EVIDENCE OUTLINE
INTRO TO EVIDENCE
Key Issues
 Key Issue 1: Application
o The application of rules allows a lot of discretion for judges
o E.g., use of “may,” use of balancing tests
o Takeaway: must be able to make arguments for how judges should apply certain rules
 Key Issue 2: Policy Rationale
o i.e., understanding the “why” behind certain rules
o Takeaway: be able to think critically about each rule’s goal and be able to pull the rule apart
 Key Issue 3: Understanding the Jury
o i.e., understand the jury and the fraught relationship w/ the jury
o Takeaway: our relationship with the jury informs the law of evidence
Main three questions for whether evidence if admissible
 Is the evidence relevant?
 Is the evidence reliable?
 Is the evidence privileged (i.e., even if relevant/reliable, is there another reason it shouldn’t be admitted as
evidence in court?)
KEY THINGS TO REMEMBER:
 In ambiguous cases  FRE favors admissibility
 Everything needs to pass 403
 Judge has discretion  preponderance of the evidence -104(b)
RELATIONSHIP W. JURY
Rule 606(b): No juror may testify about jury deliberations to impeach the verdict that the jury has reached. (p. 119)
 Deliberations = everything the jury does while in panel, all stuff in deliberations
o i.e., deliberations is defined broadly
 Exceptions (i.e., the jury CAN testify to impeach for):
o Extraneous prejudicial information (i.e., info that’s not admitted into evidence; info that informed the
jury’s conclusion that didn’t make its way through ct. in an appropriate way)
 Things that are NOT extraneous info (i.e., cannot be used to impeach):
 mental/physical health of juror
 sickness
 drugs/intoxication
 lack of sleep
o Outside influence (i.e., bribes, threats)
o Mistake on form (i.e., we forget to write NOT guilty)
o Race (b/c of the Constitution)
 Policy: Why do we have Rule 606(b)?
o Finality (i.e., need to take blind eye so courts can handle case load)
o Protecting deliberations (i.e., deliberations won’t be legit if jurors fear that speaking frankly will be used
to impeach verdict)
o Protect jurors from harassment (from losing lawyers/parties, etc.)
o Protect system’s legitimacy (we don’t want to know how the system fucks up)
 606(b) allows jurors to write books, talk to news outlets, etc.  just bans jurors testifying in court as
impeachment
 Tanner v. U.S.: Tanner is convicted. Jurors come forward and say jurors were partying during deliberations.
Tanner wants to impeach verdict on appeal. Case goes up to SCOTUS
o Holding  follow Rule 606(b): No juror may testify about jury deliberations to impeach the verdict that
the jury has reached.
 The evidence (jurors committing felonies) is INADMISSIBLE
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Takeaway: we have faith and trust in the jury in the backend (i.e., their verdict stands)  we actively
don’t want the jury to explain reasoning/fuck-ups
 B/c of this, we have to be particularly careful what we show them on the front end
RELEVANCE
BASICS
Rule 401: Evidence is relevant if it has any tendency to prove/disprove a fact that matters to the dispute.
 i.e. evidence is relevant if probative and material
o Probative = has ANY tendency to make a fact more or less probable than it would be without the
evidence (i.e., has some tendency, however small, to make a fact more/less probable)
 Does the evidence have any tendency to prove/disprove something? If YES, then probative
o Material = the fact is of some consequence in determining the action (i.e., matters to the dispute)
 Evidence does not become irrelevant just b/c it’s uncontested
o i.e., no balancing test, just yes/no whether there’s any relevance at all (even if there are 500 ways to prove
the same point)
Rule 402: Relevant evidence is generally in (w/ exceptions). Irrelevant evidence is out.
 Relevant evidence is generally admissible UNLESS something says otherwise
o Relevance also depends on the substantive law
o Other things/exceptions: Constitution, fed. statute, FRE, other rules prescribed by SCOTUS
 Irrelevant evidence is NOT admissible
 U.S. v. James: daughter murders mom’s boyfriend, Ogden. Mom is on trial for aiding/abetting daughter’s murder.
D wants to intro ct. docs that talk about Ogden’s behavior
o The evidence is relevant (ADMISSIBLE)  can be used to corroborate mom’s allegations. If he did the
crimes, Ogden’s more likely to have bragged convincingly, which would create legit fear in mom (i.e.,
gets to state of mind).
 i.e., it doesn’t matter that the chain of inferences isn’t water tight for relevance
 Pay attention to relevance if presenting evidence for an element of a crime that isn’t an element of the charged
crime
Rule 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one
or more of the following: (1) Unfair prejudice, (2) Confusing the issue, (3) Misleading the jury, (4) Undue delay, (5)
Wasting time, (6) Needlessly presenting cumulative evidence
 403 = balancing test  probative value vs. other concerns (e.g., unfair prejudice, confusion, etc.)
o Evidence is only exclude if the probative value is substantially outweighed by negatives
 Rule tips in favor of admissibility
 Factors that determine probative value
 How much the evidence tends to prove/disprove something
 Is there alt. evidence that might be able to prove the same point?
 Will jury instructions (105) take away risk of unfair prejudice?
 What is the extent of the dispute?
 Factors that determine unfair prejudice
 Whether jury was invited to consider ideas not based on evidence and not based on
whether prosecution satisfied burden of proof
o Weighing test only looks at unfair prejudice
 i.e., all evidence is prejudicial, so only looking at unfair prejudice (e.g., inflames the jury)
 Unfair = inviting jury to consider ideas not based on evidence and not based on whether the
prosecution has satisfied her burden of proof
o Balancing test applies to all parties (to prosecution, not just defendants)
 Prosecutors most commonly make 403 args in self-defense cases
 Basic idea: there are times when some evidence should be excluded, even though it’s relevant, b/c of other factors
o Surprise is NOT a ground for exclusion  if surprise, there should be an extension
 Applies to almost EVERY type of evidence that we look at
o Demonstrative evidence technically does NOT need to go through 403
 State v. Bocharski: D charged w/ woman’s murder. Challenges admission of 6 gruesome photos
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Photos are relevant under 401/402  there is unfair prejudice b/c it has potential to generate a decision
outside the facts, b/c photos are gruesome
o Court does NOT reverse  harmless error b/c there’s enough other evidence
 Probative value is diminished if there are other ways to prove a point
o Think about how prejudicial evidence can be mitigated (e.g., black & white photos rather than color, voir
dire, limiting jury instructions)
Commonwealth v. Serge: Serge shoots wife & claims self-defense. State is allowed to admit CGA video of crime
scene based on forensics evidence
o CGA has some probative value, but unfair prejudice (i.e., over persuasive b/c it seems so
objective/realistic, has capacity to mislead jury)
o Court allows CGA  balance in favor of admissibility, then relies on jury instructions
Ways to minimize unfair prejudice
o Limiting instructions
o Redaction, using black&white photos/cropping,
o Voir dire
o Stipulations (see below)
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CONDITIONAL RELEVANCE
Rule 104(b): Some evidence is probative/material ONLY IF something else is established  if this one fact didn’t occur,
then the evidence is NOT relevant (i.e., If NO X, then NO Y)
 Underlying premise: some evidence is relevant ONLY IF a pre-condition exists (i.e., something else is true)
o E.g., evidence of the D’s other computer hacking is relevant only if the D actual did those crimes
 Most often applicable to:
o Things people knew/heard/saw
o 404 past acts: the acts actually had to be done by the D
 Standard: Evidence can only come in when there is sufficient evidence that the underlying evidence exist
o Sufficient evidence (Huddleston): When a reasonable jury could find by a preponderance of the
evidence that the conditional fact exists
 Preponderance of evidence = more likely than not (slightly more than 50%)
 i.e., Y can be admitted as evidence when a reasonable jury could find by a preponderance of the
evidence of X (the condition) exists
 Note: while this question doesn’t go the actual jury, the judge has to ask whether a jury could find
by preponderance of the evidence that the conditional fact exists
o Disparity between standards (104 – preponderance // 401/402 – bare relevance) doesn’t matter in practice
too much
 Plain relevance (401/402) is easier
 Conditional relevance (104(b)) is a higher standard
 A crafty lawyer can change the standard by spotting conditions in every chain of evidence
inferences
 The court may admit the proposed evidence on the condition that the proof be introduced later
o Creates a problem where someone can essentially bluff about evidence and promise to satisfy the
condition later
 To determine, you have to look at all the evidence to determine whether the other-act evidence is admissible
o i.e., look at direct evidence and other evidence  recursive logic (we’ve decided he’s stole the Memorex
tapes, so we can admit the stolen TVs. B/c we can admit the stolen TVs, we can find he’s stolen the tapes)
 Cox v. State: Cox on trial for Leonard’s murder. State argues Cox kills Leonard as retaliation for helping put his
friend in jail. State wants to put DA on the stand to testify that he was going to file additional charges, Cox’s
friend’s bond wasn’t reduced. Another close friend of Cox was at the bail hearing. Cox argues that DA testimony
is not admissible b/c it’s relevant only if Cox knew what happened at hearing, which has not been conclusively
proven.
