of NonHearsay
      a. Performative Utterances. The verbal act is changing the world (not hearsay), not describing it
          (hearsay). Where the case hinges on whether or not the statements were made at all.
               i. Performative utterances are different from statements that narrate, describe, or otherwise are
                  judged by their truth value (Posner).
              ii. Hanson v Johnson, p59, corn case (testimony by witness P that declarant tenant point to corn
                  and said X portion belonged to P). Evidence not used to show that declarant believed the
                  corn was P’s and thus that it was. Evidence offered because what was said is the very fact to
                  be proved. Evidence was a performative utterance: the statement MADE the corn P’s.
             iii. Creghe v Iowa Mutual Casualty Co, p60 (testimony by witness insurance agent that declarant
                  D said he wanted the policy cancelled). Evidence not used to show that he believed his
                  insurance was cancelled. Evidence used because what was said is the performative
                  utterance/action of canceling.
             iv. ex: “this is a gift”
              v. On the edge of this category: demands/hopes
                       1. US v Montana, p61 (testimony by witness court marshal that declarant Dodd said to
                          defendant “it’s going to be 10K.”) Evidence not used to show that Dodd believed it
                          was going to be 10K. Evidence used to show a demand/hope that it would be 10K.
                       2. Where it’s a statement about the past (“your father promised me 10K”) it’s hearsay.
                          Where it’s a statement about the future (“it’s going to be 10K”) it’s not hearsay bc
                          may or may not be true. Used to show state of mind.
                       3. this could be read as an implied assertion case (which would rely on Dodd’s belief
                          about the world), whereas reading it as performative utterance doesn’t require relying
                          on his belief about world.
      b. A written contract (Glannon) because it will be given meaning by the legal system via doctrines &
          principles that don’t depend upon the literal meaning of the words in the document
8. Classic Categories (Glannon)
      a. Circumstantial ues of declarant’s words to prove something about declarant
               i. “I am the king of mars” or “I think I’m the king of mars”  not hearsay.
      b. Circumstantial use of declarant’s words to prove something about a place.
               i. Ex: “this is bill, put $50 on speedy”  not hearsay.
      c. Monograms, inscriptions, and commercial signance
               i. Ex: vehicle said ABC Pizza, used to prove that hit-and-run vehicle belonged to ABC Pizza
              ii. If use writing to show that its meaning is true  hearsay.

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              iii. If uses writing to show that it existed (and then use other proof to show attributes like
                   ownership of monogram)  no hearsay.
       d. Surveys – to prove trademark or unfair competition
                i. Declarant = surveyed people.
               ii. Hearsay but permissible under mental state exception
              iii. Or demonstrably false
       e. Silence
                i. Ie lack of complaints by others used as defense
               ii. Ie deendants’ failure to mention something as proof that never happened
              iii. Technically not hearsay bc no statement made, but can be admitted if not relevant
       f. Info from animals & machines
                i. Not a statement – has to be made by a person to be possible hearsay.
9. In evaluating hearsay, remember:
       a. Relevance.
       b. FRE 403.
       c. Confrontation clause.


Implied Assertions
1. FRE 801(a)-(c)
      a. Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if
          it is intended by the person as an assertion.
2. Under FRE
      a. Is it nonverbal conduct?
                i. If yes, definitely continue with analysis.
               ii. If no, if it’s verbal conduct, it looks like it should fall under 801(1) and not (2), but can argue
                   that per Advisory Committee it’s still covered under 801(2)
                        1. Advisory Committee note seems to contradict plain language of rule.
                                 a. Plain language seems to say that only NONVERBAL conduct can be implied
                                     assertion (if intended).
                                 b. Advisory Committee says VERBAL conduct is also covered bc same
                                     concerns of sincerity arise.
      b. Is the nonverbal conduct intended as a form of communication?
                i. If Yes (intended as assertion) it’s a statement  can be hearsay.
               ii. If no (not intended as assertion) it’s not a statement  can’t be hearsay.
              iii. Rationale:
                        1. Sincerity: Nonverbal conduct not intended as an assertion is less likely to be
                            insincere. If a person doesn’t intend to assert anything, they aren’t likely to be lying.
                                 a. Tribe says possibility of ambiguity is high, however.
      c. Is the verbal conduct offered to prove something the speaker wasn’t asserting?
                i. If the statement is close to what it’s being used to prove  hearsay
                        1. “this is a great place for polar bears” used to prove it’s cold.
               ii. If the statement isn’t similar to what it’s being used to prove  not hearsay
                        1. but might not be relevant, either.
                        2. “I’m going to put on a sweater” being used to prove it’s cold.
      d. Verbal conduct not intended as an assertion not a statement for hearsay purposes (in some circuits):
          US v Zenni, p63 (declarants were callers to house placing bets there). Evidence used not to show the
          truth of statement (that there were bets to be made on those events) but to show that declarants
          believed the house was used for betting).
                i. It is NOT nonverbal conduct (it is verbal), but can argue that it’s like nonverbal conduct bc
                        1. sincerity not an issue.
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                         2. no intent to assert, so same as sea captain example (nonverbal not intended as
                             assertion)
                         3. Advisory Committee note (see above)
                ii. It is not intended as a form of communication by declarants (that was a bet-making place)
               iii. Therefore, not hearsay.
               iv. This is circumstantial use of declarant’s words to prove something about a place  not
                    hearsay, as a category.
                v. Criticisms of this (arguments for why it’s hearsay).
                         1. relies on truth of declarant’s belief (that he is calling a bet house).
                         2. if hearsay includes intent, the intent part of 801(a)(2) is superfluous.
***is the holding of Zenni that the verbal conduct with no intent to assert is not a statement, or it’s just not
hearsay as used here?***
        e. Verbal conduct not intended as an assertion might still be hearsay (in some circuits): State v Dullard,
           p66 (declarant was unidentified person who wrote in notebook saying a cop was near). Evidence
           offered to show declarant’s belief that he needed to tell D because D involved in drug activity in
           garage.
                 i. It is NOT nonverbal conduct (it is verbal).
                ii. It is not intended as a form of communication by declarants (that D was involved in drug
                    stuff)
               iii. Follows common law approach (if stated, would be hearsay) & disagrees with Advisory
                    Committee: just because it’s unintended doesn’t mean it is better on memory, perception, etc.
                    (though yes, would probably be better on sincerity).
                         1. verbal assertions that are unintentional (not intended as assertions) are not reliable
                             enough to avoid hearsay rule.
                         2. Should evaluate assertion in context of purpose for which evidence is offered.
                         3. follows plain language of rule which doesn’t exclude verbal assertions that are
                             unintended (rather all verbal statements are included as statements under 801(1)).
        f. Reconciling Zenni and Dullard: evidence in Zenni much more reliable than Dullard.
        g. Sea captain example:
                 i. It is nonverbal conduct.
                ii. It is not intended as a form of communication by declarant (that ship is seaworthy)
               iii. Therefore, not hearsay.
3. Under common law
        a. Is it nonverbal conduct?
                 i. If yes, continue with analysis.
        b. If the nonverbal conduct were translated into a statement, would the statement be hearsay?
                 i. If yes, the nonverbal conduct is hearsay.
                ii. If no, the nonverbal conduct isn’t hearsay.
        c. Example: Baron Parke’s famous sea captain example (cited in Wright v Tatum)
                 i. Nonverbal conduct: sea captain inspects ship, then embarks on voyage with his family.
                ii. If it were translated into statement (“this ship is seaworthy”), it would be hearsay.
               iii. So, the conduct is hearsay.
        d. At common law, nonverbal conduct is inadmissible hearsay where the statement/opinion would itself
           be hearsay and thus inadmissible.
        e. Criticisms of this view:
                 i. non-assertive implied assertion/conduct is not likely to be a lie, so there’s less need for cross-
                    examination.


Confrontation Clause
1. 6th amendment: every criminal defendant has the right “to be confronted” with the witnesses against him.
                                                                                                                   10
2. To decide if Confrontation clause is triggered:
       a. Is it a criminal proceeding? If yes, continue.
                 i. If civil, it’s not implicated.
                ii. Unclear if CC is triggered if the D is a corporation.
       b. Is the witness one against the defendant? If yes, continue.
                 i. The government can’t assert a constitutional right to confront.
       c. Has the witness NOT been confronted yet? If yes, continue.
                 i. Confrontation is satisfied by in-court testimony in presence of defendant & subject to cross-
                    examination.
                ii. If the witness ends up testifying in court and subject to cross, the CC isn’t implicated.
       d. Is the evidence (statements by declarant) testimonial? See Crawford.
                 i. If YES (testimonial), doesn’t come in unless:
                         1. declarant unavailable, or
                         2. D had prior opportunity for cross-examination
                ii. If NO (not testimonial), it comes in.
               iii. Testimonial statement is a solemn declaration for the purpose of proving/establishing some
                    fact. See Crawford. See Davis v Washington.
                         1. form of statement: solemn declaration. How formal? How much does it look like in-
                             court testimony?
                         2. intent of statement: did declarant expect it to be used for prosecution?
       e. The CC is only an issue if the gov’t is offering the statement for the truth of the matter asserted
            (hearsay purpose).
3. If evidence that violates CC is wrongly admitted, the decision must be reversed (whereas if it’s just a
   hearsay error, the error is reviewed to see whether harmless).
4. When does CC prohibit introducing, against criminal defendant, hearsay from a declarant who does not
   testify?
       a. Old rule: CC doesn’t prohibit anything the hearsay rules don’t prohibit. CC and hearsay rules are
            functionally the same. Hearsay from nontestifying declarant is admissible as long as it fits into an
            exception to the hearsay rule or has certain “indicia of reliability”/ “particularized guarantees of
            trustworthiness.” Ohio v Roberts.
                 i. Rationale: CC and hearsay are both concerned with reliability.
                ii. Criticisms (from Crawford):
                         1. too broad & too narrow
                         2. it’s not enough that reliability be ensured. The process for ensuring reliability is what
                             CC is about: reliability must be assessed via cross-examination.
                         3. too malleable: constitutional provision shouldn’t be malleable.
                                  a. Rebuttal: purpose of 6th amendment was to account for evolving standards.
                         4. substitutes judicial determination (of reliability) for a procedure (cross-examination)
       b. New rule: When the declarant’s statements are testimonial. Crawford v Washington (2004), p73.
            Overrules Ohio v Roberts. Testimonial statements of non-testifying declarants are admissible
            ONLY IF declarant is unavailable and the D had a prior opportunity to cross-examine.
                 i. Rationale:
                         1. Purpose of CC: to limit the abuses of English civil law ex-parte system and Marian
                             bail & committal statutes (where magistrate took sworn statements from witnesses
                             outside of court, w/out presence of D, and admitted them in court against D). See
                             Raleigh.
                                  a. So CC applies to a specific type of out-of-court statement: testimonial ones.
                                  b. Primary object of CC is testimonial hearsay, incl. interrogations by law
                                      enforcement officers


                                                                                                                   11
               ii. In this case, evidence was tape-recorded statement (in formal police interrogation) by Sylvia
                   (D’s wife) to police (introduced by gov’t to rebut defense of self-defense). This was
                   testimonial, so not allowed in since declarant (wife) wouldn’t testify.
              iii. Criticism:
                       1. seems that more formal/testimonial statements a declarant would anticipate to be used
                            for prosecution should come in.
              iv. Dissent (Rehnquist, O’Connor): some out-of-court statements are just as reliable as cross-
                   examined in-court testimony. Testimonial-ness doesn’t matter.
       Testimonial hearsay is excluded unless the declarant is available at trial for cross-examination, or is unavailable
       & the defendant against whom the statement is sought ot be introduced had an earlier opportunity to cross-
       examine the declarant.
5. What is testimonial evidence? See Davis & Hammon p81.
     a. Testimonial: when circumstances objectively indicate that there is no ongoing emergency and that
          primary purpose of interrogation is to establish or prove past events potentially relevant to later
          criminal prosecution.
               i. Ex: preliminary hearing testimony, grand jury testimony, former trial testimony, statements
                  made in police interrogations.
              ii. Ex: Hammon: statements by woman to police when they asked her to recount what happened
                  and authenticate an affidavit (where man charged with domestic battery & violating
                  probation)
                      1. purpose: no on-going emergency.
                              a. Rebuttal: DV situation = ongoing emergency.
                      2. looked like Crawford
                      3. looked like civil ex-parte examinations (D was kept away from her while testified)
                      4. conviction reversed because evidence inadmissible.
                              a. Thomas (dissent) would convict here as well because says CC only applies to
                                 magistrates.
             iii. Ex: Crawford.
                      1. calm and formal. Recorded.
     b. Nontestimonial: when made in course of police interrogation under circumstances objectively
          indicating that primary purpose is to enable police assistance to meet ongoing emergency.
               i. Ex: Davis: statements made by McCottry to 911 operator identifying Davis (who was
                  charged with violating domestic no-contact order).
                      1. purpose: ongoing emergency.
                      2. formality: frantic 911 call, likely to be more reliable (sincere).
                              a. Rebuttal: perception is compromised in frantic situation.
              ii. Where made to non-gov’t official, likely to be nontestimonial.
     c. Whose purpose matters?
               i. Declarant’s. See Crawford.
              ii. Police’s purpose. Rationale is that if police are intending to respond to emergency they won’t
                  put words in declarant’s mouth.
     d. Where mix of testimonial & nontestimonial:
               i. Trial courts decide the point at which statements become testimonial. Any non-testimonial
                  ones before that are admissible. See Davis.
     e. Criticism:
               i. Need more flexibility in DV situations to allow use of testimonial evidence.




                                                                                                                        12
EXCEPTIONS TO HEARSAY:
Judge decides whether these apply by a preponderance of the evidence. FRE 104(a).
Prior Statements
1. FRE 801 (d) Statements which are not hearsay. A statement is not hearsay if –
       a. 801(d): for hearsay that we say is NOT hearsay.
       b. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-
           examination concerning the statement, and the statement is
                i. (A) inconsistent with the declarant’s testimony, and was given under oath subject to the
                   penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or
               ii. (B) consistent with the declarant’s testimony and is offered to rebut an express or implied
                   charge against the declarant of recent fabrication or improper influence or motive, or
              iii. (C) one of identification of a person made after perceiving the person
2. Rationale for hearsay and exceptions to hearsay system:
       a. Some types of hearsay are just as reliable as non-hearsay, so should be let in
       b. Having only a reliability rule would burden pre-trial procedures & make it unpredictable.
       c. A witness’s own out-of-court words shouldn’t be hearsay.
3. Requirements:
       a. Declarant has to testify at trial
                i. Thus no CC triggered.
       b. Declarant has to be subject to cross-examination at trial about the statement
                i. There doesn’t have to be cross-examination in past when statement was made.
               ii. US v Owens: there only has to be an opportunity for cross-examination. (declarant victim
                   identified D as perpetrator in hospital but can’t remember later so D can’t cross-examine him
                    there’s opportunity so is enough for FRE 801(d)(1)(C) to be satisfied)
4. FRE 801(d)(1)(A) inconsistent with the declarant’s testimony, and was given under oath subject to the
   penalty of perjury at a trial, hearing, or other proceeding, or in a deposition
       a. Statement by a witness made out of court before the witness testifies, that conflicts with something
           the witness says in testimony.
       b. If prior statement is under oath, it can come in for truth of matter asserted (we say it’s not hearsay).
                i. Doesn’t have to be cross-examined (this was political compromise between Senate & House
                   in Conf Committee)
               ii. Allows in grand jury testimony. Good for prosecution.
                       1. if witness says X at grand jury and Y at trial, gov’t can introduce grand jury
                            testimony to impeach.
       c. If prior statement is not under oath, it can only be used to impeach the witness = net zero.
                i. Can’t be used for truth of matter asserted.
               ii. Prior inconsistent statement can always be used to impeach. If made under oath, can also be
                   used for truth of matter asserted.
              iii. Albert v McKay & Co, p92: prior inconsistent statement by declarant (before, said machine
                   not running; at trial, says machine running) can only be used for impeachment. Jury’s verdict
                   can’t be based on the substance of prior statement.
              iv. But in CA, all prior inconsistent statements (whether under oath or not) come in for truth of
                   matter asserted as long as witness confronted in court (show statement to witness and allow
                   him/her to explain it)
                       1. Whiting likes this rule.
5. FRE 801(d)(1)(B) consistent with the declarant’s testimony and is offered to rebut an express or implied
   charge against the declarant of recent fabrication or improper influence or motive,
       a. Doesn’t have to be made under oath.
       b. If there is an allegation that witness made up the statement recently (because of a motive of payment,
           pressure, etc.), can introduce a prior statement consistent with declarant’s current testimony.

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       c. Prior consistent statement must predate the motive to be introduced for truth of matter asserted.
           Tome v US.
       d. See Rehabilitation section.
6. FRE 801(d)(1)(C) one of identification of a person made after perceiving the person
       a. Identifications made outside of court are allowed if witness is testifying.
       b. Admissible as substantive evidence of the identification.
       c. Rationale: More valuable than in-court identifications.
       d. People v Freeman (impeachment by prior inconsistent statement case), p396. “Hi, Norman” was
           identification.
       e. Admissible even if the declarant-identifier doesn’t remember & can’t identify on the stand, because
           opportunity for cross is satisfied.
Prior Statements Chart
Type of Statement                       Required to have been made           When admissible?
                                        under oath?
Consistent                              No                                   Only to rebut claimed improper
                                                                             influence or recent fabrication
Inconsistent                            Yes                                  Always


Admissions
FRE 801(d) Statements which are not hearsay. A statement is not hearsay if –
(2) Admission by party-opponent. The statement is offered against a party and is

1. (A) Direct admissions: the party’s own statement, in either an individual or a representative capacity
      a. An out-of-court statement offered into evidence against the person who made it.
      b. Rationales: why are admissions not hearsay?
               i. Adversarial fairness: D is present and can respond.
                      1. Advisory Committee: their admission is bc of adversarial system.
              ii. No confrontation clause issue because party doesn’t have to confront self.
                      1. Morgan: party can’t object that he didn’t have opportunity to cross-examine self or
                          that he shouldn’t be believed except when speaking under oath.
             iii. Reliability (?)
             iv. Necessary and effective for prosecution: prosecution is facilitated once D speaks and says
                  inculpatory stuff or bad exculpatory stuff.
      c. No requirement of personal knowledge. Salvitti v Throppe, p99 (evidence of owner of truck saying
          accident was his fault even though D says didn’t have personal knowledge & wasn’t there 
          admissible)
               i. Personal knowledge will affect weight to be given to statement by jury.
              ii. This allows for multiple hearsay. Reed v McCord. Party hears something from someone else
                  and repeats it as his own – see below on FRE 805 Multiple Hearsay.
                      1. if repeats statement as if it’s his own, it’s an admission. Foster.
                      2. if says “I was told X,” it’s not an admission.
             iii. Ex: Mahlandt v Wild Canid Survival & Research Ctr – wolf bite case, p112 (direct admission
                  by Poo (“wolf bit a child”) admissible against him even though lack of personal knowledge
                  bc he wasn’t there when the bite allegedly occurred)
      d. No requirement that statement be inculpatory or against interest.
               i. Can be favorable, unfavorable, or neutral.
              ii. Exception: false exculpatory statement is against interest and admissible. US v McGee, p100
                  (D exculpates himself but kept changing his statement, so gov’t wants to introduce because
                  jury might find that statement false)

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       e. Must be introduced against party making that statement. One can’t offer own statement. US v
          Phelps, p101 (D made statement implicating co-D and wants ot introduce that in own favor 
          inadmissible bc hearsay bc being introduced against someone else)
       f. Doesn’t matter if declarant party testifies or not.
       g. Ex: if D admitted not under oath having done the act, it’s an admission. Gov’t can get it in as an
          admission even though D doesn’t testify (different from prior statement which requires that declarant
          testify). Tension between protecting D’s rights (not coercing him to take the stand) and getting in
          reliable evidence.
       h. Separate from declarations against interest.
2. (B) Adoptive admissions: a statement of which the party has manifested an adoption or belief in its truth
       a. Don’t have to know the content of the statement to adopt it as your own.
               i. Exception: CA, where must have knowledge of the statement.
       b. A party’s reaction to a statement or action by another person when it is reasonable to treat the party’s
          reaction as an admission of something stated or implied by the other person.
       c. Ways to adopt a statement as your own:
               i. Cutting & pasting email.
              ii. Verbally saying “I agree with X.”
             iii. Silence?
                      1. US v Fortes (criminal): (D’s failure to object to statements in conversation between
                          co-D and Ward (convicted of bank robbery) re her involvement in robbery, though
                          she was present). Was admissible. Can infer adoption by silence if statement made
                          under circumstances that would warrant that he would naturally contradict htem if he
                          didn’t assent to their truth.
                              a. Informal: convo among thieves.
                      2. Southern Stone (civil): (D’s failure to respond to a letter from P corporation’s lawyer
                          which said “if any of above is wrong, pelase advise.”). Was inadmissible bc not
                          reasonable to expect a response.
                              a. Formal: communication from lawyer
                      3. Reconciling Fortes & Stone: no evidence that Stone D read letter; was evidence that
                          Fortes D heard. Incentives for responding.
                      4. Objective test: would an ordinary person object to the statement if the ordinary person
                          didn’t think it was true?
                              a. Subjective evidence (shy person) can come in re weight of evidence.
                              b. Rationale: efficiency, administrability.
                      5. Advisory committee: deciding whether silence is adoption is a factual question,
                          depends on circumstances and probable human behavior.
3. (C) Authorized admissions: a statement by a person authorized by the party to make a statement
   concerning the subject,
       a. At issue is whether the authorization in fact occurred. Judge must determine by preponderance of the
          evidence whether person was authority to speak.
       b. Ex: lawyer.
       c. Ex: Hanson v Waller, p110: (evidence of letter from atty of deceased to driver D’s attorney saying
          was impossible for driver to see woman). Hurts P’s case, but admissible because attorney has
          authority to make admissions which are directly related to management of litigation. Mechanics are
          authorized.
               i. Concession about element of case requires more specific authorization.
       d. Ex: Mahlandt v Wild Canid Survival & Research Center, p112 wolf bite case: (directors’ meeting
          minutes containing discussion of legal aspects of wolf biting child). Admissible against Center
          because directors are authorized to speak on the matter, about the affairs of company.
       e. Under FRE, statements from agent to principal (in-house statements) are also admissible, in addition
          to statements from agent to 3rd parties. (See Wild Canid directors’ meeting minutes)
                                                                                                                15
               i. Under CA rules, only communication from agent to 3rd parties admissible.
4. (D) Agent & employee admissions: a statement by the party’s agent or servant concerning a matter within
   the scope of the agency or employment, made during the existence of the relationship
       a. Statement must be made by:
               i. Agent (authorized) or employee (while employed)
              ii. Not that an expert witness who isn’t an agent of the party doesn’t qualify, can’t make an
                  admission. Kirk v Raymark Industries, p206 (former testimony case).
       b. Statement can be made to:
               i. Someone internal
                      1. Malhlandt v Wild Canid Survival & Research Center, p112 wolf bite case: Court
                         extends logic of 803(d)(2)(c) (authorized admissions), which are admissible even
                         when purely internal, to agent and employee admissions under 801(d)(2)(D). Even
                         though AC notes don’t address this.
              ii. Someone external, 3rd party
                      1. See Sea-Land v Lozen, pXXX (internal memo in email forwarded internally and then
                         externally). Admissible as adoptive admission & employee admission.
             iii. The principal
       c. Statement must be about:
               i. Something with the scope of the employment
                      1. whether the statement relates to the employment is a preliminary question of fact.
                         FRE 104. Judge decides based on preponderance of the evidence. Judge can consider
                         the statement itself (as evidence that person is authorized or that the statement relates
                         to the employment) but not ONLY the statement. See Bourjaily v US (co-conspirator
                         case)
                             a. 801(d)(2): The contents of the statement shall be considered but are not
                                  alone sufficient to establish … the agency or employment relationship and
                                  scope thereof under subdivision (D)….
                       2. Mahlandt v Wild Canid Survival & Research Center, p112 wolf bite case. Note from
                           and statement by employee Poo that wolf bit child admissible against employer
                           Center because was in scope of his employment.
               ii. Old CL rule: had to relate to what person was hired to do (more narrow)
              iii. AC Note: trend is that it’s allowed if related to a matter within scope of agency/employment
                       1. whereas traditional rule was that test of agency had to be satisfied.
       d. This rule can overlap with Authorized Admissions (801(d)(2)(C)). See Wild Canid (wolf case).
       e. This rule can overlap with Adoptive Admissions (801(d)(2)(B)).
                i. See Sea-Land v Lozen pXXX (internal memo in email forwarded from SL employee #1 to
                   SL employee #2, who copies all (adoptive admission) and forwards externally to Lozen
                   employee). Within scope of both SL employees’ employment. Admissible as adoptive
                   admission and employee admission.
       f. Rationale:
                i. Necessity. AC Note: too much valuable evidence lost. Evidence might not be fully reliable,
                   but employer can respond that employee was just firing mouth off.
5. (E) Co-conspirator admissions: a statement by a coconspirator of a party during the course and in
   furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient
   to establish … the existence of the conspiracy and the participation therein of the declarant and the party
   against whom the statement is offered under subdivision (E).
       a. Rationale:
                i. Traditional: agency rationale. Co-conspirators are co-agents and liable for each other (Levie)
                       1. AC Note rejects this. Agency theory is a fiction, can’t be used in co-conspirators as it
                           is for employees.

