EVIDENCE by wulinqing

VIEWS: 108 PAGES: 67

I. Relevance and Its Counterweights
   A. Relevance to What?
      1. FRE 401: ―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.
         a. Federal Rules: need not be disputed fact.
         b. Cal. Evid. Code § 210: must be disputed fact to be relevant.
      2. FRE 402: All relevant evidence is generally admissible. Evidence that is not
         relevant is not admissible.
      3. Three Questions to Screen Evidence for Relevance / Determine Probative Value:
         a. What does the proponent offer the evidence to prove or claim that it proves?
         b. Does it help establish that claim?
             1) May help establish an ultimate fact or an evidentiary link in a chain of proof
                (―a brick is not a wall‖).
         c. Is it provable in the case?
             1) Substantive or procedural law may dictate whether it is provable.
      4. Relevance and Inference
         a. Facts that Discredit Claim of Belief
             1) Knapp v. State: In support of self-defense theory, D testified that he feared V
                because he had heard that V clubbed an old man to death. Court allowed P to
                rebut this assertion with evidence that the old man in question died of senility
                and alcoholism with no evidence of beating. The issue was whether D in fact
                had heard the story; P’s evidence coupled with D’s inability to indicate his
                source made his story less credible. If there was no beating, it was less likely
                that D had heard about a beating.
             2) Sherrod v. Berry: Police testified that they shot V because he made quick
                movement like he was reaching for a gun. Court excluded evidence that no
                gun was found on V’s body as irrelevant and prejudicial to determining what
                the officers reasonably believed at the time of firing their guns.
         b. Harmless Error: error which was not prejudicial to the substantial rights of a
            party and in no way affected the outcome of the case.
         c. Prejudicial Error: error which affected the final result of the case and was
            prejudicial to a substantial right of a party.
         d. Offer of Proof: Party makes a showing (generally out of the presence of the jury)
            as to what the proffered evidence intends to prove in order to get the proffered
            evidence into the record for appellate review.

B. Probative Value Versus Prejudicial Effect
   1. FRE 403: 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.
   2. Cal. Evid. Code § 352: Court in its discretion may exclude evidence if its probative
      value is substantially outweighed by the probability that its admission will (a)
      necessitate undue consumption of time or (b) create substantial danger of undue
      prejudice, of confusing the issues, or of misleading the jury.
   3. Permitted Use v. Forbidden Use considering Alternatives
      a. Old Chief v. U.S.: Trial court abuses its discretion by admitting an otherwise
         relevant full record of a prior judgment against a party that is offered to prove an
         element of the current charge if the party has conceded the fact, the name and
         nature of the prior offense raises the risk of unfair prejudice, and the purpose of
         the evidence is solely to prove the element of the prior conviction.
      b. “Unfair Prejudice”: Capacity of some concededly relevant evidence to lure the
         factfinder into declaring guilt on a ground different from proof specific to the
         offense charged, or an undue tendency to suggest a decision on an improper basis.
      c. Party’s Right to Prove Its Case by Evidence of Its Own Choice
          1) D may not stipulate or admit his way out of the full evidentiary force of the
             case as P chooses to present it.
              a) P may fairly seek to place its evidence before the jurors, as much to tell a
                 story of guiltiness as to support an inference of guilt, to fulfill the jury’s
                 expectations, to convince the jurors that a guilty verdict would be morally
                 reasonable as much as to point to the discrete elements of D’s legal fault.
          2) When D’s legal status, determined independently of the current case, is in
             issue, P’s right to tell a continuous story has virtually no application.
      d. Alternatives
          1) Does the alternative have the same probative value as the first option? If not,
             is the prejudicial effect of the first option worth its greater probative value
             compared to the alternative’s probative value?
          2) Examples: stipulation, limiting jury instruction, less-gory or less-emotionally
             charged photos or video, objective financial or other records.
   4. Weighing Credibility of Evidence
      a. Ballou v. Henri Studios: The factfinder considers the credibility of evidence to
         decide whether to believe it. Court weighs probative value versus prejudicial
         effect as if the evidence were true, not considering credibility.

C. Character, Habit, and Custom
   1. FRE 404(a): Evidence of a person’s character or trait of character is generally not
      admissible for the purpose of proving action in conformity therewith on a particular
      occasion, except (these generally only apply to criminal cases):
      a. FRE 404(a)(1) ―Mercy Rule”: Accused may bolster his defense and offer
         evidence of a pertinent trait of his character. Once the accused opens the door,
         though, prosecutor may rebut the evidence. Accused also opens the door to a
         character attack on himself regarding the same character trait of an alleged victim
         that he attacks under FRE 404(a)(2) [but not when he attacks the victim as a
         witness under FRE 404(a)(3)].
      b. FRE 404(a)(2) Character of Alleged Victim: Accused may offer evidence of
         pertinent trait of alleged victim’s character, and prosecutor may offer evidence in
         rebuttal. Prosecutor may offer evidence of a character trait of peacefulness of the
         alleged victim in a homicide case to rebut evidence that the victim was the first
          1) FRE 405(a) Type of Evidence Allowed: Accused’s evidence and
             prosecutor’s rebuttal evidence may only be in the form of reputation or
             opinion. On x-examination, though, inquiry is allowable into specific
             instances of conduct.
              a) Michelson v. U.S.: On x-exam, a party may inquire whether a witness
                 who testified to D’s reputation was aware of prior arrests or other specific
                 incidences. X -exam may attempt to show that the witness has a low
                 standard of ―good character‖ or is otherwise unreliable, but may not
                 present witness with questions that he would have no way of knowing
                 (e.g., secret grand jury testimony or entirely fabricated incidences).
      c. FRE 404(a)(3) Character of Witness: Evidence of witnesses’ character may be
         admitted under FRE 607-09.
   2. Character in Issue
      a. Cleghorn v. NY Central: Evidence of an employee’s intemperance allowed to
         support punitive damages because it showed the employer’s fault for knowingly
         employing a risky employee. It could not be used to prove that the employee was
         drunk on a specific occasion, though.
      b. FRE 405(b): 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.
          1) ―Essential Element‖ = ultimate issue, not to draw an inference (e.g.,
             truthfulness in defamation case, fitness as a parent in custody dispute).

3. Character as Circumstantial Evidence
   a. FRE 404(b) Prior Bad Acts to Prove Something Other than Character:
      Although 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 be
      admissible for other purposes, such as KIPPOMIA:

            Knowledge (or consciousness of guilt)
            Plan (or context of nearby or contemporaneous happenings)
            Identity (or modus operandi)
            Absence of Mistake or Accident
      1) Elements:
          a) Proper purpose
          b) Sufficient proof of the other acts
          c) Passes FRE 403 test
      2) Upon the request of the accused in a criminal case, the prosecutor shall
         provide reasonable notice of intent to offer any such evidence.
      3) The connection between the evidence and the permissible purpose should be
         clear, and the issue on which the other bad acts evidence bears should be the
         subject of a genuine controversy.
      4) The probative value must be weighed against the danger of unfair prejudice
         considering the strength of the evidence as to the commission of the other act,
         the similarities between the acts, the interval of time that has elapsed between
         the acts, the need for the evidence, the efficacy of alternative proof, and the
         degree to which the evidence will likely rouse the jury to hostility.
   b. Identity
      1) U.S. v. Carillo: D’s prior acts of selling drugs encased in a balloon in an area
         heavily frequented by drug dealers were not sufficiently unique from the
         common practice to identify D under a modus operandi theory. To prove
         identity, the acts must share distinctive characteristics (higher standard to
         meet than other KIPPOMIA categories).
   c. Pattern and Intent
      1) U.S. v. Beasley: Pattern of acts may show KIPPOMIA, but a pattern is not
         itself a reason to admit evidence. That other bad acts came after the crimes
         charged in an indictment does not preclude their use to show intent. Evidence
         that D and his accomplices went ―shopping for doctors‖ to write them large
         prescriptions of narcotics in 1982-84 substantially implies an intent to
         distribute in 1980. However, the probative value must be weighed against the

          potential prejudicial effects. D’s other acts of distributing drugs did not serve
          a permissible purpose.
   d. Addiction / Propensity and Motive
      1) U.S. v. Cunningham: Evidence of D’s addiction to Demerol was
         admissible—subject to FRE 403—to show her motive to steal Demerol in her
         workplace. Addiction is similar to other classes of people whose propensities
         may indicate motive, including child molesters or pyromaniacs.
      2) ―Propensity‖ evidence and ―motive‖ evidence need not overlap, but they do
         when the crime is motivated by a taste for engaging in that crime or a
         compulsion to engage in it (an ―addiction‖), rather than by a desire for
         pecuniary gain or some other advantage.
          a) The greater the overlap between propensity and motive, the more careful
             the judge must be about admitting evidence under the rubric of motive—
             the jury may infer D’s bad character or habitual criminality (propensity to
             be dishonest or greedy is really character evidence).
          b) Bad acts that show motive (e.g., committing crime number 2 to cover up
             crime number 1) do not call into question character as much as propensity
4. Sufficiency of Evidence for Other Bad Acts
   a. Tucker v. State: Nevada Supreme Court requires, before evidence of a collateral
      offense is admissible for any purpose, that the prosecution establishes by plain,
      clear, and convincing evidence that D committed that offense. This is not the
      federal rule.
   b. Huddleston v. U.S.: A preliminary finding by the court that the government has
      proved prior bad act evidence by a preponderance of the evidence is not called for
      under FRE 104(a). In the FRE 404(b) context, similar act evidence is relevant
      only if the jury can reasonably conclude that the act occurred and that D was the
      actor (under FRE 104(b)).
      1) Court may consider the strength of the evidence indicating prior bad acts in its
         FRE 403 balancing.
   c. FRE 104: Judge v. Jury Questions
      1) FRE 104(a) Admissibility Generally: Court shall determine preliminary
         questions (subject to FRE 104(b))—without being bound by the rules of
         evidence except those with respect to privilege—concerning:
          a) Qualification of a person to be a witness;
          b) Existence of a privilege; or
          c) Admissibility of evidence.
              (1) For example: factual foundation for a hearsay exception, admissibility
                  of a confession (whether proper Miranda warning was given), any
                  evidence where the policy of keeping potentially prejudicial testimony

                  from the jury unless it is admissible (can’t ―un-ring the bell‖ – would
                  the jury consider it even though they find it to be unsubstantiated?).
              (2) Legal Standard: preponderance of the evidence (must convince the
      2) 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.
          a) Legal standard: Sufficient evidence to support a finding (enough for a
             reasonable jury to find the conditional fact by a preponderance of the
             evidence, considering all the evidence before the jury), but the judge need
             not believe the evidence.
5. Habit v. Character
   a. FRE 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
      1) Testimony concerning prior specific incidents of habit is allowed (need not be
         reputation or opinion).
      2) Admissible in criminal or civil cases.
      3) Some courts have allowed evidence of a person’s general disposition to be
         careful in order to show care at the time.
   b. ―Character‖: generalized description of one’s disposition, or of one’s disposition
      in respect to a general trait, such as honesty, temperance, or peacefulness.
   c. ―Habit‖: more specific than character; it describes one’s regular response to a
      repeated specific situation. The doing of habitual acts may become semi-
      automatic (e.g., taking two stairs at a time or using a hand signal to make left
6. Character of the Victim
   a. Perrin v. Anderson (MIN rule on applying 404(a) exceptions to civil cases):
      The literal language of the exceptions to FRE 404(a) applies only to criminal
      cases, when the central issue involved in a civil case is in nature criminal, D may
      invoke the exceptions to FRE 404(a).
      1) Nevertheless, character of the victim may only be proved by reputation or
         opinion testimony, not specific incidences (only on x-exam). Here, the court
         allowed the prior acts evidence to come in under the habit exception: based on
         eight incidences, V invariably reacted with extreme violence to any contact
         with a uniformed police officer.

   b. FRE 404(a)(2) allows opinion or reputation evidence of V’s violent character to
      show that he was the first aggressor (and rebuttal evidence by P), or evidence by P
      of V’s peacefulness if D makes a self-defense claim.
   c. FRE 404(b) allows anecdotal evidence of V’s traits of character to prove
      KIPPOMIA (e.g., that D feared V because of things that he had heard about V).
7. Rape Shield Laws
   a. Almost all states and Congress (FRE 412) have adopted ―rape shield‖ laws that
      limit the use of evidence of prior sexual conduct in sexual assault cases.
      1) Evidence of reputation and sexual behavior is not admissible purely for
         purposes of showing unchaste character, as the basis for further inference that
         the complainant consented to sex on the occasion in question (FRE 412(a)).
      2) Two widely recognized examples of admissible behavior are:
          a) Complainant’s prior sexual behavior with D, as opposed to behavior with
             other persons (FRE 412(b)(1)(B)); and
          b) Complainant’s sexual behavior with other persons, when offered for
             purposes of explaining the physical consequences of an alleged rape (e.g.,
             injury, semen, pregnancy, sexually transmitted disease) (FRE
      3) Statutes generally also have a procedural element, providing for hearings in
         limine on the issue of admissibility, and in some cases providing for in camera
         hearings to protect the victim’s privacy (FRE 412(c)).
   b. State v. Cassidy: D argued that his rights to confrontation and to present evidence
      in his defense had been violated where he was not allowed to present evidence
      that V had gone crazy with another man with whom she had had consensual sex
      in the past. Court ruled that the prior sexual act was irrelevant unless it showed
      that V previously made a false claim of sexual assault following the claimed
      similar, consensual sexual contact.
   c. Olden v. Kentucky: D’s right to confront a witness was violated by barring him
      from presenting evidence that V and a witness lived together and had a sexual
      relationship. D offered the evidence to impeach V’s testimony that she lived with
      her mother, to show the witness’ bias, and to show V’s motive for falsifying the
      story to protect herself when her boyfriend (the witness) saw her leave D’s car.
   d. U.S. v. Platero: Trial court should have allowed the jury to decide whether V and
      a witness were in a sexual relationship at the time of the alleged rape. Trial
      court’s weighing of testimonial evidence to determine the fact deprived D of his
      rights to a trial by jury and confrontation of witnesses.
8. Evidence of Similar Sexual Assaults or Child Molestation
   a. FRE 413 Sexual Assault Criminal Cases: If D is accused of sexual assault,
      evidence of D’s commission of another offense [need not be conviction] of sexual
      assault is admissible for any matter for which it is relevant. Requires:

          1) Specified crime of sexual assault (FRE 413(d)); and
          2) Notice to D (FRE 413(c)).
          3) FRE 403 still applies.
      b. FRE 414 Child Molestation Criminal Cases: Same rule as FRE 413 but
         predicated on prior commission of an offense of child molestation (related to
         children under age 14).
      c. FRE 415 Sexual Assault / Child Molestation Evidence in Civil Cases: In civil
         cases, evidence of D’s prior sexual assaults or child molestation are admissible as
         under FRE 413-14.
      d. Johnson v. Elk Lake School District: If the prior act of sexual assault is
         demonstrated with specificity and is substantially similar to the act for which D is
         currently charged, the probative value of the prior act evidence is presumed to
         outweigh FRE 403’s concerns (no presumption exists if the past act is not
         substantially similar and/or cannot be demonstrated with specificity). Other
         relevant FRE 403 factors are the closeness in time of the prior and charged acts,
         the frequency of the prior acts, the presence or lack of intervening acts, and the
         need for evidence beyond the testimony of D and V.
      e. Propensity and Recidivism
          1) When a given crime has a low incidence in the general population, the
             probative value of evidence of another instance of the same crime will be
             greater than would have been the case had the crime been more common, even
             if the recidivism rate for the crime is low.
          2) The inquiry would be furthered by a broader and deeper study of recidivism
             and of the incidence of crime in the general population, identifying crimes
             whose perpetrators have a high continuing rate of offense in comparison with
             the offense level in the general population.
              a) At least in the case of acquaintance rape (where the accused is identified
                 by V, not ―rounded up‖ by the police from among a suspect pool of prior
                 offenders), the men who face multiple accusers in court are quite likely
                 from a small and particularly egregious segment of the overall male
                 population, and hence the evidence of multiple accusations retains
                 probative force.
D. Similar Happenings
   1. Usually an issue in civil cases (whereas prior bad acts is generally an issue in criminal
   2. Simon v. Kennebunkport: In a negligence action, evidence of other similar accidents
      or occurrences may be relevant circumstantially to show a defective or dangerous
      condition, notice thereof, or causation on the occasion in question.
      a. Court should first determine whether the evidence is relevant to issues of defect,
         notice (knowledge of D), or causation and then whether its probative value is
         substantially outweighed by unfair prejudice, confusion of issues, or undue delay.