o Admitting the evidence (DA’s testimony) is not abuse of discretion b/c there was a sufficient basis to
support finding the conditional fact.
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Huddleston v. U.S.: Huddleston on trial for selling stolen goods. P wants to offer evidence of him selling other
stolen goods in the past.
o Analytical process
 401/402? (are the past incidents of stealing relevant?): Yes
 404
 Potential 404 problem: P is trying to go right through the propensity box (i.e., he’s just
the type of guy who steals stuff)
 D argues he didn’t know goods are stolen as crux of his defense.  b/c of this, P argues
that the stolen TVs put Huddleston on notice so he should have known things he sold
after were stolen (though timelines are weird and it’s not factually unclear if the TVs
were actually stolen)
o i.e., you can’t be put on notice before you learned TVs were stolen
 403: Even if the last act gets past 404, it has low PV and high UP and fails 403
o This shows us what to do when it’s sort of unclear whether the guy actually did the thing that’s being
introduced as 404(b) past-act, non-propensity evidence
 i.e., if trying to bring in other acts for another purpose (knowledge/motive), how convinced do we
need to be that those acts actually happened?
Rule 104(a): The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible. In so doing, the ct. is not bound by evidence rules, except those on privilege.
 104(a): Judge determines whether the evidence is admissible based on a preponderance of the evidence
o Preponderance of the evidence = a shade above 50%
 Comparison with 104(b)
o 104(a):
 Application: applies to preliminary admissibility questions about evidence broadly (whether the
evidence can be brought in)
 Standard: Judge determines by preponderance of evidence
o 104(b)  Huddleston
 Application: Applies only to conditional relevance (i.e., when the relevance of the evidence
depends on whether a certain fact exist, determining whether that fact exists gets 104(b))
 Standard: Judge determines if a reasonable jury would find by a preponderance of evidence
 B/c judge is putting himself in jury’s shoes, this is a slightly lower standard
o i.e., he might think that it doesn’t meet preponderance of evidence standard, but
then thinks a reasonable jury could get past 50%
 Office hours hypo: “The dogs are rampaging in the hall” to prove the dogs are rampaging in the hall.
o Did the witness actually say that?  104(b)
 This is conditional fact/relevance (did he say the thing? Did the dog exists? Did he know the dogs
were rampaging?)
o Does the statement, if said, fit a hearsay exception? Is it admissible?  104(a)
 Judge determines whether the statement fits the requirements of the exception by a preponderance
of the evidence
 i.e., deciding by preponderance of evidence if its admissible
o Should the jury believe the statement?  up to jury
FLIGHT
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Flight = intentional and knowing departure from a scene to evade/avoid authority/capture
o Rationale: we tend to think people leave/avoid interactions w/ the authorities only when they have
something to hide  i.e., flight can indicate guilt and may be admissible
Why if flight relevant? To show consciousness of guilt
o 4 Inferences: If you can’t establish all four, then the logic of flight falls apart (i.e., you can’t submit
evidence unless all 4 inferences are met)
 Behavior  flight
 i.e., the behavior is actually flight
 Flight  consciousness of guilt (general)
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 Consciousness of guilt (general)  consciousness of guilt (specific: charged offense)
 Consciousness of guilt (specific)  actual guilt
o This logic path does NOT pay attention to demographics (race/socioeconomic status)
Flight evidence still has to go through 403
o Probative value of flight evidence depends on the tightness of inferences (the tighter the inferences, the
more probative the evidence)
o Risk of unfair prejudice happens if there’s other explanations for “flight” behavior
 i.e., you aren’t fleeing from the present crime, but you’re fleeing from something else bad (this
forces the D to tell the jury something they will dislike you for)  unfair prejudice
U.S. v. Myers: Bank robbery w/ 2 robbers that look similar. Prosecution says Myers did it, but Koffee looks like
Myers and confessed to crime
o Prosecution gets conviction b/c of 2 pieces of flight evidence:
 FL – Myer sees unidentified man running at him and runs away
 CA – Myers on moto w/ Koffee and chased by FBI, who try to hit them w/ car and they move out
of the way
o Flight evidence admissible under 403?
 Relevant? Maybe
 Probative value is slight (you can flee from a stranger and avoid crash w/o it being flight); ct does
not analyze unfair prejudice
 Error is NOT harmless  ct. reverses since flight evidence shouldn’t have been admitted
Problem 1.9: Cutchell charged w/ murder. P offers evidence that he fled. D says he fled b/c of prior convictions
o Court admits evidence of flight
 Probative value: shows consciousness of guilt
 Unfair prejudice: D has to tell jury about priors, which risks jury convicting b/c he’s bad
 Unfair prejudice is higher the more serious/similar the prior crime is.