                                                                                                                16
               ii. Reliability: they are reliable and less cross-examination is needed (Wigmore) Parties are
                   probably honest within the organization.
              iii. Necessity. Conspiracy is hard to prove: unstable and secretive. (Blackmun)
       b. To be admissible:
                i. Statement must be made “during the course of an in furtherance of the conspiracy.”
                        1. Statement DOESN’T have to be made TO another co-conspirator. Can be made to an
                            informant (Bourjaily).
                        2. Can’t be made after the completion.
                        3. Conspiracy doesn’t have to be charged (see Report of Senate Judiciary Committee)
               ii. Must prove that (1) there was a conspiracy, and (2) it involved the declarant and the D. This
                   is a preliminary question of fact, FRE 104.
                        1. Court can use the co-conspirator statement itself to help determine if the conspiracy
                            actually existed and whether the D and declarant were members of it. (Bourjaily v
                            US). Court doesn’t have to look only at independent evidence.
                                a. Can use potential hearsay in light of independent evidence (Glasser).
                                        i. Court says this isn’t bootstrapping because co-conspirator statements
                                            are presumptively inadmissible & presumptively unreliable.
                                b. Because under FRE 104, judge can consider anything.
                                        i. FRE 104 overrules CL requirement of independent proof.
                                c. Remaining issue unanswered: whether Court can use ONLY the co-
                                    conspirator statements to prove existence of preliminary question of fact.
                        2. This must be proven by preponderance of the evidence (by the gov’t / offering party).
                            FRE 104.
       c. AC Note: codifies Bourjaily. Court shall consider content of co-conspirators’s statement ot
           determine existence of conspiracy and D’s participation, but must also consider circumstances, etc.
       d. Bourjaily v US. pXXX (evidence of phone convo between informant and co-conspirator re D (co-
           conspirator)’s participation in cocaine transaction). Admissible because statement itself could be
           used to answer whether conspiracy existed and whether D & declarant were involved, and gov’t
           proved it by preponderance of evidence.
                i. Dissent: statements aren’t reliable. Independent evidence requirement should be kept.
6. The Bruton Rule: Not about admissibility. About whether a limiting instruction is sufficient or whether
   redaction/severance is required.
   1. Bruton rule: Where there is a statement from Defendant #1 implicating co-Defendant #2 and they
       Defendant # 1 (declarant) does not testify, it cannot be admitting without redaction or severance of
       defendants.
           a. Applies to admissions implicating co-defendants. Joint criminal trials. Usually these are
               testimonial bc made to law enforcement.
                    i. Where not testimonial, Bruton rule isn’t triggered?
           b. Only applies when co-defendant (Defendant #1, the declarant) does not testify.
                    i. If they testify, must be crossed & judge must give limiting structions.
                   ii. Where don’t testify  redaction/severance.
           c. Applies only to facially incriminating confessions.
                    i. Doesn’t apply where a linkage is required to implicate the co-defendant, statement with
                        limiting instruction is admissible / we trust the jury. Richardson v Marsh.
                            1. If confessions incriminating by connection were included in Bruton, rule would
                                be unworkable and require severance in all cases.
                   ii. Where a linkage is required to incriminate co-D, no redaction needed.
           d. In redacting bc of Bruton problem, it cannot be obvious who the deleted person is (who the
               pronoun refers to) from other evidence. Gray v Maryland.
                    i. Unacceptable redaction: “me, deleted, deleted, and a few other guys did it.”
                   ii. Acceptable redaction: “me and a few other guys did it.”
                                                                                                                 17
   2. Explanation: In joint trial of 2 or more defendants, a prior statement/admission by Defendant #1 is
      admissible against that defendant but not against Defendant #2 (because would violate hearsay rule &
      Confrontation Clause).
          a. Traditional way of dealing with inadmissibility of statement against Defendant #2: limiting
              instruction.
          b. But per Bruton Rule, that’s unacceptable when the statement by Defendant #1 is an incriminating
              statement.
                   i. An issue of FRE 105: the effectiveness of limiting instructions.
   3. Rationale for Bruton Rule:
          a. Our doubts about jury’s ability to do “mental gymnastics” (Learned Hand). Hard for jury to
              disregard statement by coconspirator against defendant.
                   i. But where there’s a linkage required for implicating co-defendant, it’s not a problem
                      because we trust jury to obey the limiting instruction. Richardson v Marsh.
          b. Truth. Limiting instruction is ineffective but necessary because for truth-seeking.
   4. Bruton v US, SCOTUS, 1968, p125 (statement by Defendant #1 (Evans) that he and Bruton (Defendant
      #2) did it (armed postal robbery)).
   5. Richardson v Marsh, 1987, SCOTUS, p130. (incriminating statement between Defendant #1 Williams
      and unidentified 3rd party in car. Defendant #2 Marsh later identified to be in car. Could presume the
      convo was between Defendants #1 and #2.) Limited Bruton’s scope. Confessions where co-defendant
      implicated only if a connection/inference made do not trigger Bruton problem.
          a. Scalia writes opinion.
   6. Gray v Maryland, SCOTUS 1998, p130. (confession by Bell that he, defendant Gray, and another person
      killed woman. Confession redacted to read that “me, deleted, deleted, and a few other guys” did it.)
      Though not facially incriminating, the inference/jump/connection is so small it is a problem.
          a. Scalia dissents: “jurors follow their instructions.”

7. Multiple Hearsay issue. Do problems & look at examples
     a. FRE 805: Hearsay Within Hearsay. Hearsay included within hearsay is not excluded under the
          hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule
          provided in these rules.
     b. Foster v Commissioner of Internal Revenue, p103: Hearsay within an admission (declarant said X
          said something) is objectionable unless an exception to hearsay rule applies. Statement is an
          admission (and thus admissible) if declarant adopts as his own the hearsay.
     c. A statement admissible under FRE 801(d) (as an exception to the hearsay rule) can be admitted
          when included in another hearsay statement if the other hearsay statement qualifies as an exception.
     d. Plaintiff has burden of establishing that exceptions at each level of multiple hearsay. Bemis v
          Edwards (where 911 caller/declarant didn’t have personal knowledge, evidence not admissible as
          present sense impression/excited utterance bc P didn’t establish hearsay exception. Court not
          satisfied that guy telling 911 caller/declarant about it actually had personal knowledge.)
     e. In chain where hearsay is at the origin, need personal knowledge (of the matter whose truth is
          asserted) at the origin.
     f. Chain of reasoning:
               i. What declarant says: is it being offered for truth of matter asserted? If so, we need to cross-
                  examine or find an applicable exception that makes it not hearsay (excited utterance, etc.)
              ii. Consider whether we are concerned about reliability, perception, narration, sincerity.
     g. multiple hearsay in business records context. Wilson v Zapata Off-Shore.
8. Completeness: is a limitation on introducing admissions requiring that distortion be avoided.
     a. Not really an exception to the hearsay rule.
               i. Statements admitted for completeness aren’t admitted for truth of matter asserted but to put
                  incomplete statements in context.
     b. FRE 106: Remainder of or Related Writings or Recorded Statements
                                                                                                                 18
                 i. When a writing or recorded statement or par thereof is introduced by a party, an adverse
                    party may require the introduction at that time of any other part or any other writing or
                    recorded statement which ought in fairness to be considered contemporaneously with it.
       c.   Rationale: fairness.
                 i. Codification of common law “rule of completeness”
                ii. Wigmore: opponent may put in remainder.. in order to secure for the tribunal a complete
                    understanding of the total tenor and effect of the utterance.
       d.   Applies only to written or recorded statements, but courts often include oral statements (Beech).
       e.   Narrow: can only contextualize statements.
       f.   Beech Aircraft Corp v Rainey, p104 (where witness testified about a letter had written he seemed to
            implicate pilot, his counsel tried to ask for broad purpose of letter (which was that pilot wasn’t likely
            cause)  this evidence was admissible for completeness purposes, to prevent jury from thinking that
            the point of his letter was to implicate pilot).



Spontaneous & Contemporaneous Statements
FRE 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.
1. Under 803, don’t have to establish that declarant is unavailable to testify.
        a. Rationale:
                 i. Reliability. They are so reliable that it doesn’t matter whether they testify or not.
                        1. Present sense impression: immediate, so no time to fabricate.
                        2. Sincerity. Excited utterance.
                                a. Counterarg: perception might be skewed for excited utterance.
                        3. note that offering party doesn’t have to prove that statement was reliable in the
                            specific case. See Obayagbona.
                ii. Efficiency. Since there’s no preference here for in-court testimony, it’s efficient to just let in
                    the statements themselves.
2. Personal knowledge is required under both.
        a. AC Note requires personal knowledge here, relying on FRE 602 (requiring all witnesses to have
            personal knowledge).
        b. Bemis v Edwards, 9th Cir, 1995, p140 (evidence of 911 call: “I mean, the cop’s beating the shit ouf
            of the guy right now.”) Where declarant was just repeating what others in room said, and he had no
            personal knowledge, it’s not admissible as present sense or excited utterance.
                 i. Multiple hearsay issue triggered here: P didn’t establish that multiple hearsay problem was
                    overcome, and it’s P’s burden.
3. Can be admitted by the party who made the statement. (unlike admissions) You can offer your own
    statement as a present sense impression or excited utterance. Can be self-serving.
        a. US v Elem, 8th Cir, 1988, p141: (evidence that D/declarant said “that’s not my gun,” would be
            admissible by himself). Not admissible bc didn’t establish that it was excited enough.
4. Present sense impression: 803(1)
        a. Timing: Has to be virtually immediate. Event on-going or just occurred. During or immediately
            after.
        b. Scope: Admissible only insofar as describes/explains the event or condition that is being perceived.
        c. Narrower than excited utterance.

                                                                                                                   19
        d. The thing being described is external (as compared to state of mind, where thing being described is
           internal)
        e. Rationale for admitting:
                i. Memory not a problem.
               ii. Probably accurate, esp if describing to someone else
5. Excited utterance: 803(2)
        a. Timing: Doesn’t have to be immediate. Lasts as long as excitement lasts (and if excitement is
           renewed much later than event). Must be made while under the stress or excitement at issue.
                i. Presence of excitement, not immediacy, is required.
               ii. Ex: State v Moses, Wash App 2005, p161 (an injury reports case): exception is extended far,
                   long after assault, when victim is taken to hospital.
        b. Declarant doesn’t have to be involved. Can be a bystander.
        c. Scope: Admissible insofar as statement relates to the event. Doesn’t have to describe or explain the
           event.
        d. Example: 911 call.
        e. Can be introduced even where declarant is testifying, to rebut defense of mistake. US v Obayagbona,
           EDNY, 1985, p138 (evidence of tape recorded, excited statement by FBI agent when arrested saying
           that woman in black and white gave him sample of heroin). Declarant testifies consistently at trial
           (doesn’t come in as prior consistent statement under FRE 801 bc the defense isn’t fabrication).
           Admissible as excited utterance AND present sense impression.
                i. Note this would’ve been confrontation clause issue (bc testimonial) had declarant not
                   testified.
        f. US v Elem: not admissible where there’s not enough evidence that it was excited.
        g. Rationale for admitting:
                i. No motive to lie.
6. If statement is testimonial, confrontation clause triggered.
        a. Ex: Obayagbona, if declarant FBI agent hadn’t testified at trial.


State of Mind
FRE 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:
(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.

1. Where out-of-court statement explicitly describes declarant’s present state of mind and is used to prove
   what declarants believed, knew, felt, etc.: it is hearsay and this exception is triggered;
      a. Where it’s used as circumstantial proof of declarant’s state of mind: it’s not hearsay since not used
          for truth of matter asserted.
               i. See US v Parry.
      b. General example of state of mind in the present: US v Harris, 2d Cir., 1984, p145 (evidence of
          statement of D/declarant to parole officer referring to fact that gov’t was setting him up). Evidence
          not clear. If said “the government is setting me up,” it’s (b) and not hearsay. If said “I believe/I know
          that Stuart is an agent,” it’s (a) and hearsay but admissible under exception.
      c. Ex: responses from surveyed people about how they felt about a topic.
      d. Statements of fear of victims of their alleged killers (“I’m scared of OJ Simpson”) might not qualify
          as state of mind exception.
               i. Not state of mind because is equivalent to a statement that killer is doing scary things (“Dr.
                  Shepard poisoned me.”)
                                                                                                                  20
                 ii. But some courts say state of mind does apply.
2.   Intent (to do something in the future) is one state of mind.
         a. Hillmon Doctrine from Mutual Life Ins. Co. v. Hillmon, 1892, p148 (defense introduces evidence of
             2 letters by Walters that he intended to leave for Wichita for Hillmon to prove that he actually did
             and died, instead of Hillmon). Letters were competent evidence that he had the intention of going
             away, which makes it more probable that he went, and that he went with Hillmon. Admissible.
         b. Declarant’s statement of intent can be admitted against another person, not just the declarant, even
             without other corroborating evidence.
                  i. Some courts wanted to require independent evidence of the fact to use declarant’s statement
                      against someone else. They were nervous.
                 ii. US v Houlihan, Mass 1994 (Gov’t wants to introduce evidence that victim-declarant said
                      “I’m going to go meet BH,” as evidence that it was BH who killed him.) Court says FRE
                      803(3) doesn’t limit class of persons against whom a statement can be used.
                iii. Hillmon allowed intent to be admitted to show that person (and a 3rd party) acted consistently
                      with that intent. Court in Houlihan held that FRE codified that.
3.   Belief about past events doesn’t qualify as a state of mind for this exception.
         a. Shepard v US, 1933, p151 (Gov’t wants to introduce evidence that dead wife said her husband
             poisoned her, shortly before she died). Inadmissible. Declarations of memory, pointing backwards,
             are different from declarations of intention like in Hillmon.
                  i. If allowed in beliefs about past (“I believe he shot the man”) then the hearsay rule would be
                      swallowed by this exception.
         b. Codified in rule as but not including a statement of memory or belief to prove the fact remembered
             or believed…
         c. unless it relates to the execution, revocation, identification, or terms of declarant’s will.
                  i. Statements of belief about past as related to declarant’s will are allowed.
                 ii. Rationale:
                          1. necessity. Only declarant knows details of will.
                          2. reliability. Declarant likely to be honest about will.
         d. From Glannon: mental state re a memory is HEARSAY if the declarant’s memory would be relevant
             ONLY to show that the event happened.
                  i. If declarant’s possessing a belief is relevant independent of whether the belief is accurate, it
                      is NOT HEARSAY bc covered by mental state exception.
4.   Can be introduced by either party, regardless of whether seems self-serving.
5.   Summary of rule:
         a. Included: An out-of-court statement describing declarant’s present feeling, belief, or sensation. A
             statement about intent to do something in the future (used to prove that they had the intent and acted
             on it).
         b. Excluded: Retrospective belief about something that happened in the past.
         c. 2 extremes:
                  i. Shepard v US: “Dr. Shepard has poisoned me.”
                 ii. US v Harris: “I believe Steward brought an agent to me.”
6.   Rationale for the exception:
         a. Reliability. Immediacy in time makes it more reliable, like present sense impression under 803(1)
                  i. AC Note says state of mind exception is a specialized application of present sense
                      impression.
                 ii. Sincerity. Less likely to lie about how you feel. Less likely to lie about future intentions than
                      about what happened in past.
                iii. Intent about future action won’t be said with litigation in mind. Belief about past action
                      might have litigation in mind.
         b. Necessity. This is the only way to get information about how the declarant felt.
         c. Administrability. There are few future intention cases anyway.
                                                                                                                     21
              i. AC Note: excluding Shepard-style beliefs about past events is necessary to avoid destruction
                  of hearsay rule.
       d. Jury role. Jury will understand that intention about future may not be reliable.

Medical Diagnosis & Treatment
FRE 803: Hearsay Excpetions; Availability of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(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.
1. Requirements:
        a. Statement made for purpose of medical diagnosis or treatment.
                 i. Including description of history of treatment, pains, sensations, etc.
                ii. An expert physician’s evaluation of a person is considered to be a diagnosis even if no
                    treatment is expected.
                         1. “treating” and “testifying” physicians are the same.
               iii. Statements about cause can be admitted, but not statements about fault.
                         1. Rock v Huffco Gas & Oil, 5th Cir., 1991, p159 (Rock’s statements to doc about
                            history of accidents on oil rig).
                                 a. Causation: Evidence that he twisted his ankle can come in.
                                 b. Fault: Evidence that he twisted it by falling on a greasy stair can’t.
                                 c. Based on declarant’s trustworthiness, decide whether he considered
                                    statements to be pertinent to diagnosis/treatment.
                         2. Details about causation of a person’s health problem are covered by the exception
                            only if they are reasonably pertinent to the medical worker’s task.
                         3. Exception: for DV/rape/child abuse cases, statements about fault (identity of abuser)
                            are admissible.
                                 a. Rationale: identity of abuser are pertinent & necessary to treatment of
                                    physical & emotional injuries, and to prevent recurrence.
                                 b. See Confrontation Clause issue, State v Moses.
        b. Statement made to nurse, attendant, non-doctor, family member, ambulance driver, social worker
            (State v Moses), etc.
        c. Statement made by patient, or, under limited circumstances, statements made by relatives/friends
            made for the purpose of medical diagnosis treatment. See Wilson v Zapata Off-Shore Co. (business
            records case).
                 i. Parent can be making statement for patient child.
2. Rationale:
        a. Reliability. Where talking for medical treatment, likely to be truthful.
                 i. Counterarg: Rule also allows statements made for medical diagnosis (for litigation purposes),
                    not just treatment.
                ii. It’s basically an exception to FRE 803(3) (excluding statements about past) bc more reliable.
        b. Jury role.
                 i. Under CL, doctor can testify at trial to statements made by patient to him for purpose of
                    justifying his diagnosis/conclusion. Jury probably was incorrectly relying on them for truth
                    of matter asserted, so might as well codify that as an exception.
        c. Necessity. Especially in DV cases, which are hard to prove.
3. Confrontation Clause issue.
        a. Arises in DV cases because declarant (abused spouse) unavailable to testify & injury reports are
            crucial evidence in these cases. CC is impediment to proving DV case now.
        b. If statement’s purpose is for investigation or prosecution, it’s testimonial & CC triggered.
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                i. Ex: in State v Moses, statements by DV victim/declarant to social worker after she said had
                   contacted CPS.
               ii. Though CC usually triggered when talking to law enforcement, arises here when doctor is
                   standing in for a law enforcement issue or doing exams for enforcement purpose.
       c. If statement’s purpose is only for medical treatment, it’s not testimonial & CC not triggered.
       d. Where purpose is mixed, it’s typically not testimonial. Courts decide where the line is drawn. State v
          Moses.
                i. Look at declarant’s purpose – per State v Moses.
                       1. but where it’s a child declarant, look more at purpose of adult/interrogator. Courts
                           usually find child declarant statements to be non-testimonial. Where doctor/nurse is
                           first to examine the child, almost universally nontestimonial except statements
                           accusing the perpetrator (Mosteller).
       e. Ex: State v Moses, Wash App 2005, p161.
                i. DV victim/declarant statement to police that husband hit her: admissible as excited utterance.
                       1. testimonial  CC issue (but found to be harmless error beyond a reasonable doubt)
               ii. DV victim/declarant statement to doctor: 803(4) injury reports exception.
              iii. DV victim/declarant statement to social worker: 803(4) injury reports exception until point at
                   which social worker told her she had contacted CPS. Could be testimonial thereafter.
                       1. declarant’s purpose most important.
              iv. Child’s statements to social worker: not introduced for truth of matter asserted, so not
                   hearsay.

Recorded Recollection
FRE 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:
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
1. Requirements:
       a. Witness had prior knowledge
       b. Witness made a record at the time when the knowledge was fresh, and the record was accurate
       c. Witness appears at trial (diff from rest of 803) but can’t remember the evidence now.
                i. Usually it is required that witness not have “sufficient recollection to enable him to testify
                   fully & accurately”
               ii. It’s not as full a failure of memory as would be required in FRE 804 (requiring
                   unavailability)
       d. Cross-examination not required. If it were required, this would fit under 801(d)(1) as prior statement.
2. To get forgotten evidence into record:
       a. “Past Recollection Recorded”: introduce record into evidence or read it, to prove truth of matter
           asserted.
                i. Mechanics: Show witness the report, ask if it refreshes his memory, witness says no  lay
                   foundation  introduce evidence into record.
               ii. Report is read to jury but doesn’t become an exhibit unless opposing party wants it.
              iii. In some states, there’s no difference between PastRecRecorded and PresRecRevived in that
                   both items can be read to jury. Fisher v Swartz, Mass 1955, p166: (past recollection recorded
                   in form of carbon copy statement of 100+ items, itemized statement of charges for labor &
                   materials furnished by D to P). Admissible and can be read to the jury.
                        1. this got rid of earlier distinction whereby PastRecRecorded could be read to jury and
                            PresRecRevived couldn’t read report/doc to jury.
                                                                                                                  23
       b. “Present Recollection Revived”: for jogging memory of witness. More common at trials.
                i. NOT RELATED TO HEARSAY DOCTRINE.
               ii. Mechanics: Show witness the notes/report/diary, etc., ask if it refreshes his memory, witness
                   says yes  witness answers.
              iii. If you show the witness a document and it revives witness’s memory, there is no hearsay
                   issue bc document not introduced into evidence.
                       1. but if it meets a hearsay exception, can be admitted.
              iv. Really witness just reads off the report
               v. Not shown to jury unless opposing party wants it shown. FRE 612.
              vi. Can use anything to refresh recollection, not just witness’s own statement. US v Riccardi, 3rd
                   Cir., 1949, p168 (witness’s type-written notes exists, but list of items from indictment is used
                   to refresh memory on stand). Admissible as present recollection revived.
       c. Difference between the 2 is level of proof.
                i. Past Recollection Recorded: witness cannot recall the facts, asks the court to accept a writing
                   for truth of contents bc he swears they are true. Writing substitutes for memory & is offered
                   for truth of matter .
               ii. Present Recollection Revived: witness testifies from present knowledge, witness presently
                   recollects the facts & swears to them. Witness recalls under oath & subject to cross-
                   examination.
              iii.
3. Rationale:
       a. Reliability / trustworthiness in fact tat record was made while events still fresh in mind.
       b. Necessity. Better this evidence than nothing.
       c. Administrability: if didn’t allow police officer/witness to read from report (past recollection
          recorded), they would just have to memorize it.
4. If document is used to refresh a iwtness’s memory before trial, it is discoverable under FRE 612(2).