      b. Court should look to whether there is a substantial similarity between the
         happenings (should be very similar to show causation, not so similar to show
         notice) and their temporal proximity (happening after the event in question may
         be relevant to causation but not notice).
   3. Holloran v. Virginia Chemicals: New York generally excludes evidence in
      negligence cases of carefulness or carelessness as not probative of how one acted on a
      particular occasion. However, in a case where the issue involves proof of deliberate
      and repetitive practice, a party should be able, by introducing evidence of such a habit
      or regular usage (in this case, heating refrigerant by using a heating coil), to allow the
      inference of its persistence, and hence negligence on a particular occasion—provided
      the party is able to present a sufficient number of prior incidences to constitute a
   4. Evidence of Prior Claims by P: Only relevant if so similar to the current case that it
      allows an inference that P is trying to bilk D with frivolous claims or extort a
   5. Positive Safety History Evidence: Because when P is injured, it itself provides some
      slight evidence of danger, D deserves some protection of safety history evidence—
      which tends to check the jury from formulating unsound general theories as the
      danger involved. This evidence should be subject to prejudice balancing, though.
E. Subsequent Precautions
   1. FRE 407 Subsequent Remedial Measures: When, after an injury or harm allegedly
      caused by an event [does not apply to remedial measures taken before the event],
      measures are taken that, if taken previously, would have made the injury or harm less
      likely to occur, evidence of subsequent measures is not admissible to prove:
      a. Negligence or culpable conduct;
      b. Defect in product or product’s design; or
      c. Need for warning or instruction.
      d. Evidence of subsequent measures may be offered for another purpose, such as to
          1) Ownership or control;
          2) Feasibility of precautionary measures (if controverted); or
          3) Impeachment.
   2. Examples: Firing an employee may be a remedial measure. If pictures of the scene
      include remedial measures (and there is no way to redact them), they may be admitted
      with an instruction to the jury.
   3. Anderson v. Malloy: Motel guest who was raped in her room and who sued the
      motel for failure to provide safe lodging, offered evidence that after the event, the
      motel installed peepholes in the doors to the rooms. The motel testified that it had
      considered installing peepholes earlier but decided not to because there were already
      windows next to the door allowing a guest to look out and, based on the advice of the
      police, peepholes would give a false sense of security. Although the motel never
      asserted that installing peepholes was not possible, the court concluded that by

      inferring that the installation of peepholes would create a lesser level of security, D
      had ―controverted the feasibility‖ of these devices and, therefore, allowed the
      evidence of the remedial measure.
   4. Tuer v. McDonald: P asked D whether it would have been unsafe to restart V’s
      Heparin treatment after a decision to postpone V’s surgery, to which D answered
      affirmatively. P argued that this brought ―feasibility‖ into issue and allowed P to
      impeach D’s testimony. Court held that in a medical context, feasibility means more
      than mere physical possibility. Regarding impeachment, the witness must have
      believed something different at the time of the incident from what he was testifying to
      (cannot have learned that it was safe or unsafe later—what counts is what he believed
      at the time); also, some courts hold that the testimony providing grounds for
      impeachment must have been initiated by the witness—can’t trap the witness.
      a. Some courts construe the word ―feasibility‖ narrowly, disallowing evidence of
         subsequent remedial measures unless D has essentially contended that the
         measures were not physically, technologically, or economically possible under the
      b. Other courts view the concept of feasibility more broadly as including motives
         and explanations for not having adopted the remedial measure earlier, the effect
         of which is to circumscribe the exclusionary provision.
F. Offers in Compromise
   1. FRE 408 Compromise and Offers in Compromise: Evidence of offering or
      accepting a consideration in compromising or attempting to compromise a claim is
      not admissible to prove liability for or invalidity of the claim or its amount.
      a. Evidence of conduct or statements made in compromise negotiations is likewise
      b. Evidence otherwise discoverable is not made inadmissible by this rule if it was
         presented in the course of compromise negotiations.
      c. This rule does not require exclusion when evidence is offered for another purpose,
         such as proving bias or prejudice of a witness [e.g., one D settled and that is why
         he is testifying against the other D], negating a contention of undue delay, or
         proving an effort to obstruct a criminal investigation or prosecution.
      d. Davidson v. Prince: Evidence in a letter regarding P’s distance from a steer that
         injured P was admissible even though it was sent in a letter, which suggested a
         settlement of the claim. Court found the letter to be a description of the facts,
         rather than an offer to compromise the claim or part of settlement negotiations.
         Also, statements made in settlement negotiations can and should be admitted for
         impeachment purposes.
          1) To avoid using facts discussed later, the attorney could use ―hypothetical‖
             language when discussing the case or get a stipulation that nothing said in the
             meeting would be used against either party.
   2. FRE 409 Payment of Medical Expenses: Furnishing or offering to pay medical
      expenses occasioned by an injury is not admissible to prove liability for the injury.

      3. FRE 410 Inadmissibility of Pleas and Plea Discussions: Evidence of a plea of
         guilty, which is later withdrawn, or nolo contendere or statements made in the course
         of plea discussions [with prosecutor—not police], which do not result in the plea of
         guilty, is inadmissible in any civil or criminal case.
         a. Statements are admissible, though, (i) if another statement made in the course of
            the same plea or plea discussion has been introduced and the statement ought in
            fairness be considered contemporaneously with it, or (ii) in a criminal proceeding
            for perjury if the statement was made under oath, on the record, and in the
            presence of counsel.
         b. Ando v. Woodberry: Plea of guilty in traffic offense is no different than another
            crime as far as admissibility in future litigation regarding whether D was
             1) FRE 403 might bar evidence of a traffic plea of guilty if D was out of town or
                didn’t know the repercussions of his plea.
         c. Judgments of Conviction: Historically, judgments of conviction (other than for
            impeachment purposes) have been inadmissible as constituting hearsay and
            opinion. However, a growing number of courts are admitting in civil cases a
            judgment of conviction offered against the person convicted.
         d. Res Judicata: Beyond the problem of admissibility is the doctrine in those
            jurisdictions where mutuality as a condition of res judicata has been abandoned,
            that the criminal judgment of conviction may be conclusive in the criminal case.
            In California, an exception has been legislated for violations of the Vehicle Code;
            judgments of conviction for such offenses are not res judicata in civil cases.
      4. FRE 411 Liability Insurance: 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. Evidence of insurance may be admitted, however, for
         another purpose, such as proof of agency, ownership, or control, or bias or prejudice
         of a witness.
II. The Hearsay Rule
   A. Rationale and Meaning: Definitions
      1. FRE 801(a) “Statement”: (1) an oral or written assertion or (2) nonverbal conduct
         of a person, if it is intended by the person as an assertion.
      2. FRE 801(b) “Declarant”: a person who makes a statement.
      3. FRE 801(c) “Hearsay”: 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
         a. Assertion-Centered [FRE 801(c) and most C/L Jxs]: an out-of-court statement
            in hearsay when it is offered in evidence to prove the truth of the matter asserted.
         b. Declarant-Centered [British]: an out-of-court statement is hearsay when it
            depends for value upon the credibility (sincerity, narrative ability, memory, and

       perception) of the declarant (may be a statement offered for the falsity of the
       matter asserted).
4. FRE 802 Hearsay Rule: Hearsay is not admissible except as provided by FRE or by
   other rules prescribed by the Supreme Court pursuant to statutory authority or Act of
5. Statements which are Not Hearsay
   a. Statements Offered to Show Their Effect on the Hearer or Reader
       1) If a statement is not offered for the truth of what it asserts, but to show its
          effect upon the hearer or reader of the statement, then it is not hearsay.
           a) Examples: statements that show duress, notice, failure to heed warning,
              failure to inspect, failure to act diligently, or a reason for acting.
       2) Subramaniam v. Public Prosecutor: D should have been allowed to present
          evidence that he was captured by terrorists and that he was acting under
          duress, including statements made by the captors. The statements were not
          hearsay when used to prove—not the truth contained in the statements—but
          the fact that they were made.
       3) Vinyard v. Vinyard Funeral Home: Evidence that people complained about
          the slipperiness of a sealed surface in D’s parking lot could be offered—not to
          prove that the area in question was slippery when wet—but to show D’s
          knowledge of the slickness.
       4) Johnson v. Misericordia Community Hospital: Evidence of prior
          investigations and suspensions of a doctor’s privileges at other hospitals was
          admissible in a claim for medical malpractice—not to prove the truth of the
          other accusations—but to show the type of information that was available
          about the doctor and what D should have considered when it hired the doctor
          (even if D never heard the statements).
   b. Legally Operative Language
       1) Not offered for what it says, but for what it does; the words themselves create
          a legal right, duty, power, privilege, etc. Legally operative language is not
          hearsay only when it is offered to show the legal relationship that it creates.
           a) Examples: ―this is a… loan, gift, offer, acceptance, bet, guarantee,‖
              exclusive use/adverse possession (―this is my property‖).
       2) Ries Biologicals v. Bank of Santa Fe: Bank’s oral agreement to guarantee
          payment for orders which were approved in advance was offered for a non-
          hearsay purpose: to prove that they were made, not for their truth or falsity.
   c. Circumstantial (Indirect) Evidence of Declarant’s State of Mind
       1) Utterances that are considered not to be hearsay because they can be used to
          show the declarant’s own state of mind without accepting the truth of what is
          asserted in the utterance (might be considered hearsay under a strict
          application of the declarant-centered definition).

   a) Examples: statements that show declarant’s belief, hatred, fear, confusion,
      attempt to cover something up, knowledge of someone (by possession of
      his phone number), belief that someone is engaged in illicit conduct (when
      someone calls for drugs or to place an illegal bet), familiarity or
      association with a place or item (by possession of a receipt).
   b) See FRE 803(3): Exception for Then Existing Mental, Emotional, or
      Physical Condition.
2) Fun-Damental Too v. Gemmy Industries: Customers’ complaints to P that it
   was selling its Toilet Bank at a lower price to competitors was offered to
   demonstrate actual confusion in the marketplace regarding D’s product in
   unfair competition action.
3) Subsequent Conduct: a statement may be proof of hearer’s state of mind and
   explain why he acted the way he did.
   a) For example, Kato Kalen’s statement that ―there were thumps behind the
      bushes‖ explains why Detective Mark Fuhrman looked for evidence
      behind the bushes; dispatcher’s radio call that two men in a white Camaro
      just robbed a liquor store explains why the police stopped and questioned
      to the suspects.
   b) U.S. v. Hernandez: DEA agent testified that a referral from the Customs
      Service that D was a known drug smuggler originally brought her
      attention to D. Court ruled the evidence inadmissible because the DEA
      agent’s state of mind was not in issue and because the government used
      the statement in its closing argument as substantive evidence that D was
      guilty of the crime charged.
4) U.S. v. British Rule
   a) Wright v. Tatham: In a will contest, proponents of the will offered
      evidence of correspondence written to the testator on various business and
      social matters in an effort to show that the writers of the letters believed
      that the testator was able to make intelligent decisions regarding such
      matters and was therefore competent. Under the British rule (declarant-
      centered definition of hearsay), the letters were ruled inadmissible because
      the sincerity, narrative ability, memory, and perception of the writers
      could not be tested by x-examination. Under the FRE (assertion-centered
      definition), these letters would not be hearsay.
   b) U.S. v. Zenni: Evidence that government agents answered D’s telephone
      several times and received instructions from various callers to place bets
      on sporting events was allowed as non-hearsay, nonassertive verbal
      conduct, offered to show that the callers believed that bets could be placed
      at the premises being telephoned.
5) Going Beyond the Personal Knowledge of Witness
   a) FRE 602 Lack of Personal Knowledge: 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.
             (1) Need not be preponderance of evidence—just sufficient to support a
                 finding—that witness had personal knowledge.
          b) U.S. v. Brown: IRS agent’s testimony that between 90%-95% of the tax
             returns prepared by D contained false deductions—used to prove
             ―willfulness‖ of D’s conduct—was disallowed because the conclusion
             relied upon conversations that the agent had with each of the taxpayers
             whose tax returns were audited. She did not personally observe the
             circumstances giving rise to the deduction; therefore, she was relying on
             the taxpayers’ out-of-court statements to form her testimony.
   d. Statements Offered Solely for Impeachment
      1) The hearsay rule applies even when the witness and the declarant are the same
         person—it may exclude statements made out of court even when the declarant
         has testified under x-examination in the very action in which the out-of-court
         statements were offered.
      2) However, statements may fall under a hearsay exception or category of non-
         hearsay (prior inconsistent statements, prior consistent statements, prior
         statements of identification) or may be offered to accredit or discredit the
         witness (rather than substantive evidence of the truth of the matter asserted).
   e. Character of Place Where Evidence Was Found
      1) Examples: phone numbers, names in address book can be used to draw
         inference of knowledge/familiarity with a person, not that the address or
         phone number are correct.
          a) Tag on a briefcase—pretty close to an assertion that the person owns the
             briefcase whose name is on the tag. Some courts hold that it is non-
             assertive circumstantial evidence of a connection with the briefcase.
      2) U.S. v. Jaramillo-Suarez: Drug ledgers and ―pay/owe sheets‖ found in D’s
         apartment could be used for an inference of drug-related activity in the
         apartment, not for the truth of the matters contained in them.
      3) U.S. v. Rhodes: Film found in spy’s apartment described D. The contents of
         the film could not be used to prove that D was a spy, but could be used to
         show that the house was used for spying or that the spy knew D.
6. Non-Verbal Conduct as Hearsay
   a. Whether non-verbal conduct is hearsay depends on whether it was intended as an
      assertion (whether it is intended to make a statement), and if so, whether it is
      being offered for the truth of the matter asserted.
      1) Examples: raising hand in response to a question is assertive, carrying an
         umbrella because it is raining is not assertive, fleeing a Jx is not assertive of
         guilt but may suggest that person fleeing is guilty (the person may be fleeing

              to draw attention away from another suspect, in which case it would be
      b. Where there is a dispute about whether conduct was intended as an assertion, the
         trial judge decides the question of intent as a preliminary question of fact under
         FRE 104(a).
         1) The opponent of the evidence (the one arguing that it is hearsay) has the
            burden of proving that the conduct was intended as an assertion (Advisory
            Committee Notes).
      c. Absence of Complaints
         1) Silver v. N.Y. Central R.R.: Evidence that no other passengers on a railroad
            car complained of the conditions is too remote and should not be admitted
            unless, in addition, there is evidence indicating that others similarly situated
            experienced the same things and had an opportunity to complain. Leaving the
            car without complaining was not intended to make a statement.
B. Exceptions and Exemptions
   1. Foundation for Exceptions
      a. Proponent of the exception has the burden of laying the foundation.
      b. Judge decides under FRE 104(a) whether sufficient evidence of the elements
         exists (by preponderance of the evidence excluding only privileged evidence—
         hearsay may be considered).
         1) If there is a tie as to whose evidence is more persuasive, the one arguing for
            an exception to the hearsay rule loses because he bears the burden.
      c. FRE 804(a) Definition of Unavailability: ―Unavailability as a witness‖ includes
         situations in which the declarant:
         1)   Is exempted from testifying by privilege;
         2)   Persists in refusing to testify despite a court order;
         3)   Testifies to a lack of memory of the subject matter;
         4)   Cannot testify due to death or physical or mental incapacity;
         5)   Is absent and proponent cannot procure attendance through process or
              a) Witness is not ―unavailable‖ if the witness’ exemption, refusal, lack of
                 memory, inability, or absence is due to the procurement or wrongdoing of
                 the proponent for the purpose of preventing the witness from testifying.
   2. Dying Declarations
      a. FRE 804(b)(2) Statement Under Belief of Impending Death: The follow in not
         excluded by the hearsay rule:
         1) Declarant is unavailable as a witness;
         2) In a prosecution for homicide or a civil action or proceeding;
         3) Statement made by the declarant while believing that the declarant’s death
            was imminent (about which he has personal knowledge);

      4) Concerning the cause or circumstances of what the declarant believed to be
         impending death.
   b. Soles v. State: It is up to the judge to determine, as a predicate to admissibility,
      whether the declarant is conscious of his impending death. After the dying
      declaration is admitted, the jury decides the weight and credibility of the
      evidence. D was not entitled to a jury instruction saying that the jury could ignore
      the dying declaration if they did not believe that it was given under consciousness
      of impending death.
3. Spontaneous and Contemporaneous Exclamations
   a. FRE 803(1) Present Sense Impression: The following is not excluded by the
      hearsay rule:
      1) Even though the declarant is available as a witness;
      2) Statement describing or explaining an event or condition (about which
         declarant has personal knowledge);
      3) Made while the declarant was perceiving the event or condition, or
         immediately thereafter.
          a) Judge determines under FRE 104(a) whether statement was made at the
             time of the event or immediately afterward.
          b) ―Immediately‖ is not defined, but the judge should take into account
             whether the lapse of time provided an opportunity, under the
             circumstances, for fabrication or memory loss or has removed the
             opportunity for independent observation by the addressee.
          c) Declarant need not be excited, but must ―describe or explain‖ the event—
             cannot simply make statements related to the event.
   b. Cal. Evid. Code § 1241 Contemporaneous Statement: Evidence of a statement
      is not made inadmissible by the hearsay rule if the statement:
      1) Is offered to explain, qualify, or make understandable conduct of the
         declarant; and
      2) Was made while the declarant was engaged in such conduct.
   c. FRE 803(2) Excited Utterance: The following is not excluded by the hearsay
      1) Even though the declarant is available as a witness;
      2) Statement relating to a startling event or condition;
      3) Made while the declarant was under the stress of excitement caused by the
         event or condition.
          a) According to most courts, the occasion must be startling enough to cause
             shock, which in turn creates an emotional state. The utterance must be
             made under the stress of that emotion; it must be spontaneous and natural;
             impulsive and instinctive.