Problem 1.10: D flees and drops pot. P wants to say D flees b/c of consciousness of guilt of crime. D says he flees
b/c he had pot
o Explanation is not innocent/praiseworthy
 But would a jury actually convict a guy of a felony b/c of weed
 Closer you get to jury being likely to punish D, the more likely 403 will bar
Non-flight (opposite inference of consciousness of guilt  i.e., that is shows innocence)
o Weak probative value but no risk of unfair prejudice
o Reality: Courts often, if not always, exclude non-flight evidence
 Rationale: it’s almost too obvious that they stayed (we don’t want to give Ds a boost for not
running out of fear of being caught), 403 bars waste of time/confusion of the issue
MATH & PROBABILITY
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Math evidence: you can establish certain facts by way of numbers BUT numbers must be reliable and relevant
People v. Collins: State finds math prof. who says overwhelming probability that couple did robbery.
o The foundation of the evidence is bad  statistician uses informal polls, encourages jury to make up its
own probabilities (this might not pass 401)
o Product rule was misused here and assumes witnesses’ descriptions are correct
 i.e., makes credibility determinations, which is not the mathematician’s job
o Math-based evidence is NOT always bad
 See DNA evidence if math is good
o Math has the appearance of infallibility/neutrality
 Average jury/counsel/judge are less likely to spot problems w/ math
 Harder for attorneys to argue against
 This changes the 403 balance  goes from prejudice to unfair prejudice
STIPULATIONS
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Stipulations = agreements between the parties to take a fact/issue out of controversy
o E.g., we (both parties) stipulate that the accident occurred at this time
o Common in both civil/criminal cases
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Stipulations can help us RESOLVE 403 problems
o U.S. v. Jackson: Jackson arrested in GA for armed robbery of NY bank (but originally arrested b/c they
think he robbed bank in GA too). D is arrested at scene of crime w/ guns and false IDs; has . Prosecutor
has issues w/ establishing ID.
 403 analysis
 Probative value: evidence is corroborative of theory and otherwise won’t suffice (highly
probative)
 Unfair prejudice: evidence will paint D as an unlawful character on a crime spree (i.e., he
did bad things over there, so would do bad things here) (high unfair prejudice)
 Judge has 2 option:
 Make 403 decision  this is difficult (lots of PV and UP), but should probably come in
(can only exclude if risk *substantially outweighs,* and they’re 50/50)
 Impose coercive stipulation on parties  D must stipulate he was in GA using a fake
name
o Forcing a stipulation maximizes probative value while minimizing prejudice
o Judge has discretion to do this, but few judges actually use in practice
Stipulations can CREATE 403 problems
o Stipulations can change the 403 balance (i.e., evidence might not be as probative if a stipulation
alternative exists)
o Parties can prove their cases in their own way w/ their own relevant evidence (instead of via use of
stipulations)
 Stipulations may not be wanted in ct.  better to share your own narrative
 Why?
o Story (narrative value): testimony/tangible things tell a colorful story w/
descriptive richness  stipulation doesn’t have as much texture
o Moral demand: tangible evidence lets jury feel like conclusion is legally accurate
and morally reasonable/just (tangible evidence tugs at “moral underpinnings” of
law)
o Expectations: jury expects story to be in told in certain way; stipulations create
gaps (and jury might punish storyteller for incomplete narrative or fill the gaps
themselves incorrectly)
o Old Chief: Old Chief is a convicted felon, charged w/ possessing firearm as a felon, assault w/ deadly
weapon, & using gun for violence. Old Chief doesn’t want jury to see felony record (b/c unfairly
prejudicial); instead agrees to stipulate that he has a felony that meets element of crime.
 Rule: Parties can use a stipulation to create an evidentiary alternative (which changes the 403
equation)
 Rule: What counts for the 403 probative value of an item of evidence, as distinct from its 401
relevance, may be calculated by comparing evidentiary alternatives
 Here, this stipulation works b/c it tells everything we need to know (i.e., discounts the probative
value of other pieces of evidence saying he was convicted of assault)
 This is for a status crime  only need to prove felony status, not what crime was
committed (unique circumstance make stipulation work)
 Generally, this type of stipulation does NOT work
 i.e., you can’t take your opponent’s evidentiary story by offering to stipulate b/c the other
side gets to present their case how they want
 Works here b/c in Old Chief context, probative value of other evidence drops so low
while having high unfair prejudice potential in 403 weighing test
 Is Old Chief right?
 Souter: we don’t need specifics of crime b/c it’s a status crime BUT jury might be more
comfortable morally if they knew the previous crime was assault, since law is built on
idea that some people are too dangerous to own guns
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SPECIALIZED RELEVANCE
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Specialized relevance rules (407–411) = rule writers have predetermined the 403 balance in these specific
instances
o i.e., bright line rules w/ determined outcomes (as opposed to 403, which is more ad hoc)
o Policy/rationale behind why these rules are necessary
 Help limit judicial discretion (drive down biased/arbitrary decisionmaking)
 Increase predictability for parties (encourage settlement/pleas, which system depends on)
 Limits financial expenditure on front end (e.g., trial prep)
 Speeds up entire trial process
 Allows for synthesis between civil/criminal system
o Two justifications: (1) relevance and (2) public policy
Route of admissibility process
o Satisfy 401/402 (any tendency to make material fact more/less probable)
 If no, evidence is EXCLUDED
o Satisfy 407–411
 If no, evidence is EXCLUDED
o Satisfy 403 (probative value v. unfair prejudice balancing test)
 If no, evidence is EXCLUDED
 If yes, evidence is ADMISSIBLE
2 styles of rules:
o French: All evidence is allowed, unless it’s specifically banned
o German: All evidence is banned, unless it’s specifically permitted
Rule 407: Subsequent Remedial Measures (remedial measures/fixes after the fact)
 Subsequent remedial measures = measure after the fact that would have prevented injury (i.e., efforts taken after
an event)
o Note: look at timing  must be measure AFTER
 Rule: When measures are taken that would have made an earlier injury/harm less likely to occur, evidence of the
subsequent measures is not admissible to prove:
o Negligence
o Culpable conduct
o Defect in product/design
o Need for a warning/instruction
o (a.k.a. negligence, products liability cases, and strict liability cases)
o BUT the ct. may admit this evidence for another purpose, such as:
 Impeachment (in the right context)
 If disputed: proving ownership, control, or feasibility of precautionary measure
 (this comes up with who owned/repaired/maintained something in landlord-tenant
disputes)
 French-style rule (all evidence is allowed UNLESS it’s explicitly banned)
o i.e., evidence of subsequent remedial measures can be admitted for whatever as long as it’s not
specifically not allowed, b/c “such as” signals an open list
 Special applications
o 3rd party repairs  this rule should apply to third parties by its text, but in practice, courts only exclude
evidence repairs made by the parties
o Strict liability  scope of rule is expansive (applies to tort cases for product defects)
 Justification
o Relevance: Conduct is not an admission
 i.e., just b/c you’re trying to improve something, doesn’t mean you’re conceding what you were
doing previously was wrong (wiser now does not mean foolish before)
 This pre-establishes there’s not enough probative value in 403
o Public policy: we want to encourage people to make these fixes and improve what they’re doing
 i.e., we want people to make post hoc fixes  we want people to learn from things and make
them better, and we want to encourage this behavior
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Tuer v. McDonald: Hospital takes Tuer off anti-coagulant, surgery delayed, Tuer has heart attack. After, hospital
changes anti-coagulant protocol (which would have saved Tuer’s life)
o If used to prove negligence by hospital, evidence of new policy is NOT admissible under 407
o Wife says she’s using changed protocol for feasibility & impeachment
 Feasibility: you can introduce subsequent remedial measures if it proves the feasibility of the
measure, which the other side has disputed
 Cts. had diff views of feasibility
o Broad = it’s impossible or unsafe or we can’t do it for a number of reasons
 The broader the definition of feasibility, the more likely the measure has
been disputed  more likely evidence can come in
o Narrow = it is literally impossible
 Court in Tuer adopts narrow (i.e., doc. didn’t think it was unfeasible;
being unsafe does NOT contest feasibility, so evidence can’t come in
under feasibility)
 Impeachment: doc said it’s unsafe to start and then they do it.