Business Records
FRE 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:
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum, report, record or data compilation,
all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with
Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph
includes business, institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
1. Requirements:
         a. Record of a business
                i. “Record” is broadly defined. But hard to define, so refer to trustworthiness requirement.
                        1. Purpose of records should be conducting the business (as opposed to preparation for
                            litigation). Palmer v Hoffman, SCOTUS, 1943, p179 (record of railroad company
                            statements from employees after train accident). Not admissible because the record
                            doesn’t pertain to day-to-day business operations.
                                 a. This case = outer limits of business records exception.
                                 b. Compare: Lewis v Baker, 2d Cir., 1975, p180. (personal injury report and
                                     inspection report prepared by employees of railroad company D). Admissible
                                     because no motivation to fabricate because report-writers weren’t involved in
                                                                                                                 24
                          accident (whereas they were in Palmer) and not going to be involved in
                          litigation.
              2. Record can be about diagnoses & opinions, plus acts, events, and conditions as proper
                  subjects of admissible records. AC Note, p181.
              3. Record can be in form of memo, report, record, data compilation, in any form. AC
                  Note, p182.
      ii. “Business” is broadly defined. A profession or a calling.
              1. US v Gibson, 9th Cir., 1983, p178. Business was a drug operation. Business record
                  (ledger of drug transactions by Logan implicating D in the transactions) admissible
                  even though records were incomplete.
              2. Can be personal & involve just 1 person. Keogh v Commissioner of Internal
                  Revenue, 9th Cir., 1983, p176. Business was declarant’s blackjack dealing at casino at
                  which D (fellow dealer) worked. Business record (personal diary of tips/wages) was
                  admissible.
b. Regularity
       i. In conducting the business and
              1. Consider whether the record is for business or totally personal (like an email update)
              2. Note that everyone who contributes to the business record must be acting in the
                  regular course of business.
              3. Where the business’s purpose is to collect information (like a survey company), when
                  the business takes steps to verify the information (require you to show ID, etc.) the
                  statement becomes imputed to the business and thus admissible.
                      a. The risk that the declarant is lying to the business falls away when
                          independently verified.
                      b. If info is unverified, doesn’t come in under business records exception.
      ii. In maintaining the records, especially.
              1. See Palmer v Hoffman. (Regularity mentioned but not the focus of decision)
              2. because where not routine, there’s less motivation to be accurate. AC Note, p182.
c. Record must be made promptly
       i. Contemporaneousness requirement mirrors state of mind, recorded recollection, etc.
d. Record must be based on knowledge.
       i. there must be knowledge at the source, by person who writes the report or transmit the info to
          person who writes it.
      ii. Note that defendant doesn’t have to be the one making the record.
     iii. Note multiple hearsay problem possibility where the record contains hearsay. Double hearsay
          in context of business record exists when record is prepared by an employee with information
          supplied by another person.
              1. if source and recorder of info (everyone involved) is acting in regular course of
                  business, it’s admissible under 803(6) despite multiple hearsay.
              2. if not everyone involved is acting in course of business, must resolve levels of
                  multiple hearsay with different exceptions, per FRE 805. Wilson v Zapata Off-Shore
                  Co., 5th Cir., 1991, p183 (report by social worker including statement by Laird to
                  social worker that her sister, Wilson (P claiming hostile work environment in D’s
                  company) was a liar). SW’s report fits under business records exception.
                      a. Hearsay within report:
                                i. Wilson’s statements about condition - admissible under medical
                                   diagnosis exception
                               ii. Laird’s statements about her sister – might be admissible under
                                   medical diagnosis exception too.
              3. note: multiple hearsay common. FRE 805.

                                                                                                     25
                               a. ex: if business record by manager based on business records by lower level
                                   employees
                               b. “duty to report”: if all declarants in multiple hearsay have duty to report, then
                                   business records exception is satisfied.
       e. Record has to be supported by in-court testimony.
                i. Usually by testimony of custodian/keeper of the records.
               ii. As of 2000 amendment, this can be satisfied by affidavit. P175. Foundation requirements of
                   FRE 803(6) can be satisfied w/out producing all of the foundation witnesses.
       f. Record must appear to be trustworthy.
                i. This requirement was added because of difficulty in Palmer and Lewis in defining what a
                   record is. This allows the Court to decide based on facts of case.
               ii. Gibson: drug transaction ledger trustworthy because Logan (declarant) relied on it.
              iii. Keogh: Declarant would’ve had no reason to lie in his own personal diary.
              iv. Normally business records are trustworthy because made for other people to rely on. Gibson
                   & Keogh show that they are reliable even when made only for self, bc wouldn’t lie to self
                   (like in implied assertions).
               v. There’s a presumption of trustworthiness. Burden of proving untrustworthiness is on
                   opposing party.
                       1. this is different from other rules, where motive of self-servingness wasn’t a reason to
                            exclude.
              vi. Consider whether person making the record would have reason/motive to lie/exaggerate.
             vii. Reporter/journalist’s notes often not treated as business records because there’s no
                   trustworthiness: no one but the reporter relies on them, and there’s now way of knowing if
                   the reporter considered them accurate (Glannon)
       g. Summary: records made in the course of a regularly conducted activity will be taken as admissible
          but subject to authority to exclude if “the sources of information or other circumstances indicate lack
          of trustworthiness.” AC Note, p182.
       h. Note: limitations of 803(8) public records (law enforcement & evaluative reports inadmissible
          against criminal defendant) imported into 803(6) per US v Oates.
                i. But if the report is administrative and not adversarial/investigative, it is admissible as a
                   business record against criminal defendant. US v Brown.
2. Rationale: See AC Note, p173
       a. Practicality.
                i. CL system of calling every person who contributed to the record isn’t practical in complex
                   cases.
               ii. State v Acquisito, R.I., 1983, p173 (D wants to exclude payroll vouchers that show strike
                   hadn’t started and that two witnesses who gave alibi were actually at work). CL rule is
                   impractical.
       b. Reliability. Business is incentivized to be accurate in keeping records.
                i. Like how co-conspirators are incentized to be honest. See State v Aquisito.
               ii. Regularity in maintaining records shows reliability. Keogh (blackjack dealer’s diary) and
                   Gibson (drug transactions).
              iii. That records are promptly made, based on contemporaneous knowledge shows reliability.
                   Keogh and Gibson.
              iv. See trustworthiness requirement above.
       c. Multiple hearsay issue can be involved if the business record contains hearsay within it. Must find an
          exception for each level of hearsay. See Wilson v Zapata Off-Shore, p183.
3. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that
   a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in
   accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter,

                                                                                                                26
   if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made
   and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
        a. Failure of record to mention something which would ordinarily be mentioned is evidence of its
           nonexistence. AC Note, p184.
                i. Where absence of record is used to prove the non-occurrence or non-existence of the matter,
                   it falls under this exception to the hearsay rule. (even though it’s probably not formally
                   hearsay because it’s not a “statement” so not an “out-of-court statement…”)
        b. US v Gentry, 7th Cir., 1991, p185 (evidence of lack of complaints about pins in M&Ms used to show
           D had made fraudulent claim).

Public Records
FRE 803: Hearsay Excpetions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness.
(8): Public records and reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to
duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings
and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other circumstances indicate lack of
trustworthiness.
1. A public record includes records/reports of public offices/agencies that:
        a. set forth the activities of the office/agency.
                 i. Inward-looking
                ii. Ex: records of treasury disbursement, prosecutions by Justice Dept., employment &
                    personnel records
               iii. Admissible in civil & criminal cases
        b. Set forth matters observed pursuant to legal duty.
                 i. Admissible only in civil cases, not criminal cases
                ii. 2 types:
                        1. matters observed and reported under legal duty by police & law enforcement
                            personnel
                                a. these are not included – are hearsay. Neither prosecution nor defense can
                                    introduce them in criminal cases.
                                         i. Rationale: will have interest in getting conviction  incentive to
                                            falsify
                                b. If it’s a record by law enforcement that gov’t wants to introduce against
                                    criminal defendant, it can’t call it a business record 803(6) to get around this
                                    limitation. Oates.
                                         i. But this rule doesn’t apply to routine, non-adversarial reports by law
                                            enforcement. Those come in under business records 803(6). Brown,
                                            Orozco
                        2. matters observed and reported under legal duty by public employees other than police
                            and law enforcement personnel
                                a. these are admissible in civil cases.
               iii. Outward-looking
        c. Are factual findings from investigations made pursuant to law, in civil cases and against the gov’t in
            criminal cases
                 i. Unless sources or circumstances indicate lack of trustworthiness.
                ii. Admissible by
                        1. any party in civil cases, and

                                                                                                                 27
                         2. by the defendant in criminal cases against gov’t (because of CC issue that would arise
                            if they were used against defendant in criminal case)
                iii. More controversial re evaluative reports. Should consider:
                         1. timeliness of investigation
                         2. special skill or experience of the official
                         3. whether a hearing was held & level of hearing
                         4. possible motivation problems (see Palmer v Hoffman)
                iv. If a report has some fact and some opinion, Court could
                         1. allow in only the facts and sever the opinions (House Judiciary Committee)
                         2. allow in the entire report as long as there are some factual findings in it (Senate
                            Judiciary Committee)
                                 a. As long as there are facts at origin, report (incl. factually-based conclusions or
                                     opinions) comes in and “trustworthiness” is used to rein it in. Beech Aircraft
                                     Corp v Rainey, SCOTUS 1988, p187 (evidence is Navy investigation of
                                     aircraft crash)(also a rule of completeness case, FRE 106). Admissible. Court
                                     finds facts in investigation always contain opinion, analysis, interpretation.
                                 b. Per Beech, courts will now make individual determinations. Defining
                                     difference between fact & opinion is hard.
2.   Absence of public record or entry. FRE 803(10).
3.   Rationale:
         a. Reliability: assumption that public official will perform duty properly.
         b. Necessity: assumption that it’s unlikely toat public official will remember details independently of
             record.
4.   Narrower than business records exception.
5.   If a record falls under 803(6)(business records) and 803(8) public records:
         a. Note: this is common since “public agencies” qualify as “businesses” under 803(6)
         b. If a record would be inadmissible under 803(8)(public records), can’t admit it under 803(6)(business
             records)
                  i. All evaluative 803(8)(C)and law enforcement reports 803(8)(B) are inadmissible against
                     criminal defendants. Oates.
                         1. Rationale: leg intent, making provisions work together.
                 ii. Can’t do an end-run around the limitations in 803(8) by calling something a business record
                     under 803(6). US v Oates, 2d Cir., 1977, p192 (gov’t’s evidence of report by chemist who
                     analyzed substance found on D). Not admissible as a public record bc: if B, chemist = law
                     enforcement; if C, can’t be introduced against D in criminal case.
                iii. BUT some courts hold that if record is administrative and not adversarial/investigative, it is
                     admissible as a business record and against criminal defendant.
                         1. US v Brown (gov’t introduces evidence of property receipt from police dept where
                            gun turned in). Admissible.
                         2. US v Orozco (gov’t introduces customs agent’s report of license plates crossing
                            border). Admissible because routine, non-adversarial.
                         3. Melendez-Diaz v MA. Affidavit setting forth lab results (whether substance was
                            illegal drug or not) is testimonial  CC triggered.
                                 a. Compare State v Forte. Lab tests on DNA might be not because there’s no
                                     suspect at the time it’s being tested so no incentive to fabricate.
                                          i. BUT testimonial bc DNA bank is small.

Admissibility of Public Records – glannon
                       Can it be introduced by…
Type of Report         Civil Plaintiff        Civil Defendant           Criminal                Criminal
                                                                        Prosecutor              Defendant
                                                                                                                   28
Activities of public   Y                      Y                      Y                       Y
office
Matters observed       Y                      Y                      Y                       Y
pursuant to legal
duty by public
employees
EXCEPT law
enforcement
personnel
Findings from          Y                      Y                      N                       Y
Official
Investigations
Matters observed       Y                      Y                      N                       N (but might be
pursuant to legal                                                                            admitted bc of D’s
duty by law                                                                                  right to introduce
enforcement                                                                                  relevant evidence)
personnel



Misc. Exceptions in FRE 803
(9) Records of vital statistics.
(10) Absence of public record or entry.
(11) Records of religious organizations.
(12) Marriage, baptismal, and similar certificates.
(13) Family records.
(14) Records of documents affecting an interest in property.
(15) Statements in documents affecting an interest in property.
(16) Statements in ancient documents.
(17) Market reports, commercial publications.
(18) Learned treatises.
(19) Reputation concerning personal or family history.
(20) Reputation concerning boundaries or general history.
(21) Reputation as to character.
(22) Judgment of previous conviction.
(23) Judgment as to personal, family or general history, or boundaries.

Former Testimony
FRE 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.
“Unavailability as a witness” includes situations in which the declarant –
(1) is exempted on the ground of privilege from testifying; or
(2) persists in refusing to testify despite court order; or
(3) testifies to a lack of memory; or
(4) not present because of death or physical/mental illness/infirmity
(5) absent from hearing and offering party hasn’t been able to procure attendance via reasonable means

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence
if due to the procurement or wrongdoing of the offering party for the purpose of preventing the witness from
tatending/testifying.

                                                                                                               29
(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 different proceeding, or
in a deposition taken in compliance with law in the course of the same or another proceeding, if the party
against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

1. Would prefer that declarant be available to testify (unlike in FRE 803, where we don’t care). AC Note, p204
      a. Because 804 evidence < 803 evidence.
      b. Under 804, we are missing presence of trier & demeanor evidence. (Oath & cross-exm present in 1st
          trial).
                i. Jury doesn’t see demeanor when just introduce the transcript of prior testimony.
2. Requirements:
      a. Declarant must be unavailable.
                i. But a criminal defendant invoking 5th amendment makes himself unavailable and can’t use
                   this rule to admit his former testimony. US v Bollin, 4th Cir., 2001, p205.
               ii. Burden of proving unavailability is on the offering party.
                       1. Kirk v Raymark Industries, Inc., 3d Cir., 1995, p206 (P introduces former testimony
                           of expert witness in unrelated asbestos case where he contradicted what current expert
                           is saying). Inadmissible because P didn’t use reasonable means to get expert to
                           testify.
                       2. that declarant is beyond subpoena (jurisdictionally) isn’t enough. Kirk v Raymark.
              iii. Gov’t can make the witnesses unavailable by refusing to immunize them. US v Salerno.
      b. Declarant’s prior testimony must be under oath.
      c. Substantial identity of the issues.
                i. Under CL, identity of the issues required.
      d. Identity of offering parties? No, except insofar as affects motive to develop testimony.
                i. Under CL, identity of parties was required.
      e. Identity of parties against whom evidence offered? Unclear.
                i. Where 2nd trial is criminal: can only introduce former testimony if criminal defendant was:
                       1. a party to the earlier proceeding, and
                       2. had an opportunity AND similar motive to cross-examine declarant
                                a. Gov’t doesn’t necessarily (and probably doesn’t) have similar motive to cross-
                                    examine at grand jury as at trial. US v Salerno, SCOTUS, 1992, p210 (Ds
                                    introduces grand jury testimony of 2 witnesses immunized for testifying who
                                    said weren’t in mafia/club. Unavailable at trial bc plead the 5th). Inadmissible.
                                    Grand jury serves different purpose (investigative); lower burden at grand
                                    jury.
                                b. Whether gov’t has similar motive at grand jury as at trial is factual inquiry.
                                    Salerno.
                                         i. Where grand jury is investigative, unlikely to have similar motive.
                                            (Whiting)
                                        ii. Where grand jury is doing a minimal check, might have similar
                                            motive.
                                c. Gov’t doesn’t have same motive to cross-examine during plea colloquy as at
                                    trial. US v Jackson, 2d Cir., 2003, p225 (statement against interest case). Co-
                                    defendnat’s plea colloquy exculpating co-D isn’t admissible as former
                                    testimony.
                       3. there has to be identity of parties between party against whom evidence is offered in
                           2nd trial & party who had opportunity & motive to cross in the 1st trial.
                                                                                                                  30
                      4. (this avoids CC issue).
              ii. Where 2nd trial is civil: can only introduce former testimony if civil defendant was:
                      1. a party to the earlier proceeding, or a “predecessor in interest”, and
                             a. “predecessor in interest” is read out, means nothing. Clay v Johns-Manville,
                                  6th Cir., 1984, p208 (P introduces former testimony of doctor to show D had
                                  notice (and maybe truth of matter?); Ds were different). Admissible bc prior D
                                  had same opportunity & motive to cross as this D.
                                        i. This purports with Senate Committee & SCOTUS (House Committee
                                            disagreed).
                             b. Traditionally, “precedessor in interest” meant privity (present party got right,
                                  title, interest, or obligation currently at issue from prior party). Murky term.
                             c. Rationale: fairness? Unclear how fair it is. Prior party might have messed up
                                  cross-examination.
                      2. had an opportunity AND similar motive to cross-examine
             iii. A criminal defendant’s grand jury testimony qualifies as former testimony (though rare that
                  he would testify at grand jury). US v Bollin, p205 (gov’t introduces redacted grand jury
                  testimony and D wants to introduce rest). Admissible. D can’t introduce the rest of grand jury
                  testimony because it’s not an admission (not against opposing party) and is making self
                  unavailable via 5th amendment.
                  Summary:
                  Criminal: need opportunity to cross & similar motive & prior party
                  Civil: need opportunity to cross & similar motive & predecessor in interest.
3. Uses of former testimony (where the prior statement made by the current witness who is now testifying)
      a. To impeach a witness with a prior inconsistent statement. FRE 801(d)(1)(A)
      b. As admission by opponent. (Former testimony of opposing party) against that party without need for
          laying foundation. FRE 801(d)(2).
      c. Prior inconsistent statement used for truth of matter if under oath
      d. Prior inconsistent statement if used to rebut claims of current fabrication.
      e. To refresh a recollection
      f. A recorded recollection
4. Court’s options re former testimony (Weissenberger)
      a. Strictly construe the rule, bc of fairness.
      b. Exclude former testimony where lack appropriate motive.
      c. Admit former testimony when have substantial identity of issues + similar motive + meaningful
          opportunity to cross-examine.


Dying Declarations
FRE 804(b) 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 the declarant’s death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death.

1. Rationale:
      a. Reliability. People are more honest/sincere when dying. AC Note.
               i. Counterarg: this is arbitrary. Not especially likely to be truthful statements (McCormick)
              ii. Counterarg: Narration, perception, memory still diminished on deathbed.
      b. Necessity. Better than no evidence at all.
2. Requirements:
                                                                                                               31
      a. Certainty of death
                i. Death has to be impending/imminent, in declarant’s state of mind. Shepard v US, SCOTUS,
                   1933, p215 (gov’t introduces evidence that dead wife said husband had poisoned her).
                   Inadmissible because death wasn’t imminent. No “settled hopeless expectation.”
               ii. Need sincere belief that going to die.
      b. Knowledge (specific knowledge)
      c. Civil case or criminal homicide case
                i. Would be civil case if person thought was going to die but then recovers.
               ii. Doesn’t apply to other types of cases. US v Sacasas, 2nd Cir., 1967, p217. Exception doesn’t
                   apply in bank robbery conviction. Dead person not dying from homicide.
              iii. Limited to these cases where high necessity (homicide) and low stakes (civil) because
                   evidence not very reliable. House Judiciary Committee.
      d. Statement regarding the circumstances for death.
                i. Statements not about death don’t count. US v Sacasas, 2nd Cir., 1967, p217 (D introduces
                   evidence that co-D/indictee told fellow inmate that “Greek had nothing to do with the job,”
                   before dying). Inadmissible bc not about circumstances surrounding death.
3. Relation to Confrontation Clause:
      a. There is an exception to Confrontation Clause for dying declarations.
                i. Because of strong history, footnote in Crawford about it.
               ii. Testimonial dying declarations can come in unconfronted/without cross-examination.
              iii. State v Lewis, Tenn. 2007, p219 (gov’t introduces dying statements from victim to police
                   implicating D, Lewis, in robbery & murder). Admissible even though testimonial and
                   unconfronted.
              iv. Counterarg: bootstrapping problem like in conspiracy.

Statements Against Interest
FRE 804(b) 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 or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position
would not have made the statement unless believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
1. Requirements:
        a. Declarant unavailable.
                 i. US v Duran Samaniego, p223. Declarant unavailable bc lived in Panama.
                ii. Unavailability can be satisfied by pleading the 5th. US v Jackson. Always?
        b. Must be an individual, parsed statement.
                 i. Statement isn’t everything the declarant says. Must be broken down. Williamson v US
                    (statement by co-defendant inculpating self & other D (tried separately)). Self-inculpatory
                    parts admissible. Parts inculpating other D not admissible against him because not
                    “statements against interest.”
                ii. Break up statement. US v Jackson, 2d Cir, 2003, p225 (D introduces plea colloquy of co-D,
                    which somewhat exculpates D Jackson. Co-D unavailable bc pled the 5th). Parsed statements
                     statements inculpating declarant aren’t the ones that exculpate the D. Not admissible.
               iii. Non-self-inculpatory statements are excluded even when within broader self-inculpatory
                    narrative. Williamson.
               iv. This makes it hard to use statement against someone else. Most statements are parse-able.
        c. Statement must hurt declarant because:
                                                                                                                   32
                  i. Is Against Pecuniary interest
                 ii. Is Against Proprietary interest
                          1. at CL, had to pecuniary/proprietary interest.
               iii. Subjects declarant to civil or criminal liability.
                iv. Renders invalid the declarant’s claim against someone else.
                 v. (Not included in FRE: subjecting declarant to ridicule, hatred. Bc not reliable enough, per
                     House Judiciary Committee)
                          1. this is included in CA rule.
                vi. Case-by-case determination of whether against interest. AC Note.
               vii. Objective test: whether a statement would have seemed risky to a reasonable person.
       d. Declarant must realize that the statement is against his/her interest.
                  i. Objective test: reasonable person in that position wouldn’t make the statement unless thought
                     it were true.
                 ii. Note: doesn’t matter to whom the statement was made (spouse, etc.), or whether declarant
                     expected it to be used later.
       e. Doesn’t matter in whose favor the statement is sought to be introduced.
       f. If statement is offered by D to exculpate the D but exposes declarant to criminal liability, there must
            be corroborating circumstances clearly indicating the trustworthiness of the statement. Otherwise,
            inadmissible.
                  i. Designed for co-defendant situation.
                 ii. Rationale: distrust of evidence of 3rd party confessions to exculpate the D.
               iii. Purpose: circumvent fabrication.
                iv. US v Jackson, 2d Cir., 2003, p223. No corroborating evidence.
                 v. Note: Before Williamson required parsing out the non-self-inculpatory parts, prosecution
                     introducing evidence against 3rd parties that inculpate the accused would ALSO have to
                     provide corroborating evidence. After Williamson, this might not be required.
2. Distinct from Admissions, because statement against interest
       a. Must be inculpatory
       b. Declarant doesn’t have to be a party.
       c. Declarant has to be unavailable
       d. Either side can introduce the statement
                  i. If statement is by a party and offered by opponent, it’s an admission. Whether against interest
                     doesn’t matter.
3. Rationale:
       a. Reliability. People don’t make damaging statements unless think they are true. AC Note.
4. Ex: US v Duran Samaniego, 11th Cir., 2003, p223 (D introduces evidence of 3rd party saying “I’m Sorry I
   stole the belts.”) Admissible as statement against interest bc is against declarant’s interests (subjects him to
   liability), declarant unavailable bc living in Panama.
       a. Not state of mind because was being offered to show why he was sorry (that he stole the belts)
       b. Not a speech act because was being offered to show he stole the belt (not just that he is sorry).