       b) Upon seeing a suspect, a witness may come under the stress of excitement
          of a new event (seeing the suspect again) and utter something like ―that’s
          him!‖ which should be admissible.
           (1) There is no time limit for the statement (as long as declarant is under
               the stress).
           (2) The statement need only ―relate‖ to the startling event, it need not
               ―describe or explain‖ it.
       c) Whether the declarant was under the stress of excitement is a question for
          the judge under FRE 104(a).
d. Cal. Evid. Code § 1240 Spontaneous Statement: Evidence of a statement is not
   made inadmissible by the hearsay rule if the statement:
   1) Purports to narrate, describe, or explain an act, condition, or event perceived
      by the declarant; and
   2) Was made spontaneously while the declarant was under the stress of
      excitement cause by such perception.
e. Truck Insurance Exchange v. Michling: In Texas, for declarations to be
   admissible as an excited utterance, they must be made in connection with an act
   proven. In other words, there must be evidence of an act itself admissible in the
   case independently of the declaration that accompanies it. In this case, the only
   evidence that P’s decedent suffered injuries was his statement to P that he hit his
   head on a bulldozer—the only evidence of the occurrence is the hearsay
   statement. Not the rule under FRE 104(a)—judge can rely on any non-
   privileged evidence (even hearsay) to admit the excited utterance; need not have
   independently admissible evidence.
f. Lira v. Albert Einstein Medical Center: Examining physician’s statement
   ―who’s the butcher who did this?‖ was neither an excited utterance nor a present
   sense impression under Pennsylvania law. Seeing a throat abnormality should not
   have been a shocking occurrence to a throat specialist (to support an excited
   utterance) and it was not instinctive rather than deliberate (to support a present
   sense impression)—it was an opinion based on medical training and experience.
   Medical opinion testimony is also generally not admissible unless the physician is
   subject to x-exam. Under FRE 803(1), an instinctual rather than deliberate
   response is not required; the same result would have obtained under FRE
   803(2), though; possibly the policy of abiding by expert testimony rules would
   have excluded the evidence under federal rules, too.
g. State v. Jones: Witness heard on CB radio ―look at smokey bear southbound with
   no lights on at high rate of speed‖ and ―look at that little car trying to catch up
   with him.‖ These statements were admissible as present sense impressions: they
   were self-evidently contemporaneous with the event and the contents of the
   statements themselves showed that the declarants spoke from first-hand
   knowledge. It was unnecessary to show the actual identity of the declarants. The
   coincidental corroboration value of these unique statements was great in
   comparison to P’s story.

4. Admissions
   a. FRE 801(d)(2)(A)-(D) Admissions of Party-Opponent: A statement is not
      hearsay (not hearsay at all, this is not an exception to the hearsay rule) if:
          Statement is offered against a party; and
      (A) Party’s own statement either in an individual or representative capacity; or
      (B) Statement of which the party has manifested adoption or belief in its truth; or
      (C) Statement by a person authorized by the party to make a statement concerning
          the subject; or
      (D) Statement by the party’s agent or servant concerning a matter within the scope
          of the agency or employment, made during the existence of that relationship.
          a) The contents of the statement shall be considered but are not alone
             sufficient to establish: the declarant’s authority if authorized by the party
             to make a statement under (C), or the agency or employment relationship
             and scope thereof under (D).
          b) Must be statement of a party (not a successor in interest) – different rule in
          c) Although privilege may bar an admission, it need not be against interest or
             based on personal knowledge and may be an opinion.
   b. Cal. Evid. Code:
      1) § 1220 Admission of Party: Same as FRE 801(d)(2)(A).
      2) § 1221 Adoptive Admission: Same as FRE 801(d)(2)(B) but specifically
         requires party to have knowledge of the content of the adopted statement.
      3) § 1222 Authorized Admission: Same as FRE 801(d)(2)(C) but requires same
         quantum of evidence, source, and decision by jury as Cal. Evid. Code § 1223
         Admission of Co-Conspirator (see below).
      4) § 1224 Statement of Declarant Whose Liability or Breach of Duty is In
         Issue: If a party to a civil action is liable based upon the liability of the
         declarant, evidence of the declarant’s statement may be used against the party.
      5) § 1225 Statement of Declarant Whose Right or Title is In Issue: When the
         interest in property of a party to a civil action requires determination that an
         interest existed or exists in the declarant, statements made by the declarant
         while his interest existed are admissible against the party as they would be
         against the declarant.
      6) § 1226 Statement of Minor Child in Parent’s Action for Child’s Injury:
         Evidence of a statement of a minor child is admissible if offered against the
         plaintiff in an action by the parents for injury to such minor child.
      7) § 1227 Statement of Declarant in Action for Wrongful Death: Evidence of
         a statement by the deceased is admissible if offered against the plaintiff in an
         action for wrongful death.

c. No Personal Knowledge
   1) Reed v. McCord: D’s statements of the circumstances and cause of an
      accident made in front of the coroner were admitted even though he was not
      present when the accident occurred. D’s statements were not based on
      personal knowledge but on what he had learned after the accident. In a civil
      action, the admissions by a party of any fact material to the issue are always
      competent evidence against him, wherever, whenever, or to whomsoever
      a) If D had told the coroner that he heard someone else say something, those
         other statements must pass the hearsay rule as well.
   2) Mahlandt v. Wild Canid Survival & Research Center: An employee
      informed the president of a company by a note and by a statement that a wolf
      bit a child, even though the information was second-hand. The note and
      statement were not hearsay and were admissible against the employee because
      the writer had manifested his adoption or belief in their truth (he did not say
      ―someone told me that the wolf bit the child‖). The note and statement were
      admissible against the company because they were made while employed and
      within the scope of employment. Entries in the corporate minutes were
      admissible against the company as the directors making those statements had
      authority to make them, but the entries were not admissible against the
      individual employee.
      a) There is no requirement under FRE 805 or 403 that the employee or agent
         of a party have personal knowledge of the facts that he admits. Because of
         the Advisory Committee Notes to FRE 801(d)(2), the court held that lack
         of personal knowledge alone does not warrant excluding the evidence
         under FRE 403.
   3) 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.
d. Admissions by Silence
   1) An admission by silence occurs when a party hears a statement and fails to
      deny it, in circumstances in which the party would naturally deny the
      statement were it untrue. By failing to deny the statement, the party adopts it.
      a) Silence may not be an admission if a party remains silent because of
         injury, for fear of provoking an attack, or because he is relying on his
         Miranda rights to remain silent.
   2) U.S. v. Hoosier: D’s girlfriend’s statement to D’s friend in D’s presence that
      they had ―sacks of money‖ in the hotel room were used against D because he
      failed to contradict or protest to these statements.
   3) State v. Carlson: Whether a party intended to adopt, agree with, or approve
      the contents of the statement of another is a preliminary question of fact for
      the trial judge under Oregon’s version of FRE 104(a) [although there is some

      authority for jury to decide under FRE 104(b)]. In this case, D’s shaking his
      head in response to his wife’s accusatory outburst was so ambiguous that it
      could not reasonably be deemed sufficient as an adoption of her statement.
      The statement was admissible as an excited utterance, however.
e. Agency Admissions
   1) Under federal rules, an agent’s admission is admissible when the agent is
      authorized to speak or when the agent is speaking about a matter within the
      scope of his employment.
      a) A statement by an independent contractor expert witness in one case is not
         admissible as an agency statement in later cases because the independent
         contractor is not an ―agent.‖
      b) Statements made by an interpreter may fall under the agency exception if
         the declarant hired the interpreter, otherwise, they may fall under the
         present sense impression exception.
      c) Courts are split on whether admissions by government agents are
         admissible against the government.
   2) Big Mack Trucking v. Dickerson: A police officer testified that a trucking
      company’s employee (the truck driver) told him that he was experiencing
      brake trouble and that his air pressure was running low. His truck’s brakes
      failed and crushed P’s decedent. Court found that under Texas law, there was
      no authorization by the company for the employee to speak with the police.
      Court also found insufficient evidence to support a spontaneous exclamation
      exception. The statements were admissible against the individual but not
      against his employer. Under FRE 801(d)(2)(D), the air-pressure statements
      would be admissible because made within the scope of employment and
      while employed (no need for authorization).
      a) Statements made after the employee is fired are not covered by FRE
         801(d)(2)(D) and would only be admissible against the individual.
   3) Sabel v. Mead Johnson: A tape of a meeting convened by the manufacturer
      of a drug attended by outside medical experts and company employees was
      not admissible against the company because the company did not have an
      agency relationship with the outside experts: it could not control their
      activities; it was a free-wheeling exchange of ideas, loosely moderated by an
      outside consultant. Also, there was no evidence that the experts were
      empowered to act or speak on behalf of the company. [These statements
      could be used to show knowledge or notice, though.]
      a) Agency Relationship: Three characteristics:
          (1) Power of agent to alter legal relationships with principal and third
              parties and principal and himself;
          (2) Fiduciary relationship toward principal regarding scope of agency;
          (3) Right of principal to control agent’s conduct within scope of agency.

f. FRE 801(d)(2)(E) Admissions of Co-Conspirator: A statement is not hearsay
   1) Statement is offered against a party;
   2) Statement by a co-conspirator of a party (foundation: existence of a
      conspiracy, party is a member, and declarant is a member);
   3) During the course of the conspiracy; and
   4) In furtherance of the conspiracy.
       a) 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
g. U.S. v. DiDomenico: An original conspiracy and a conspiracy to conceal the first
   conspiracy are two different conspiracies. Statements made in furtherance of the
   second are not admissible to demonstrate participation in or the acts of the first.
   [Some state courts do not follow this rule.] Statements designed to keep a
   conspiracy from collapsing are not statements designed to cover up the
   conspiracy. Generally, a conspirator’s participation ends upon his arrest.
h. U.S. v. Goldberg: Statements made during and in furtherance of a conspiracy are
   admissible against a party even if made before the party joined the conspiracy.
   The majority rule is that, insofar as hearsay is concerned, a late-joining
   conspirator takes the conspiracy as he finds it [declarant must be a member of the
   conspiracy when he makes the statement, though].
i. U.S. v. Doerr: Statements are ―in furtherance‖ of the conspiracy when they are a
   part of the information flow between conspirators intended to help each perform
   his role. Narrative declarations, mere idle chatter, and superfluous casual
   conversations are not in furtherance of the conspiracy. The ―in furtherance‖
   requirement is satisfied with evidence of some reasonable basis for concluding
   that the statement furthered the conspiracy.
j. Bourjaily v. U.S.: Existence of a conspiracy and party’s involvement in it are
   preliminary questions of fact that the court must resolve under FRE 104(a). The
   party offering the evidence must prove this foundation by a preponderance of the
   evidence. Court may consider any non-privileged evidence in its determination,
   including the statements themselves (may ―bootstrap‖). Court did not answer
   whether other independent evidence was also required. The amendment to FRE
   801(d)(2)(E) answered this question by requiring evidence beyond the
   statements themselves to establish the conspiracy and participation by the party
   and declarant.

          k. Cal. Evid. Code § 1223 Admission of Co-Conspirator: Like FRE 801(d)(2)(E),
             requires declarant to be participant in the conspiracy and the statements to be in
             furtherance of the conspiracy’s objective; allows statements prior to party’s
             joining the conspiracy, but requires evidence sufficient to sustain a finding of the
             conspiracy and participation therein before the evidence of the statements may be
             admitted or subject to admission of such evidence.

                      Quantum of Evidence                 Source              Decided by Whom
Federal Rules       Preponderance of evidence      Statement itself +               Judge
                                                   independent evidence
California Rules Sufficient to sustain a           Independent evidence               Jury
                 finding (bare minimum)            (no bootstrapping)

      5. Former Testimony
          a. FRE 804(b)(1) Former Testimony: The following is not excluded by the
             hearsay rule (exception to hearsay):
                1) Declarant is unavailable as a witness;
                2) Testimony given as a witness at another hearing of the same or different
                   proceeding, or in a legal deposition;
                3) If the party against whom the testimony is now offered (or in a civil action, a
                   predecessor in interest) had an opportunity and similar motive to develop the
                   testimony by direct, cross, or redirect examination.
                   a) Strict C/L Jxs may also require same issue.
          b. Issue Preclusion (Collateral Estoppel)
                1) When an issue has been examined in a prior action, it may be introduced in
                   future actions under the former testimony exception FRE 804(b)(1) or
                   judgments of conviction exception FRE 803(22).
                2) Under collateral estoppel, judgment in the first action may preclude re-
                   litigation of the issue in the second action. In contrast, when evidence of the
                   first judgment is used merely as evidence, it can be contradicted with other
                   evidence and the second trier of fact can reach a different result.
                   a) Issue preclusion does not apply when the issue sought to be precluded was
                      not actually litigated in the first action (guilty plea in first action means
                      nothing was litigated—but can be used as an admission under FRE
                      801(d)(2)), when determination of the issue was not essential to the
                      judgment, when the first action did not come to a final judgment, when the
                      procedures in the two courts are substantially different, when the burden
                      of proof has shifted, when the public interest would be detrimentally
                      affected, when the second action was not foreseeable, or when there was
                      inadequate opportunity or incentive to litigate.

   3) A stranger to prior litigation is often permitted to use issue preclusion against
      a party who had a full and fair opportunity to litigate in the prior action
      (mutuality doctrine has generally been abandoned).
       a) There may be exceptions when issue preclusion would be unfair (e.g.,
          court in first action did not allow discovery or follow rules of evidence).
       b) Generally, prior convictions in criminal cases can be used to preclude re-
          litigation of the same issues in civil cases, so long as there was a full and
          fair opportunity to defend the criminal action and there were no apparent
          defects in the proceedings.
c. Predecessor in Interest
   1) Generally refers to the predecessor from whom the present party received the
      right, title, interest, or obligation that is at issue in the current litigation (e.g.,
      decedent-personal representative and heirs, grantor-grantee, principal-surety).
       a) Some federal courts give a broad meaning to ―predecessor in interest.‖
          For example, the Coast Guard investigating an incident on a ship was
          deemed to be the predecessor in interest to the individual who was
          attacked and subsequently sued the ship line (both sought to establish the
          same issue and had similar interests in the different actions).
d. Travelers Fire Insurance v. Wright: Under Oklahoma law, testimony in a
   criminal case can be introduced in a subsequent civil case where it appears that: 1)
   it impossible to obtain the testimony of the witness who testified in the criminal
   case, 2) there was opportunity to x-exam the witness by the party against whom
   the testimony is sought to be used in the civil case or by one whose motive and
   interest in x-exam was the same, and 3) that there is an identity of issues. Identity
   of all parties is not an independent requirement in all cases. Under FRE
   804(b)(1), the party (or predecessor in interest in civil case) against whom the
   evidence is introduced must have had the opportunity to examine the witness –
   someone with similar motive may not count, also, no requirement under federal
   rules for identical issues.
e. U.S. v. Salerno: D may not introduce grand jury testimony favorable to his
   defense of witnesses who now assert their Fifth Amendment privilege at trial (due
   to a lack of immunity at trial) unless the trial court determines that P had a similar
   motive in examining the witness before the grand jury as it would at trial. Court
   rejected the idea that ―adversarial fairness‖ allowed D to introduce the evidence
   (i.e., P could immunize the witnesses if it wanted to use their testimony or
   withhold immunity if it wanted to exclude it). Court said that exposing the
   privileged evidence would waive the privilege but not merely taking a position
   that the evidence might contradict. The plain language of FRE 804(b)(1) requires
   the party against whom the evidence is introduced (here, P) to have opportunity
   and similar motive to develop the witnesses testimony. In front of the grand jury,
   P may not want to disclose parts of his case and may not know all of the issues
   until trial.