 This is technically impeachment in a broad sense, but if impeachment is interpreted
broadly, it’ll swallow the rule
Problem 2.1: Wolf attacks dog. Owner puts up fence. Child attacked by wolf, even though it’s leashed
o Dog owner sues owner  dog owner CANNOT intro evidence of the new fence under 407
o Parents sue owner  parents CAN offer evidence of fencing to prove negligence b/c fence is prior
 We want people to make effective fixes, so it makes sense to show prior fix is ineffective
Rule 408: Settlement Offers (Settlement Offers & Negotiations)
 Rule: No evidence from things from settlement to show validity (liability)/ amount (damages)/ or impeachment,
but okay for other reasons (e.g., bias, obstruction, prejudice)
o Cannot introduce evidence of:
 Actual settlement offers themselves – 408(a)(1)
 Statements within the negotiations – 408(a)(2)
 Covers 2 things in context of settlement negotiations
o Promises to accept compromise about the claim (including the actual offer itself)
o Conduct and statements in the course of negotiations
 Covers things you say/do
 Com. Notes suggest this applies to both parties (i.e., other party’s
statements and your own)
 Includes “I’m sorry”
 Exception: evidence is admitted for things w/ the SEC
o French-style rule: This evidence is admissible for other purposes
o Cannot be used to impeach (prohibited use)
 Rationale: If we allowed use for impeachment, the exception would swallow the rule. Everything
said during settlements would come in, and thus, negotiations would break down
 i.e., we want people to talk freely during settlements (if not, settlements would never
happen, or people would get fucked by what they said)
o Specific applications
 “Disputed claim” in 408(a) suggests formal legal negotiations
 Doesn’t require formally filed case but must be more than an event/accident  w/o a
claim, 408 isn’t even on the table
 i.e., needs to be more formal than 409 discussions
 Covers statements/offers from case at hand AND other cases
 i.e., coverage spills over from this case to another case
 But see SEC exception
 Covers ANY person settlement negotiation (principal statements and agents)
 Justification
o Relevance: there’s weak evidence of fault  offers to settle can be motivated for other reasons besides
guilt (not much probative value)
o Public Policy: We want people to talk freely during settlements  encourages settlement of claims
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Bankcard America v. Universal Bancard: CC company sued by a diff. party for a non-complete breach based on
something said in settlement negotiation  CC wants to intro evidence from settlement negotiations to show
they’re not liable
o 408 prohibits this  This feels bad: you can induce a company into a behavior and then hide behind the
screen of 408
o 408 as a sword  great if it fit works; here, it contravenes spirit of 408
 If evidence is not allowed, then in a future negotiation, CC company will make 408 a sword or
would not show up at the settlement negotiations
 Panel overturns own judge: actually there are certain convos that are NOT shielded
Rule 409: Compromise Offers (offers to pay injury expenses)
 Rule: Evidence of furnishing, promising to pay, or offering to pay medical/hospital/similar expenses resulting
from an injury is NOT admissible to prove liability for the injury
o i.e., evidence of offers to pay medical expenses are inadmissible for proving liability
o This is a closed list  if you want to introduce evidence for any other reason, it’s admissible
 i.e., very narrow French rule = all uses are permitted EXCEPT this one narrow exception about
proving liability
o This does NOT cover incidental statements (i.e., sorry)
 “Let me give you $500 for that hurt shoulder”  barred by 409
 “Wow, I’m really sorry about your hurt shoulder”  admissible (b/c not an offer for medical
expenses.
 “Wow, sorry about your shoulder; let me give you $500”  ct. will split: allow first part and
prohibit the offer to pay under 409
 Should apologies be kept out of court?
 Yes: if doctors feel like apologies won’t hurt them, there will be better doc/patient
relations  leads to less cases in court
 No: Juries already have limited info, so they should know if a doc. has said sorry
 Justification
o Relevance: Just offering to pay for medical bills isn’t necessarily an admission of guilty (i.e., probative
value is categorically low b/c offer to pay might be a gesture of compassion)
 This might not be true b/c people might not be so nice as to pay bills normally
 Not clear 403 would exclude this evidence, even if it is weak
o Public Policy: we want to encourage people to make these offers and act on their generous impulses to
pay medical expenses
Rule 410: Pleas (only applies to statements made in the course of plea discussions)
 Rule: In a criminal/civil case, the following evidence is inadmissible against a defendant for any reason:
o Withdrawn guilty plea
o Nolo contendere plea (no contest plea  when you don’t concede guilt but accept responsibility for
charges)yeah
o Statement made during a proceeding that led to withdrawn/nolo contendere plea
o Statement made during plea discussion w/ a prosecutor
 Cannot be a cop (cop convos are ADMISSIBLE)
 German style rule  everything is forbidden unless permitted
 Exceptions:
o Fairness: statements from plea discussions can come in if fairness requires (i.e., completing partial
account of plea discussions)
 Prosecutors CAN introduce when (1) other statements from bargaining have already come in
AND (2) in fairness, more of the plea should be brought in for context.
o Perjury: In a criminal proceeding for perjury/false statement, evidence can come in IF D made a statement
under oath, on record, and w/ counsel present
o Coerced pleas: These are not covered by 410, BUT they are inadmissible b/c of Constitution
 Justification
o Relevance: probative value is low b/c people make pleas for a number of reasons
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Public policy: criminal Ds are most vulnerable and we want to protect them; we want people to make plea
deals
Mezanato: Prosecutors can condition plea bargains on waiving 410 protections (in may jxd)
o Removes teeth from 410
U.S. v. Biagi: D wants to introduce that he rejected an immunity deal to show consciousness of innocence.
o Relevant? Yes
o Prohibited by 410? No  not introduced AGAINST defendant (fine for D to intro evidence against
prosecutor)
o Passes 403? Yes, there’s probative value if you pass up an immunity deal
Problem 2.9: P wants to intro evidence that someone rejected immunity deal
o Fairness exception: If another statement made during the same plea discussion has been introduced, in
fairness, the other statements ought to be considered together (i.e., jury should hear full convo, rather than
just what D wants you to hear)
Rule 411: Insurance
 Rule: Evidence that a person was/wasn’t insured against liability is NOT admissible to prove negligence/wrongful
action, but can be admitted for any other purpose
o French-style rule
 Can introduce this evidence for bias (e.g., showing the D and the expert witness have the same
insurer to show the expert may be biased in D’s favor or incentivized to lie)
o Exception: This rule does not defeat every case against an insurance company  can bring in this
evidence for insurance claims
 Justification
o Relevance: The evidence is weakly relevant (not totally irrelevant). The assumption that if you’re insured,
you’re gonna behave more negligently isn’t necessarily true. Could make the jury decide the case on the
wrong reasons.