Admissions & Statements against interest, Compared. Glannon
Points of Comparison                Admission                                 Statements against Interest
Declarant                           Party in current case                     Anyone
Declarant availability              Available or unavailable                  Must be unavailable
Subject of statement                Anything adverse to a party’s             Creates financial or criminal risk to
                                    interest at trial                         declarant when declarant makes
                                                                              statement (CA: social risk)
Admissible against                     Declarant, coconspirator,              Any party
                                       declarant’s employer

                                                                                                                 33
Forfeiture by Wrongdoing
FRE 804(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

1. Rationale:
      a. Fairness. To prevent wrongdoers from taking advantage of hearsay rules to cause declarant’s
          unavailability.
                i. If deliberately caused declarant to be unavailable, can’t object on hearsay grounds. AC Note.
2. Requirements:
      a. Wrongdoing has to be specifically intended to procure the unavailability of declarant as witness.
          Intent and purpose required.
                i. Giles v CA, 2008 SCOTUS, p228 (gov’t introduces prior statement by gf re prior assault by
                   D on victim. DV case. To rebut D’s claim of self-defense). Not admissible. No forfeiture
                   where no intent. Rationale:
                       1. History & language - CL consensus: had to have intent to make declarant unavailable.
                           Forfeiture never invoked except for deliberate witness tampering.
                       2. Boostrapping concern: like in co-conspirator statements.
                               a. Constitutional arg: D’s right to confront shouldn’t be denied bc judges
                                   determine him guilty, w/out some showing of intent.
               ii. Counterarg: (Breyer, Stevens, Kennedy dissent): “defendant should not benefit from his own
                   wrong-doing.”
              iii. Counterarg: general intent (intent to do the act that results in forfeiture) is enough for
                   forfeiture. Knowledge / foreseeabilty sufficient.
              iv. Whiting agrees with this. Disagrees with Melendez-Diaz.
      b. Type of evidence sufficient to show intent, esp in DV cases.
                i. Earlier abuse or threats of abuse where intended ot dissuade victim from reporting
               ii. Ongoing criminal proceedings where victim would’ve testified
              iii. Classic intent to isolate victim in DV abusive relationship (concurrence)
                       1. dissent agrees = 5 votes for this general intent in DV cases.
3. Relationship to CC:
      a. This, unlike dying declarations, is NOT an exception to CC requirement that testimonial statements
          be confronted.
      b. CL uniformly excluded unconfronted inculpatory testimony by murder victims (except dying
          declarations) where (1) D on trial for murder & (2) no evidence of intent to prevent declarant from
          testifying.

Residual Exception
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 court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will best be served by admission of the
statement into evidence. 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

                                                                                                             34
the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the
statement and the particulars of it, including the name and address of the declarant.

1. Certain hearsay statement admissible where reliable & highly probative but not otherwise covered by a
   hearsay exception.
      a. Combination of FRE 803(24) and FRE 804(b)(5)
2. Requirements:
      a. Out-of-court statement used to prove the truth of the matter asserted
      b. Not otherwise “covered” by a hearsay exception. “Not otherwise covered” could mean:
               i. No other exception in 803 or 804 would apply (whiting, instinctual approach). Evidence not
                  admissible under 803 or 804 (because it lacks 1 requirement, for instance) can be admissible
                  if trustworthy.
                       1. “Close-enough” approach. You just have to be close to satisfying 803 or 804 to come
                          in under residual.
                       2. Adopted by Court in US v Laster, 6th Cir., 2001, p235 (gov’t introduces
                          business/company records showing sale of meth component to D). Admissible as a
                          residual exception. Nearly missed being business exception (foundation wasn’t laid).
                       3. Criticism (by dissent in Laster): swallows the rule.
                       4. Rationale: lines are blurry so need to have a fall-back, promote justice & fairness.
              ii. No other exception in rules MIGHT apply. Evidence whose type isn’t discussed in 803 or
                  804… where an established exception doesn’t apply at all.
                       1. “Near-miss” theory. If a statement nearly misses an established category, it stays out.
                       2. Dissent in US v Laster, p235. Comports with text & legislative history that residual
                          exception be used rarely.
                       3. Criticism: too stiff, not flexible enough (Fenner).
                       4. Rationale: predictability, uniformity, certainty. Bright line rules.

                  US v Laster – a statement not specifically covered by FRE 803 or FRE 804



                                               Hearsay
                                               exceptions
                                               s


                                                                    Dissent:
           Majority:                                                FRE 807 does not apply to this zone.
           FRE 807 applies in this zone.                            Near miss.
           Close enough.


 apply
       c. Offered as evidence of a material fact
               i. More than merely “relevant”
       d. Must have equivalent circumstantial guarantees of trustworthiness, like
               i. Immediacy in time
              ii. Mental state
            iii. Reliability because of incentive to be truthful
                     1. like medical exception / statements against interest
             iv. Reliability bc others rely on statement
                     1. like business records, co-conspirator statements
                                                                                                               35
               v. superior knowledge by declarant
                      1. like mental state
              vi. compare the reliability of the offered evidence to typical reliability of evidence from other
                  exceptions
            vii. Chambers: statements made spontaneously to a close acquaintance; corroborated by other
                  evidence; large number of the same statements as corroboration; self-incriminatory & against
                  interest; availability of declarant to be cross-examined.
      e. Is highly probative (more so than any other evidence reasonably procurable)
               i. Last resort evidence.
      f. Purpose of rules & interest of justice will be served by introducing.
      g. Offering party must give notice
3. Rationale:
      a. Compromise between Flexibility in development of hearsay system and Certainty in trial preparation
          (Weissenberger & Duane)
      b. Necessity
4. Ex: Court did 807-style analysis in Chambers due process case.

Hearsay & Due Process
1. Constitution constrains hearsay doctrine via:
      a. Confrontation Clause, excluding testimonial hearsay against a criminal defendant.
                i. Only harmless error if go’t shows beyond reasonable doubt that wasn’t prejudicial.
               ii. If inadmissible under CC  Bruton doctrine (limiting instructions).
      b. Due Process clauses of 5th & 14th amendments, requiring admission of certain evidence offered by /
          favorable to criminal defendant even if hearsay or state rule would require it excluded.
                i. Rarely used.
               ii. Rationale: same as for CC. truth-seeking. Fairness. Justice.
             iii. DP is right to fair opportunity to defend against state’s accusations. Right to confront &
                   cross-examine witnesses and call witnesses for self. Chambers.
                        1. to deny constitutional right to cross-examination, must have good reason.
              iv. DP violated where D denied right to present critical evidence / denied right to cross-examine.
                   Chambers v MS, 1973, p243 (convicted D wanted to introduce other guy’s 4 admissions of
                   guilt; 3 were excluded as hearsay and 1 by state “voucher” rule). Violation of due process.
                   Various indicia of reliability (against penal interest, immediacy, corroborated, presence of
                   declarant, etc.) also present. FRE 807-style analysis.
                        1. rarely used. Not every mistake in state evidentiary rulings is a violation of DP.
                        2. To overturn a conviction via Chambers:
                               a. Error must be egregious.
                               b. Excluded evidence needs to be necessary (no other evidence on this issue) and
                                   direct.
                               c. Weigh error against other interests – in finality, avoiding relitigation, etc.
                               d. Fortini v Murphy, 1st Cir., 2001, p251 (convicted D wanted to introduce
                                   evidence of victim’s prior assault on bball court shortly before encountering D
                                   – for defense of self-defense). Not a violation of DP.
--




                                                                                                               36
CHARACTER EVIDENCE
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or
by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is
offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the
accused offered by the prosecution;
(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412,
evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by
the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.

1. Summary of rule:
      a. CIVIL - Can use character evidence when character itself is at issue (usually civil cases), or
             i. Where chastity is an element of crime of seduction, competency of driver in action for
                negligently giving car to incompetent driver, etc.
            ii. Ex - Where character is relevant to the judicial determination itself. Ex: Berryhill v Beryhill,
                1982, p260: (question of whether had ever killed anyone allowed because in custody case,
                fitness is the issue & character is relevant to fitness).
           iii. Ex - Where notice is at issue. Ex: Cleghorn v NY Central & Hudson Rivero, 1874, p259.
                Evidence that switchman often drunk used not to show he was drunk at time of accident but
                to show that employer had notice.
      b. CRIMINAL - Can’t use character evidence (evidence of a character trait) circumstantially -- to prove
         conduct in conformity with the trait on a specific occasion -- EXCEPT:
                    1. Character of criminal defendant,
                             a. when criminal D opens the door by putting his/her own character at issue with
                                 relevant evidence (evidence of his good character). To show he’s not the type
                                 of person who would have committed the offense charged (McCormick).
                                      i. gov’t can then rebut that evidence specially.
                                     ii. Ex: Larson v Klapprodt, 1975, p260: (where D claims P slandered
                                         him, D’s character is put at issue in determining if alleged slander
                                         actually harmed him).
                    2. Character of (criminal) victim,
                             a. when criminal D opens the door by putting character of victim at issue
                                 (evidence of victim’s bad character, as relevant to consent or self-defense)

                                                                                                                     37
                                    i. gov’t can then put in evidence of same trait of criminal D, or rebut
                                       with own evidence about victim
                                   ii. but see limitations in FRE 412 re Sex Offense cases
                            b. when criminal D puts in evidence that victim was first aggressor (not just
                                character evidence, any evidence),
                                    i. gov’t can then put in evidence to show peacefulness of victim
                                       (Fortini?)
                                   ii. note that this might also apply to CIVIL wrongful death actions
                                       because they are like homicide actions.
                    3. Character of witness, as related to credibility.
       c. Can use evidence of other crimes, wrongs, or acts:
              i. For purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity,
                 absence of mistake or accident (as long as gov’t gives notice)
             ii. But not for purpose of proving conformity.

Summary of Rule – Glannon:
 Character evidence can’t be used to prove person acted in conformity. (no propensity inference
   allowed) FRE 404(a).
       o BUT character evidence CAN be used to prove person acted in conformity:
              In a criminal case:
                     D can offer evidence of his good character pertinent to case (to show he was unlikely
                        to commit the crime) FRE 404(a)(1); via opinion or reputation witnesses only (FRE
                        405(a))
                            o Prosecution can rebut this with evidence of D’s bad character (to show he was
                                likely to commit the crime).
                            o Prosecution can cross-examine by inquiring into specific instances of past
                                conduct as a means of showing that the opinion/reputation witness sucks
                                     But can’t introduce extrinsic evidence of past conduct
                     D can offer evidence of victim’s violent character (to show victim was first
                        aggressor) or pertinent trait like suicidal tendency. FRE 404(a)(2); via opinion or
                        reputation.
                            o Prosecution can rebut this with evidence of victim’s good/peaceful character
                                OR evidence of D’s character for the same trait (aggression) FRE 404(a)(1) ;
                                via reputation or opinion
                                     In homicide case, D doesn’t even have to introduce evidence of
                                        victim’s violent character – can just have introduced evidence of the
                                        act that victim lunged first; prosecution can introduce evidence of
                                        victim’s peaceful character because jury is likely to be thinking about
                                        it anyway
              In a civil or criminal sex offense trial
                     Prosecution can introduce character evidence of D’s sexual propensity (to show D
                        committed another of these sexual offenses). FRE 413-5
                            o Via specific instances of conduct, not reputation or opinion
                            o D can rebut this via reputation or opinion evidence.
              In a criminal sex offense trial
                     D can introduce evidence of victim’s past sexual conduct with someone besides D (to
                        show that someone else was the source of injury or semen)
                     D can introduce evidence of victim’s past sexual conduct with D (to show consent)
                     Prosecution can show evidence of victim’s past sexual conduct with D (to show
                        pattern of D acting illegally with victim)

                                                                                                               38
                 In a civil sex offense trial
                       D can introduce evidence of victim’s past sexual conduct if probative value
                          substantially outweighs harm to victim or unfair prejudice
                In any kind of trial, where there is a question of whether witness has testified truthfully:
                       Witness’s counsel can introduce evidence about that W’s character for truth-telling
                          (to show she is testifying truthfully)
        o BUT habit evidence CAN be used to prove person acted in conformity with their habit.
   Character evidence can be used where character is a part of the crime. Like defamation. “Character in
    issue”
   Evidence that seems like character evidence can be used to prove something besides a conclusion
    about the character of the person. FRE 404(b)
        o Prior bad act linked to current charged offense: Past bad acts can be used to show: proof of motive,
           opportunity, intent, preparation, plan, knowledge, identity, absence of mistake/accident
        o D linked to prior bad act: Prior bad acts can be proven in any form. Judge decides if there’s adequate
           evidence linking D to bad act.
        o FRE 403.
   Methods allowed for proof of character: FRE 405.
        o Always: Testimony about person’s reputation or about a witness’s opinion of the person.
        o Sometimes: Evidence of actual instances of past conduct.
                When character is “in issue.” (Defamation, negligent hiring)
                To show motive, opportunity, intent, preparation, etc.
                In specific ways in sex cases – prior consent with D or injury/semen from someone besides D
        o Sometimes: Can ask questions about a person’s past conduct w/out introducing evidence of it.
                Non-extrinsic evidence / cross-examination about past bad acts by prosecution when D
                  introduces evidence of his good character via opinion/reputation

Summary: Character Evidence offered to show conformity with character on specific instances
This doesn’t include impeachment or where character is “in issue” (defamation, negligent hiring)
Evidence about             May be introduced by        Reputation or Opinion        Extrinsic evidence of
                                                       Proof Allowed?               Specific acts allowed?
D’s traits inconsistent    D.                          YES                          NO
with commission of
charged crime.             FRE 404(a)(1)
D’s traits consistent with Prosecution to rebut D’s    YES                          NO
commission of charged      character evidence.
crime                      FRE 404(a)(1)
D’s sex-related traits in  Plaintiff, prosecutor, or D YES, introduced by           YES, introduced by any
sex offense/child                                      criminal D or by             party. FRE 413-5
molestation case           FRE 404(a)(1), 413, 414, prosecution to rebut such
                           415                         proof.
                                                       FRE 404(a)(1)
Victim’s trait (like       D                           YES                          NO
aggressiveness)            FRE 404(a)(2)
Victim’s trait (usually    Prosecution to rebut D’s    YES                          NO
non-aggressiveness)        character evidence about
                           victim or (only in
                           homicide cases) other
                           evidence that victim was
                           aggressor.
                           FRE 404(a)(2)
                                                                                                             39
D’s trait identical to       Prosecution.                 YES                          NO
victim’s trait shown by D    FRE 404(a)(1)
with character evidence.
Victim’s traits in sexual    Prosecutor or D in           NO                           YES.
assault case                 specific relatively rare
                             instances.
                             FRE 412.


2. Rationale:
      a. Typically only minimally relevant.
      b. Unduly prejudicial. Jury will find guilt on ground other than offense charged.
                i. This is a categorical FRE 403 determination that prejudice > probative value in this evidence.
               ii. In Old Chief, character evidence was excluded based on 403 analysis.
              iii. This is why we don’t allow exceptions to prohibition on circumstantial (propensity) evidence
                   for civil cases, only for criminal ones.
      c. Finality for D. Criminal defendant should be able to start afresh. People v Zackowitz.
      d. For exceptions:
                i. Protection of criminal defendants: D needs tools to defend self.
               ii. Fairness? Usually white collar defendants use this evidence.

Methods of Proving Character
Rule 405. Methods of Proving Character
(a) Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.
(b) Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of that person's conduct.

FRE 803(21):
(21) Reputation as to character. Reputation of a person's character among associates or in the community

1. When character evidence is allowable because an exception applies, D can introduce it by:
     a. Eliciting information about person’s reputation (reputation evidence), or
             i. Hearsay, but excepted under FRE 803(21)
     b. Opinion evidence about the pertinent train.
     c. But not by introducing specific instances of conduct.
             i. Can bring in specific instances of conduct where character itself is at issue (Berryline).
                Because it’s at issue, needs more inquiry than where character evidence is circumstantial.
            ii. US v Setien: 11th Cir., 1991, p272. (D wanted to introduce witness to testify that D refused to
                join conspiracy). D can’t use specific instances to show good conduct. Can only use
                opinion/reputation.
           iii. Rationale:
                    1. Though highly probative and convincing, are highly prejudicial. AC Note.
                            a. US v Setien: specific instances are highly probative
                    2. Likely to confuse, surprise, be waste of time.
                    3. Practical necessity – too much time. To avoid trials within trials.
2. When character evidence is challenged, prosecution can challenge it by:
     a. Eliciting information about person’s reputation,
                                                                                                             40
               i. By calling own character witnesses
              ii. Rationale: Reputation is accumulated wisdom. Michelson. Better than the alternative,
                  specific instance evidence.
      b. Opinion evidence about pertinent trait,
      c. Inquiry into specific instances of conduct or misconduct
               i. On cross-examination
                      1. or on redirect where redirect is equivalent of cross bc defense had opened the door on
                           cross. Gov’t of Virgin Islands v Roldan, 3d Cir., 1979, p269 (witness stated on cross
                           by defense that “D never bothers anyone.” Prosecution: “you are aware, are you not,
                           that the defendant was previously convicted of murder in the 1st degree?”)
              ii. With particular technique, like asking whether reputation witness has heard of particular
                  instances of conduct pertinent to the trait in question. Like “did you ever hear that on X date,
                  the D was arrested for receiving stolen goods?” Michelson v US, SCOTUS, 1948, p263 (D
                  on trial for bribery put in evidence of good character via own witnesses. Prosecution
                  challenges those witnesses via specific instance questioning).
                      1. for purpose of testing the witness’s knowledge about the basis for reputation
                           conclusion, but really to impeach/test character witness.
                      2. limitations on prosecution:
                               a. must have good faith basis for question (reason to ask about the incident, even
                                   though never actually prove the incident occurred)
                                        i. US v Krapp, 8th Cir., 1987, p270 (witness testifies that D (on trial for
                                           defrauding US as postmaster) is good person. Prosecution: “are you
                                           aware that Krapp’s husband with her knowledge omitted tax returns?”)
                                           Not admissible. Gov’t had good faith basis, but not pertinent.
                               b. has to be pertinent
                                        i. not private or tangential. Krapp: not pertinent because far removed.
                                           Wouldn’t expect witness to know about D’s husband’s tax returns.
                               c. Must satisfy FRE 403 probative > prejudicial.
                               d. Limiting instruction will be used, though often not very effective.
             iii. D pays this price for opening door.
3. Rationale for the procedures & methods:
      a. To balance: D has privileges, gov’t has tools of investigation. Michelson.
4. Summary: Can use specific instances of conduct only:
      a. Where character itself is at issue (“character in issue” – defamation, negligent hiring). Berryhill.
      b. On cross-examination where D has opened the door.

404b uses of Prior Bad Act Character Evidence:
(b) Other crimes, wrongs, or acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial.

1. Prior bad act evidence can be used for conformity, but not propensity.
       a. Conformity via motive, opportunity, intent…
2. Criticism of 404b uses:
       a. Seems like an exception to rule against propensity evidence.
               i. Ex of classic propensity: he’s an assaulter  probably assaulted here.
              ii. It’s all just propensity evidence, especially for intent & identity. (Morris)
       b. Abused and over applied:
                                                                                                                41
                  i. Ex: intent exception is usually used for propensity purposes.
                          1. Better use of intent would be doctrine of chances. Probability, not propensity arg.
3.   Arguments in favor of 404b uses:
         a. It’s relevant.
         b. It’s probative.
                  i. Where it’s known that criminal act occurred & only question is who did it or whether had
                     intent, previous conduct is weighty – because narrows the pool a lot. (Bagaric &
                     Amarasekara)
         c. Juries can weigh & evaluate it.
         d. Juries can follow limiting instructions.
         e. 4 protections in use of 404b: Huddleston
                  i. Proper purpose
                 ii. Must be relevant (FRE 104b)
                iii. Must pass FRE 403
                iv. Can use limiting instruction. FRE 105. Beechum.
         f. There’s a core group of cases where it seems inherently reasonable because serves specific purpose
            in the case.
                  i. Beechum.
4.   Mostly used by prosecution, not defense.
         a. D’s defense will often dictate how prosecution uses bad act evidence.
                  i. Beechum. Defense was intent.
                 ii. Wright: where defense was identity, not intent, can’t bring in bad act evidence re intent.
                iii. US v Sanders, 4th Cir., 1992, p381: where defense was self-defense, evidence of prior assault
                     & contraband possession not relevant. Was propensity evidence  inadmissible.
                iv. But even if D doesn’t raise a certain defense, gov’t has to explain away possible defenses the
                     jury might think of on its own. Crocker.
                          1. parties have to be able to tell full story/narrative. Old Chief.
         b. Gov’t’s theory of the case can also dictate how bad act evidence comes in.
                  i. Boyd: gov’t’s theory was that D trafficked marijuana bc had drug habit to fund.
5.   Prosecution must provide notice in criminal cases, to reduce surprise, promote resolution of issues.
6.   Must do FRE 403 analysis even if admissible under 404(b).
7.   Standard of proof of prior bad act:
         a. Whether prior bad act occurred is a conditional relevance issue, FRE 104b.
                  i. Judge decides whether there is sufficient evidence for reasonable jury to find by
                     preponderance of the evidence (using any evidence at all) that prior act occurred.
                          1. plain language, legislative history
                          2. 404b is about how to use evidence, not admissibility, so not a judge-only decision
                 ii. Huddleston v US, SCOTUS, 1988, p286 (gov’t introduces evidence that D, charged now
                     with selling stolen goods in interstate commerce, sold lots of TVs before. D argues that TVs
                     weren’t stolen). Admissible. Passes conditional relevance test.
                iii. Criticism: cyclical. Proves prior bad act by current bad act, and current bad act by prior bad
                     act.
8.   Intent
         a. Most common of the 404b uses. (Imwinkelrief) Allows admission of uncharged misconduct 
            dangerous if expanded.
         b. This is all propensity. (Morris)
         c. Proper use: doctrine of chances
                  i. US v Beechum (D charged with unlawful possession of silver dollar, stolen from mail.
                     Prosecution introduced evidence that he also had credit card that was missing from mail.)
                     Admissible as intent evidence.
                          1. FRE 403 analysis: probative (bc necessary), not prejudicial.
                                                                                                                   42
                        2. Limiting instruction provided.
                ii. US v Crocker
       d. Improper use: propensity – if intended it in the past, intended it now.
                 i. Lewis v US: intent to rob bank because of prior intent to rob garage? Intent w/in 1 night is
                    problematic / propensity.
                ii. US v Wright: 7th Cir., 1990, p280 (gov’t introduces evidence of convo in which D bragged
                    about being drug dealer). Intent not at issue in the case.
       e.
9. Motive
       a. US v Boyd (Gov’t introduces evidence that D is a user of drugs to prove motive (trafficked
            marijuana bc needed money).
                 i. FRE 403 analysis: not that prejudicial compard to rest of evidence in case. (doing marijuana
                    isn’t as bad as trafficking it.)
10. Opportunity
       a. Prior access. US v DeJohn (gov’t introduces evidence that D had checks that weren’t his on prior
            occasion and had gotten them from YMCA desk, and when arrested (charged with stealing &
            cashing treasury checks), was at YMCA desk). If D had prior access  more likely that had
            opportunity and was him this time.
11. Plan
       a. Lewis v US (gov’t introduces evidence of robbery of garage to show plan to rob bank, bc used tools
            from garage to rob bank).
                 i. no case for intent here, just plan.
12. Knowledge
       a. US v Crocker (gov’t introduces evidence that D arrested with co-D 7 years ago for counterfeit
            checks; that shows knowledge, intent, notice that while driving co-D around now, was cashing
            counterfeit checks again). Admissible to show knowledge, intent, etc.
13. Identity
       a. Relies on continuity of character, so is all propensity evidence. (Morris)
       b. Proper use: where identification makes D part of small pool  high likelihood that committed the
            crime. US v Dossey, 8th Cir., 1977, p279 (gov’t introduces witness to testify that D told her had
            robbed bank with certain costume). Admissible to prove identification of person who robbed bank in
            question.
                 i. modus operandi evidence. Close in time.
                ii. FRE 403: probative (necessity – teller not able to identify D), not outweighed by prejudice
       c. Improper use: where identification makes D part of huge pool  not probative that committed the
            crime. US v Wright, 7th Cir., 1990, p280 (gov’t introduces evidence of convo in which D bragged
            about being drug dealer). Not admissible to prove identity, because didn’t link him to crime (drug
            sale to cops) for which charged.
                 i. Fact of conversation or fact that he is drug-dealer doesn’t make it more likely that he did the
                    sale 6 months before.