   f. There may be different motives:
      1) At a preliminary hearing versus a trial;
      2) In civil defense versus criminal defense;
      3) If theory of defense changes.
6. Declarations Against Interest
   a. FRE 804(b)(3) Statement Against Interest: The following is not excluded by
      the hearsay rule (exception to hearsay):
      1) Declarant is unavailable as a witness;
      2) Statement which was at the time of its making:
         a) So far contrary to declarant’s pecuniary or proprietary interest, or
         b) So far tended to subject the declarant to civil or criminal liability, or
         c) To render invalid a claim by the declarant against another;
      3) That a reasonable person in the declarant’s position would not have made the
         statement unless believing it to be true;
      4) But, 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.
          a) Differences to Admissions by Party-Opponent:
              (1) Declarant must be unavailable (admission is admissible even if party is
                  available and never called to the stand).
              (2) Declarant need not be a party or agent of the party (admissions may
                  only be offered when the declarant is a party and then only by an
                  opposing party).
              (3) Must be against interest when made (admissions need not be against
          b) Declaration that merely humiliates the declarant without exposing him to
             legal liability will not suffice under FRE 804(b)(3).
              (1) Cal. Evid. Code § 1230: Covers statements that create a risk of
                  making declarant an object of hatred, ridicule, or social disgrace.
   b. G.M. McKelvey v. General Casualty: In a civil action by an insured against his
      fidelity insurer to recover for defalcations by employees of the insured, where
      such employees have been summoned and not found in the Jx by the sheriff,
      written and signed confessions of such employees are admissible in evidence as
      declarations against pecuniary interest (as such declarations would render the
      declarants civilly liable for the disclosed amount) as to both the fact and amount
      of the loss.
   c. State v. English: Under North Carolina law, a confession of another man to the
      crime for which D was convicted was not admissible even though the other man’s
      confession included details that clearly indicated that it was genuine. This is the
      old C/L rule; under FRE 804(b)(3), the confession would be allowed provided
      there were independent corroborating circumstances.

   d. U.S. v. Barrett: Statement at card game that ―Buzzy and I were involved in the
      stamp theft… Bucky wasn’t involved; it was Buzzy‖ was offered by Bucky, the
      D, under the theory that it displayed inside knowledge of the crime and who was
      involved—all of which was against the penal interest of the declarant. Court
      found the statements to be sufficiently against the declarant’s penal interest that a
      reasonable man in his position would not have made the statements unless he
      believed them to be true.
      1) Some statements that are not expressly self-inculpatory may be deemed self-
         inculpatory if they show knowledge of certain details of a crime that an
         innocent person would not know.
   e. Williamson v. U.S. (post-Barrett decision of Supreme Court): The most faithful
      reading of FRE 804(b)(3) is that it does not allow admission of non-self-
      inculpatory statements, even if they are made within a broader narrative that is
      generally self-inculpatory. The district court may not just assume for purposes of
      FRE 804(b)(3) that a statement is self-inculpatory because it is part of a fuller
      confession, and this is especially true when the statement implicates someone
      else. Even the confessions of arrested accomplices may be admissible if they are
      truly self-inculpatory, rather than merely attempts to shift blame or curry favor.
      1) Self-inculpatory statements that also implicate D may be admissible against D
         under the co-conspirator exception, but if not, they may raise Confrontation
         Clause problems (because statements against penal interest were not generally
         admitted at C/L, one could argue that it is not a ―firmly rooted‖ hearsay
         exception—the majority of federal courts to consider the issue have found it
         firmly rooted, though).
7. State of Mind
   a. FRE 803(3) Exception for Then Existing Mental, Emotional, or Physical
      Condition: Statements are not excluded by the hearsay rule (hearsay exception):
      1) Even though the declarant is available as a witness;
      2) 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
      3) 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 the declarant’s will).
          a) Examples: ―My back hurts,‖ ―I hate him,‖ ―I’ll kill him,‖ ―I’m going to
             my uncle’s house.‖
          b) May include statements of present intent to do a future act, offered to
             show that the declarant did the future act.
          c) Some Jxs only allow statement of intent by a declarant to prove his future
             conduct, not the future conduct of another person [the House Judiciary
             Committee recommended that FRE 803(3) be interpreted this way, but it
             was not codified as such].

           (1) ―I’m going out with Harry‖ might be allowed in such a Jx with a
               limiting instruction that it may only prove that the declarant intended
               to go out with Harry should Harry come—not as proof of Harry’s
b. Adkins v. Brett: Wife’s statements that she had gone automobile riding with D,
   had dined with him, had received flowers from him, that he was able to give her a
   good time, that P was not, that she intended to continue to accept D’s attentions,
   that P was distasteful to her, and that P could do what he pleased about it were
   admissible to show the wife’s then feelings. Court found the statements too
   prejudicial, though, and ruled that they should have been excluded.
   1) FRE 105 Limited Admissibility: When evidence 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.
c. Mutual Life Insurance v. Hillmon: Declarant’s statement that he was going to
   Colorado with Hillmon was held admissible to show that he had in fact done so.
   The statement was admitted solely for the purpose of proving the intentions of the
   declarant, which made it more probable that he did go and that he went with
   Hillmon than if there were not proof of such intention.
   1) The Hillmon rule would not apply to statements about the past (―I went to
      Paris last summer‖)—only statements of future intention (―I’m going to Paris
      next summer‖) as circumstantial evidence that the declarant did in fact go to
d. Shepard v. U.S.: Decedent’s statements that ―Dr. Shepard has poisoned me‖ may
   have been evidence of the declarant’s state of mind to rebut an assertion by D that
   she had committed suicide. However, the statements were of past events (rather
   expressing future intent) and indicated a memory or belief. The statements were
   inadmissible when P used them to prove the existence of what the declarant
   believed. The statements were not dying declarations because evidence showed
   that she was on her way to recovery at the time and she lacked personal
   knowledge of the facts stated.
   1) When might statement ―Buzzy’s out to get me‖ be admitted?
       a) To show V’s state of mind, when defense to crime is accident, suicide, or
       b) May show association with D.
       c) Probably not much probative value when the defense is alibi or identity
          (e.g., ―it was someone else‖—except with permissive courts that allow V’s
          animosity toward D to be evidence of D’s motive to kill V).
e. U.S. v. Pheaster: Decedent’s statements that he was going to meet Angelo to
   pick up some free marijuana were admitted over the objection that they were
   offered to prove Angelo’s conduct rather than the declarant’s. Court did not adopt
   the view of the House Judiciary Committee, which would have limited FRE
   803(3) to proving only the declarant’s future conduct, not another person’s.

      1) Under Hillmon, which the Advisory Committee Notes cite with approval, a
         statement of declarant’s intent may mention another person—but a limiting
         instruction should be given that the statement is only evidence of the
         declarant’s intention to meet up with the other person… not evidence of what
         the other person did or intended.
   f. Zippo Manufacturing v. Rogers Imports: In trademark infringement and unfair
      competition claim, Zippo introduced evidence of survey results in which
      consumers incorrectly identified a Rogers lighter as a Zippo lighter in order to
      demonstrate confusion in the marketplace. Court admitted the evidence. Some
      courts allow survey results as non-hearsay because they are not offered to prove
      the truth of the respondents’ statements (that the lighter was a Zippo) but rather
      confusion of the respondents. They could also be admitted under the state of
      mind exception because although they indicate the respondents’ belief (―I believe
      it’s a Zippo‖), they are not offered to prove the truth of the belief (that the lighter
      is in fact a Zippo). Court also would allow the survey results under the residual
      exception because they are particularly trustworthy.
8. Medical Diagnosis or Treatment
   a. FRE 803(4) Statements for the Purposes of Medical Diagnosis or Treatment:
      Following is an exception to the hearsay rule:
      1) Even though declarant is available as a witness;
      2) Statements made for purposes of medical diagnosis or treatment;
      3) Describing medical history, or past or present symptoms, pain, or sensations,
         or the inception or general character of the cause or external source thereof;
      4) Insofar as reasonably pertinent to diagnosis or treatment.
   b. Statements regarding causation are generally allowed but not statements of fault.
      1) Declarant’s motive must be consistent with purposes of obtaining medical
         treatment, and the content of the statement must be such as is reasonably
         relied upon by physicians in providing treatment or diagnosis.
      2) Statements by child regarding who caused his injuries may be allowed under
         the theory that the pediatrician treats the whole child—physically and
         psychologically: he must gather all information possible and try to stop any
         abuse that may be occurring in the home.
   c. Statements to non-treating physician (who provides expert testimony) are
      1) Statements by a psychiatrist expert should not be a surrogate for the party’s
         testimony (that cannot be x-examined).
   d. Doctor-to-patient statements are generally not allowed under this rule.
   e. Statements may be made to a non-physician (ambulance driver, nurse, etc.) if for
      purposes of treatment or diagnosis.
   f. Statements need not be by the injured party (may be parent’s description to

9. Prior Identification
   a. FRE 801(d)(1)(C) Prior Identification Statements: A statement is not hearsay
       1) Declarant testifies at the trial or hearing;
       2) Declarant is subject to x-exam concerning the statement; and
       3) Statement is one of identification of a person made after perceiving the
   b. A witness’ prior statement of identification is not hearsay. It need not have been
      made close to the time of the occurrence; it could have been made several days or
      weeks after the crime.
       1) A witness’ identification can be admitted at trial either through that witness or
          through the testimony of another witness who observed the out-of-court
          identification (e.g., an observer may corroborate witness’ statement, or the
          witness may not remember or even deny the out-of-court identification).
          a) Even if the out-of-court identification is inconsistent with the in-court
             identification, the out-of-court statement will be admissible and no
             allegation of recent fabrication is required (out-of-court statement may be
             admitted before an in-court identification).
       2) Testimony about the prior identification will be admissible even though the
          witness is not able to make an identification in court.
   c. U.S. v. Owens: D’s Sixth Amendment rights and the hearsay rule were not
      violated when the court admitted identification testimony of V, who made the
      identification to a visitor at the hospital. At trial because of memory loss, V could
      not testify to the basis of his identification and could not remember any other
      visitors at the hospital or whether they might have suggested to him to identify D.
      V was subject to x-exam even though he could not remember the assailant. Court
      rejected the argument that under FRE 804(a), V would be ―unavailable‖ as a
      witness due to faulty memory—this was a different definition for a different rule.
10. Past Recollection Recorded
   a. FRE 803(5) Recorded Recollection: The following is an exception to the
      hearsay rule:
       1) Even though declarant is available as a witness;
       2) Memorandum or record concerning the matter;
       3) About which a witness once had knowledge but now has insufficient
          recollection to enable the witness to testify fully and accurately;
       4) Shown to have been made or adopted by the witness;
       5) When the matter was fresh in the witness’ memory;
       6) Reflects that knowledge correctly.
       7) 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.
          a) Witness does not have to make the record (could adopt it).

       b) Although the witness’ recollection must be impaired, it need not be wholly
          exhausted before the record is admissible as evidence.
       c) Counsel must lay the foundation showing lack of present memory because
          if the witness has a present memory of the facts recited in the record, the
          witness’ memory is considered superior to the hearsay record.
b. Adams v. N.Y. Central R.R.: Court did not allow into evidence notes taken by a
   witness when the witness testified that the notes did not refresh his memory
   although he did testify that he made the notes when the matter was fresh in his
   mind and that he took them down accurately. Court made an improper ruling--
   counsel laid a proper foundation for the notes under FRE 803(5) even though
   the witness’ memory was not refreshed—if it had been refreshed, he should
   have testified from memory rather than the document.
c. Refreshing Memory (Present Recollection Revived)
   1) Where the witness’ memory is revived, he presently recollects the facts and
      swears to them—documents used to refresh memory are not evidence.
       a) Counsel can use anything (a writing or otherwise) to stimulate or refresh
          the witness’ memory, regardless of whether it was prepared by the witness
          or someone else. Otherwise inadmissible documents may be used to
          refresh memory.
          (1) Judge may allow counsel to refresh memory on direct examination by
              asking a leading question (FRE 611(c) allows leading question on
              direct examination to develop testimony).
       b) Witness’ memory must actually be refreshed before the witness can
          testify; witness must testify independently from memory because the
          witness cannot read from a writing on the witness stand without satisfying
          FRE 803(5).
       c) Writing or recording used to refresh the witness’ memory is not
          admissible into evidence, unless the opponent offers it.
          (1) FRE 612 Writing Used to Refresh Memory: If a witness uses a
              writing to refresh memory for the purposes of testifying (either while
              testifying or before testifying, if justice requires), an adverse party is
              entitled to have the writing produced at the hearing, to inspect it, to x-
              examine the witness thereon, and to introduce into evidence those
              portions that which relate to the testimony of the witness—subject to
              the court’s redacting those portions which do not relate to the
       d) Witness does not have to testify that the document is accurate because the
          document is only being used to awaken the witness’ memory, not as
          evidence (note: if counsel uses the witness’ notes to refresh memory and
          the notes differ from the witness’ testimony, opposing counsel can use the
          notes to impeach the witness under FRE 612).

      2) Baker v. State: Counsel may use anything to refresh a witness’ memory (it
         need not be prepared or adopted by him): a line from Kipling or the dolorous
         refrain of ―The Tennessee Waltz,‖ a whiff of hickory smoke, the running of
         fingers across a swatch of corduroy, the sweet carbonation of chocolate soda,
         the sight of a faded snapshot in a long-neglected album. It may be anything
         which produces the desired testimonial prelude, ―It all comes back to me
          a) Judge has discretion as to what may be used to refresh memory under FRE
             611(a) to keep control over the courtroom.
          b) Another person’s notes can be used to refresh the witness’ memory.
             (1) Another person’s notes generally cannot be admitted as an exhibit to
                 impeach the witness (would require the jury to believe the truth of the
             (2) The witness’ own notes may be admitted as impeachment evidence if
                 the witness claims lack of memory (it is up to the jury to determine
                 whether the witness really lacks memory or is lying about lack of
11. Business Records
   a. FRE 803(6) Records of Regularly Conducted Activity: The following is an
      exception to the hearsay rule:
      1) Even though the declarant is available as a witness;
      2) Memorandum, report, record, or data compilation, in any form, of acts, events,
         conditions, opinions, or diagnoses;
      3) Made at or near the time;
      4) By, or from information transmitted by, a person with knowledge;
      5) If kept in the course of a regularly conducted business activity; and
      6) If it was the regular practice of that business activity to make the
         memorandum, report, record, or data compilation;
      7) All as shown by the testimony of the custodian or other qualified witness, or
         by certification that complies with FRE 902(11), 902(12), or a statute
         permitting certification, unless the source of information or the method or
         circumstances of preparation indicate lack of trustworthiness.
          a) ―Business‖ as used in this paragraph includes business, institution,
             association, profession, occupation, and calling of every kind, whether or
             not conducted for profit.
          b) Some courts take a narrow view of ―regular practice‖ and disallow
             isolated documents prepared by employees.
          c) The sponsoring witness need not be a custodian or employee of the
             company; he may be anyone with knowledge of the business and its
             practices. After the 2000 amendment to the rule, a written declaration of
             one with knowledge sufficient to lay a foundation for the document is
             sufficient; a live witness is not necessary.