 i.e., some risk of moral hazard in holding insurance (don’t internalize mistake costs  more
reckless) and high risk of unfair prejudice (jury sees deep pockets, knows insurance co. has $ and
we feel bad for the person, or thinking person has already been paid by insurance)
o Public Policy: we want to encourage people to get insurance and to protect parties against unfair
judgments
 Keeping insurance info out will lead to more accurate verdicts/damage awards
 Note: this public policy rationale might not hold true
 Sometimes, people are forced to buy insurance (e.g., car)
 Insured parties don’t actually care if the info comes in
 Juries talk about insurance anyway, and it influences their votes
o B/c jurors talk about insurance anyway, it still influences their vote (worries about double compensation)
 Can fix w/ better jury instructions, elimination of rule 411 (transparency allows for juries to rely
on accurate information)
 Williams v. McCoy: TCt. Instructs P to not testify about liability insurance. D paints P as litigious b/c she hired
lawyer before bringing suit. P wants to say she only hired a lawyer after meeting w/ D’s insurance adjuster (but
evidence is banned)
o Holding: 411 did not bar P’s explanation of hiring lawyer after meeting w/ D’s insurance adjuster, b/c w/o
being able to explain herself, jury was allowed to assume the worst about P’s motivations
 i.e., evidence was offered for another purpose
 Problem 2.6: P brings med. Malpractice suit against D, but D & expert witness share same insurer. P wants to
intro evidence to show expert may be biased
o Evidence is NOT prohibited by 411 b/c not offered for negligence but for other reason (bias)
o Passes 403? Probably not b/c probative value is small and may confuse jurors
 Problem 2.7: Daycare owner accused of child abuse charge for failing to report abuse. Wants to intro insurance
coveage about how to report to show she has no motive not to report
o This is plainly prohibited by text of rule (used to explain wrongful conduct)
 Seems incompatible w/ policy of rule
 PV = high (motive is key)
 Risk of UP = nonexistent (crim. prosecutor doesn’t have ulterior financial motive)
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 This actually encourages people to get insurance
What do you do?  due process angle (411 is preventing me from making a meaningful D)
CHARACTER EVIDENCE
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404–406 replace the 403 balancing test w/ a brightline rule or outcome (like the specialized relevance rules from
407–411)
PROPENSITY
Rule 404: Character Evidence; Crimes or Other Acts
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Rule: Evidence of a person’s character or other acts is generally inadmissible to prove that person acted in
accordance w/ those acts/that character here
o 404(a)(1): You can’t use evidence of a person’s character or other acts to show the acted in accordance
with that character
 i.e., you cannot go through the propensity box (can’t use evidence of bad character/other acts to
show a propensity to do this other bad thing)
 404(a)(1) and 404(b)(1) are redundant  both say you can’t go through propensity box
o Scope of rule is broad
 Includes: all evidence of a crime, wrong, or other act—not just bad
 Timing is open (can be before or after)
 Doesn’t have to be bad (can be good too)  i.e., rule is about all character traits
 Applies to ALL cases (civil and criminal)
 Rule says “persons”  applies to all people (not just D), even people outside ct. room
 Note: it does NOT apply to animals (i.e., dogs being vicious)
o 404(b)(2): Permitted Uses; Notice in a Criminal Case: This OTHER ACT may be admissible for another
purpose, such as proving: Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, Absence
of mistake/lack of accident
 This list is open ended (there could be other purposes that are allowed, as long as they go around
the propensity box)
o 404(a) is more focused on traits // 404(b) is more focused on other acts
Exceptions: sexual assault/child molestation (see below)
French style rule (prohibits evidence for one particular reason, but allows it for everything else)
Analysis framework
o 401/402?: Barely relevant standard
o 404?: Does it satisfy terms of 404?
 Is there a permissible reason to use this other act (outside propensity box)?
 If another act, does this evidence satisfy 104(b) such that a reasonable jury could find by a
preponderance of the evidence that the event occurred?
o 403? /105?: Does it pass the balancing test? Does the ct. feel that it can actually limit unfair prejudice w/ a
limiting jury instruction
404(b) amendment  will require prosecutors to give notice to Ds when they are going to use character evidence
and they must be specific in explaining the non-propensity reasons they’re providing evidence
Justification (why bar character evidence?): 404 is just a surrogate for 403  character evidence does have some
probative value, BUT the risk of unfair prejudice is really high
o Unfair prejudice
 Overweight: jury will give character evidence more probative value than it deserves
 Wrong reasons: character evidence invites jury to convict for wrong reason (i.e., he’s a bad
person, or to punish for the other bad acts)
o Not about public policy
o However, the rule is broader than the justification suggests (b/c 404 also excludes all character evidence,
not just bad character evidence)
People v. Zackowitz: Woman gets catcalled by group of men. Woman tells BF, who goes to men and shoots them.
Possession of other guns is used as character evidence of violent actions by D.
o Holding: gun evidence should not have been allowed b/c it was used to show propensity
o Dissent: the evidence of the gun was to show premediation (not propensity), but would still fail under 403
 Low probative value (owning guns to kill stranger is small)
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 Risk of unfair prejudice is high
Therefore … more likely  this should signal propensity alarm
ROUTES AROUND PROPENSITY BOX
KNOWLEDGE
 Knowledge arguments fall into 2 categories: (1) he knows the means/manner of the crime, OR (2) he had notice
 Means/manner: Knowledge must be specialized (rather than generalized)
o i.e., way to narrow the pool of potential defendants in a useful way  indirect route to ID the defendant
o This category is about whether someone had the capacity to actually commit the crime
 The more specialized the knowledge, then the more probative value
 Drug dealing has less probative value b/c it’s less specialized
 Hacking has more probative value b/c it’s more specialized
o Problem 3.1 (Hacker): computers get delivered to HS from hacker. Month later, computers are delivered
to Vegas and they arrest kid (same type of hacking). Kid charged w/ both incidents; kid pleads guilty to
Vegas hacking
 Relevant? Yes
 404? The evidence is not being used to show propensity, but to show knowledge (i.e., that the kid
has the knowledge to hack in this way)
 Hacking is a specialized crime, so this shrinks # of potential Ds
 403?