Character & Habit
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or routine practice.

1. Rule: Can use habit evidence to prove conformity with habit.
      a. Habit: exception to rule against propensity evidence.
2. Rationale:
      a. Probative. Persuasive.
                                                                                                                43
       b. Better than general character evidence because of specificity. Dissent in Burchett.
3. 2 tests for Habit. Different results possible from each test. Method of proving habit not specified in Rule.
       a. “A habit is a person’s regular practice of meeting a particular kind of situation with a specific type of
            conduct” AC Note. A probability theory (Mengler).
                 i. Repeated
                        1. 4 convictions might not be enough. Reyes v Missouri Railroad, 5th Cir., 1979, p293 (4
                            prior convictions for intoxication wasn’t enough for habit, so was propensity and
                            inadmissible).
                        2. over extended period of time preferable. Loughan v Firestone.
                        3. from various sources. Loughan v Firestone (3 sources)
                ii. Specific
                        1. Loughan v Firestone: carried cooler, etc.
               iii. Loughan v Firestone Tire & Rubber Co., 11th Cir., 1985, p293 (D company defending against
                    negligent design suit by evidence that P had habit of drinking). Admissible as habit evidence
                    because specific & repeated.
                        1. and introduced through specific instances, reputation, and opinion
               iv. But see Burchett for counterargument to Loughan.
                v. Business transactions between Party 1 and a 3rd party used as evidence that Party 1 made
                    same bargain or proposal in this situation. AC Note.
               vi. Whittemore v Lockheed, 1944: evidence that dead P flew on 4 occasions to prove he was
                    flying (not just sitting) the 5th time.
       b. “The doing of habitual acts may become semi-automatic.” AC Note.
                 i. More semi-automatic than volitional.
                        1. If purely volitional, might not be habit. Levin (see AC Note): “habit” of observing
                            Sabbath by staying at home on Saturdays isn’t habit bc too volitional.
                ii. A “psychological theory” – habit nonvolitional, semiautomatic. Pavlovian. (Mengler)
               iii. Lying probably isn’t a habit. Not volitional at all.
4. Criticims of Habit Evidence. See Burchett v Commonwealth, KY 2003, p295 (no FRE) (evidence that D
   had habit of smoking marijuana every day not admissible to show he was high (wanton mental state) when
   ran stop sign driving).
       a. Elastic definition. Anything can be called a habit.
       b. Not necessarily true that person acted in conformity with habit.
                 i. Burchett v Commonwealth: D had habit of drinking vodka every day, but was proven that he
                    hadn’t drunk that day.
       c. Prejudicial.
       d. Results in mini-trials.
       e. Diverts attention of jury.
       f. Person should have finality re past convictions.
       g. (Same criticisms are applicable to character evidence generally)


Sexual Assault – Character of the Victim
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual
Predisposition
(a) Evidence generally inadmissible.
The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual
misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.
                                                                                                                44
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence 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 evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of
the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence 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. Evidence of an alleged victim's reputation 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 evidence under subdivision (b) must --
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose
for which it is offered unless the court, for good cause requires a different time for filing or permits filing during
trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's
guardian or representative.
(2) Before admitting evidence under this rule the court 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 record of the hearing must be
sealed and remain under seal unless the court orders otherwise.

FRE 404(a)(2) Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a
pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that
the alleged victim was the first aggressor;

1. FRE 412 is a rape shield law. Is a limitation on FRE 404(a)(2) exception which allows character evidence of
   victim to be introduced for circumstantial reason (to prove propensity/conformity) when D opens the door.
       a. Limits D in rape cases from offering evidence of victim’s character to prove consent.
       b. Gate-keeping function: keeps evidence out. Not a basis for admission.
2. Requirements:
       a. Civil or criminal
               i. Criminal charges don’t have to be pending
              ii. In civil case, allowed where probative value substantially >harm. (opposite of FRE 403)
                       1. burden on offering party to prove why probative.
       b. Evidence can be offered substantively or for impeachment
       c. Evidence can be about sexual contact, mind/dreams fantasties, lifestyle, dress. AC Note.
               i. Evidence about victim’s past of false accusations or lies typically survives FRE 412 and
                   enters under 404(b) to show modus operandi, etc.
       d. Alleged victim doesn’t have to be party to litigation.
       e. Alleged victim does have to be “victim of alleged sexual misconduct”
               i. Ex: could come in in a defamation case.
              ii. Applies in Title VII actions for sexual harassment
       f. Exceptions (evidence allowed in criminal cases):
               i. To prove mistaken identity – someone else was source of physical evidence
                       1. Should apply to allow in encounters between victim and non-D
                       2. Mistakenly applied in US v Saunders, 4th Cir., 1991, p305 (evidence of victim
                           (skeezer)’s past sex with victim allowed in under this exception) Admissible (but
                           wrongly so).
              ii. Prior acts between victim and D admissible where defense is consent.
                                                                                                             45
                       1. where defense is consent, only evidence of prior sex between victim & D is admitted.
                           See US v Saunders.
              iii. Where constitutional rights of D require admission (due process reminder)
                       1. Chambers analysis: is it so unfair that it impairs the rights of the D to defend himself?
                       2. Consider due process. Not violated in US v Saunders, p305 (evidence of victim’s past
                           sex with D’s friend, to prove she is a skeezer/prostitute). Inadmissible. D’s defense
                           not consent. Const’l issue not compelling enough.
                       3. Consider 6th amendment right confront witnesses / cross-examine. Violated in Olden
                           v Kentucky, SCOTUS, 1988, p307. D’s right to cross-examine violated where not
                           allowed to ask victim about her living arrangements (cohabiting with black guy) bc
                           was relevant to witness’s bias.
                               a. Possibility of juror bias bc of racial stuff doesn’t trump const’l right to cross.
                       4. Where violation of const’l right, to decide if harmless error, consider:
                               a. Importance of witness’s testimony in prosecution’s case
                               b. Whether testimony was cumulative
                               c. Presence/absence of corroborating or contradicting evidence
                               d. Extent of cross-exam permitted
                               e. Strength of prosecution’s case
3. Without FRE 412, evidence of specific acts of victim could come in if D’s defense was consent, under
      a. FRE 405(b) if character of victim is essential element of his defense.
      b. FRE 404(b)
      c. To impeach
      d. Relevant to state of mind.
4. Rationale:
      a. Prejudicial, because juries/courts found sexual history (chastity) to be probative of consent.
                i. Trials of rape victim resulted.
               ii. Overused & abused.
                       1. Used even when consent wasn’t at issue. Graham v State, Tex Crim App 1933, p301.
                           Rape case. D’s defense wasn’t consent. Evidence of victim’s prior sex life admissible
                           to “shed light on the transaction.” She could have initiated sex and gotten injured in
                           fight about it.
      b. Not very probative
                i. Historically, thought to be probative: Wigmore- “character of woman as to chastity is of
                   considerable probative value.”
      c. Safeguard victim’s privacy (civil) and protect victim (criminal). AC Note.
      d. Prevent stereotyping. AC Note.
      e. Encourage victims to come forward.

Character of the Defendant: Sexual Assault & Child Molestation
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the
defendant's commission of another offense or offenses of sexual 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 Government intends to offer evidence under this rule, the attorney for the Government
shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such
later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the
law of a State (as defined in section 513 of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18, United States Code;
                                                                                                                  46
(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of
another person;
(3) contact, without consent, between the genitals or anus of the defendant 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).

Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the
defendant's commission of another offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government
shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such
later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of
child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18,
United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a
child;
(2) any conduct proscribed by chapter 110 of title 18, United States Code;
(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;
(4) contact between the genitals or anus of the defendant and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a
child; or
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of
conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of
another offense or offenses of sexual assault or child molestation is admissible and may be considered as
provided in Rule 413 and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom
it will be offered, including statements of witnesses or a summary of the substance of any testimony that is
expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

1. Allows admissions of prior sexual assault/child molestation by D.
      a. For sexual assault or child molestation (crim or civil), FRE 404(a) (character evidence can’t prove
          conformity) limitation is eliminated.
      b. Preusmption in favor of admission for even uncharged prior offenses.
2. Requirements
      a. Criminal or civil case for sexual assault or child molestation
      b. Evidence can be reputation, opinion, any prior act evidence.
              i. Limitation in FRE 405 to reputation or opinion evidence eliminated.
             ii. Evidence can be uncharged offenses – not prosecuted or convicted.
            iii. No time limits on admissibility of prior act.
      c. Notice required.
                                                                                                                  47
       d. FRE 403 analysis must still be done.
                i. Probative v prejudicial
                       1. consider how similar current and prior act were. Lecompte.
               ii. But must apply FRE 403 in light of purposes of FRE 414. US v Lecompte, 8th Cir., 1997,
                   p314 (evidence of prior uncharged sex offense against 1 niece in trial for sexual abuse of
                   another niece). Admissible. Can’t apply 403 to eviscerate 414.
3. Rationale:
       a. Rejection of the concerns motivating exclusion of charcter evidence.
       b. Jury won’t overvalue or misuse it.
       c. Compulsion: psychological compulsion/addiction in child molestation.
                i. Motive is propensity. (Posner)
               ii. High recidivism
              iii. “most people don’t have a taste for sexually molesting children.” (Posner, US v
                   Cunningham)
       d. Necessity
                i. Crimes occur in isolation. Hard to prove. Reluctance of victims. No witnesses.
       e. Balances out power, given that victim is put on trial too. (Park)
       f. The crime is particularly threatening to community.
       g. Relevant.
       h. Probative: history of similar acts is probative here.
                i. More probative than evidence of victim’s sexual history (which goes both ways). (Park)
       i. Fair because cases are credibility challenge between victim & D (Park)
4. Criticisms: (wide opposition to these FRE before adopted)
       a. Removes protections for D. Unfair to D.
       b. Increases risk of false convictions.
       c. Too prejudicial.
       d. Waste of time. Mini-trials.
       e. Community of Ds is vulnerable
       f. Not needed. Already included in 404(b) allowing evidence against D of prior bad acts for purpose of
           showing intent, plan, motive, preparation, etc… AC Note.
                i. US v Cunningham, 7th Cir., 1996 (Posner), p319. FRE 414 not needed because FRE 404(b)
                   enough.
       g. Feminist critique (Orenstein): the pool of rapists is large, sexist misconception that it is small
           motivates 414.
                i. Patronizing to women.




                                                                                                           48
OTHER FORBIDDEN INFERENCES
Judge makes preliminary finding of whether any of these exclusions apply.
Subsequent Remedial Measures
FRE 407. Subsequent Remedial Measures
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would
have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to
prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning
or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for
another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted,
or impeachment.
1. Ex: making a repair, changing a procedure, changing design of a product.
2. Note: the time of injury is what’s important. If a remedial measure is taken before the injury (but after the
    sale, for example) it’s admissible for any purpose.
3. Some courts say this rule only applies to negligence, and that in strict liability actions, anything can be
    admitted.
4. Requirements: Evidence of SRM
        a. can be admitted for certain purposes:
                  i. ownership
                 ii. control
                         1. Clausen v Storage Tank Development Corp, 1st Cir., 1994, p323 (evidence of
                             subsequent repairs to dock). Admissible to show control, but fails FRE 403 analysis
                             (not probative bc of time lapse)
                iii. feasibility of precautionary measures – to show that it was possible to improve
                         1. but only if feasibility of warnings is controverted (if D claims it was the “best
                             possible design” or that better design wasn’t feasible). In re asbestos Litigation, 2d
                             Cir., 1993, p324 (evidence that company put warnings on asbestos product after dead
                             P’s last exposure). Inadmissible to prove feasibility bc it wasn’t controverted.
                         2. feasible means “technically possible” (not reasonable or prudent)
                iv. impeachment
        b. but never to show liability.
        c. Applies to negligence & products liability (after 1997 amendment)
        d. Rule only applies to exclude SRM undertaken by the D. SRM undertaken by 3rd party are
            admissible.
        e. FRE 403 analysis must be done.
                  i. Clausen v Storage Tank. Failed 403 analysis bc not probative as to control.
5. Rationale:
        a. Probative: SRM not probative of liability.
        b. Policy: want to incentivize SRM.
                  i. Important for cases other than products liability / mass injury.

Settlement Efforts – Civil Cases
FRE 408. Compromise & Offers to Compromise
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove
liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach
through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise the claim
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a
criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory,
investigative, or enforcement authority.
                                                                                                                    49
Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by
subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a
contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

1. Requirements: Evidence of Compromises & Offers:
      a. Includes (keeps out of evidence) discussions around compromise, statements of facts made during
          settlement talks. Includes offers to pay/payments AND statements made in connection with
          negotiating payment.
                i. Rule only covers statements made during the course of actual negotiations.
               ii. Rule only covers statements related to claims disputed re validity or amount (saying “I know
                   I owe you 800, can I just pay you 400” is not covered by the rule  admissible)
              iii. CL rule didn’t cover fact statements  absurd result of talking in hypotheticals. AC Note.
              iv. Also includes investigative efforts made in service of compromise/settlement. Ramada v
                   Rauch, 5th Cir., 1981, p326 (Goldsmith Report by Ramada Corp engineer about hotel’s
                   defects as alleged by P). Inadmissible because intended to be used for
                   compromise/settlement.
               v. Focus is on intent – whether intended to be part of settlement/negotiation.
      b. Doesn’t include (allows in) evidence otherwise admissible. Can’t keep out evidence by introducing it
          into settlement talks.
                i. Ex: document showing D was on notice.
      c. Offers are admissible – not excluded by FRE 408.
      d. Can’t be used to prove liability.
      e. But can be used for other purposes:
                i. witness’s bias or prejudice
               ii. To negate contention of undue delay
              iii. To prove effort to obstruct criminal investigation/prosecution.
              iv. Carney v American University, DC Cir., 1998, p328 (settlement letter from Univ to D
                   acknowledging that D possibly entitled to severance pay that had been withheld in retaliation
                   for filing suit for race discrim). Admissible to show retaliation (though not liability, not to
                   prove racial discrim).
2. Rationale:
      a. Not Probative of liability or responsibility (like in SRM).
      b. Not relevant - D might just want to avoid litigation. AC Note.
      c. Policy: to promote settlement. AC Note.

Settlement Efforts – Criminal Cases
FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal
Procedure or comparable state procedure regarding either of the foregoing please; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do
not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible
(i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has
been introduced and the statement ought in fairness be considered contemporaneously with it, or

                                                                                                                 50
(ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under
oath, on the record and in the presence of counsel.
1. Inadmissible (to prove guilt or for impeachment)
         a. Plea of guilty later withdrawn
         b. Plea of nolo - guilty plea without admitting to facts
         c. Statements during Rule 11 proceedings (admitting to sufficient facts) (plea bargaining)
         d. Statement made in course of plea discussion.
                  i. BUT D can waive FRE 410 & make admissible statements made during proffer agreement
                     for impeachment. US v Mezzanatto SCOTUS, 1995, p330 (gov’t introduces statements made
                     by D during proffer agreement (negotiate eventually broke down) when takes stand and
                     testifies differently). Admissible because D waived FRE 410.
                         1. presumption that evidentiary rights can be waived
                         2. permitting D to waive doesn’t discourage settlements. Gov’t won’t settle if D can’t
                              waive for impeachment.
                         3. must maintain integrity of process. Truth-seeking.
                 ii. Unclear whether D can waive FRE 410 for case-in-chief (beyond impeachment).
                         1. Mezzanatto has been extended to allow D to waive FRE 410 for case-in-chief in
                              proffer agreements. (Might be extended further to allow more waiver of evidentiary
                              rights?)
                         2. unequal bargaining power leads to this
         e. BUT admissible where necessary for:
                  i. Completeness. (Statements made during plea bargaining are usually all inadmissible unless
                     needed to complete partial disclosures that D might make, and in certain perjury
                     prosecutions)
                 ii. For prosecution of perjury
2. Requirements:
         a. Must be made to prosecutors. (D can’t make statements to investigator or cop and later say they were
             for plea bargaining and thus protected)
3. Rationale:
         a. Promote settlement.
                  i. This is why D can waive FRE 410 for impeachment purposes.
                 ii. Promot plea bargaining.
         b. Efficiency – need free communication.


Payment of Medical Expenses
FRE 409. Payment of Medical & Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for the injury.
1. Proof of medical payments or offers of medical payments made outside out settlement negotiations are not
    admissible to show liability for injury.
        a. Statements made in connection with the payments may be admissible, however. (This isn’t as broad
            as the exclusion of statements re compromise/settlement)
2. Rationale:
        a. Not probative. Offer to pay medical expenses is not probative of liability.
        b. Policy: encourage generosity.


Liability Insurance
FRE 411. Liability Insurance

                                                                                                             51
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or
bias or prejudice of a witness.

3. Evidence of having/not having liability insurance:
       a. Not admissible to show negligence
                i. Higgins v Hicks, 8th Cir., 1985 (P introduces evidence that co-D, state of South Dakota, has
                   insurance in case for negligent road repair). Inadmissible. Irrelevant. Is this FRE 401?
                       1. consider old Chief relevance: presentation of full narrative, preventing jury
                           speculation.
       b. Admissible to show
                i. agency,
               ii. ownership,
              iii. control,
              iv. bias or prejudice of witness
                       1. Charter v Chleborad 8th Cir., 1977, p337 (D’s witness works for insurance company
                           defending D (doctor) in medical malpractice case). Admissible to show bias. That D’s
                           insurer employed witness showed bias.
       c. FRE 403 analysis must still be done?
4. Rationale:
       a. Not probative. Having insurance doesn’t prove fault. (Person with insurance MIGHT be more
           reckless because they know they won’t pay for damages, but this is still a small probative value)
       b. Prejudicial. Juries might assigne liability based on this.
       c. Policy: want to incentivize people having inurance.
       d. Protect insurance companies: from having to pay when jury is persuaded to find guilty the party with
           insurance.
                i. Opposite of Higgins v Hicks.
5. Criticism:
       a. Having insurance  “devil-may-care” reckless attitude. So it IS probative.
       b. Juries might assume certain things about who has insurance or not, so better to clear it up. Higgins v
           Hicks.

Admissibility of Settlements, Payments, or Pleas (or offers) & Related Statements and Conduct – Glannon
Points of Comparison        Civil Settlements            Payments & Offers to pay Nolo Contendere &
                                                         medical expenses           Withdrawn Guilty Pleas
FRE                         408                          409                        410
Must there be a dispute     YES                          NO                         Impliedly
for rule to apply?
With whom must party        Anyone who can settle        Anyone who can accept      Prosecutor (not police)
with potential liability    disputed claim               payment
deal?
Can offered or actual       NO                           NO                         NO
settlement payment or
plea be admitted to show
liability?
Can offered or actual       YES                          YES                        NO
settlement payment or
plea be admitted for uses
other than to show

                                                                                                               52
liability?
Can related statements or    NO                            YES                           NO
conduct be admitted to
show liability?
Can related statements or    YES                           YES                           To complete partial
conduct be admitted for                                                                  disclosures by D, FRE
uses other than to show                                                                  106; also certain perjury
liability?                                                                               cases



Trial Mechanics
Witness must have personal knowledge. FRE 602. Evidence of witness having personal knowledge can be
intrinsic or extrinsic.

FRE 611. Mode and Order of Interrogation & Presentation.
(a) Control by court.
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination.
Cross-examination should be limited to the subject matter of the direct examination and matters affecting the
credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.

(c) Leading questions.
Leading questions should not be used on the direct examination of a witness except as may be necessary to
develop the witness’s testimony. Ordinarily leading questions should be permitted on cross-examination. When
a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may
be by leading questions.

1. Discretion: Most questions are left to trial judge, incl. presentation of witnesses, order, etc.
2. Order of witnesses: trial judge has discretion.
      a. Have to show harm to get error reversed. Stone v Peacock, 11th Cir., 1992, p345.
      b. Standard of review: abuse of discretion.
               i. Elgabri v Lekas, 1st Cir., 1992, p345 (court limited P’s examination of D on direct.) No abuse
                  of discretion.
              ii. US v Wilford, 8th Cir., 1983. No abuse of discretion.
             iii. US v Carter, 7th Cir., 1990, p347. No abuse of discretion.
             iv. Consider judge’s goals of preserving time, avoiding cumulative evidence, etc.
              v. Consider how probative the evidence is. US v Carter.
3. Scope:
      a. Cross-examination can’t exceed scope of direct examination.
               i. as a practical matter, it is rare to object to “beyond the scope” for introducing new stuff on
                  cross.
                      1. Intent of limited cross-exam scope is to reduce confusion, complication, protraction.
                          AC Note.
              ii. US v Carter, 7th Cir., 1990, p347. (D says gov’t went beyond scope of direct). Trial judge
                  used discretion to permit going beyond the scope.