      d) Personal knowledge is satisfied if the person making the record—or
         anyone in the chain of communication from whom he obtains the
         information—had personal knowledge.
      e) The one opposing admission has the burden of proving ―lack of
b. Business Duty
   1) Johnson v. Lutz: Police officer’s report of an accident was not admissible
      because it was based on statements of third persons about what had happened.
      The bystanders’ statements were hearsay, and the business records exception
      did not apply to their statements because they were not under a busy duty to
      make the report.
      a) If the police officer’s report contained statements of a fellow officer, it
         would be allowed because both officers are under a business duty to make
         a report.
      b) Otherwise, the statements contained in the police officer’s report must fit
         some exception to the hearsay rule for the report to be admitted (hearsay
         within a business record).
          (1) Kelly v. Wasserman: Welfare Department’s report that included a
              statement by P that he would let P live in his house rent-free for life
              was admissible. The statement by P was an admission by a party-
              opponent, and the Department’s report was a business record.
   2) Some courts hold that information provided by customers of the business is
      admissible if the business made an effort to verify its accuracy.
   3) If a business record contains records of another business, some courts have
      admitted the entire record even if the proponent does not call a witness to lay
      the foundation for the records within.
      a) U.S. v. Duncan: Proponent offered into evidence certain hospital records
         that contained documents from an insurance company. Court admitted the
         records even though the proponent did not call a witness to verify the
         insurance company records satisfied all foundational elements of the
         business records exception. Court held that there is no requirement that
         the records be created by the business having custody of them. Court held
         that the release of medical information contained in the insurance
         company records was authorized by the patient as an admission.
      b) Not all courts allow this—Ninth Circuit requires a foundation witness for
         other business’ records contained in a business record.
c. Hospital Records
   1) Hospital records may contain hearsay within hearsay. An exception for each
      hearsay statement must be available.
      a) Williams v. Alexander: Hospital record offered against P stated that P
         said, ―he was crossing the street and an automobile ran into another

          automobile that was at a standstill, causing the standing car to run into
          him;‖ trial court reversed for admitting statement on grounds that it is not
          the business of the hospital to determine how the accident occurred. There
          was a hearsay exception for the statement by P—admission of party-
          opponent, but the statement was outside of the business record exception
          for the hospital or could be considered to lack trustworthiness because the
          hospital has no incentive to accurately record the fault of the injury.
   2) Business records exception specifically provides for the reception of
      ―opinions‖ and ―diagnoses‖ that are contained in hospital records. Without an
      expert to testify to their significance, they may be misleading and therefore
      excluded under FRE 403.
d. Computer Records
   1) Federal judges substantially agree that computer output should be qualified
      like any other business record despite the fact that computer systems store,
      retrieve, and manipulate information in ways significantly different from
      earlier manual or mechanical systems.
      a) Some attention must be paid to the way in which the information
         presented to the court has been prepared, entered into the computer’s
         storage system, and retrieved.
   2) Hahnemann University Hospital v. Dudnick: Expert testimony as to the
      reliability of the programs the computer used or other technical aspects of its
      operation is unnecessary to find computer-generated records circumstantially
      reliable. A witness is competent to lay the foundation for systematically
      prepared computer records if the witness:
      a) Can demonstrate that the computer record is what the proponent claims;
      b) Is sufficiently familiar with the record system used; and
      c) Can establish that it was the regular practice of that business to make the
   3) Potamkin Cadillac v. BRI Coverage: Citing errors revealed by spot-checks
      against other records and noting D’s failure to make source tapes available
      during discovery, Court held that the district court acted within its discretion
      in excluding evidence that allegedly was obtained by a program that scanned
      D’s history tapes and extracted pertinent information about transactions
      between the parties.
e. Documents Prepared for Litigation
   1) Generally, documents that fall under the ―lack of trustworthiness‖ rubric are
      ones made in preparation for litigation.
   2) Palmer v. Hoffman: Supreme Court rejected a report of an accident made by
      a railroad worker on the grounds that it was prepared in preparation for
      litigation—even if the business made a regular practice of collecting such
      reports. Court said the railroad was in the railroad business, not the accident-
      reporting business, and therefore the accident report was not a business

      record. This was a pre-rules case; Advisory Committee Notes cite this case
      approvingly—not for its reasoning, but for the proposition that the business
      records exception would not apply when the circumstances of preparation
      ―indicate a lack of trustworthiness.‖
      a) Lewis v. Baker: A railroad accident report was admitted, and the court
         distinguished Palmer v. Hoffman on the grounds that the ones who
         prepared the accident report were not personally involved in the accident
         as they were in Palmer; therefore, they would have less incentive to
         fabricate a story. The accident report was therefore considered more
   3) Yates v. Bair Transport: Reports to an insurance company concerning P’s
      injuries and prepared by doctors retained by the insurance company were
      admitted. The reports were offered by P, not the company, and the court
      found the fact that they had been prepared for a company whose interests
      would be harmed if they were favorable to P to be sufficient guarantee of
      trustworthiness when offered by P. Court did not allow P to offer reports
      prepared by doctors he retained, though.
      a) Reports prepared by the other party may also be an authorized or agency
         admission (e.g., a patient impliedly authorizes her medical provider to
         release information to her insurance company).
f. Police Records Against Criminal D
   1) Unlike FRE 803(8), FRE 803(6) does not contain an express prohibition of
      use of police records against a criminal D. However, the omission may have
      been inadvertent, and some courts have refused to allowed them to be used
      against criminal Ds under either rule. See U.S. v. Oates (below).
          (1) Not all courts reach this conclusion, especially if the police officer is
              available for x-exam (but could exclude the record under the
              ―untrustworthiness‖ category).
g. FRE 803(7) Absence of Entry in Records Kept in Accordance with FRE
   803(6): The following is an exception to the hearsay rule:
   1) Even though the declarant is available as a witness;
   2) Evidence that a matter is not included in the memoranda, reports, records, or
      data compilations, in any form, kept in accordance with FRE 803(6);
   3) To prove the nonoccurrence or nonexistence of the matter;
   4) If the matter was of a kind of which a memorandum, report, record, or data
      compilation was regularly made and preserved;
   5) Unless the sources of information or other circumstances indicate a lack of
      a) Foundation must show that an adequate search was made for the missing

   h. 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.
12. FRE 806 Attacking and 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 the purposes if declarant
    had testified as a witness.
   a. 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.
   b. 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.
13. Public Records
   a. FRE 803(8) Public Records and Reports: The following are hearsay
      exceptions, even though the declarant is available as a witness:
       1) Records, reports, statements, or data compilations, in any form;
       2) Of public offices or agencies, setting forth:
           a) Activities of the office or agency (FRE 803(8)(A));
           b) Matters observed pursuant to a 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 (FRE
              803(8)(B)); 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 (FRE 803(8)(C)).
               (1) Part (A) applies to both criminal and civil litigation, and any party can
                   take advantage of the exception.
                  (a) Examples of (A): payroll documents, personnel records, records of
                      receipts and disbursements.
               (2) Part (B) literally excludes all law enforcement observations in criminal
                   cases, whether offered by either side. Some courts allow D to offer
                   these reports, though.
                  (a) Examples of (B): weather reports and maps, court reporter’s
                      transcript, officer’s letter describing an event, INS reports, police
                      property receipt for weapon.

          (3) Part (C) applies in both civil and criminal cases, but only D can use the
              exception in criminal cases.
              (a) Examples of (C): coast guard report containing conclusions
                  regarding an accident, administrative findings regarding presence
                  of sex discrimination, FAA findings about the safety of a plane.
              (b) Opponent of the evidence bears the burden of rebutting the
                  presumption that it is trustworthy.
              (c) Need not be regularly recorded.
              (d) Need not be recorded contemporaneously with the event.
              (e) No business duty requirement—may contain factual findings based
                  on hearsay statements within hearsay.
              (f) No foundation witness necessary, if document is self-
                  authenticating under FRE 902 (e.g., it is a certified copy).
b. Police Records
   1) Some police records could also qualify as exceptions under the rules for
      business records, past recollection recorded, absence of public records, and
      under the residual exception.
      a) Some courts disallow police records in criminal cases against D even in
         these other circumstances by following congressional intent to exclude
         law enforcement testimony without x-exam.
          (1) U.S. v. Oates: Second Circuit reversed a conviction because the trial
              judge had admitted a laboratory report identifying a substance as
              heroin without requiring testimony of the chemist who performed the
              analysis. The effect of FRE 803(8)(B) and (C) is to render law
              enforcement reports and evaluative reports inadmissible against D in
              criminal cases. The only way to construe FRE 803(6) so that is
              reconcilable with this intended effect is to interpret FRE 803(6) and
              the other hearsay exceptions in such a way that police and evaluative
              reports not satisfying the standards of FRE 803(8)(B) and (C) may not
              qualify for admission under FRE 803(6) or any other hearsay
      b) Other courts allow the evidence if the police officer is subject to x-exam
         (e.g., when he lays the foundation for past recollection recorded).
   2) Some courts allow routine, non-adversarial law enforcement reports under
      FRE 803(8) (e.g., records of serial numbers, fingerprint records, license plate
      numbers). Courts could possibly allow these as ―activities‖ of the police
      under FRE 803(3)(A).
      a) U.S. v. Grady: Second Circuit allowed P to admit a report from the
         Northern Ireland police that related the routine function of recording serial
         numbers and receipt of certain weapons found in that country under FRE

              803(8)(B). The records did not begin to prove P’s case; they were strictly
              routine records.
              (1) Court probably should use FRE 803(6) for these types of records to
                  avoid a direct conflict with language of FRE 803(8)(B).
   c. Opinions and Conclusions in Factual Findings
      1) As long as a conclusion or opinion is based on a factual investigation and
         satisfies FRE 803(8)(C)’s trustworthiness requirement, it is admissible along
         with other portions of the report. (Trial court determines trustworthiness.)
          a) Beech Aircraft v. Rainey: D offered into evidence a JAG report that
             stated a plane crash was caused by pilot error rather than mechanical
             failure. Supreme Court ruled allowed the opinions and conclusions
             because they were based on factual investigation.
   d. FRE 803(9) Records of Vital Statistics: Even though the declarant is available
      as a witness, records or data compilations, in any form, of births, fetal deaths,
      deaths, marriages, are exceptions to the hearsay rule, if the report was made to a
      public office pursuant to requirements of law.
      1) Need not be prepared by a public official, but may require personal
         knowledge of declarant. Could contain objectionable expert testimony,
         extraneous conclusions, or lack trustworthiness and therefore violate a
         criminal D’s Sixth Amendment rights.
   e. FRE 803(10) Absence of Public Record or Entry: Even though the declarant is
      available as a witness, to prove the absence of a record, report, statement, or data
      compilation, in any form, or the non-occurrence or non-existence of a matter of
      which a record, report, etc. was regularly made and preserved by a public office
      or agency, evidence in the form of a certification in accordance with FRE 902, or
      testimony, that diligent search failed to disclose the record, report, etc.
      1) Many courts allow evidence of absence of law enforcement records to be used
         against D in a criminal case.
14. Miscellaneous Exceptions
   a. FRE 803(18) Learned Treatises: The following is an exception to the hearsay
      1) Even if declarant is available as a witness;
      2) To the extent called to the attention of an expert witness upon x-exam or
         relied upon by the expert witness in direct exam;
      3) Statements contained in published treatises, periodicals, or pamphlets;
      4) On a subject of history, medicine, or other science or art;
      5) Established as reliable authority:
         a) By the testimony or admission of the witness;
         b) By other expert testimony; or
         c) By judicial notice.
      6) If admitted, the statements may be read into evidence but may not be received
         as exhibits.

       a) If a witness relied upon a treatise in his testimony, counsel could use the
          treatise for impeachment and not trigger the hearsay rule.
b. FRE 803(21) Reputation as to Character: It is an exception to the hearsay rule,
   even if the declarant is available as a witness, for reputation of a person’s
   character among associates in the community. (Must still satisfy character
   evidence rules, though).
   1) Only applies to character of a person (not a product or thing). However,
      reputation of a product or thing could be admissible to show the effect on the
      hearer, not for its truth.
c. FRE 803(22) Judgments of Previous Conviction: The following is an
   exception to the hearsay rule:
   1) Even if declarant is available as a witness;
   2) Evidence of final judgment;
   3) Entered after a trial or upon a plea of guilty (but not a plea of nolo
   4) Adjudging a person guilty of a crime punishable by death or imprisonment in
      excess of one year;
   5) To prove any fact essential to sustain the judgment;
   6) But not including, when offered by the government in a criminal prosecution
      for purposes other than impeachment, judgments against persons other than
      the accused.
   7) The pendency of an appeal may be shown but does not affect admissibility.
       a) When issue preclusion (collateral estoppel) bars re-litigation of the issue,
          the evidence admissible under this exception would be conclusive.
          (1) Collateral estoppel generally requires a party to be bound by a
              judgment in a prior litigation if he had a full and fair opportunity to
              litigate the issue.
       b) A guilty plea would also be an admission by a party-opponent. (This
          would be rebuttable evidence, not conclusive.)
       c) Statutory interpretation may dictate that hearsay evidence of judgments for
          crimes punishable by less than one year should be excluded under FRE
          803(8)(C) or as admissions of a party-opponent because this rule is more
          specific, addresses the issue, and concludes that only those crimes
          punishable by more than one year should be admitted (should not allow an
          end-run around this rule).
       d) If a prior conviction is an element of the current crime, the record of prior
          conviction (for a crime punishable by less than one year) would not be
          offered for its truth (i.e., not offered to prove that D committed the prior
          acts) just that he was convicted (legally operative language), so it would
          not be hearsay.

      d. FRE 804(b)(6) Forfeiture by Wrongdoing: The following is an exception to the
         hearsay rule:
         1) If declarant is unavailable as a witness;
         2) 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.
             a) In order to admit evidence under this exception, proponent would have to
                prove by a preponderance of the evidence to the judge under FRE 104(a)
                that the party committed the wrongdoing.
             b) Threats, intimidation, or any other act that prevents a witness from
                testifying would qualify (can be used against the government).
C. The Future of Hearsay
   1. Residual Exception
      a. FRE 807 Residual Exception: Statement not specifically covered by FRE 803 or
         804 but having equivalent guarantees of trustworthiness, is not excluded by the
         hearsay rule, if the court determines that:
         1) Statement is offered as evidence of a material fact;
         2) 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
         3) General purposes the FREs and the interests of justice will best be served by
            admission of the statement into evidence.
         4) 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
            trial or hearing to provide 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.
      b. Turbyfill v. International Harvester: district court admitted the statement of a
         now-deceased witness, which was written by him on the day of the event, while
         the events were fresh in his mind, alone, and without prompting or pressure from
         his supervisors. The evidence was more probative than any other evidence, and if
         the witness were alive, but lacked memory of the event, the writing would be
         admissible as past recollection recorded.
      c. U.S. v. Dent: Seventh Circuit rejected grand jury testimony of a witness who
         testified that he sold D a car used in a crime but also gave P a false address and
         subsequently left the country. The district court allowed the evidence because it
         was corroborated by other evidence; the court of appeals rejected the evidence
         because it was untrustworthy but held admitting it was harmless error. A
         concurring judge raised the issue whether the grand jury testimony would violate
         D’s confrontation rights.
      d. Statutory Construction Arguments to Bar Evidence
         1) Expressio unius est exclusio alterius: by listing some exceptions, the intent
            is to exclude others like the list but not in it.

      2) Near Miss Rule: if evidence just barely misses another exception, it is an
         indication that the Advisory Committee or Congress considered the rule and
         decided to set specific parameters; the residual exception should not be used
         as an end-run around the FREs.
          a) Most courts do not follow this rule but rather hold that if the evidence does
             not meet another exception (even by just a bit) but satisfy the elements of
             FRE 807, it is admissible.
          b) If the proponent can show that the facts go beyond what the Advisory
             Committee or Congress considered, this would not be a bar.
2. Confrontation Clause
   a. Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right
      . . . to be confronted with the witnesses against him . . . .
      1) Even if evidence passes a hearsay exception, D may claim that it violates his
         confrontation clause rights.
      2) Possible Interpretations of the Clause:
          a) Any hearsay is admissible so long as some witness testifies about it in
             court with D present.
          b) No hearsay is admissible; the declarant must make the statement himself
             in court with D present.
          c) P must call a declarant if he is available, but hearsay of unavailable
             declarants is admissible.
   b. Ohio v. Roberts: Supreme Court allowed P to introduce into evidence the
      transcript of preliminary hearing testimony of a witness who was not produced at
      trial. It concluded that D had adequate opportunity to x-exam the witness during
      the preliminary hearing and adopted a Two-Prong Test:
      1) Necessity: P must produce the hearsay declarant or demonstrate that the
         declarant is unavailable. (Only applies in the usual case, P need not
         demonstrate unavailability where utility of confrontation is remote.)
      2) Trustworthiness: Hearsay must have adequate indicia of reliability:
          a) Reliability may be inferred without more when evidence falls under a
             firmly rooted hearsay exception.
             (1) Examples: dying declarations, business records, public records,
                 excited utterance, admissions of party-opponent, medical treatment,
                 statements of genealogy, statements of a co-conspirator.
             (2) Not firmly rooted: declarations against penal interest, residual
                 exception, state child abuse hearsay exceptions, maybe preset sense
          b) In other cases, there must be a showing of particularized guarantees of

c. If Co-Conspirator Statements: Only Look to FRE
   1) U.S. v. Inadi: Supreme Court held that necessity need not be shown to admit
      statements of co-conspirators; they may be used even when the declarant is
      available as a witness.
      a) Ohio v. Roberts does not stand for the proposition that the government
         may introduce no out-of-court statement without a showing that the
         declarant is unavailable.
      b) Out-of-court statements by co-conspirators generally carry more
         evidentiary value than in-court testimony.
   2) Bourjaily v. U.S.: Supreme Court held that P need not make a particularized
      showing of reliability for co-conspirators’ statements (the co-conspirator
      exception is ―firmly rooted‖). So long as the requirements of FRE
      801(d)(2)(E) are satisfied, D’s confrontation rights have not been violated
      (possibly more generous state-law exceptions would not qualify).
d. If Not Firmly Rooted: Look to Circumstances Surrounding the Statement
   1) Idaho v. Wright: Supreme Court ruled that testimony of a physician
      (admitted by the trial court under the residual exception) regarding
      accusations that a young girl made to him of sexual abuse by D were
      inadmissible because they lacked particularized guarantees of trustworthiness.
      The physician conducted the interview in a suggestive manner and reliability
      could not be inferred from corroborating physical evidence.
      a) Relevant circumstances that can show particularized guarantees of
         trustworthiness are only those that surround the making of the statement;
         evidence corroborating the accuracy of the statement may not be
          (1) This prohibition may not apply if the declarant testifies at trial, and the
              proponent offers the declarant’s prior inconsistent statement for the
              truth of the matter asserted under the residual exception.
          (2) Examples of circumstances surrounding making the statement: child’s
              motive, freshness of testimony, maybe child’s knowledge of specific
              facts that only a truthful witness would know.
          (3) Examples of extrinsic evidence: D’s motive, D’s propensity to
              commit the crime, physical corroboration.
e. If Firmly Rooted: No Need to Prove Necessity
   1) White v. Illinois: Supreme Court held that statements by a young girl related
      to her sexual assault were excited utterances, given for medical treatment, and
      were made in contexts that provided guarantees of trustworthiness.
      a) Where proffered hearsay has sufficient guarantees of reliability to come
         within a firmly rooted hearsay exception, the Confrontation Clause is