 Yes, the probative value is high b/c hacking knowledge is so specialized
 Yes, risk of unfair prejudice is also high, but probative value is so high that it’s not
substantially outweighed
 Notice: This party was on notice, given their knowledge, and should have behaved differently
o Problem 3.3 (Train): Train crash caused by drunken engineer and wants to show evidence of engineers’
drunken past. Evidence offered to prove RR’s negligence in knowing about engineer’s drunkenness (i.e.,
notice), rather than to show the engineer was drunk
 Substantive law matters here: claim against the RR has to be a free-standing claim to avoid
propensity issues
 Jury instruction probably wouldn’t be effective, so judge should sever claims
 404 prohibits the jury from making propensity matters, but the law of tort requires the employer
to do that. (i.e., P is suing for negligent supervision, so notice is necessary)
MOTIVE & INTENT
 Can avoid propensity box by using evidence to show that you had a reason to behave this way at this particular
incident
o i.e., evidence not used for propensity; instead, the other act is the reason  the evidence establishes
*another act* as the motive for this crime
o i.e., the other act invested this person w/ a particular motive/intent to do this present act
o Does not just have to be a motive to do bad things; instead, showing X explains Y
 U.S. v. Peltier: FBI agents killed by people in unmarked van including Peltier. P wants to intro evidence that 3
years prior, Peltier was charged w/ shooting off-duty cop & had a warrant. D says this is propensity.
o Prosecutor arg: Peltier’s knowledge of the arrest warrant was motive to shoot FBI agent
 i.e., warrant explains shooting  evidence used to show Peltier had a particular reason to act this
way (that is, WHY he did this bad thing; not that he has propensity to do bad things)
o This motive argument would work (ADMISSIBLE); BUT, still have to pass 403
 Probative value is high b/c Peltier knew FBI agents were there to execute warrant
 Note: It does NOT need to be similar bad acts; just has to be another act
IDENTITY
 Can avoid propensity box by saying that particular evidence does not show propensity, but this evidence
establishes the identity of the defendant (simple/straight identity argument)
 Problem 3.7 (Lottery Lists): while executing warrant, police find cocaine and lottery lists, but need to figure out
who’s apartment it is. P wants to introduce lottery lists and D’s old gambling conviction to prove it’s his residence
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This is still propensity evidence (the logic that b/c he was a gambler, he’s more likely to be a gambler
now, and therefore the occupant), despite it not being tied to the crime alleged here. 404 bars all
propensity evidence regardless.
o To be barred by 404, the propensity offered does NOT need to be propensity of the crime charged, but
any propensity evidence
Weapons
o Means argument (how the crime was committed)  FBI agent was killed w/ a gun/bullets just like this
 Admissible for identity (see Peltier, gets through 404/403)
o Propensity argument  having this kind of weapon suggests he’s the kind of person to do this kind of
thing (i.e., other weapons evidence)
 Not admissible b/c it goes through propensity box
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MODUS OPERANDI
 Can avoid propensity box by saying that particular evidence doesn’t show propensity, but that this evidence
establishes that the person did something in a way that no one else does
o i.e., the way the crime was committed proves the D was/wasn’t the guy b/c it couldn’t be anyone else 
no one else does it this way, or it can’t be the defendant
 When can a prosecutor offer M.O. against a criminal defendant?
o Depends on whether the characteristics are sufficiently idiosyncratic (must show)
o Ct. doesn’t require an exact match but does require high degree of similarity
 i.e., enough to earmark them as handiwork of the same individual
o That is, these 2 things are so unusual/unique that it excludes everyone else and narrows the pool down to
one
 Essentially, the thing bears the D’s “signature”
 This works if and ONLY IF, we make moves similar to specialized knowledge route
o I.e., the rationale is to exclude everyone else b/c no one else does it that way
o M.O. and specialized knowledge are similar
 Both involve knowledge to do something
 Both narrow the pool of Ds by saying that the people are able to do this
o M.O. and specialized knowledge are different
 Specialized knowledge is capacity/ability
 M.O. is that no one does it in exactly the same way
 M.O. is about idiosyncrasy, even if it’s not specialized
 That is, it might not be hard to do, but no one else does it that way
 U.S. v. Trenkler: D on trial for a bomb that kills cop. P wants to intro evidence of another bomb Trenkler built 5
years ago. Bombs are similar (but similar enough to be admitted as M.O.)?
o Holding: these 2 bombs were idiosyncratic (similar switches, use of 3rd parties, under car, remote control)
 allowed under 404 and passes 403 (high probative value)
 Reverse 404 (Defensive M.O.)
o Criminal defendant wants to introduce evidence that he didn’t do the first crime, so he didn’t do the
second one
 I.e., a criminal defendant wants to introduce character evidence to exonerate himself
o When a criminal D is making an M.O. arg, he has a lighter burden/not as high standard
 The crimes must be “similar enough” to negate guilt  this is in the middle b/w exact match and
prosaic commonalities
 Justification for less high standard: we aren’t as concerned w/ unfair prejudice to prosecutors
(though prosecutors can still experience unfair prejudice), we have a lighter/easier standard
o U.S. v. Stevens: 2 air force officers at bus station, and both ID Stevens in lineup. Steven wants to intro
another act (testimony of Mitchell, victim of a similar crime, who positively ID’s a diff. person and said
Stevens wasn’t the robber).
 Stevens wants to introduce  rationale: if I’m not responsible for Mitchell robbery, then I’m not
responsible for first event (i.e., I didn’t do this)
 Logic: crime 1 looks like crime 2, so they must have been committed by the same person.
BUT if D did not commit crime 2, then he did not commit crime 1
o This is close to propensity box
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Reverse 404 has a slightly relaxed standard for bringing in M.O. (but still need to get past 403)
 i.e., this is less than the prosecutor’s burden under 404 M.O. (Crim. Ds just need to use
evidence to get to reasonable doubt where it’s similar enough to negate guilt)
NARRATIVE INTEGRITY (RES GESTAE)
 Can avoid the propensity box by saying that particular evidence does not show propensity, but that this evidence
tells the story
o i.e., the evidence is necessary to make the story make sense; without it, the account is not coherent
o Evidence is inextricably intertwined
o It is NOT about making a narrative more persuasive  instead, w/o this evidence, the story doesn’t make
sense at all
 This is not listed as another purpose under 404(b), but it doesn’t matter b/c the list is open-ended
 U.S. v. DeGeorge: D buys yacht and sells it back and force to inflate value. D has done this in the past, which is
why he has to get someone else to get insurance/boats can’t be in his name.
o Holding: DC limits evidence of prior 3 yachts owned by D that were insured, but allows it  allows
enough so that jury can get narrative integrity, but not more than that (P cannot elicit details or incidents
or fact D collected insurance)
 i.e., his inability to get insurance explains why he did the sham transactions (which is important
factually to the accounts he’s charged w/)  prior loss evidence was inextricably intertwined w/
underlying offense
 Jury needs context of prior loss to understand why D tried to distance himself from boat
ownership
 All stories would seem better w/ more details; the question is whether the evidence is necessary to make the story
make sense at all
ABSENCE OF ACCIDENT/LACK OF ACCIDENT
 Can avoid propensity box by saying that particular evidence doesn’t show propensity, but this evidence
establishes indirect notice
 If 2 similar accidents, a jury will accept the first as an accident; however, the person should have been on notice
of the risks, which suggests that the second is not accidental
o Past events needs circumstances w/ substantial similar circumstances to the new event
o i.e., old event suggests that this new event can’t be accidental
 Pros: listed in the 404(b) rule & cts. buy the argument
o i.e., think of it as indirect notice  if this happened to you before, you’d be much more careful the second
time around (this creates almost special knowledge about risks of this behavior)
o That is, it’s not that he does this stuff all on purpose, b/c he could have sincerely had an accident the first
time
 Cons: This is still propensity argument (i.e., old event shows that this is the type of thing that the D does)
DOCTRINE OF CHANCES
 Doctrine of chances = the evidence of prior other acts is admissible to show the unlikelihood of prior accidents
(that is, that the D designed them)
o Relies on the belief that multiple misfortunes, if similar and rare enough, suggest guilt b/c of the
unlikelihood of an innocent coincidence (and therefore, must be by design)
 Unlike absence of accident, you can’t say it gives indirect notice if the first act was actually innocent (and then
DOC is irrelevant)
 Does DOC go through or around the propensity box?