                                                                                                                  53
            iii. but questions on cross-examination to elicit info re a witness’s bias or credibility are always
                 within the scope of cross.
     b. On redirect, can’t introduce something that could’ve been introduced in direct.
              i. Court has discretion re whether to allow party to present new evidence in surrebuttal (D
                 examining gov’t’s witness presented during rebuttal). US v Wilford, 8th Cir., 1983.
     c. Flexible for practical reasons & good faith.
4. Mode of Questioning:
     a. Leading questions (answered by “yes/no”; a question that suggests its answer)
              i. Not on direct
                     1. Except can use leading questions for non-controversial identifying info.
                     2. Except can use leading questions if witness is child, has memory issue, is impaired,
                         need leading questions to develop testimony.
                             a. Leading questions allowed for child witness: US v Nabors, 10th Cir., 1985,
                                p350.
                     3. Except if P calls adverse party on direct, bc witness is presumed hostile. Elgabri v.
                         Lekas, 1st Cir., 1992, p345.
                     4. Except for hostile witness.
                             a. Ellis v City of Chicago, 7th Cir., 1981, p351. (Ps wanted to be able to use
                                leading questioning in direct examination of hostile witnesses).
                     5. Rationale: devalues evidence in eyes of jury.
             ii. Yes on cross
                     1. Unless going beyond scope of direct.
                     2. Unless it’s really direct examination (like cross-examining a friendly witness called
                         by co-D).
     b. To get decision reversed for error in mode of questioning, must have clear showing of prejudice.
         Ellis v City of Chicago, 7th Cir., 1981, p351. Error but not clearly prejudicial.
     c. Rationale for limiting leading questions: witness is more likely to testify truthfully if witness doesn’t
         know what answer the questioner wants

Rule of Completeness
FRE 106: Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded statement which ought in fairness to
be considered contemporaneously with it.
1. Rationale:
       a. Unfair/misleading to take matters of out context. AC Note.
       b. Inadequacy of repairing it too late in the trial. AC Note




                                                                                                                54
IMPEACHMENT & REHABILITATION
Impeachment evidence: relevant because suggests that certain witness lacks credibility & testimony should be
disregarded.
Rehabiliation evidence: relevant because rebuts impeachment evidence: shows that impeached witness is
credible and should be believed.
*Can occur in direct, redirect, and cross.


Impeachment
FRE 607: Who may Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
1. Typically other side will impeach.
2. Allowed to impeach own witness, per FRE, if your witness
       c. Only tells part of the truth
       d. Is hostile
       e. This Overrules old rule that couldn’t impeach own witness. The “voucher rule”
3. See Chambers

FRE 806: Attacking & Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in FRE 801(d)(2)(c), (D), or (E), has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence
which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any
requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the
declarant on the statement as if under cross-examination.


1. “Impeachment-only” evidence can’t be used substantively.
      a. Good faith rule keeps parties from introducing evidence via impeachment that they can’t get in
          substantively.
2. Modes of impeachment:
      a. Character for Untruthfulness: Dishonesty
               i. Exception to prohibition on character evidence. FRE 607 and 608.
              ii. Lack of religious belief not allowed. FRE 610.
             iii. Might overlap with character evidence for victim and defendants, if victim or D is the
                  witness. See FRE 404(a).
             iv. Prior criminal convictions. FRE 609.
      b. Prior Inconsistent Statements (self-contradiction)
               i. See hearsay rules: prior inconsistent statement can be used for truth of matter asserted & for
                  impeachment.
              ii. Most common.
      c. Bias
               i. Witness has connection to/interest in case. Emotional ties, financial interest.
      d. Incapacity
               i. Witness unable to provide accurate information.
      e. Specific Contradiction
               i. With extrinsic evidence, prove that witness is wrong.
3. Process of Impeachment: McCormick, p371.
      a. Elicit facts discrediting witness on cross-examination of witness.
               i. Good faith basis required.
                                                                                                               55
              ii. May be limited to intrinsic impeachment. “You must take his answer.”
       b. Introduce facts discrediting witness by extrinsic evidence.

Character for Untruthfulness: Dishonesty
FRE 608: Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character
for truthfulness, other than conviction of crime as provided in FRE 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the
accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate
only to character for truthfulness.

FRE 610: Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of
showing that by reason of their nature the witness’ credibility of impaired or enhanced.

1. Prove character of witness to suggest that person acted in conformity with his/her character.
      a. FRE 404(a)(3): Exception to prohibition on character propensity evidence, for impeachment of
          witness.
      b. Can use opinion & reputation testimony, regarding truthfulness or untruthfulness only.
               i. An “impeaching witness” can testify re witness’s reputation for truth-telling, or by giving an
                  opinion about the witness’s typical truthfulness (this is permissible propensity evidence)
              ii. This is narrower than forms of character evidence allowed for accused/victim, where any
                  pertinent character trait allowed.
      c. Can use specific instances of conduct (that go to truthfulness and not remote in time)
               i. instances involving fraud go to truthfulness. US v Rosa.
              ii. instances of general dishonesty might not go to truthfulness.
                      1. Ex: bribery of public officials didn’t go to truthfulness. US v Rosa.
             iii. on cross-examination of witness himself.
                      1. US v Rosa 3d Cir., 1989, p347 (D cross-examining gov’t’s witness on crime family,
                          fraudulent insurance claim, and bribery). Bribery question not admissible because
                          doesn’t bear on truthfulness or untruthfulness
             iv. on cross-examination of any opinion/reputation witness per FRE 405.
              v. Must be proven with intrinsic evidence. Can’t use extrinsic evidence to prove specific
                  instances going to truthfulness. Can’t use extrinsic evidence of past bad acts when only
                  relevant to impeach. Have to accept witness’s answers. FRE 404(b) and FRE 608.
                      1. extrinsic evidence is always collateral, so always barred by collateral evidence rule,
                          for this rule.
                      2. US v Ling,4th Cir., 1978, p374. Gov’t can’t call own witness (cop) to testify that D
                          fired a gun in a public place (those charges were dropped) after D testified that
                          hadn’t. (specific contradiction case).
                                                                                                                56
                      3. US v White, 5th Cir., 1992, p376. Gov’t can’t use testimony of Northcutt’s prior
                          attorney to say Northcutt had offered to fabricate testimony against an individual in
                          order to show intent OR impeach. Not admissible as intent evidence (FRE 404(b)).
                          Not admissible to impeach Northcutt. Must ask Northcutt.
                      4. US v Aponte, 2d Cir., 1997, p376. Convicted P wants to introduce evidence that gov’t
                          witness had lied in past in sworn statements, to impeach character of that gov’t
                          witness. Not admissible bc extrinsic.
                      5. Simmons v Pinkerton’s, Inc.: 7th Cir. 1985, p406 (evidence that fire-setter, Hayne,
                          D’s employee, took polygraph and passed. Hayne admitted at trial that he lied.)
                          Admissible to impeach Hayne’s credibility. Tried as a specific contradiction case but
                          really is character for untruthfulness via specific instances of conduct.
                              a. Not barred by collateral evidence rule. Even though polygraph maybe not
                                   admissible into substantive evidence, the specific lie was probative to
                                   truthfulness. Had Hayne not admitted to lying, would have had to accept his
                                   answer.
                              b. Balanced probative v prejudicial.
                      6. Rationale: to prevent mini-trials.
                      7. Cross-examiner must have good faith belief that the event actually occurred.
       d. When: introduce evidence of witness’s truthfulness after truthfulness has been attacked (by opinion
          or reputation).
               i. Can’t bolster.
              ii. When D takes the stand, he falls under this rule and becomes a witness. Truthfulness can be
                  attacked even though he doesn’t “put it in issue”. US v Lollar, 5th Cir., 1979, p373 (gov’t on
                  rebuttal calls witness to ask “would you believe the D if he testified under oath?”).
                  Admissible as attack on truthfulness since D testified and became a witness.
       e. Must satisfy FRE 403.

FRE 609: Impeachment by Evidence of Conviction of Crime
(a) General rule.
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to
FRE 403, if the crime was punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be
admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it
readily can be determined that establishing the elements of the crime required proof or admission of an act of
dishonesty or false statement by the witness.

(b) Time limit.
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since
the date of the conviction or of the release of the witness from the confinement imposed for that conviction,
whichever is later date, unless the court determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide
the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon,
annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of
                                                                                                                  57
the person convicted, and that person has not been convicted of a subsequent crime that was punishable by
death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, adnnulment,
or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications.
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a
criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the
offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in
evidence is necessary for a fair dtermination of the issue of guilt or innocenc.

(e) Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the
pendency of an appeal is admissible.

1. Exception to FRE 608 ban on use of extrinsic evidence of specific acts.
2. Rationale:
       a. Probative: people who lie in other context are more likely to perjure themselves
       b. Necessary because credibility of witness is important.
                i. Criticism: forging a signature doesn’t make you more likely to perjure self.
               ii. Criticism: keeps defendants from testifying.
3. Criticism:
       a. Should not allow evidence of prior convictions to impeach. Prior convictions are only really used to
           show the witness/D is a bad person. Used as propensity. Friedman.
       b. Too prejudicial.
       c. Not probative.
       d. Disincentives D from taking stand to testify. Friedman.
4. Requirements for admissibility:
       a. Conviction of crime if proof or admission of dishonest or false statement by witness included.
                i. FRE 609(a)(2)
               ii. Witness can be D or non-D.
              iii. Conviction required, not suspended sentence or supervision (depending on how state law
                   views the sentence). US v Amaechi, p380
              iv. Type of crime: those involving “some element of misrepresentation or other indication of a
                   propensity to lie”
                        1. Includes all types of fraud. US v Wong, perjury, embezzlement. Ultimate act has to
                            involve deceit.
                        2. Doesn’t include petty shoplifting. US v Amaechi, p380.
               v. Judges have no discretion to exclude dishonesty crimes for FRE 403 reasons. US v Wong 3d
                   Cir., 1983, p378 (D wanted to exclude prior mail fraud and Medicare fraud convictions in
                   trial for mail fraud and RICO violation, bc too prejudicial). Admissible without 403
                   predjuciail v probative analysis.
                        1. Rationale: text, legislative history.
                        2. Evidence of these crimes may always be used to impeach.
                        3. FRE 403 balancing test not applicable to FRE 609(a)(2).
              vi. If 10 ten years have passed since conviction or release from confinement (whichever is later),
                   then use FRE 609(b) balancing test: inadmissible unless probative value substantially
                   outweighs prejudicial value (bias toward excluding)
       b. Conviction of other crime if punishable by death or >1 year prison (regardless of sentence actually
           imposed)
                i. If witness is defendant, evidence must be probative value > prejudicial value.

                                                                                                               58
                       1. admissible if probative outweighs prejudicial. Not admissible is prejudice outweighs
                          (at all) probative (more likely to exclude)
                       2. Evidence of a similar offense is very prejudicial and likely to be excluded.. US v
                          Sanders, 4th Cir., 1992, p381. (D on trial for assaulting fellow inmate & possession of
                          contraband. Gov’t wants to introduce evidence of prior convictions for assault &
                          contraband possession). Inadmissible. Very prejudicial bc same conduct for which on
                          trial & only minimally probative (little impeachment value).
                               a. This is opposite of FRE 404(b) Boyd: similar crimes  no prejudice.
                               b. Rationale: jury role; can’t follow limiting instructions.
                               c. But similar offense not inadmissible per se. US v Oaxaca, 9th Cir., 1978, p383
                                   (D is witness in trial for bank robbery. Gov’t wants to introduce prior
                                   convictions of burglary and bank robbery). Admissible because probative of
                                   D’s honesty.
                       3. Evidence of similarity (but not identicality) between 2 crimes isn’t necessarily
                          inadmissible. US v Hernandez, 7th Cir., 1997, p384 (D on trial for kidnapping, gov’t
                          introduces evidence of prior drug convictions where motive for kidnapping was to get
                          drug $). Admissible.
                               a. Especially where credibility determination is very important in a case.
                       4. Probative value: if credibility is a crucial issue & there’s no other credibility evidence
                          available, courts may permit this. (Deters a D with criminal history from testifying)
              ii. If witness is not defendant, evidence must satisfy FRE 403
                       1. admissible unless probative value substantially outweighed by prejudicial danger.
                       2. admissible if probative value is not substantially outweigh by prejudicial danger.
                       3. Probative: consider whether the witness’ credibility is particularly important in the
                          trial and whether there are other means to assess it.
                       4. prejudicial: “birds of a feather flock together” so D is law-breaker too (small)
            iii. Rationale: if break any law, person has disrespect for law/legal system, so more likely to lie
                  in court than a law-abiding citizen.
             iv. Both are subject to 10 year rule.
      c. Conviction must be <10 years old, from date of conviction or release (whichever later)
               i. Or, if >10 old, admissible if court finds probative value substantially outweighs prejudicial.
5. Procedure/Preserving Error Claim:
      a. D seeks rule in limine as to whether prior convictions will be used.
               i. If no, D probably testifies.
              ii. If yes, D has to choose whether to testify.
      b. If D doesn’t testify, appeals court won’t review District Court’s in limine ruling. Luce v US
         SCOTUS 1984, p385 (D on trial for cocaine possession/intent to distribute. Court ruled in limine to
         allow prior conviction for impeachment. D didn’t testify). In limine motion not reviewable bc didn’t
         testify.
               i. D can’t appeal unless testifies and is cross-examined on prior conviction.
              ii. In limine FRE 609(a) rulings are not reviewable on appeal.
            iii. Would be too speculative for appeals court to know what harm resulted from in limine ruling.
             iv. Prosecutor might not have even ended up impeaching.
      c. If D testifies and admits/introduces evidence of prior conviction, cannot appeal in limine allowing
         evidence in. Ohler v US, SCOTUS 2000, p387 (D on trial for possession/intent to distribute
         marijuana, lost in limine to exclude prior felony conviction, admits on direct to prior
         methamphetamine possession). In limine motion not reviewable where D was party that introduced
         the evidence.
               i. D can’t strategically “take the sting out” or minimize prior conviction on direct.
              ii. Rationale: gov’t gets right to decide whether to impeach on cross.

                                                                                                                 59
      d. If lower court rules against D in limine by allowing in prior convictions for impeachment, if D wants
          to appeal, must:
                i. Testify
               ii. Not admit/minimize prior convictions on direct. Must be impeached with the past conviction.
6. Distinct from FRE 404(b)
      a. FRE 404(b):
                i. Purpose of prior bad act: to show similarity going to motive ,intent, planning, etc.
               ii. Evidence of prior bad act used substantively. To prove crime itself.
              iii. Prejudicial if the prior bad act is much worse, inflammatory.
              iv. OK if prior bad act is similar to current bad act.
      b. FRE 609:
                i. Purpose of prior bad act: to impeach witness. Show is a liar.
               ii. Evidence of prior bad act used procedurally. To impeach witness.
              iii. Prejudicial if the prior bad act is the same, because could be wrongly used for propensity 
                   prejudicial.
              iv. OK if prior bad act is different.

                           Is evidence of a witness’s past conviction admissible?
                      Balance between Probative value & Risk of prejudice - glannon
Type of           Type of           Substantially       More probative More                   Substantially
Conviction        Witness           more probative than                   prejudicial         more
                                    than                prejudicial       than probative      prejudicial
                                    prejudicial                                               than probative
Crime involved    Any witness       Y                   Y                 Y                   Y
truth-telling
Crime did not     Any witness        Y                  Y                  Y                  N
involve truth-    (except criminal
telling           D)
Crime did not     Criminal D         Y                  Y                  N                  N
involve truth-
telling
Any crime more    Any witness        Y                  N                  N                  N
than 10 years
old

                           When can character evidence on credibility be admitted?
                                             Occasions for proof:
Type of proof               Prior to other credibility During Direct               During Cross-
                            evidence                    Examination                Examination
Convictions showing         Y                           Y                          Y
untruthfulness
Opinion / reputation        Y                           Y                            Y
showing untruthfulness
Past acts showing           Y                           N                            Y
untruthfulness
Opinion or reputation       N                           Y                            Y
showing truthfulness
Past acts showing           N                           N                            Y
truthfulness


                                                                                                            60
Prior Inconsistent Statements (Self-Contradiction)
FRE 613: Prior Statements of Witnesses
(a) Examining witness concerning prior statement.
In examining a witness concerning a prior statement made by the witness, whether written or not, the statement
need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown
or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded
an opportunity to explain or deny th same and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a
party-opponent as defined in FRE 801(d)(2).

FRE 801(d)Statements which are not hearsay.
A statement is not hearsay if –
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is
(A) inconsistent with the declarant’s testimony, and was given under oath subject to penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition, OR
(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, OR
(C) one of identification of a person made after perceiving the person…

1. Prior inconsistent statement can be used:
       a. Substantively, to prove the truth of the matter asserted. FRE 801(d)(1)
                i. If witness confronted with it, AND was given under oath, or
                       1. except in CA, where doesn’t has to be given under oath before.
               ii. When the prior statement identifies someone and was made after seeing that person.
             iii. Includes grand jury statements, per FRE 801(d)(1)(A). US v Dennis, 8th Cir., 1980, p391
                   (witness Miller’s grand jury testimony not hearsay). Could be admissible substantively but
                   limited to impeachment because was confusing record.
       b. Procedurally, to impeach witness. FRE 613. This is a nonhearsay purpose.
       c. To impeach a hearsay statement. FRE 806
2. Requirements:
       a. Must be prior inconsistent statement.
                i. Statement includes “nonverbal conduct of a person, if it is intended by him as an assertion.”
                       1. identification or non-identification of persons in courtroom is a statement. US v
                           Lebel, 2d Cir., 1979.
               ii. Conduct (not included as an assertion) not included.
       b. Can impeach own witness.
                i. CL prohibition against impeaching own witness overruled.
       c. “Inconsistency” is determined by trial judge, and can include:
                i. Evasive answers
               ii. Inability to recall. US v Ince.
             iii. Silence
              iv. Changes of position
                       1. US v Dennis (Miller’s testimony was inconsistent with prior grand jury testimony).
                           Admissible for impeachment.
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       d. If extrinsic evidence, admissible only if
                 i. witness is given chance to explain/deny it AND
                        1. have to show it to defense counsel. Don’t have to show it to witness.
                        2. if witness admits, no need to call another witness to prove the fact.
                ii. opposing party is given a chance to ask the witness about it.
              iii. Don’t have to show prior, written statement to witness before impeaching him.
                        1. rejection of “rule in Queen’s case”
               iv. Order not important. Don’t have to confront witness with statement immediately. Can prove
                    prior inconsistent statement first, then allow witness to explain (though usually reverse).
                        1. US v Lebel, 2d Cir., 1979 (D introduced evidence that witness Laws couldn’t identify
                            him in court previously; first brought up evidence in examination of DEA agent
                            present at first trial). Admissible in that order.
3. Limitation: at criminal trial, gov’t can’t impeach own witness to get in evidence otherwise inadmissible as
   hearsay.
       a. Gov’t can’t impeach by prior inconsistent statements just to get in evidence not otherwise
           admissible.
                 i. US v Morlang in
                ii. US v Ince 4th Cir., 1994 (gov’t’s introduces witness Stevens to impeach gov’t’s own witness
                    Neumann. N had told Stevens in statement that D fired the shots, but at trial N couldn’t
                    remember). Inadmissible. Prior unsworn statement (Stevens saying Neuman said X) is
                    hearsay. Admission by D within hearsay prejudicial. Little impeachment (of Neumann)
                    value, bc gov’t didn’t need Neumann’s testimony.
              iii. Rationale: fairness. Same rationale for prohibiting hearsay. Jury can’t distinguish.
       b. BUT where gov’t not acting in bad faith, prior inconsistent statement admissible even where seems
           like they are introduced to prove truth of matter. US v Webster 7th Cir., 1984, p395 (gov’t introduced
           witness King who was hostile, so impeached with prior inconsistent statements inculpating D).
           Admissible bc gov’t acted in good faith (flagged issue to court) and didn’t know witness would be
           hostile beforehand.
       c. Old CL rule of “not surprising own witness” important here for determining whether gov’t has
           abused its power to impeach own witness.
       d. This limitation doesn’t apply in California, where prior inconsistent statements come in for
           impeachment AND truth of matter asserted.
                 i. People v Freeman, Cal. Ct. App. 1971, p396 (gov’t introduces witness Knipp to testify re
                    prior inconsistent statement of Duckworth re whether she saw Norman and Foster at
                    daughter’s home). Admissible for truth of matter asserted & impeachment, even though gov’t
                    knew Duckworth would be hostile.
                ii. Rationale: allows jury to see all evidence.
              iii. Criticism: general criticisms of hearsay.
4. Collateral evidence rule doesn’t formally apply to prior inconsistent statements. Formally, can always use
   collateral evidence to prove up prior inconsistent statements, because inconsistently on even a minor matter
   is highly probative of lack of credibility.
       a. In practice, some courts will exclude collateral evidence to prove prior inconsistent statement.



Bias
1. Prove witness (or hearsay declarant) has a reason to lie or fib, consciously or not. Has some connection –
   emotional, financial, etc. – to case. Ex:
      a. Being paid to testify
      b. Romantically involved with a party
      c. Fear of a party
                                                                                                                62
      d. Like or dislike of a party
      e. Is in same prison gang as party. US v Abel.
      f. US v Abel: (Gov’t to introduce Ehle (cohort of D, pled guilty) to testify against D. D to introduce
          Mills to counter Ehle’s testimony. Gov’t to introduce Ehle to testify that D, Mills, & Ehle were
          members of prison gang, to prove that Ehle never would have told Mills he was going to implicate
          D.) Admissible to show bias of Mills toward D. Details about group weren’t too prejudicial, were
          probative. Judge took precautions to limit prejudice (couldn’t say “aryan brotherhood”)
                1. Because relevant: testimony re gang made Mills’ bias more probable.
2. Can use extrinsic evidence. (in Abel, calling Mills). Must satisfy hearsay rules (in Abel, it satisfied Hillmon
   exception)
      a. US v Lindemann (horse-killing case of rehabilitation for bias). Extrinsic evidence allowed because
          bias is not a collateral issue.
3. Rationale. See US v Abel:
      a. CL, state precedent before FRE enacted
      b. Confrontation Clause of 6th amendment, requires D to have opportunity to show bias by gov’t
          witness (Davis v Alaska, 1974)
      c. Included in FRE via FRE 401 (relevance). Bias evidence is relevant.

Incapacity
1. Prove witness has unreliable memory or perception. Ex:
       a. Physical incapacity - Bad eyesight
       b. Mental incapacity – delusional.
                i. Abused, so often ruled inadmissible.
               ii. Depression evidence might be inadmissible, as in US v Sasso 2d Cir., 1995, p403 (D wanted
                   to introduce evidence that gov’t’s witness Kramer was on Prozac after car accident).
                   Inadmissible bc didn’t affect her perception.
2. Have to be careful not to allow incapacity evidence to be used to disparage character of witness.
       a. Capacity evidence should be disallowed when probative value centers on D’s character.
       b. Must have specific evidence of incapacity.
       c. Has to be very probative/pertinent.
3. To avoid being bad character evidence, incapacity issue has to be close to:
       a. Time of witnessing/perceiving. Has to be probative of witness’s aility to recognize & identify
           indigidual who committed offense, for ex.
                i. Not close enough to witnessing in Sasso.
               ii. Not close enough in Henderson v Detella, 7th Cir., 1996, p404 (D wants to call Jones to
                   testify that Jones had seen gov’t’s witness Chavez use narcotics) Inadmissible because Jones
                   was going to testify that Chavez had generally used drugs, not on a specific time near murder
                   D accused of.
       b. Time of testifying
4. Can use extrinsic evidence to prove the incapacity.