                 b) Ohio v. Roberts stands for the proposition that unavailability analysis is
                    necessary as part of the Confrontation Clause inquiry only when the
                    challenged out-of-court statements were made in the course of a prior
                    judicial proceeding.
         f. Accomplice’s Confession Offered by P
             1) Lilly v. Virginia: Supreme Court held that P could not introduce evidence of
                an accomplice’s confession to police against D where the confession
                contained some statements against penal interest and others that inculpated D.
                 a) Plurality concluded that an accomplice’s confession that inculpates D is
                    not a firmly rooted hearsay exception. The conditions under which the
                    declarant made the statement was also not reliable—the statement shifted
                    or spread blame, the government was involved in the its production, it was
                    not subject to adversarial testing, and it was made with an eye toward
                 b) Scalia concluded that statements during an interrogation in police custody
                    is an example of a formalized testimonial material (affidavits, depositions,
                    prior testimonial material, or confessions), which is a paradigmatic
                    Confrontation Clause violation.
                 c) Rhenquist and three others would exclude the custodial testimony if it
                    helps the declarant and is untrustworthy.
         g. Due Process Violations by Excluding Hearsay Confessions
             1) Chambers v. Mississippi: D could not x-examine a declarant who previously
                confessed to the crime under the state’s ―voucher rule‖ because he called the
                witness to the stand and could not call witnesses to whom the declarant
                confessed under the state’s hearsay rule. Supreme Court held that application
                of these rules violated D’s due process rights because the declarant was
                available for x-exam and his testimony was corroborated by other evidence.
             2) Green v. Georgia: Supreme Court held that D’s due process rights were
                violated in the death penalty phase of his trial when the lower court excluded
                hearsay testimony of a declarant’s confession that was made spontaneously to
                a close friend, was corroborated by sufficient evidence, was against interest,
                did not indicate an ulterior motive by the declarant, and was used by the state
                against the declarant. The court did not allow the confession because it was a
                statement against penal interest.
III. Impeachment and Rehabilitation; X-Examination
   A. Rule Against Impeaching One’s Own Witness and Other Forensic Problems
      1. U.S. courts require a witness to give answers in response to relatively pointed
         questions so that the opposing attorney, forewarned by the question that the jury may
         be about to hear inadmissible material, can object in time to prevent receipt of the
         damaging answer.

   a. FRE 611 Mode and Order of Interrogation and Presentation:
      1) Control by Court: Court shall exercise reasonable control over the mode and
         order of interrogating witnesses and presenting evidence so as to (1) make the
         interrogation effective for the ascertainment of the truth, (2) avoid needless
         consumption of time, and (3) protect witnesses from harassment or undue
      2) Scope of X-Examination: X-examination should be limited to the subject
         matter of the direct examination and matters affecting the credibility of the
          a) The court may, in the exercise of discretion, permit inquiry into additional
             matters as if on direct examination.
              (1) Counsel need not have a factual basis for every question asked but
                  should have a good faith basis for question that alleges adverse facts.
      3) Leading Questions (questions that suggest their own answer—but do not
         assume facts not in evidence): Leading questions should not be used on the
         direct examination of a witness except as may be necessary to develop the
         witness’ testimony.
          a) Ordinarily, leading questions should be permitted on x-exam.
          b) When a party calls a hostile witness, an adverse party, or a witness
             identified with an adverse party, interrogation may be by leading
2. FRE 607 Who May Impeach: The credibility of a witness may be attacked by any
   party, including the party calling the witness.
   a. Under the old C/L ―voucher rule,‖ the party calling a witness could not impeach
      the witness—whether by character attack, showing bias, prior inconsistent
      statements, or any other method.
   b. Calling a Witness Solely to Impeach with Otherwise Inadmissible Evidence
      1) U.S. v. Hogan: Fifth Circuit reversed the conviction of alleged drug smuggler
         because P called a witness for the primary purpose of impeaching him with
         otherwise inadmissible hearsay, including a taped confession and testimony of
         DEA and other officials.
          a) P may attack the credibility of a witness that he calls with prior
             inconsistent statements, even if the statements tend to inculpate D.
          b) P may call a witness he knows to be hostile and may impeach his
          c) Surprise is not a necessary prerequisite to impeaching one’s own witness
             under FRE 607.
          d) P may not, however, call a witness it knows to be hostile for the primary
             purpose of eliciting otherwise inadmissible impeachment testimony, for
             such a scheme merely serves as a subterfuge to avoid the hearsay rule.

   3. FRE 615 Exclusion of Witness: Upon a party’s request (or sua sponte) the court
      shall order witnesses excluded so that they cannot hear the testimony of other
      witnesses, except a witness who is:
      a. Party who is a natural person;
      b. Officer or employee of a party, which is not a natural person, designated as its
         representative by its attorney;
      c. Person whose presence is shown by a party to be essential to the presentation of
         the party’s case; or
      d. Person authorized by statute to be present.
B. Methods of Impeachment
   1. Impeachment by Contradiction
      Contraction = introducing contradictory testimony.
      a. Collateral Impeachment
          1) A witness may not be impeached with extrinsic evidence that contradicts the
             witness on a collateral issue. This rule is not codified in the FREs, but see
             FRE 403 (confusion of issues, waste of time, prejudice).
          2) State v. Oswalt: Washington court excluded testimony of a police officer,
             which was only relevant to impeach D’s alibi witness by contradicting the
             witness’ testimony about D’s whereabouts a month before the robbery.
             a) Collateral Issue: an issue that lacks any independent relevance except to
                contradict a witness.
             b) Extrinsic Evidence: testimony of another witness or physical evidence
                other than the witness’ own words during x-exam.
          3) U.S. v. Copelin: D.C. Circuit reversed D’s conviction for distributing cocaine
             where P x-examined D concerning prior positive drug tests (―Q: And that’s
             the only time you’ve seen drugs? A: Roughly, yes. Q: Roughly? A: Yes.‖).
             The evidence was admissible as impeachment, but the trial court should have
             issued an immediate cautionary instruction sua sponte informing the jury as to
             the permissible uses of the evidence.

2. Character of the Witness
   A witness may be impeached by showing that the witness has a bad character for
   a. Prior Bad Acts
      1) FRE 608(b) Evidence of Character and Conduct of Witness / Specific
         Instances of Conduct: Specific instances of the conduct of a witness, for
         purpose of attacking or supporting the witness’ credibility, other than
         conviction crime under 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 x-examination of the witness:
          a) Concerning the witness’ character for truthfulness or untruthfulness; or
          b) Concerning the character for truthfulness or untruthfulness of another
             witness as to which character the witness being x-examined has testified.
      2) Extrinsic Evidence under FRE 608(b)
          a) If a witness denies the dishonest conduct, the x-examiner must ―take the
             (1) Some courts bar all extrinsic evidence (even documents authenticated
                 by the witness on the stand).
             (2) Other courts only bar evidence that requires another witness for
                 testimony or authentication.
             (3) In any event, counsel may offer the document to the witness to refresh
                 his memory on the stand.
          b) Extrinsic evidence that shows a witness engaged in a distinctively similar
             type of lying on multiple occasions is admissible (does not show character
             but that the witness has a common scheme or plan).
          c) Extrinsic evidence also may not be used to show good character for
      3) U.S. v. Owens: Court of Military Appeals ruled that D, on trial for murder of
         his wife, could be x-examined about prior drug and gun convictions that he
         omitted from an Army application but not a prior arrest for assault and battery
         of this former wife because the application did not elicit this information and
         it was too prejudicial because of its similarity to the crime charged. His prior
         bad acts were lying on the form, not the drug and gun offenses.
          a) Because D was on the stand subject to x-exam regarding lying about his
             prior bad acts, which were crimes, FRE 403, 404(b), 608, and 609 applied.
      4) U.S. v. Drake: Tenth Circuit ruled that x-examining D about whether he
         finished or was kicked out of college was permissible because D testified that
         he had a degree in psychology. Specific questions about what his transcript or
         what the college records said was not extrinsic evidence: x-exam questions

      alone are not extrinsic evidence. The questions arguably assumed facts not in
      evidence, though, which was harmless error.
b. Prior Convictions
   1) FRE 609 Impeachment by Evidence of Conviction of Crime
      a) FRE 609(a)(1): Crimes Punishable by Death or > 1 Year
         (1) Against Witness Other than Accused
             (a) For the purposes of attacking the credibility of a witness, evidence
                 that a witness other than the 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.
                 (i) Objecting party bears burden of proving prejudice.
         (2) Against Criminal Accused
             (a) For the purposes of attacking the credibility of the accused by
                 evidence that he has been convicted of a crime punishable by death
                 or imprisonment in excess of one year shall be admitted if the court
                 determines that the probative value of admitting the evidence
                 outweighs its prejudicial effect to the accused.
                 (i) Proponent bears burden of proving probative value.
             (b) U.S. v. Sanders: Fourth Circuit excluded evidence of a prisoner’s
                 prior assault and possession of a contraband shank in his trial for
                 similar crimes under FRE 609(a) and 404(b) because of the
                 similarity of the prior crimes to the current charges and little value
                 of evidence in determining credibility.
             (c) Factors to Consider in Weighing Probative v. Prejudice:
                 (i) Impeachment value of prior crime.
                 (ii) When prior conviction occurred and D’s subsequent history.
                 (iii)Similarity of past crime to current charge (has double effect:
                      can impermissibly show propensity or bad character or
                      properly show plan, intent, or modus operandi).
                 (iv) Importance of D’s testimony.
                 (v) Centrality of the credibility issue.
                 (vi) Alternatives (such as not disclosing nature of prior crime).
             (d) Cal. Const. Art. 1, § 28: any prior felony (adult or juvenile) shall
                 be used without limitation for purposes of impeachment or
                 sentence enhancement in any subsequent criminal proceeding.
                 (Cal. Sup. Ct. interprets this to apply only to felonies involving
                 moral turpitude.)

      (e) Challenging In Limine Ruling When D Does Not Testify
          (i) Luce v. U.S.: Supreme Court held that D may not appeal a trial
              court’s in limine ruling that would allow prior-conviction
              evidence unless D actually testifies at trial.
      (f) Challenging In Limine Ruling When D Introduces the
          Evidence on Direct Exam
          (i) Ohler v. U.S.: Supreme Court held that if D removes the sting
              of prior-conviction evidence (which the trial court ruled in
              limine would be admissible), he waives his right to appeal the
              admissibility of the evidence.
b) FRE 609(a)(2): Crimes Involving Dishonesty or False Statement
   (1) Evidence that any witness has been convicted of a crime shall be
       admitted if it involved dishonesty or false statement, regardless of the
      (a) FRE 403 does not apply.
          (i) U.S. v. Wong: Third Circuit held that intent of the Congress is
              clear that prior convictions involving dishonesty or false
              statement are always admissible, not subject to FRE 403.
      (b) Qualifying Crimes
          (i) Some courts limit this to crimen falsi (perjury, fraud,
              embezzlement, false statement, false pretense, etc.)
          (ii) Other courts will allow in evidence of theft or robbery.
          (iii)Some courts will look to the details of the crime to determine
               whether it was committed in a way that impugns credibility.
          (iv) U.S. v. Brackeen: Ninth Circuit, en banc, held that bank
               robbery is not a per se crime of ―dishonesty‖ because Congress
               used the term narrowly to only apply to deceit.
c) Crimes Punishable by < 1 Year Not Involving Dishonesty or False
   (1) Not admissible against any witness to attack credibility.
d) FRE 609(b): Stale Convictions
   (1) Evidence of a conviction is not admissible under FRE 609 if more than
       10 years have elapsed since the conviction or release from custody
       (whichever is later) unless the court determines, in the interest of
       justice, that the probative value substantially outweighs its prejudicial
       effect and the proponent gives advance notice of intent to use the

                     e) FRE 609(c)-(d) Pardons, Juvenile Convictions: evidence of convictions
                        that have been pardoned or were juvenile offenses are generally not
                     f) FRE 609(e) Pendency of Appeal: does not affect admissibility;
                        pendency of appeal is admissible.

             Crime                         Criminal Accused                  Any Other Witness
Dishonesty or False Statement      Always admissible                 Always admissible
Not Dishonesty / > 1 Year          Proponent must prove probative    Opponent must prove prejudice
                                   value > unfair prejudice          substantially > probative (FRE 403)
Not Dishonesty / < 1 Year          Not admissible                    Not admissible

                2) Extrinsic Evidence of Prior Convictions
                     a) Extrinsic evidence is admissible to prove prior convictions.
            c. Bad Reputation for Truth and Veracity
                1) FRE 608(a) Evidence of Character and Conduct of Witness / Opinion and
                   Reputation Evidence of Character: The credibility of a witness may be
                   attacked or supported by evidence in form of opinion or reputation, subject to
                   this limitations:
                     a) Evidence may refer only to character for truthfulness or untruthfulness;
                     b) 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.
            d. FRE 806 Attacking and Supporting Credibility of Hearsay Declarant: When
               a hearsay statement, authorized admission, agency admission, or co-conspirator
               statement has been admitted into 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.
                1) 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.
                2) 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 x-exam.
        3. Psychiatric Conditions / Impaired Capacity to Perceive, Recall, or Narrate Facts
            a. Extrinsic evidence is allowed to show impaired perception or medical diagnosis.
                1) See Daubert for limits on expert testimony.

   b. Extrinsic evidence of the witness’ mental disease is admissible if relevant to the
      witness’ ability to accurately perceive, recollect, or communicate information.
      When offered for impeachment, evidence of low intelligence or mental
      retardation is admissible.
      1) FRE 403 applies to mental deficiency evidence.
      2) Expert testimony that the witness has an emotional condition that makes the
         witness a liar is often objectionable.
   c. U.S. v. Lindstrom: Eleventh Circuit held that D’s Sixth Amendment rights were
      violated when he was not allowed to x-examine P’s chief witness, who initiated
      the investigation against D and was an insider to the alleged fraud scheme, about
      her medical history, which included psychiatric disorders that manifested
      themselves in violent threats and manipulative and destructive conduct.
   d. FRE 610 Religious Beliefs or Opinions: evidence of the religious beliefs or
      opinions of a witness on matter of religion is not admissible for the purpose of
      showing that by reason of their nature, the witness’ credibility is impaired or
      1) If only one person believes it, maybe it is a delusion and not a religious belief.
4. Prior Statements to Impeach or Rehabilitate
   a. Prior Inconsistent Statements
      1) FRE 613 Prior Statements of Witnesses
          a) FRE 613(a) Examining Witnesses 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) FRE 613(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 the 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
             under FRE 801(d)(2).
      2) Apparently Consistent Statements
          a) If the witness claims on the stand to lack memory, his prior statement may
             be used to impeach him if—the jury should decided whether he really does
             not remember or whether his is lying about not being able to remember.
          b) If the witness adds details to his testimony that were not included in a
             prior statement, it may be used for impeachment if the details were such
             that they would have naturally been included in the account.

3) Foundation for Extrinsic Evidence of Prior Inconsistent Statements (does
   not apply to admissions by party-opponent)
   a) Under C/L, before admitting extrinsic evidence of a prior inconsistent
      statement, the witness must have laid the foundation on the stand by
      having the impeaching statements related to him, with the circumstances
      of the times, places, and persons present and by being asked whether he
      made such statements, and if so, allowed to explain them.
   b) Under FRE 613(b), the witness must have an opportunity to explain or
      deny them, but the rule does not specify any particular time at which the
      witness must be given the opportunity to explain or deny.
       (1) Some courts hold that even if the witness is not asked about the
           statements on the stand, he has an opportunity to explain or deny so
           long as the witness is available and can be recalled.
4) Rule in Queen Caroline’s Case
   a) Under C/L, a witness could not be x-examined about a document written
      by the witness unless the document was first shown to the witness.
   b) Under FRE 613(a), this rule is abolished.
5) Coles v. Harsch: Oregon Supreme Court ruled in 1929 that foundation for
   impeaching evidence offered by another witness was lacking because the
   original witness was not questioned specifically whether he made the
   allegedly contradictory statement or about the time, place, and parties present.
   This is a pre-rules case that relies on C/L rules.
6) Cal. Evid. Code § 770: under California rules, unless justice requires
   otherwise, extrinsic evidence of a prior inconsistent statement is excluded
   unless the witness was given an opportunity to explain or deny while
   testifying or has not been excused from giving further testimony.
7) Cal. Evid. Code § 1235: creates a hearsay exception for prior inconsistent
   statements offered under § 770.