o Through (Bloom thinks its propensity evidence by another name)
 Use of “design” language points to the idea that D is the type of person who does this
 It’s only b/c a guilty person would have the propensity to repeat the crime
 Derived from unspoken character reasoning
o Around
 Not necessarily about propensity but about probability
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Trier doesn’t need to focus on D’s subjective character, but instead decide whether the uncharged
accidents are so numerous that it’s objectively improbable that so many accidents would befall
the D
Rex v. Smith (Death of Miss Mundy): D sent for doc to come b/c afraid wife is dead. Showed doc wife’s body,
dead in bathtub. 4 days later, D told landlord “good thing I got her to make her will!” D indicted with willful
murder of wife
o P wants to intro evidence of D’s 2 ex-wives who died in baths & left all to D in wills
o Holding: Court told jury could not use it for character but if could infer design
 Found guilty: Could only have happened by design
PLAN
 Can avoid propensity box by showing that past acts were steps in a series of steps that get bigger overtime toward
a long-term goal
o The plan can’t just be committing crimes over and over again (b/c that’s what criminals do; commit
crimes over and over w/o getting caught)
o That is, only works if each discrete acts adds up to a broader enterprise (“overarching scheme”)
 For domestic violence, some theorists argue that each discrete act of violence for DV is part of a bigger scheme
to regulate/control the victim (and thus, prior DV acts might be able to come in w/ under plan rationale)
OTHER ROUTES
 404(b) allows for any other permissible purpose (open-ended list)
o Does the other crime/bad act tightly link D to some element of the crime? Probably admissible
o Does the other crime/bad act have a loose link that suggests propensity? Probably inadmissible
HUDDLESTON/CONDITIONAL RELEVANCE STANDARD FOR 404(b)
 All 404(b) other-acts evidence has to run through the 104(b) conditional relevance standard
o i.e., in the 404(b) context, other-act evidence is relevant only if a jury could reasonably conclude that the
other act occurred and that the D was the actor
 Standard: Evidence can only come in when there is sufficient evidence that the underlying evidence exist
o Sufficient evidence (Huddleston): When a reasonable jury could find by a preponderance of the
evidence that the act occurred as presented
 Preponderance of evidence = more likely than not (slightly more than 50%)
 i.e., Y can be admitted as evidence when a reasonable jury could find by a preponderance of the
evidence of X (the condition) exists
 Note: while this question doesn’t go the actual jury, the judge has to ask whether a jury could find
by preponderance of the evidence that the conditional fact exists
 To determine, you have to look at all the evidence to determine whether the other-act evidence is admissible
o i.e., look at direct evidence and other evidence  recursive logic (we’ve decided he’s stole the Memorex
tapes, so we can admit the stolen TVs. B/c we can admit the stolen TVs, we can find he’s stolen the tapes)
PROPENSITY IN SEXUAL ASSAULT CASES
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Rules 413–415 all go THROUGH the propensity box (i.e., exception to propensity evidence ban)
o Rule 413–415: Permit prosecutors/civil plaintiffs to offer evidence of D’s other acts of sexual assault
(413/415) or child molestation (414) “on any matter to which it is relevant”
 413: sexual assault (criminal case)
 414: child molestation (criminal case)
 415: extends rules for 413/414 to civil space
o Evidence can be used for any pertinent reason (including propensity)
o Notice is required under all of these rules before use of this evidence
o These rules use Huddleston Standard for conditional relevance (104(b))
 i.e., could a reasonable jury find by a preponderance of the evidence that the other act occurred
(as the prosecutor is suggesting) and that the D was the actor?
 If yes, it’s relevant  evidence comes in
 If no, it’s just not relevant (doesn’t pass 401/402)  evidence doesn’t come in
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That is, ct. examines all evidence in the case and determines whether jury could reasonably find
the conditional fact by preponderance of evidence (low standard for admission)
o After passing this, you still need to pass 403  And this stuff is frequently unfairly prejudicial
 Some stuff gets through 403 about the defendant’s prior acts (even if not convicted)
 Admissibility: ton of probative value (recidivism rationale, bolstering credibility)
 It’s not unfair prejudice, it’s just prejudice (if you believe the propensity arg.)
o W/ sexual assault/DV cases, if you can’t go through the propensity box, it’s really hard to go around the
propensity box
That is, the court may admit evidence the D committed any other sexual assault
o May  court has discretion in admitting this evidence
o Committed any other sexual assault (another act being used for propensity purpose)
 Committed = ambiguous  Cts. do NOT require conviction (just require another act, even if
never charged)
 SCOTUS has left open whether convictions are required
 Plain meaning/legislative history points that conviction is not necessary
Justification
o Recidivism: these offenses are more predictive, and therefore more likely to be re-committed than other
types of crimes
 Counter: stats show that sex crimes aren’t more likely to recur (i.e., recommission rates aren’t as
high as we believe)
o Bolstering rationale: Victims in these cases are vulnerable, the crimes are private, and their stories are less
likely to be believed  puts victim on “equal footing”
 i.e., this evidence gives credibility to victim’s testimony, which might not otherwise be believed
 Counter: we don’t necessarily disbelieve these stories anymore
o Issues
 There’s still an unsolved 403 problem (even if this is an answer for 404)
 Jury can overweigh: unfairly prejudicial
 Juries might want to punish the D harshly b/c these are heinous crimes
 Unsolved distribution problem  these rules disadvantage men the system has already interacted
which (with is generally poor, minority men)
 Creates spiral or reincarnation
 Helped develop the image of sex predators being a certain race/class  when the D
doesn’t look like that, jury finds it harder to believe
Judicial conference voted almost unanimously to NOT adopt these rules but DOJ won
o Not all state jurisdictions have these rules (though trend is toward adding them)  most sex crimes end
up in state court, so state ct. rules are particularly important
 Colorado does NOT have these rules
Lannan v. State: D is convicted for child molestation; another young girl testifies he molested her too. IN used to
have depraved sexual instinct exception as a carved-out exception to general 404 rule (i.e., operated much like
413–415).
o IN’s sexual-instinct exception has same rationale (recidivism – “acts showing a perverted sexual instinct
are circumstances which w/ other circumstances may have a tendency to connect an accused w/ a crime of
that character”)
 Rationale behind rationale  makes it easier for prosecutors to take these cases
 “greater latitude doctrine” = law wants to protect children, especially when they are sexually
vulnerable to society
o Court here did not want to apply 414 so said it was a plan and M.O. to allow evidence)
 If the state had used 414, it would have easily been admitted
State v. Kirsch: D uses church to assault young girls (drives van, has sleepovers). P tries to argue motive, intent,
or plan (state doesn’t have 414 rule, so prosecutor tries to go around propensity box)  Ct. rejects each of these
o Holding: evidence is NOT admissible (but would have been if 414 was in place)
o Analysis
 401/402?  yes, it proves something of consequence
 404/413?  state doesn’t have an exception like this, so prosecutor has to try to go around
propensity box (and fails w/ motive, intent, common plan/scheme)
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403?  assuming other acts had gotten in for other-purpose under 404
 If you believe in recidivism/bolstering rationale, there’s a ton of probative value
(therefore can’t be outweighed by unfair prejudice)
Problem 3.13: For domestic violence, some theorists argue that individual instances of DV are part of a bigger
process to control the victim (i.e., would fall under plan)
104(a) is different than 104(b) (see C15)
DEFENDANT & VICTIM CHARACTER
Rule 404(a)(2): Exceptions for a Defendant or Victim in a Criminal Case
 Rules (applicable only in CRIMINAL cases  no civil)
o 404(a)(2)(A): Criminal defendant can offer evidence of their own pertinent character trait. If the crim. D
does, the prosecutor can rebut this (address the same).