Specific Contradiction
1. Not covered in FRE.
2. Prove falsity of some part of what witness has testified to  suggesting that this gives jury reason to
   disregard rest of witness’s testimony.
       a. If witness is wrong about 1 thing, can’t trust him on other points, either.
       b. It’s not that witness is lying. Witness made mistake of fact, and might’ve made mistake of fact
           elsewhere too.
3. Limitation: “collateral evidence rule” or “specific contradiction rule”
       a. Applies only to impeachment by specific contradiction.
                                                                                                                63
                i. Doesn’t apply to self-contradiction impeachment. Simmons.
               ii. Extrinsic evidence can be used in other types of impeachment because credibility always
                   important, except in character for truthfulness (specific instances of conduct), FRE 608(b).
       b. Bars extrinsic impeachment by specific contradiction on a “collateral matter”
                i. Extrinsic impeachment = through evidence besides testimony elicited from witness being
                   impeached
       c. Party can still impeach witness by eliciting testimony on cross-examination that contradicts part of
          witness’s earlier testimony.
       d. “Collateral”: can the fact in question be proven for any purpose OTHER than contradicting the
          witness?
                i. Test = “whether the party seeking to introduce it for purposes of contradiction would be
                   entitled to prove it as part of his case.” Simmons.
               ii. Limits the extent to which witness’ testimony about non-essential matters (like color of car
                   where car identity is stipulated) may be contradicted by extrinsic proof (ie mini-trial on color
                   of car)
              iii. If no, it’s collateral.
                        1. if collateral  can cross-examine but can’t offer extrinsic evidence.
                        2. Simmons: collateral but not extrinsic because witness admitted he lied.
                        3. Copelin: collateral but not extrinsic because witness admitted in his own statements re
                            drug tests.
              iv. If yes, it’s not collateral. (If it’s relevant to an issue in the case, it’s not collateral)
                        1. if not collateral  can cross-examine and offer extrinsic evidence.
       e. Party may not introduce extrinsic proof that particular details of a witness’s testimony are false
          unless those details involve a topic that could be subject to proof even if the witness had not referred
          to them.
       f. The topic on which a party seeks to introduce evidence in contradiction to a witness’s testimony
          must be a topic that would be relevant in the trial whether or not a witness had given earlier
          testimony about it.
                i. If is not independently significant, it’s collateral.
4. Rationale for collateral evidence rule:
       a. To avoid the risk that the trial will be derailed by inquiry into side issues.
5. Ex:
       a. US v Ling, p375
       b. Bad example (really character for untruthfulness via specific conduct, FRE 608(b)): Simmons v
          Pinkertons, 7th Cir. 1985, p406 (evidence that fire-setter, Hayne, D’s employee, took polygraph and
          passed. Hayne admitted at trial that he lied.) Admissible to impeach Hayne’s credibility.
       c. US v Copelin, DC Cir 1993, p409: (gov’t cross-examined D/witness about prior positive drug tests
          to impeach him after said had never seen drugs (blanket statement)).


Uses of Extrinsic Evidence in Modes of Impeachment:
1. Modes of impeachment:                                          Extrinsic allowed?
       a. Character for Untruthfulness: Dishonesty:
               ii. Reputation/opinion                             YES
              iii. Specific Instances of conduct                  NO
       b. Prior Inconsistent Statements (self-contradiction)      YES
                                                           a. If confront, and
                                                           b. Sometimes only when not collateral
       c. Bias                                                    YES
       d. Incapacity                                              YES
       e. Specific Contradiction                                  Collateral Evidence rule
                                                                                                                64
2. Where extrinsic evidence used, it must be satisfied.
     a. Except for impeachment by prior inconsistent statement, which isn’t a hearsay purpose.




Rehabilitation
1. Modes of rehabilitation:
      b. Honesty (character for truthfulness). In FRE.
      c. Consistency (Prior consistent statements). In FRE.
      d. Disinterest.
      e. Capacity
      f. Specific corroboration.
2. Rule against bolstering:
      g. Cannot bolster for any method of rehabilitation. Cannot rehabilitate before impeached.
               i. General CL rule.
              ii. AC Note.
      h. Rule against bolstering only addressed in FRE 608 (honesty) and FRE 801(d)(1) (consistency).
          Limiting instruction can be helpful here.
      i. Can’t bolster in Disinterest, Capacity, and Specific Corroboration because of FRE 402 relevance.
               i. US v Lindemann 7th Cir.1996, p414 (gov’t’s witness Burns impeached by D Lindemann
                  suggesting bias (Burns in it for plea deal). Burns then rehabilitated by testifying about how
                  Lindemann was small part of his cooperation). Admissible because not bolstering. Witness’s
                  credibility had been attacked (on bias grounds). Rehab evidence was relevant, FRE 402.
      j. Exception: a D can comment on his own truthfulness if truthfulness is a trait pertinent to the charged
          crime, whether or not there has been a character-based attack on D’s truthfulness.
      k. Rationale: waste of time (AC Note). Invites jury to trust witness too much.


Character for Truthfulness (honesty)
FRE 608: Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character
for truthfulness, other than conviction of crime as provided in FRE 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the
accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate
only to character for truthfulness.
1. To introduce evidence of honesty, first need an attack on truthfulness. An attack on truthfulness is:
        a. Opinion and reputation evidence for untruthfulness. AC Note.
        b. Evidence of misconduct, including conviction of crime & corruption.
                                                                                                               65
                i. US v Murray, 3d Cir 1997, p419 (D exposed witness’s illegal and sordid activities on cross-
                   examination, incl. drug use, firearm carrying, etc.) Rehab admissible.
       c. Depending on circumstances, evidence of contradiction.
                i. Prior inconsistent statements: Prior inconsistent statements may be attack on truthfulness.
                   Beard v Mitchell, 7th Cir., 1979 (D introduced evidence (testimony from another witness)
                   that D Mitchell had reputation for truthfulness. P had introduced prior inconsistent statements
                   by D Mitchell) Rehab admissible (no abuse of discretion).
                       1. US v Murray: PIS were an attack on truthfulness. Rehab admissible.
               ii. Specific Contradiction: Pointing out that D’s testimony is contradicted by other evidence
                   isn’t an attack on truthfulness. US v Danehy 11th Cir., 1982, p417 (D cross-examined and
                   gov’t pointed out discrepancies between his and others’ testimony). Rehab not admissible (bc
                   no attack).
                       1. similarly, gov’t pointing out that accused testimony isn’t credible isn’t an attack. US
                            v Drury, 11th Cir., 2005, p418 (questions like “are you telling us X? is that what you
                            want the jury to believe?” are not an attack). Rehab not admissible.
              iii. Whether it is an attack on truthfulness depends on whether the prior inconsistent statement or
                   specific contradiction suggests broad or specific untruthfulness or mistake.
                       1. if it’s a specific untruthfulness, it’s like bias. Not an attack on general character for
                            truthfulness.
              iv. Take-away: where it’s a specific attack on truthfulness, rehab not admissible. (Beard is
                   outlier)
2. An attack on truthfulness ISN’T made by: (AC Note)
       a. Evidence of bias
                i. Rationale: if you are biased to lie, doesn’t matter whether you are generally truthfulness.
       b. Evidence of incapacity
                i. Rationale: If you can’t see, doesn’t matter whether you lie.
3. Once truthfulness is attacked, can rehabilitate via:
       a. Opinion & reputation evidence
       b. But not via extrinsic evidence of specific instances of conduct
                i. Extrinsic evidence: evidence offered through other witnesses rather than through cross-
                   examination of the witness himself or herself.
               ii. Must lay a foundation for the opinion and reputation evidence.
              iii. But foundation can’t be so specific that it is “specific instances of conduct.”
              iv. US v Murray, p419 (Detective witness called to rehab testify about impeached witness (an
                   informant)). Testimony that impeached witness had been used “numerous occasion” as
                   informant was necessary to lay foundation for rehab witness’s opinion of his reputation. But
                   testimony that impeached witness (informant) had “made” 65 cases was “specific instance”
                   thus forbidden.
4. Distinct from FRE 404. To decide which governs, consider whether D is trying to bolster his witness
   testimony.
       a. If so, FRE 608 applies. US v Danehy
       b. If there is a character trait relevant to the crime (like peacefulness), FRE 404(a)(1) applies

Prior Consistent Statements (consistency)
FRE 801(d) Statements which are not hearsay.
A statement is not hearsay if –
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given
under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B)
consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the

                                                                                                                 66
declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person
made after perceiving the person…
1. Prior Consistent statements can be used to rehabilitate after:
       a. Allegation of recent fabrication
       b. Allegation of bias (improper influence or motive)
2. Prior consistent statements can be introduced to rehab or prove truth of matter asserted
       a. [Before Tome: prior consistent statements couldn’t be used for truth of statement unless 801(d) met,
           but could be used to rehabilitate a witness]
       b. But if used for truth of matter asserted, the prior consistent statement must predate the motive. Tome
           v US SCOTUS 1995, p422 (prior statements by child to babysitter, mother, social worker, and
           doctors offered by gov’t to rebut implicit charge that child was fabricating testimony to be able to
           live with her mother). Inadmissible because alleged motive to fabricate arose, then statements made
           after.
                i. CL rule incorporated into FRE: prior consistent statement introduced to rebut a charge of
                   recent fabrication or improper influence/motive admissible if the statement had been made
                   before the alleged fabrication, influence, or motive came into being. Inadmissible if made
                   afterwards.
                       1. confirmed by AC Note: FRE conform to CL unless otherwise stated.
                       2. AC rejected a “balancing” approach to hearsay whereby declarant’s prior statements
                           could be balanced (probative v prejudicial) if declarant testified at trial.
               ii. Rationale:
                       1. only consistent statements predating the motive rebut the charge that testimony was
                           contrived based on motive.
                       2. FRE 801(d) allows them to be used substantively, for truth of matter asserted, so must
                           be really probative.
                       3. for rejecting “balancing” approach: reduce judicial discretion (like Crawford),
                           increase predictability, lessen difficulties of trial preparation  more certainty.
              iii. Dissent: no premotive requirement. Postmotive statements can also rebut charge of
                   fabrication/improper motive and be used to rehabilitate & substantively, for truth of matter.
                       1. rationale: relevancy. Flexibility for judges.
                       2. Consider CC issue if dissent’s view adopted. Little real chance to cross-examine
                           because in-court testimony brief (child).
       c. If used not for truth of matter asserted but only to rehabilitate, prior consistent statements can be
           postmotive. FRE 801(d)(1)(B) restrictions don’t apply. US v Simonelli 1st Cir., 2001, p432: (D
           objects to gov’t using prior consistent statements made at grand jury by witness Baker to rebut
           showing of prior inconsistent statement) Inadmissible. Don’t need to show all prior consistent
           statements to rehab witness’s credibility.
                i. Can only introduce prior consistent statements for rehab to set the context, explain, and for
                   completeness. FRE 106.




Competence
FRE 601: General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions
& proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of
decision, the competency of a witness shall be determine in accordance with State law.

FRE 602: Lack of Personal knowledge

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A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist
of the witness’ own testimony. This rule is subject ot the provisions of FRE 703, relating to opinion testimony
by expert witnesses.

1. A witness is “competent” if he/she is allowed to testify.
2. Old law: children, felons, atheists, infidels, etc. automatically incompetent.
3. Modern view: anyone should be allowed to testify.
      a. Illegit grounds for declaring incompetence: AC Note.
               i. Religious belief. See FRE 610.
              ii. Conviction of crime. FRE 609.
                      1. Criminals (even if convicted of perjury) can testify. Rosen v US, SCOTUS 1918,
                           p437 (witness Broder pled guilty, called on to testify against co-conspirators).
                           Competent to testify.
                      2. today it is mainstream for criminal cooperators to testify.
             iii. Connection with litigation
             iv. Interested party/spouse. FRE 505.
      b. Interest in outcome and mental capacity go to credibility – jury decides.
               i. US v Lightly 4th Cir., 1982, p439 (McDuffie was criminally insane so not indicted. Called on
                  by D to corroborate D’s story.) Competent to testify in Lightly (fellow prison-fighter)’s case.
      c. Can only exclude as incompetent if witness
               i. lacks personal knowledge, FRE 602
                      1. exception for expert witnesses. See XXXX.
                      2. exception: witness who testifies to a hearsay statement as such if has personal
                           knowledge of the making of the statement. FRE 801 and 805 govern.
                      3. specialized application of FRE 104(b) conditional relevance. AC Note.
                      4. standard: sufficiency standard.
                               a. Low standard - Testimony shouldn’t be excluded for lack of personal
                                  knowledge unless NO reasonable juror could believe that the witness had
                                  ability and opportunity to perceive the event that he testifies about. US v
                                  Hickey, 6th Cir. 1990, p441 (D convicted partly on testimony of witness
                                  Ventimiglia, a “loose cannon” cocain addict with lack of memory, uncertainty
                                  re details, inconsistencies, etc.) Admissible even though memory/perception
                                  partially impaired and other problems with the testimony.
                               b. Rationale for standard: if were higher standard, judge would be deciding
                                  whether to believe the witness, which is jury role.
                      5. rationale for requiring personal knowledge: Reliability. Preference for live testimony.
                           Could evade hearsay ban if allowed evidence w/out personal knowledge.
              ii. lacks capacity to recall,
             iii. doesn’t understand duty to testify truthfully.
      d. Rationale:
               i. trust in jury (more on this topic than anywhere else). Jury can judge witness’s credibility and
                  sort good from bad witness.
              ii. Preference of live testimony. Truth is found in live testimony. Juries good at handling live
                  evidence.


Lay Opinions & Expert Testimony
FRE 701: Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b)
                                                                                                                   68
helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge within the scope of FRE 702.

FRE 704: Opinion on Ultimate Issue
(a) Except as provided in (b), testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case
may state an opinion or inference as to whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the
trier of fact alone.

1. “Lay witness”: witness who does not testify based on some special expertise.
2. Old rule:
      a. Lay witnesses couldn’t offer opinions.
      b. Neither lay nor expert witnesses could give inferences or conclusions. Only facts. Couldn’t opine on
          “ultimate issues”
      c. Rationale: distrust of juries. Avoid invading jury role.
3. Modern rule:
      a. Lay witness can offer opinion, even on ultimate issues, as long as they are
               i. Helpful to the jury (to a clear understanding of witness’s testimony or a fact in issue), and
                      1. it has to add value, advance the ball.
                      2. FRE 403 still operates. AC Note.
                      3. Gov’t of the Virgin Islands v Knight, 3d Cir. 1993, p479 (eyewitness testifying to all
                          the facts/circumstances that led him to opinion/conclusion that D firing gun was an
                          accident). Admissible bc opinion would have helped jury understand his testimony &
                          the facts.
                              a. Allowing witness to state the opinion/conclusion of all observed facts is like
                                  rule of completeness, FRE 106, Beech Aircraft.
              ii. Based on witness’s own firsthand observations/perception
                      1. rationally based on perception, thus requires personal knowledge.
                      2. US v Meling, 9th Cir., 1995, p479 (testimony of lay witnesses – 911 operator and
                          paramedic – that D was faking hysteria & grief). Admissible bc had firsthand
                          knowledge. Also had experience that enhances weight of testimony.
             iii. Not based on scientific, technical, or specialized knowledge.
                      1. Rationale: To prevent expert witness from testifying as lay witness.
             iv. Robinson v Bump 5th Cir. 1990, p481 (eyewithess testifying that D was “in total control” of
                  truck) Admissible bc based on personal knowledge (was driving behind him) and was
                  admissible lay inference.
      b. Expert witness
               i. doesn’t have to have firsthand knowledge.
              ii. Can’t give facts
             iii. If witness has firsthand knowledge & applies expertise to that knowledge, is expert, not lay.
      c. Rationale:
               i. Trust that jury can decide what weight to give to ultimate opinions.
              ii. Trust in adversarial system. AC Note.
4. Distinguishing lay from expert witness hard.
      a. Lay expert might have some experience.
               i. Lay testimony results from a process of reasoning familiar in everyday life. AC Note.
              ii. US v Meling: (911 operator and paramedic were lay witnesses with experience) Admissible
                  as lay.

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              iii. US v Ayala-Pizarro, 1st Cir. 2005, p484 (agent testifiying as lay, gives opinion about drug
                   point (that it was known) and manner of packaging drugs (that they were for distribution).
                   Admissible as lay – drug point was personal knowledge, packaging was experience.
         b. Expert witness might be expert based on experience. Might also result from some expertise.
                i. Expert testimony results from reasoning which can be mastered only by specialists. AC Note.
               ii. Witnesses re drug language, packaging, etc. will typically testify as experts.
              iii. US v Peoples 8th Cir. 2001, p482 (agent testifying as lay about meaning of conversation on
                   wiretap (criminal code language) should have been expert, bc has no firsthand knowledge).
                       1. But even if had firsthand knowledge, would still have had to be qualified as expert
                           because was applying expert skill to interpret what she observed.

FRE 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or
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, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.

FRE 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 the expert 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 evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.

FRE 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give reasons therefore without first testifying ot the
underlying facts or data, unless the court requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-examination.

FRE 706. Court Appointed Experts
(a) Appointment
The court 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 court may appoint any expert witnesses agreed upon by the parties,
and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness
consent to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed
with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the
parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by
the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
(b) Compensation.
Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus
fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just
compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
(c) Disclosure of appointment.
In the exercise of its discretion, the court may authorized disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties’ experts of own selection.
Nothing in this rule limits the parties in calling expert witnesses of their own selection.

1. Expert witness is:
      a. Qualified by knowledge, skill, experience, training, or education.
      b. Ex: doctors, architect, banker, landowners, etc.
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2. Need an expert witness on a topic when:
      a. Common sense test: when untrained layman wouldn’t be qualified to determine the issue without
          help from someone with specialized understanding. AC Note.
      b. Not every issue requires an expert.
               i. Hatch v State Farm Wyo 1997, p488. Good neighbor case. (P calls expert Cloyd on insurance
                  industry standards for good faith & fair dealing, to opine about whether State Farm was a
                  good neighbor). Inadmissible. Don’t need an expert. Jury can decide.
3. Expert’s opinion is based on (AC Note)
      a. Firsthand observation + opinions based on it.
               i. ex: doctor
      b. presentation at the trial
      c. presentation of data to expert outside of court
      d. the basis for expert’s opinion doesn’t have to be admissible by itself, if it’s the type reasonably relied
          upon by other experts in the field
               i. if otherwise inadmissible, don’t show to jury unless probative substantially outweighs
                  prejudicial
                       1. underlying facts not shown to jury unless stringent version of FRE 403 satisfied.
                       2. rationale: prohibit avoiding other FRE by using expert testimony
              ii. but if the underlying facts are testimonial hearsay  CC issue.
                       1. pre-Melendez-Diaz: testimonial hearsay via expert witness OK. State v Lewis Tenn
                           2007, p490 (Gov’t calls expert doctor who admitted the DNA testing (of hair alleged
                           to be D’s found on hat left behind in robbery) was done by her lab ass’t). Admissible.
                               a. Crawford wasn’t about expert witness testimony.
                               b. CC satisfied if D has opportunity to cross-examine expert, because the
                                  underlying facts aren’t in evidence.
                       2. post-Melendez-Diaz: testimonial hearsay via expert witness not OK if expert is
                           mouthpiece for out-of-court lab assistant. If expert doing own analysis on the stand, is
                           OK.
      e. Can’t be based on the opinions of non-experts / eyewitnesses, etc.
4. Expert can testify about ultimate issues, EXCEPT if ultimate issue is D’s mental state… FRE 704(b).
      a. Can explain diagnosis and characteristics of disease,
      b. But can’t testify whether criminal D was legally insane.
      c. Adopted after Hinckley trial (shooter of President Reagan)
      d. Rationale: harder to bring in insanity evidence.
5. Court can appoint own experts. FRE 706.
      a. But this is rarely done,
               i. bc of adversarial nature of process.
              ii. Bc judges don’t know how. Wiley.
      b. Should be rare and only used where ordinary adversary system doesn’t suffice. AC Note.
               i. Leblanc v PNS Stores ED La 1996, p493 (D wanted court-appointed doctor). Not required,
                  because D didn’t show need for it.
6. Expert’s subject matter (scientific evidence) admissible if: (FRE 702 includes Daubert, Joiner & Kumho
   holdings)
      a. Before Daubert: “general acceptance” test in Frye.
               i. Frye v US: (D charged with murder, wanted to introduce ancient polygraph that showed him
                  truthful re innocence) Not admissible bc polygraph not generally accepted.
                       1. Test: the thing from which deducation is made must be sufficiently established to
                           have gained general acceptance in the field.
                       2. Deference to scientific community.
      b. After Daubert: judges scrutinize expert testimony to make sure it is relevant & reliable.

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  i. Daubert v Merrell Dow, SCOTUS 1993, p496 (whether mother’s use of drugs caused birth
     defects. P’s 8 experts said yes. Failed Frye test bc the techniques weren’t generally accepted.)
     New test instead of Frye: Judge decides if evidence is relevant & reliable.
         1. 2-part test:
                 a. 1 – Relevance: will it assist the trier of fact? Is it relevant? Is there a fit
                     between expert’s testimony and the issue in the case?
                 b. 2 – Reliability: is testimony based on scientific knowledge? Is it reliable?
                     Valid? Factors:
                           i. Tested or testable?
                          ii. Peer review & publication? (not dispositive)
                         iii. Potential rate of error?
                         iv. Procedures & standards?
                          v. General acceptance? (Frye test)
                         vi. FRE 703 – are they facts other experts would ordinarily rely on
                        vii. FRE 706 – judge can appoint own expert
                       viii. FRE 403 – probative v prejudicial
         2. Judge has gate-keeping function. Judge evaluates the evidence.
                 a. More liberal and flexible than CL test. Bias towards admissibility.
                           i. Whereas Tomey dissent relied on liberal/flexible FRE.
                 b. Cross-examination, contrary evidence, etc, will keep out junk science.
         3. CL rule (Frye test) not addressed, so not adopted by FRE.
                 a. Compare to Tomey, where FRE not addressing CL premotive test for prior
                     consistent statements meant that CL rule was adopted.
                 b. See diagram on Daubert from PPT
 ii. Standard of review: abuse of discretion. General Electric v Joiner
         1. Rationale: admissibility decisions are abuse of discretion standard.
iii. Judge can look at link between expert’s methodology & conclusions. General Electric v
     Joiner, SCOTUS 1997, p503 (whether P electrician got lung cancer from PCBs while
     working for GE, P introduced animal and other studies). Judge can make sure the conclusions
     are reasonable in light of methodology used. Court can conclude that there is too great a gap
     between data & opinion.
iv. Daubert test applies not just to scientific knowledge but to other technical or specialized
     knowledge covered in FRE 702. Kumho Tire v Carmichael SCOTUS 1999, p506 (expert
     witness on tire failure) Not scientific expert testimony but judge still had to deicde whether
     reliable. Inadmissible bc not a reliable methodology/conclusion.
         1. Judge has to be flexible when dealing with non-scientific knowledge – all Daubert
             factors (like peer review) might not apply.
         2. Other additional factors might apply.
 v. Under Daubert, look at evidence’s: (1) scientific method, and (2) application of that method
     to the factual inquiry under consideration. Applies to all expert testimony, not just science.
     Trial judge must look at: sufficiency of underlying data, reliability of methods, and reliability
     of application of data to methods.




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PRIVILEGES
1. Affects discovery, not just trial. Govern whether disclosure of certain info can be compelled before trial.
2. Purpose different from other FRE:
      a. Other FRE: purpose is truth-seeking.
      b. Privilege purpose: non-truth-seeking. Serve other important relationships.
3. Not codified. FRE 501 allows federal CL of privileges.