   8) Prior Inconsistent Statements Used for Truth of Matter Asserted (Rather
      than Just Impeachment)
      a) FRE 801(d)(1)(A) Prior Inconsistent Statements of Witness: If a prior
         inconsistent statement falls under this rule, it is admissible as substantive
         evidence to prove the truth of the matter asserted. A statement is not
         hearsay if:
          (1) Declarant testifies at the trial or hearing and is subject to x-exam
              concerning the statement;
          (2) Statement is inconsistent with the declarant’s testimony; and
          (3) Statement was given under oath subject to penalty of perjury at a trial,
              hearing, proceeding, or deposition.
              (a) No limiting instruction necessary—can be used to prove truth of
                  matter asserted (if statement is used solely for impeachment, a
                  limiting instruction is appropriate).
              (b) Can be used as substantive evidence to avoid a directed verdict or
                  summary judgment.
b. Prior Consistent Statement
   1) Generally, a witness who has not been attacked cannot be bolstered by
      character evidence, prior consistent statements, or other support.
      a) When the witness’ character for truthfulness has been attacked, evidence
         for showing good character for truthfulness should be admissible.
          (1) Evidence of bias is generally not a character attack.
          (2) Bad acts evidence, prior inconsistent statements, or contradiction
              evidence may be attacks on character for truthfulness or veracity.
   2) Extrinsic evidence may be admitted to rehabilitate a witness.
      a) Prior consistent statements may be offered to assess the credibility of a
         witness (not for truth of the matter asserted), e.g., if an elderly person
         testifies to things that happened years ago, be may appear unreliable
         because of his age—to show his consistency and good memory, prior
         consistent statements could be admitted.
   3) Statements Rebutting Charge of Recent Fabrication or Improper
      Influence or Motive (Used for Truth of Matter Asserted)
      a) FRE 801(d)(1)(B) Prior Consistent Statements of Witness: A
         statement may be admitted for substantive evidence and is not hearsay if:
          (1) Declarant testifies at the trial or hearing and is subject to x-exam
              concerning the statement;
          (2) Statement is consistent with the declarant’s testimony; and
          (3) Statement is offered to rebut an express or implied charge against the
              declarant of recent fabrication or improper influence or motive.

          b) Tome v. U.S.: Supreme Court held that prior consistent statements must
             be made before the charged recent fabrication or improper influence or
             motive arose to qualify under FRE 801(d)(1)(B) [the statements could
             nevertheless be admissible under the residual or another exception].
          c) Minn. Rule Evid. 801(d)(1)(B): declarant testifies at trial, subject to x-
             exam, and statement is consistent with declarant’s testimony and helpful
             to the trier of fact in evaluating the declarant’s credibility as a witness
             (regardless of time when made).
          d) Cal. Evid. Code § 791: prior consistent statements may only be admitted
             if an inconsistent statement is admitted to attack his credibility and the
             consistent statement was made prior to the inconsistent statement, or same
             elements of FRE 801(d)(1)(B), including Tome timing element.
          e) Cal. Evid. Code § 1236: makes a hearsay exception for consistent
             statements that comply with § 791.
5. Bias
   a. ―Bias‖ describes the relationship between a party and a witness which might lead
      the witness to slant, unconsciously or otherwise, his testimony in favor or against
      the party. It may be induced by a witness’ like, dislike, or fear of a party, or by
      the witness’ self-interest.
   b. Extrinsic Evidence Is Allowed to Show Bias
      1) U.S. v. Abel: Supreme Court held that extrinsic evidence of a witness’
         membership in a prison gang that required its members to lie for one another
         was admissible to show bias, even if the witness had not adopted all of the
         tenets of the gang.
      2) Not every uncharged bad act is admissible against a prosecution witness to
         show bias; the proponent must lay the foundation showing that there is a basis
         for believing that the witness is influenced by fear of prosecution (some courts
         require proof of a deal with P).
          a) Trial judge can exclude details that are cumulative, waste of time, or
             prejudicial under FRE 403.
   c. Prior Witness Statements that Show Bias
      1) FREs do not address foundation needed to admit prior statements of the
         witness that show bias.
          a) Some courts exert control under FRE 611(a) and require some foundation
             (allowing witness to explain/deny or be available for recall to the stand).
          b) Other courts do not require any foundation for prior statements that show

IV. Expert and Scientific Evidence
   A. Opinion, Expertise, and Experts
      1. Lay Opinion
          a. 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:
             1) Rationally based on the perceptions of the witness;
             2) Helpful to a clear understanding of the witness’ testimony or the
                determination of fact in issue;
             3) Not based on scientific, technical, or other specialized knowledge within the
                scope of FRE 702.
          b. Speculation: lay witnesses may not testify or speculate regarding facts about
             which they lack personal knowledge.
             1) Commonwealth v. Holden: Pennsylvania Supreme Court justice dissented
                from an opinion because a witness was allowed to testify that he thought D
                winked at him to convey the message that the witness was supposed to
                fabricate an alibi for D. The trial judge admitted the witness’ entire
                speculation on what the wink might have meant.
          c. Collective Facts Doctrine: judge uses discretion to determine under FRE 104(a)
             whether there is a sufficient collection of facts upon which the witness may
             properly draw an opinion or inference.
             1) Virgin Islands v. Knight: Third Circuit held it an abuse of discretion, but
                harmless, for the trial court to exclude an eyewitness’ and investigating
                officer’s testimony that D’s shooting a gun that killed V was ―an accident.‖
          d. Overly General Opinions May Be Unhelpful: because they alone do not supply
             any underlying facts and may be superfluous if the witness describes the
             underlying facts.
             1) Although FRE 704 allows opinion on an ultimate issue, if the issue is central
                to the case, the judge may exercise discretion and disallow as unhelpful a
                witness’ testimony regarding a legal conclusion generally reserved for the jury
                (e.g., D was ―careless‖ or ―negligent‖).
          e. Lay v. Expert Testimony: the same witness may provide expert testimony and
             lay testimony. Expert testimony is governed by FRE 702; it relies on scientific,
             technical, or other specialized knowledge.
             1) Unique personal knowledge (e.g., regarding one’s own business) is not
                necessarily specialized knowledge within the meaning of FRE 702.
                Specialized knowledge is generally gained by specializing in a field not by
                reasoning familiar in everyday life.

2. Qualifying as an Expert Witness
   a. Judge exercises discretion over whether to admit expert testimony under FRE
   b. FRE 702 Testimony by Experts: a witness may testify in the form of opinion or
      otherwise regarding scientific, technical, or other specialized knowledge if:
      1) Scientific, technical, or other specialized knowledge will assist the trier of fact
         to understand evidence or to determine a fact in issue;
      2) Witness is qualified as an expert by knowledge, skill, experience, training, or
      3) Testimony is based on sufficient facts or data;
      4) Testimony is the product of reliable principles and methods; and
      5) Witness has applied the principles and methods reliably to the facts of the
          a) An expert need not have acquired expert knowledge through formal
             (1) State v. Odom: Supreme Court of N.J. allowed a police officer to
                 testify as an expert regarding D’s possession of 18 vials of crack as
                 evidence of his intent to sell. Expert opinion can be admitted if it
                 relates to a relevant subject that is beyond the understanding of the
                 average person of ordinary experience, education, and knowledge.
                 Police testimony did not express an opinion on D’s guilt, just whether
                 the evidence showed a purpose to distribute rather than personal use.
                 Court relied on C/L approach and instructed that the expert should
                 have provided the bases for his opinion, only relied on facts in
                 evidence propounded to him in a hypothetical question, avoided legal
                 terminology, and not used D’s name in his testimony (harmless error).
          b) The proponent lays the expert’s foundation, and the opponent may then x-
             examine regarding qualification; the judge then rules on the expert’s
             qualification before the expert substantively testifies.
             (1) Proponent is allowed to question the expert regarding his impressive
                 qualifications that he wants the jury to hear (e.g., that he has a PhD
                 from Harvard) even if the opponent stipulates that he is qualified.
          c) Proponent need not show that the expert’s testimony is necessary—only
             that it will ―assist the trier of fact.‖ Opponent essentially bears the burden
             of disproving this.
             (1) This is generally a relevancy test, but some courts may use it to
                 exclude evidence which is unfairly prejudicial or fails the Daubert test.

3. Permissible Expert Testimony
   a. FRE 703 Basis of Opinion Testimony by Experts:
      1) Facts or data 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.
      2) 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.
      3) Facts or data 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.
         a) Hearsay (and Other Inadmissible Evidence) as Basis for Opinion
             (1) Expert may base testimony on facts not presented to the jury and not
                 otherwise admissible (so long as others in the field reasonably rely on
                 such items).
             (2) Hearsay from observers of an accident is generally not a permissible as
                 the basis for an expert’s opinion as to the cause of the accident if the
                 expert would not use the information as a witness but not in his
                 profession capacity.
             (3) In order for the inadmissible evidence to be admitted to the jury, its
                 probative value must substantially outweigh its prejudicial effect.
                 (a) If the otherwise inadmissible information is admitted, the judge
                     must give a limiting instruction upon request, informing the jury
                     that the underlying information must not be used for substantive
                     purposes but rather only to assist the jury in evaluating the expert’s
             (4) Brunner v. Brown: Iowa Supreme Court (relying on rules identical to
                 FRE 703, 705) held that the trial court did not abuse its discretion by
                 prohibiting P’s expert witness from relating hearsay statements on
                 direct exam upon which he based his opinion of the decedent’s
                 capacity to make a will. The underlying hearsay evidence was
                 admissible in order for the jury to evaluate the expert’s testimony, but
                 it was not an abuse of discretion to exclude it.
             (5) People v. Gardeley: California Supreme Court held that a police
                 officer with 23 years of investigating street gangs could testify as an
                 expert on whether D was involved in a criminal gang (satisfying an
                 element for enhanced sentencing) and relate hearsay statements made
                 to him upon which he based his conclusion.
         b) Opinion Based on Another’s Opinion
             (1) Expert may base testimony on the opinions of others but may not
                 simply parrot another’s opinion or base opinion on another’s opinion
                 prepared for litigation.

               (a) U.S. v. Tran Trong Cuong: Fourth Circuit found it error to allow
                   P’s expert to bolster his opinion by testifying that his conclusions
                   were ―essentially the same‖ as another doctor, who did not testify
                   and whose report was not introduced into evidence.
                  (i) Reports specifically prepared for litigation are not, by
                      definition, of a type reasonably relied upon by experts in the
                      particular field.
           (2) U.S. v. Scop: Second Circuit reversed convictions of mail and
               securities fraud because P’s expert offered opinion evidence that Ds’
               stock sales were manipulative and deceptive based on observations of
               evidence introduced at trial. Court held that experts may not offer
               opinions on relevant events based on their personal assessment of the
               credibility of another witness’ testimony.
b. FRE 705 Disclosure of Facts or Data Underlying Expert Opinion: the expert
   may testify in terms of opinion or inference and give reasons therefor without first
   testifying to 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 x-
   1) Factual Foundation
       a) Under C/L, the expert could only testify to facts of which he had personal
          knowledge or that were admitted into evidence. Counsel would have to
          lay the foundation for a hypothetical question by identifying the
          underlying facts or data unless the expert was present while evidence was
          presented, in which case, he could testify assuming that evidence to be
       b) Under FRE 705, trial judge has discretion to either require that the expert
          specify the basis first or may leave it to the x-examiner to explore the
          factual basis.
   2) Hypothetical Questions
       a) FREs neither require nor prohibit hypothetical questions.
       b) If the hypothetical omits material undisputed facts, adds facts not in
          evidence, misstates facts, or includes irrelevant or prejudicial facts, it may
          violate FRE 403 as misleading, confusing, or prejudicial.
           (1) Ingram v. McCuiston: in a pre-rules case, the North Carolina
               Supreme Court granted D a new trial when P’s counsel asked a 23-
               paragraph hypothetical question that was prejudicial because it
               included numerous references to the issue of liability when the expert
               was only testifying on the issue of damages.
       c) When facts are in dispute, the examiner may include his client’s version of
          the facts without being misleading. (On x-exam, the opponent may ask
          the expert his opinion based on its version of the facts.)

c. FRE 704 Opinion on Ultimate Issue
   1) General Rule
       a) FRE 704(a): except as in FRE 704(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.
           (1) Some opinion testimony may nevertheless be barred by FRE 701 and
               702 as not assisting the trier of fact or FRE 403 as waste of time.
              (a) Generally, when legal criteria are not spelled out, the testimony is
                  excluded under these rules (e.g., asking whether a testator had
                  legal capacity is different than asking about specific details of his
                  mental condition which arrive at the legal conclusion).
   2) Mental State of Criminal D
       a) FRE 704(b): no expert witness testifying with respect to the mental state
          or condition of a criminal D may state an opinion or inference as to
          whether D did or did not have the mental state or condition constituting an
          element of the crime charged or of a defense thereto. Such issues are
          matters for the trier of fact alone.
           (1) This rule was added after John Hinkley Jr. was found not guilty by
               reason of insanity in his trial for attempted assassination of President
           (2) U.S. v. Kristiansen: Eighth Circuit had held that asking the expert for
               a legal conclusion about an element of the crime (did D appreciate the
               wrongfulness of his actions) is improper but asking whether D was
               suffering from a mental disease or defect at the time was proper
               followed by asking whether such a mental disease or defect would
               cause one to lack ability to appreciate one’s actions.
d. FRE 706 Court Appointed Experts: the court may appoint an expert on a
   party’s motion or sua sponte, who may then be deposed, called as a witness, and
   x-examined by either party. This does not limit the rights of the parties to call
   their own experts.

B. Scientific and Demonstrative Evidence
   1. The Daubert Test
      a. Daubert v. Merrel Dow Pharmaceuticals: Supreme Court overruled Frye v. U.S.
         test for admitting expert testimony (must be a well-recognized scientific principle
         or discovery, sufficiently established to have gained general acceptance in the
         particular field in which it belongs). The new test requires judges to look
         principles and methodology used by the expert and whether they were
         appropriately applied to the facts (not the conclusions they generate). Non-
         exhaustive list of factors that might indicate whether knowledge was
          1)   Whether theory can and has been tested;
          2)   Subjected to peer review and publication;
          3)   Known or potential error rate;
          4)   Existence and maintenance of standards or controls;
          5)   Whether generally accepted in the relevant scientific community.
               a) Another inquiry might be: was this theory developed just for trial?
      b. General Electric v. Joiner: Supreme Court held that admissibility of expert
         evidence by the trial court under Daubert analysis is reviewed for abuse of
      c. Kumho Tire v. Charmichael: Suprme Court held that Daubert’s general
         holding—setting forth the trial judge’s general ―gatekeeping‖ obligation—applies
         not only to testimony based on ―scientific‖ knowledge but also testimony based
         on ―technical‖ and ―other specialized‖ knowledge.
          1) A trial court may consider one or more of the more specific factors that
             Daubert mentioned when doing so will help determine the testimony’s
             reliability (it is a suggestive and non-exhaustive list).
   2. Handwriting Analysis
      a. U.S. v. Starzecpyzel: Southern District of N.Y. in 1995 determined that
         handwriting analysis to determine forgeries is ―technical‖ and not ―scientific‖ and
         that Daubert did not provide a new standard for non-scientific expert testimony.
         The judge found, nevertheless, that FRE 702 imposed significant gatekeeper
         responsibility on the trial judge for all expert testimony, scientific or not. The
         judge allowed testimony of a forensic document examiner but did not allow the
         witness to refer to laboratories or to adopt any of the other ―trappings of science‖
         and instructed the jury of the non-scientific nature of the testimony. This case
         predates Kumho Tire and the 2000 amendments to FRE 702, which codify the
         Daubert test for all expert witnesses.
   3. Polygraph Evidence
      a. State v. Porter: Connecticut Supreme Court assumed that polygraphs would pass
         a Daubert test but ruled that polygraphs are per se prohibited in state court
         because there is no accurate measure of their predictive value.