FRE 501: General Rule
Except as otherwise required by the Constitution or Act of Congress or the FRE, the privilege of a witness,
person, government, State, or political subdivision thereof shall be governed by the principles of the common
law as they may be interpreted by the courts of the US in the light of reason and experience. However, in civil
actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule
of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be
determined in accordance with State law.

Attorney/Client Privilege
1. Rationale:
       a. Encourage people to consult & be honest with attorneys
       b. Promotes compliance with law – societal gain
2. Criticism:
       a. Loses evidence. Gets in way of truth-seeking.
       b. Lawyers don’t always promote compliance with law.
       c. Only protects guilty people. Bentham.
3. Atty/client privilege extends after client’s death. CL rule survives.
       a. Swidler & Berlin v US SCOTUS 1998, p604 (Indepndnet Counsel wants Hamilton (atty at Swidler
           & berlin)’s notes re meeting with deceased (suicide) client Foster). Inadmissible. IC had burden of
           establishing why privilege wouldn’t extend; didn’t meet that burden.
4. Requirements:
       a. (1) Communication
                i. Must be communicating with a lawyer, even if you don’t hire them
               ii. Both what lawyer says to client & what client says to lawyer
              iii. Pre-existing facts or records are NOT communication.
                       1. rationale: can’t immunize docs just by showing them to your lawyer.
                       2. Protects only disclosures that wouldn’t have been made absent the privilege.
                       3. Fee info isn’t privileged. Tornay v US 9th Cir., 1988, p612 (gov’t wants information
                          re how much money the D paid lawyer, in tax fraud case). Admissible, not privileged.
                              a. Compare Baird v Koerner, where client’s identity was privileged, attorney
                                  didn’t have to identify who his clients were.
              iv. Substance of the communications if protected, not the fact that there have been
                   communications. US v Kendrick, 4th Cir., 1964, p611.
               v. Only things client would intend to be held in confidence by attorney are privileged. What
                   lawyer observes isn’t privileged. US v Kendrick (attorney testifieda bout client’s awareness
                   & cooperativeness). Admissible, not privileged.
       b. (2) In Confidence
                i. Based on client’s reasonable expectation that something is in confidence.
                       1. US v Gann, 9th Cir., 1984, p613 (client telling lawyer on phone as police search his
                          home that “it’s something about felon in possession.”) Admissible, not privileged, bc
                          client wouldn’t have expected it to be in confidence – cops were around.
               ii. Confidence element waived by bringing somebody to talk to lawyer with you.
                       1. unless person is there for assisting in communication with lawyer (like interpreter) or
                          is necessary to accomplish objective of meeting with lawyer.
                                                                                                               73
               2. even if person you bring is a lawyer, the privilege is still waived. US v Evans 7th Cir.,
                   1997, p614. Atty-client privilege doesn’t protect statements made by client to
                   attorney in presence of 3rd party who isn’t an agent of client or attorney.
      iii. Info client gives to lawyer with expectation that it will be made public/transmitted to 3rd
           party -- may or may not waive privilege.
               1. US v Lawless 7th Cir., 1983, p615 (transmission of financial info for tax return) Not
                   privileged.
               2. Smithline Beecham v Apotex (transmission of info re patent in prearation for patent
                   application) Privileged.
               3. If lawyer is conduit to public space  not privileged.
               4. If info given to get advice  privileged.
c. (3) Between lawyer & client
        i. Even if you don’t hire the lawyer
       ii. If someone working for lawyer interviews client, it is privileged.
               1. Go to lawyer first, then other person, for the meeting with other person to be
                   privileged.
                       a. US v Kovel Accountant working at direction of lawyer is privileged bc
                           necessary to obtaining legal advice. Privileged.
                       b. Pasteris v Robillard. Client went to insurance company thinking info would be
                           sent to lawyer. Not privileged.
      iii. Communication under joint defense agreement (co-defendants) privileged.
               1. if lawyers talk to own clients: privileged
               2. if lawyers talk to each other: privileged
               3. if clients talk to other lawyer: privileged
                       a. US v McPartlin: where co-defendants with separate lawyers have agreement
                           to challenge cooperator, if one D says something to other D’s lawyer that will
                           benefit that D  not admissible.
      iv. Where a corporation is the client
               1. before Upjohn: control group test: corporation (client) was people who control it. Sr
                   management’s communications with attorney are privileged.
               2. Upjohn v US : (corporation did internal investigation re payments made to foreign
                   governments. Gov’t wants questionnaires sent to foreign affiliates) Privileged.
                       a. interaction test: “person” of corporation (whose communication with attorney
                           is privileged) is any individual who gives the lawyer information and receives
                           legal advice.
                       b. Rationale: privilege must be predictable.
                       c. Factors to consider:
                                 i. Communication made by employees to corporate counsel (or someone
                                    hired as counsel by corporation)
                                ii. At direction of corporate superiors
                               iii. For purpose of obtaining legal advice
                               iv. Regarding matters within employees’ duties
                                v. Knew the purposes of the communication (that was for legal purpose)
                               vi. Were warned that they were confidential
                       d. Don’t need all of the factors.
               3. privilege belongs to corporation. Can be waived for corporation by the Board,
                   General Counsel, etc.
                       a. Lower-level employees of corporation who give incriminating info to
                           corporate counsel could be prosecuted later if corporation waives the
                           privilege.
d. (4) for Purpose of facilitating Legal Services
                                                                                                        74
               i. Has to be made for purpose of providing legal work.
              ii. Hughes v Meade Ky 1970, p629 (client hired attorney to deliver a typewriter to police). Not
                  privileged
                      1. compare Baird v Koerner (also cited in Tornay) (attorney did taxes for client) Identity
                          of client privileged bc in larger context of providing legal services.
             iii. US v Davis 5th Cir., 1981, p630 (attorney did taxes for client). Not privileged bc accounting
                  service, not legal.
                      1. rationale: otherwise, client could just invoke privilege by hiring attorney to do his
                          taxes instead of an accountant.
                      2. compare Lawless: court assumed tax services were legal.
             iv. Fact-finding & investigative work can be part of rendering legal services. US v Rowe 9th
                  Cir., 1996, p631 (where lower-level associates doing internal investigation at firm as directed
                  by senior partner). Privileged.
5. Exceptions:
      a. Crime fraud: Privilege doesn’t apply when an attorney’s services are obtained for the purposes of
          furthering a future crime or fraud.
               i. Doesn’t matter whether attorney was aware of that purpose
              ii. Hard to distinguish what type of advice it is in ongoing relationship.
                      1. To determine what the purpose of the advice, can look at communication itself.
                               a. Party seeking ot defeat privilege (seeking to say crime fraud eception applies)
                                  has to make a threshold showing – a “showing of a factual basis adequate to
                                  support a good faith belief by a reasonable person.”
                               b. If couldn’t look at evidence itself, there would be no way to prove whether
                                  the exception applies. Hard to prove from external evidence.
                               c. Rationale:
                                       i. plain reading of FRE 104 and FRE 1101 (can’t look at it) would lead
                                           to absurd results, not as clear as CA rule.
                                               1. Compare with Bourjaily (co-conspirator exception) where plain
                                                   language of FRE 104 relied on.
                                      ii. Common law
                               d. Except in CA, where can’t look at communication to see if exception applies.
             iii. If crime fraud exception applies, client can’t claim work product doctrine, but lawyer can.
                      1. opinion product of lawyer is protected unless lawyer was also involved in the fraud
             iv. most common in white collar and organized crime. Justice Dept requires high-level approval
                  to get this exception.
              v. US v Zolin SCOTUS 1989, p642. IRS investigation of L. Ron Hubbard
                      1. purpose of attorney-client privilege (to encourage open communication and proper
                          functioning of adversary system) isn’t furthered by protecting crime fraud
                          communications.
6. Work product doctrine: broader & less secure than atty/client privilege. Covers work done by
   lawyers/agents in anticipation of litigation.
      a. Can be overcome, because is a doctrine & not a privilege.
               i. With substantial need & no alternative to getting the info.
      b. If overcome, can discover the documents & materials
               i. But not the metnal impressions, strategy.
7. Waiver: accomplished by actions inconsistent with a continuing intention to keep protected communication
   confidential.
      a. Privilege can be waived
               i. by the client.
                      1. Privilege is waived where client testifies at trial. Hollins v Powell (City’s attorney
                          didn’t object to client testifying at trial about privileged stuff)
                                                                                                                75
                         2. Privilege is waived when client voluntarily discloses privileged info.
                                a. Waiver occurs where D uses privileged communication as a sword  must
                                    also be allowed to be used as a shield.
                                         i. US v Bernard 10th Cir., 1989, p634 (D client says had a certain
                                            communication with lawyer.) Waived – lawyer can testify that didn’t
                                            actually have that conversation.
                                        ii. Fairness doctrine – FRE 502.
                ii. By the attorney, if there is implicit or explicit consent by client to attorney to waive
                         1. In Re Von Bulow (Dershowitz book case). 2d Cir., 1987, p637. Privileged waived
                            where client encouraged attorney to write book, promoted it, etc.
                         2. client must take affirmative actions to protect the privilege.
       b.   Privileged is waived when there is a dispute between lawyer & client
                 i. To extent necessary to resolve the conflict.
                ii. Ex: ineffective assistance of counsel, fee dispute.
               iii. Tasby v US 8th Cir., 1974, p635 (client claimed ineffective assistance of counsel). Waived –
                    where client attacks attorney’s conduct, calling into public question the substance of their
                    communications.
       c.   Privilege is not waived where disclosure isn’t voluntary (where disclosure is compelled).
                 i. Ex: subpoena, deposition, compulsion order, public employees (compelled with threat of
                    firing)
                ii. HOllins v Powell, 8th Cir., 1985 (attorney required to testify during deposition). Not waived
                    because testimony during deposition was compelled.
       d.   Where waiver is intentional, Waiver extends to:
                 i. In courtroom:
                         1. Test: fairness doctrine. FRE 502.
                                a. if privilege re part of communication is waived, the privilege re whole
                                    conversation on that topic is wiaved too.
                         2. like FRE 106 – rule of completeness.
                         3. limited scope: where necessary to put it in context.
                ii. Outside of courtroom:
                         1. fairness doctrine doesn’t apply.
                         2. In Re von Bulow (Dershowitz case). Client waived privilege outside of courtroom, so
                            extended only to the conversations in the book. Waiver doesn’t extend to
                            conversations between client and attorney not in the book.
       e.   Where waiver isn’t intentional:
                 i. Not a waiver if was inadvertent & privilege-holder took reasonable steps to prevent
                    disclosure and rectify inadvertent disclosure.
       f.   In federal court, the more protective rule applies (between state & federal)
       g.   Parties can get a court order, or stipulate between themselves, that disclosure in specific litigation
            won’t constitute a waiver.
       h.   “Selective waiver” (ie corporation waiving privilege for criminal investigation, not shareholder suits)
            not included in the rule.



FRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information
covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver


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When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-
client privilege or work-product protection, the waiver extends to an undisclosed communication or information
in a Federal or State proceeding only if:
     1. the waiver is intentional;
     2. the disclosed and undisclosed communications or information concern the same subject matter; and
     3. they ought in fairness to be considered together.
(b) Inadvertent disclosure.
When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver
in a Federal or State proceeding if:
     4. the disclosure is inadvertent;
     5. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
     6. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal
         Rule of Civil Procedure 26(b)(5)(B).
( c ) Disclosure Made in a State Proceeding
When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning
waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
     7. would not be a waiver under this rule if it had been made in a Federal proceeding; or
     8. is not a waiver under the law of the State where the disclosure occurred.
(d) Controlling effect of court orders.
A Federal court may order that the privilege or protection is not waived by disclosure connected with the
litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or
State proceeding.
(e) Controlling Effect of a Party Agreement
An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement,
unless it is incorporated into a court order.
(f) Controlling Effect of This Rule
Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and
Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding
Rule 501, this rule applies even if State law provides the rule of decision.
(g) Definitions
In this rule:
     9. "attorney-client privilege" means the protection that applicable law provides for confidential attorney-
         client communications; and
     10. "work-product protection" means the protection that applicable law provides for tangible material (or its
         intangible equivalent) prepared in anticipation of litigation or for trial."


Spousal Privileges
1. Privilege against disclosure of confidential spousal communications, during course of marriage.
       a. Like attorney/client privilege
                i. Applies to communications
                       1. regardless of purpose of communication (diff from attorney/client)
               ii. That are confidential
              iii. That occur during the marriage
       b. Privilege can be invoked after the married ends
       c. Privilege can be invoked by either party
       d. Exceptions:
                i. Crime fraud exception
               ii. Implied waiver for conflict between spouses (proceedings between spouses)
              iii. Fairness doctrine:

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                       1. if 1 of the spouses if a defendant, can offer privileged communications as exculpatory
                           evidence  fairness triggered so other communication also admissible.
2. Overlap between attorney/client & spousal privilege:
       a. If spouses are jointly represented by attorney, the attorney-client privilege applies to both spouses.
       b. If spouses are not jointly represented, must analyze each communication separately. Privilege is
           basically waived by putting them together.
                i. Spousal communication in front of the lawyer for one of them, not privileged.
               ii. Attorney-client communication in front of spouse, not privileged.
3. Privilege against adverse spousal testimony.
       a. Applies not just to communications but to anything the spouse could testify about.
       b. Applies to any time period, whether married or not
       c. Spouses must be married when testimony is sought.
       d. Doesn’t apply
                i. where spouses are adverse.
               ii. If sham marriage.
              iii. If both are involved in a crime  crime fraud exception.
       e. Privilege is held by:
                i. Old rule – both parties. Either party can invoke it. Hawkins v US, 1958, SCOTUS: D spouse
                   can block the testimony of spouse if doesn’t want him/her to testify.
               ii. New rule – party who wants to testify can waive the privilege alone. Trammel v US, 1980,
                   SCOTUS (wife testifies to get lesser sentence, sends husband to jail)
                       1. FRE are socially contingent – changing ideas of marriage.
                       2. Rationale:
                               a. if would-be testifying spouse is willing to do so, there’s no marriage left to
                                   protect.
                               b. Bargaining chip for spouses
                               c. Gov’t wins – gets to convict one of the spouses, as in Trammel.




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PHYSICAL EVIDENCE
FRE 901. Requirement of Authentication or Identification
(a) General provision.
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations.
By way of illustration only, and not by way of limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon
familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting
it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person,
circumstances, including self-identification, show the person answering to be the one called, or (B) in the case
of a business, the call was made to a place of business and the conversation related to business reasonably
transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any
form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is
in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic,
would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the
process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of
Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 902. Self-authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the
following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United
States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the official
capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public
officer having a seal and having official duties in the district or political subdivision of the officer or employee
certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a
person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a
final certification as to the genuineness of the signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates
to the execution or attestation or is in a chain of certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification may be made by a secretary of an embassy or
                                                                                                                   79
legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been
given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good
cause shown, order that they be treated as presumptively authentic without final certification or permit them to
be evidenced by an attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of
Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the
course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the
manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating
thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of
Congress to be presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic
record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written
declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule
prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted
by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that
intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in
advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a
foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a
written declaration by its custodian or other qualified person certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted
by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty
under the laws of the country where the declaration is signed. A party intending to offer a record into evidence
under this paragraph must provide written notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an
adverse party with a fair opportunity to challenge them.

1. Physical evidence is: everything that isn’t witness testimony.
      a. Tangible objects: guns, DNA, sample, etc.
      b. Documentary evidence: letter, contract, medical/police report
      c. Real or demonstrative:
               i. Real: pertains to and derives from the case.
              ii. Demonstrative: illustrative. Charts, diagrams.
                     1. not subject to authentication or best evidence rule.
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2. To admit physical evidence, must
      a. Mark it for identification.
               i. This makes it part of the record, for appeal purposes.
              ii. Physically labeling it.
             iii. Must be marked even if are never introduced into evidence but are just used for refreshing
                  recollection, for ex.
             iv. Doesn’t mean the jury relied on it in decision-making.
      b. Authenticate it. FRE 901 .
               i. Specific application of preliminary question of admissibility/conditional relevance. FRE 104.
                      1. judge decides if reasonable jury could find by a preponderance that that the matter in
                          question is what the proponent claims (that it’s genuine)
              ii. To determine whether authenticated, must ask what the purpose of the evidence is. Must be
                  authenticated for that purpose.
                      1. US v Long, 8th Cir., 1988, p677 (D’s fiancé is witness, testifies about contract that led
                          her and D to think they were involved in legit enterprise. D counsel produces the
                          contract. To prove state of mind of D.) Authenticated. Witness doesn’t have to prove
                          it’s a contract, but that it reasonably could be the document she saw at airport.
             iii. Must establish chain of custody for physical evidence in order to authenticate it. Chain of
                  custody gaps usually go to weight; low threshold for getting the evidence admitted.
                      1. Bruther v General Electric Co. SD Ind 1993, p678 (P has to establish that bulb he
                          offers into evidence is the one that electrocuted him, otherwise won’t be relevant).
                          Authenticated by circumstantial evidence (ie that broken bulb normally wouldn’t be
                          kept where it was).
                      2. US v Casto 5th Cir 1989, p680. (pack of meth seized, then sent to vault. Gap in chain
                          of custody while they were in vault). Authenticated and admissible. Break in chain of
                          custody affects weight, not admissibility.
                      3. chain of custody also applies to witness testimony:
                               a. in that the chain of custody has to be established so witness’s testimony will
                                   be relevant. US v Grant 2d Cir., 1992, p680 (witness chemist in drug case
                                   testifying that drug is heroin; have to establish that what lab tested was what
                                   was seized from D). Authenticated so admisible.
                      4. If evidence is distinctively identifiable, don’t have to establish chain of custody.
             iv. Ways to authenticate (non-exhaustive list in FRE 901):
                      1. testimony of witness who knows about document
                      2. testimony of handwriting expert
                      3. distinctive characteristics, etc.
                      4. documents can be self-authenticating. FRE 902.
                               a. Ex: business records under FRE 803(6).

       Rule 1001. Definitions

       For purposes of this article the following definitions are applicable:

       (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent,
       set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or
       electronic recording, or other form of data compilation.

       (2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

       (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to
       have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any

                                                                                                                                 81
print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight,
shown to reflect the data accurately, is an "original".

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, 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 original.

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules or by Act of Congress.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised
as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or
photograph is admissible if--

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or
procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the
party against whom offered, that party was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and that party does not produce the original
at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a
controlling issue.

Rule 1005. Public Records

The contents of an official record, or of a document 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, certified as correct in accordance with rule 902 or testified to be correct by a
witness who has compared it with the original. If a copy which complies with the foregoing
cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents
may be given.

Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot conveniently be
examined in court may be presented in the form of a chart, summary, or calculation. The


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       originals, or duplicates, shall be made available for examination or copying, or both, by other
       parties at reasonable time and place. The court may order that they be produced in court.

       Rule 1007. Testimony or Written Admission of Party

       Contents of writings, recordings, or photographs may be proved by the testimony or deposition
       of the party against whom offered or by that party's written admission, without accounting for
       the nonproduction of the original.

       Rule 1008. Functions of Court and Jury

       When the admissibility of other evidence 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 court to determine in accordance with the
       provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever
       existed, or (b) whether another writing, recording, or photograph produced at the trial is the
       original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for
       the trier of fact to determine as in the case of other issues of fact.

1. Some evidence is subject to the Best Evidence Rule, or the Original Writing Rule.
      a. Doesn’t usually apply to photographs.
                i. But would be applicable in cases of copyright, defamation, and invasion of privacy
                   by photograph or film.
               ii. But Would apply to X-ray and other such evidence with independent probative value.
2. Where there is no issue about the content of the writing (if what’s in the document isn’t at issue), can
   prove it by different means. Don’t have to introduce the actual transcript first.
      a. Meyers v US, DC Cir 1949, p683 (where D on trial for perjury before a subcommittee of
           Senate and gov’t introduces eyewitness first to recall testify, then puts transcript into
           evidence). Admissible in that order; no violation of Best Evidence rule.
                i. Dissent: because of modern technology, transcript is the best evidence and should be
                   required.
      b. US v Gonzalez-Benitez, 9th Cir., 1976 (Gov’t introduces witness to convo instead of tapes of
           convo bc they were bad quality). Admissible; no violation of Best Evidence.
                i. applies only where the contents of the document or recording are at issue, and here
                   the content wasn’t an issue in the case.
3. Rationale for not actually requiring the “best” evidence:
      a. Adversarial system. Once have it, it’s best to leave these decisions to the parties.
                i. Like issue of court-appointed experts, don’t want judges too involved in the details.
      b. Less need for the rule with increasing amount of discovery. AC Note.
4. Exceptions to best evidence real: FRE 1003-8
      a. Duplicate: If no issue re authenticy and no other reason (re fairness) for requiring the
           original, a duplicate is admissible under FRE 1003.
                i. US v Stockton, 8th Cir 1992, p689 (photograph/duplicate of original documents
                   produced instead of originals). Contents of document at issue, so Best Evidence rule
                   violated. But duplicate allowed per FRE 1003 bc defense doesn’t object, so not unfair
                   to allow duplicate.
      b. Secondary evidence: If don’t have original, then secondary evidence is admissible. FRE
           1004.
                i. Secondary evidence admissible if:
                       1. original lost or destroyed, not in bad faith, or

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                             a. US v Standing Soldier 8th Cir., 1992, p689 (where note from D to
                                 investigator lost not in bad faith, witness offers oral testimony of
                                 note). Best evidence rule applies bc contents of note (what it said) at
                                 issue. Exception applies because not lost in bad faith.
                             b. Seiler v Lucasfilm, Ltd. 9th Cir. 1987, p691 (where P claims copyright
                                 infringement by D George Lucas and can’t find his original drawings
                                 so draws & copyrights another after Lucas’s movie made). Best
                                 evidence rule applies because contents at issue. Exception not
                                 applicable bc destroyed drawings in bad faith.
                      2. original not obtainable, or
                      3. original is in possession of opponent
               ii. Among secondary evidence, there’s no order of preference.
              iii. No explanation has to be given for failure to produce an original public record.
              iv. Rationale:
                      1. prevents oral testimony about documents, photos, drawings where there’s a
                         possibility of fraud.

Public record (law enforcement & evaluative report) is inadmissible against the criminal D. Can’t just
call it a business record and get it in. Oates.

BUT public record IS admissible against criminal D as a business record if it’s administrative and not
adversarial/investigate, bc no motive to fabricate, etc. US v Brown.



Confrontation Clause:


   Crawford: If statements by declarant are testimonial  CC triggered.
   If testimonial hearsay, can only admit if:
             o Declarant unavailable, AND
             o Defendant had a prior opportunity to cross-examine declarant
   “Testimonial” is:
             o No on-going emergency
             o Primary purpose is to establish / prove past events for prosecution.
             o Hammon, Crawford
             o Business/public records can be testimonial. Melendez-Diaz.
                     Affidavit setting forth results of lab testing = testimonial. Melendez-Diaz.
                     DNA testing = testimonial. State v Forte.
                     They are testimonial if:
                            Specific suspect is at issue, thus motive to fabricate.
   Nontestimonial is
             o Ongoing emergency
             o Primary purpose is to meet ongoing emergency
             o Davis
             o Some law enforcement / police reports (public records) are not testimonial.
                     Brown: gun property receipt
                     Orozco: license plates



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