1) Polygraph evidence rests on two assumptions:
   a) There is a regular relationship between deception and certain emotional
      states; and
   b) There is a regular relationship between those emotional states and certain
      physiological changes in the body that can be measured and recorded.
       (1) The test must be designed and graded correctly.
2) Control Question Test (measures relative reactions to types of questions)
   a) Truth-teller is assumed to have a higher physical reaction to the control
      questions (general wrongdoing) than the relevant questions (about the
      specific incident) because of fear that he is lying about some general
      wrongdoing in his past.
   b) Guilty party is assumed to have a greater reaction to the relevant than to
      the control questions.
3) Guilty Knowledge Test
   a) Does not attempt to determine whether D is lying but whether he
      possesses guilty knowledge—when he recognizes the correct answer (that
      only the guilty party would know), he has a measurable physical reaction
      more so than someone who lacked the knowledge.
   b) Test requires some concealed knowledge that only the guilty party would
4) Accuracy
   a) Sensitivity: ability to tell when a guilty person is lying. (The higher the
      sensitivity, the lower the false negative rate, fewer believing-a-lie
   b) Specificity: ability to tell when an innocent person is telling the truth.
      (The higher the specificity, the lower the false positive rate, fewer
      disbelieving-the-truth mistakes.)
       (1) Polygraphs generally have a higher sensitivity than specificity
           (generate more false positives than false negatives).
5) Predictive Value (need to know Base Rate [actual # of positive/negative in
   a) Predictive Value Negative = # true negatives / (# false + # true negatives)
   b) Predictive Value Positive = # true positives / (# false + # true positives)
       (1) # positives in population x false negative % = # false negatives
          (a) # positives in the population - # false negatives = # true positives
       (2) # negatives in population x false positive % = # false positives
          (a) # negatives in population - # false positives = # true negatives

              c) The Base Rate is important because it can greatly accentuate the impact of
                 the false positive and false negative rates arising from any given
                 specificity and sensitivity values.
                  (1) There is no reliable measure of the Base Rate to test the predictive
                      value of polygraphs—lab tests are not reflective of those who actually
                      take the test.
                  (2) Example: Test with 90% sensitivity and 60% specificity and
                      population of 1000 with base rate of 10% positive results in a PVP of
                      20% (only 20% of the positive results of the test were actually
                      positive) and PVN of 98% (almost all of the negatives were true
      b. U.S. v. Piccinonna: Eleventh Circuit, in a pre-Daubert decision, stated that
         polygraphs do not categorically lack general acceptance for all circumstances.
         Court concluded that polygraphs could be used upon stipulation of the parties
         before the test or when used to impeach or corroborate the witness at trial (if
         advance notice and opportunity to have own polygraph expert administer a test as
         well)—FRE regarding impeachment testimony would apply, though.
          1) Traditional rule is that polygraph evidence is inadmissible when offered by
             either party, either as substantive evidence or as relating to credibility of
          2) Many courts allow the trial judge to exercise discretion to receive polygraph
             evidence if the parties stipulate to its admissibility before the test.
          3) Some courts allow the judge to admit polygraph evidence in the absence of a
             stipulation in special circumstances.
      c. U.S. v. Scheffer: Supreme Court held that in court-martial proceedings, the rule
         excluding polygraph evidence does not violate D’s constitutional rights to present
         a defense. Some Circuits have a per se ban, some leave it to the discretion of the
         trial judge under a Daubert analysis, and others have not yet decided.
C. Probabilistic Evidence
   1. People v. Collins: California Supreme Court ruled that mathematical probability
      evidence was improperly used to bolster the evidence of identification. A
      mathematician used the ―product rule‖ to multiply the independent probabilities of
      several characteristics of Ds (as identified by witnesses) to arrive at the conclusion
      that there was a one in a 12 million chance that there would be another set people that
      shared Ds’ characteristics.
      a. P laid no foundation for the probabilities of each characteristic and incorrectly
         assumed that each physical characteristic was independent, which would be
         required for the product rule to be valid.
      b. It also incorrectly used random match probability to substitute for source

       1) The evidence could not answer ―of the admittedly few couples who share Ds
          characteristics, which one, if any, was guilty of committing the robbery?‖
   c. The mathematical evidence also did not show that the witnesses accurately
      reported Ds characteristics.
2. Bayes’ Theorem
   a. Bayes theorem provides a way of determining how an evaluation of probability
      based upon initial evidence should be modified in light of additional evidence.
       1) Must have an initial source probability (% likelihood that D is guilty)—after
          applying Bayes Theorem to a random match probability (what is the
          likelihood that a person chosen at random would also match a sample) of a
          sample found at a crime scene, which D matches—the result is a modified
          source probability.
   b. This assumes that the sample at the crime scene was left by the guilty party, that
      the random match probability is accurate, that there is no possibility for lab error,
      that there is no innocent explanation why the sample was there.
   c. Difficult to arrive at the initial numerical % likelihood that D is guilty in minds of
3. Rebutting the Prosecutor’s and Defense Counsel’s Fallacy
   a. Prosecutor’s Fallacy: occurs when a prosecutor suggests that the evidence
      indicates the likelihood of D’s guilt, rather than the odds of a match, given that D
      is not the source.
       1) This equates random match probability with source probability and assumes
          that the source is also guilty.
       2) There may be others who also match, and there may be innocent reasons for a
   b. Defendant’s Fallacy: occurs when defense counsel suggests, or jurors conclude,
      that anyone with the same profile a D is as likely as D to be the source of the
      crime scene sample.
       1) This ignores other evidence available, e.g., how many other suspects share the
          same profile?
4. Kammer v. Young: Maryland Court of Special Appeals allowed blood test evidence
   to prove paternity of child using Bayes’ Theorem and applying a prior probability of
   a. Why was 50% used? (Because it was generally accepted under Frye test.)
       1) It does not consider the likelihood that D was actually the father: the test
          would produce the same result regarding D even if he were out of the country
          for the last year, had a vasectomy, was in prison, or dead. Is this realistic?
   b. The random match probability also compares the general population—if the
      population were Ds’ family members, the chances of a match would be much

      5. DNA Evidence
          a. Looks for the length of repetitive DNA patterns and uses the product rule to
             determine a random match probability. After applying Bayes’ Theorem, there is a
             source probability.
              1) Coincidental Match: maybe D is not the only one who matches (depends on
                 population, e.g., general or family group).
              2) Innocent Explanation: maybe D is the source of the sample, but maybe the
                 sample does not conclusively show guilt.
              3) Lab Error
                  a) Koehler suggests that even if the source probability is extremely high, this
                     should be trumped by the lab’s error rate.
                  b) Berger argues that not all labs are the same, that other evidence is
                     regularly admitted that is less reliable (without quantifying how
                     unreliable), the facts of the case should be looked at (under Daubert test),
                     the adversary system should be used to look at case-specific error, it
                     would be misleading to assume that the laboratory error rate was
                     applicable to the case at hand.
V. Confidentiality and Confidential Communication
   A. FRE 501 Privileges: except as otherwise provided, the privilege of a witness or other
      person shall be governed by the principles of the common law as they may be interpreted
      by courts in light of reason and experience. In civil actions governed by substantive law,
      privileges should be determined in accordance with state law.
   B. Attorney-Client Privilege
      1. Restatement Elements: lawyer-client privilege may be invoked with respect to:
          a. Communication;
          b. Made between privileged persons (client, prospective client, client’s lawyer,
             communicating agents of either of them, and lawyer’s representing agents);
          c. In confidence;
          d. For the purpose of obtaining or providing legal assistance for the client.
              1) Only communication is protected—acts or observations (including apparent
                 competency of client) are not protected.
              2) Presence of third parties may destroy the privilege unless they are agents of
                 the lawyer or client or the client reasonably believed that the discussion was
                 confidential and the third party’s presence was reasonably necessary in
                 furtherance of the consultation.
                  a) If the third party also has a privilege with the client and the
                     communication is in furtherance of the service both the lawyer and the
                     third party provide to the client, the circle of privilege is not broken.
                  b) Joint consultations by two or more parties represented by one lawyer are
                     not privileged with respect to one other if the parties become adverse.

   c) Eavesdroppers may generally testify if the lawyer and client fail to take
      precautions to keep their communications private.
   d) If the client gives information to the lawyer that he intends the lawyer to
      make public at some future time, it is not privileged.
3) Generally communication between the client and an expert hired by the
   lawyer solely to assist him in preparing the case are privileged—not if the
   expert testifies at trial or provides independent services to the client.
   a) City and County of S.F. v. Superior Court: Supreme Court of California
      ruled that communications between a client and a doctor hired by the
      lawyer to examine his client were privileged under the attorney-client
4) Previously unprivileged documents do not become privileged because the
   client transmits them to the lawyer.
5) Must be legal advice—not friendly support or solely business advice.
   a) U.S. v. Woodruff: District Court ruled that attorney must testify whether
      he told his client the date and place of the trial in order to determine
      whether D knowingly jumped bail. Counsel was serving a notice function
      for the court, not giving legal advice.
6) The identity of client, fact of employment of the lawyer, or details related to
   fees are generally not privileged unless they may reveal a privileged
7) Privilege survives the death of the client, except in disputes over disposition
   of the client’s estate.
8) Privilege only covers only communication between client and lawyer—not the
   underlying data upon which those communications are based.
9) Privilege can be waived by putting the privileged material in issue, intentional
   partial disclosure, disclosure by mistake where party has not taken reasonable
   precautions, refreshing memory with a privileged document, and disclosure
   during negotiations.
10) Lawyer may reveal confidential communications in order to establish a claim
    or defense against the client.

      11) Corporate Clients
          a) Upjohn v. U.S.: Supreme Court rejected a ―control group‖ test for
             corporate employees whose communication with the corporation’s lawyer
             would be privileged.
              (1) It held privileged communications by lower-level employees to the
                  corporation’s counsel, acting as such, at the direction of management
                  in order to secure legal advice from counsel;
              (2) The communications concerned matters within the employees’ scope
                  of employment, and the employees were aware that the information
                  was sought for legal advice; and
              (3) The information was treated confidentially.
2. Federal Work-Product Doctrine
   a. Fed. Rule Civ. Pro. 26(b)(3): a party may obtain discovery of documents and
      tangible things prepared in anticipation of litigation by a lawyer or other agent of
      the party only by showing a substantial need and that it is unavailable, without
      undue hardship, to obtain the substantial equivalent from other sources.
      1) Mental Impressions: even if requisite showing of need is made, the court
         must protect against disclosure of the mental impressions, conclusions,
         opinions, or legal theories of a lawyer or other representative regarding
3. Crime-Fraud Exception
   a. The attorney-client privilege does not apply to a communication occurring when a
      1) Consults a lawyer for the purpose, later accomplished, of obtaining assistance
         to engage in a crime or fraud (or assist another in crime or fraud); or
      2) Regardless of the client’s purpose at the time of consultation, uses the
         lawyer’s advice to engage in a crime or fraud.
   b. Clark v. State: Texas Court of Criminal Appeals ruled that conversations
      between D and his lawyer, that were overheard by a telephone operator, were not
      privileged because the lawyer gave D advice to dispose of the murder weapon,
      which D then did.
   c. U.S. v. Zolin: Supreme Court held that district court may review allegedly
      privileged information in camera to determine if the exception applies but only
      after some preliminary showing of crime or fraud (a ―factual basis adequate to
      support a good faith belief by a reasonable person‖).
      1) Cal. Evid. Code § 915(a): cannot look at privileged material to determine if
         privilege applies.

C. Marital Privileges
   1. Adverse Spousal Testimony
      a. A spouse may refuse to testify against his or her spouse regarding any matter, not
         just communications or confidences.
          1) Trammel v. U.S.: Supreme Court held that the witness spouse, not the party
             spouse, holds the privilege and may testify if he or she wishes.
          2) Some states hold that either spouse holds the privilege, many states limit the
             privilege to criminal cases, and others extend it to civil cases as well.
          3) Privilege does not apply when spouses are adversaries (e.g., divorce) or one
             spouse is accused of a crime against the other spouse or their children.
          4) Privilege does not survive the marriage.
   2. Marital Confidences
      a. Either spouse may prohibit the other spouse from testifying against them
         regarding confidential communications (some jurisdictions include confidential
          1) Limited to communications during the marriage.
          2) Privilege survives termination of the marriage.
          3) Presence of a third party, including a child old enough to understand what is
             said, generally destroys the privilege.
          4) The spouse reposing the confidence is the holder of the privilege and may
             waive it by calling the other spouse to testify, disclosing the communication to
             a third party (even accidentally).
          5) Privilege does not apply when spouses are adversaries or one spouse is
             accused of a crime against the other spouse or their children, and a fraud
             exception has been recognized.
D. Psychotherapist-Patient Privilege
   1. Jaffee v. Redmond: Supreme Court established the federal therapist-patient
      privilege, including licensed social workers, and rejected a balancing test.
      a. Applies only to communication (not entire exam).
          1) Therapist could testify to marks on the patient, group therapy may waive the
      b. Cal. Evid. Code § 1012: includes all confidential information (like doctor-
         patient privilege).
   2. Dangerous Patient Exception
      a. Maybe the Supreme Court would allow, similar to Tarasoff warnings.

VI. Writings
   A. Best Evidence Rule: In providing the terms of a writing, where such terms are material,
      the original writing must be produced, unless it is shown to be unavailable for some
      reason other than the serious fault of the proponent.
      1. Only applies to contents of the writings, not the fact whether it was ever written.
      2. FRE 1001 Definitions of Writings, Recordings, Photographs, Original, and
      3. FRE 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 FRE or law.
      4. FRE 1003 Admissibility of Duplicates: a duplicate is admissible to the same extent
         as an original unless:
          a. Genuine question is raised as to the authenticity of the original; or
          b. In the circumstances, it would be unfair to admit the duplicate in lieu of the
      5. FRE 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:
          a. Originals are lost or stolen—unless the proponent destroyed them in bad faith;
          b. Original is not obtainable by judicial process;
          c. Party against whom they were offered had them in his possession, was put on
             notice that they would be offered, and failed to produce the originals at the
             hearing; or
          d. Writing, recording, or photograph relates to a collateral issue.
      6. FRE 1005 Public Records: contents of a public record may be proved by certified
         copy under FRE 902 or testified to be correct by a witness who has compared the
         copy to the original (other evidence of the contents may be admitted if reasonable
         diligence is not successful in obtaining a copy sufficient to meet these requirements).
      7. FRE 1006 Summaries: contents of voluminous writings, recordings, or photographs
         may be summarized. The originals must be available to the parties and may be
         required to be produced in court.
      8. FRE 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
         non-production of the original.
      9. FRE 1008 Functions of Court and Jury:
          a. For Court: conditions of fact that determine whether writings, recordings, or
             photographs should be admitted;
          b. For Trier of Fact: whether a writing ever existed, whether the evidence at trial is
             the original, or whether other evidence clearly reflects the contents.

   10. Sirico v. Cotto: N.Y. City Civil Court held that a doctor could not testify to the
       contents of x-rays without supplying a reason for their absence from court.
   11. Herzig v. Swift & Co.: Second Circuit held that a witness could testify to the
       earnings of a partnership without producing the business’ books and records.
   12. Meyers v. U.S.: D.C. Circuit allowed a witness to testify to what D said under oath
       without referring to a transcript; the issue was what D actually said, not what the
       transcript said.
   13. People v. Enskat: California Superior Court Appellate Department disallowed police
       photographs and testimony about the contents of allegedly obscene motion pictures.
B. Authentication
   1. Proponent may authenticate a document by signature exemplars, testimony from one
      knowledgeable about the signer’s handwriting, or circumstantial evidence of the
      manner in which the document was produced or delivered or its contents.
   2. FRE 901 Requirement of Authentication or Identification: 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.
      (FRE 901(b) is a non-exhaustive list of examples of sufficient authentication.)
   3. FRE 902 Self-Authentication: extrinsic evidence of authenticity as a condition
      precedent to admissibility is not required with respect to the following:
      a. Domestic public documents bearing a government seal and signature;
      b. Domestic public documents bearing an official signature but no seal if the official
         certifies under seal that the signature is genuine and the signer has capacity to sign
         the document;
      c. Foreign public documents accompanied by a official certification as to their
      d. Certified copies of public records certified as correct by their custodian or other
         authorized official under seal and signature;
      e. Official publications issued by a public authority;
      f. Newspapers and periodicals;
      g. Labels or tags affixed in the course of business;
      h. Notarized documents;
      i. Commercial paper;
      j. Acts of Congress;
      k. Certified domestic records of regularly conducted business activity, if
         accompanied by a written declaration of their custodian or other qualified person;
      l. Certified foreign records of regularly conducted business activity in a civil case, if
         accompanied by a written declaration of their custodian or other qualified person.
   4. FRE 903 Subscribing Witness’ Testimony Unnecessary: testimony of a
      subscribing witness is not necessary to authenticate a writing unless required by law
      governing the validity of the writing.

5. U.S. v. Dockins: Fifth Circuit held that fingerprint cards from the Denver Police
   were not self-authenticating and held that P did not lay a proper foundation for them
   because the witness had no knowledge that the card actually came from the Denver
6. First State Bank of Denton v. Maryland Casualty: Fifth Circuit held that phone call
   was properly authenticated, even though it did not fit literally within FRE 901(b)(6),
   because the phone number was assigned by the telephone company and sufficient
   circumstantial evidence indicated that it was D’s phone number.


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