 This is all about character of the DEFENDANT
o 404(a)(2)(B): Criminal defendant can offer evidence of a victim’s pertinent character trait. If the crim. D
does, the prosecutor can respond to (i) the victim’s character trait AND (ii) the same character trait of the
defendant
 This is about the VICTIM (but opens the door to become about D)
o 404(a)(2)(C): In a homicide case where the criminal defendant says the victim was the first aggressor,
the prosecutor can offer evidence of the victim’s trait of peacefulness
 Procedure: Prosecutors CANNOT introduce evidence of the defendant/victim’s character first
o Defendant goes first
 If defendant does NOT introduce character evidence, prosecutor can’t go
o If D opens door (by bringing up his own/the victim’s pertinent trait), THEN prosecutor can respond
 Evidence offered under these rules can be used for any purpose (can go through propensity box)
o Standard: just has to be pertinent
o To be pertinent, you still gotta do 403
 Applicable only in CRIMINAL cases (not civil)
o Rationale: criminal Ds have the most to lose (they face greater stakes/sanctions)
 Mirrors why we have different standards for evidence b/w criminal/civil
 If you allowed these exceptions in civil cases, this exception would be used all the time (b/c
everyone would claim they are careful people during negligence claims)
 404 gives permission (i.e., criminal D can do X, and then P can do Y)
o However, it does NOT say how you’re supposed to prove character  consult 405 for HOW
Rule 405: Methods of Proving Character
 Rules (only for CRIMINAL CASES, per 404)
o 405(a) – by reputation or opinion: When evidence of a person’s character/character trait is admissible, it
may be proved by testimony about person’s reputation or via opinion. On cross-examine of the character
witness, the ct. may allow an inquiry into the relevant specific instances of the person’s conduct.
o 405(b) – specific instances of conduct: when person’s character/trait is an essential element of the
charge/claim/defense, the character/trait may also be proved w/ specific instances of conduct
 E.g., malice in defamation cases, custody determinations, insanity, entrapment
 NOT self-defense
o Reputation = what other people have told you about the person
 i.e., reflects the community’s sentiment  witness is the “reporter” of what the comm. thinks
 note: this is actual hearsay but there’s an hearsay exception for this
o Opinion = what does the witness actually think (i.e., their own impressions/feelings)
 These rules are all about establishing propensity (i.e., showing conduct/conformity in accord w/ character)
o If you’re trying to show character to establish something else, these rules do NOT apply
 Examples of using character to show something else:
 Reasonableness of self-defense (James)
 Drug use leading to acts of violence, which doesn’t get into character
o Cts. are generally permissive about letting character evidence in under 405 (but still check 403)
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
405(a)
o Procedure  mechanics are based on the type of examination, not who’s asking/the party
 Direct: you can talk about reputation/opinion ONLY (when talking about pertinent traits in
404(a))
 Cross: you can talk about reputation, opinion, and/or “specific instances of conduct
 Don’t forget 403 after getting through this if evidence is tending to show this person is bad,
then can’t be unfairly prejudicial in contrast to probative value
o Jxd-specific rules
 Common law – only allowed reputation but no opinion
 Same with NY
 Federal/CO – allows reputation and/or opinion for direct
o This system is premised on defendant’s choice  once the door is open, it’s wide open
o Rationale
 For why direct is limited to reputation/opinion: Trial efficiency (we don’t want every character
move to spiral out into a mini-trial about specific instances)
 For why specific instance is allowed on cross: specific instances cast doubt on the witness’s
credibility
 i.e., they’re not supposed to be used for propensity, even though they are
o EXAMPLE
 D raises his own character for peacefulness in criminal trial
 This has to be on direct and must be via opinion/reputation - 405(a)
 In response, prosecutor can:
 Cross-examine D’s character witness (including about specific acts) AND/OR
 Call its own witnesses to rebut (but would have to be reputation/opinion for direct)
o Michaelson v. U.S.: D is convicted of bribing an IRS agent. D wants to bring in 5 witnesses to talk about
his good character reputation. On prosecutor’s cross-examine, P asks witnesses if they’ve ever heard that
Michaelson is arrested for receiving stolen goods.
 P is ALLOWED to ask about old charges b/c it’s specific instances and happening on cross
 Number of witnesses D is allowed shows that cts. are generous at determining what’s “pertinent”
 Trial court has a lot of discretion in what it allows
HABIT
Rule 406: Habit
 Rule 406: Evidence of a person’s habit (or routine organizational practice) may be admitted to prove that on a
particular occasion, that person acted in accordance w/ that habit
o Applies in CIVIL and CRIMINAL cases
o The court may admit evidence, regardless of whether it is corroborated or whether there was an
eyewitness (very generous procedurally)
o If you get past 406, still have to get past 403  Has probative value if it has real predictive value
 This is a quasi-exception to the propensity box (kinda goes through box, kinda doesn’t)
o Acting with accordance w/ habit = proving propensity
 Habit = a regular pattern that is predictable and predictive
o 406 does NOT define habit
 Habit is MORE than frequent, unpatterned conduct. Habit happens w/ “invariable regularity”
(repetitive)
 Habit must be predictive  the more similar the actions, the more predictive/predictable it’ll be
o Elements of habit: (1) regularity, (2) numerosity, (3) lack of volition, (4) otherwise innocuous
 Necessary elements under 406
 Regularity = you do it every time
o touchstone of analysis/necessary element  if you don’t have regularity, you
don’t have a habit
 Numerosity = has it happened a sufficient number of times to establish a pattern that
predictable and predictive
o Also necessary (w/o numerosity, you don’t have habit evidence)
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Elements that can go in 406 OR 403 analysis
 Lack of volition = action is instinctive/automatic
o the more instinctive a behavior seems, the more habitual it seems  more likely
the court will admit it b/c it seems more probative
o This is why habit is a quasi-exception to propensity
 if it is instinctive/automatic, then it’s not character evidence b/c there’s
no thinking going on
 Behavior is otherwise innocuous – that is, it won’t inflame the jury
o Getting into a lot of fights, a company overcharging sometimes are NOT habits
Justification for habit exception:
o Probative value is high: if it really is a habit, then it really will be predictive of what a person will do
o Little to no risk of unfair prejudice (innocuous element avoids punishment from jury)
Exceptions (i.e., habits that are not allowed to be admitted under 406)
o Habits of violence are NOT allowed  no lack of volition, not regular enough, not innocuous
o Most cts. exclude habits of drunkenness
 However, some courts are beginning to allow evidence of consistent/binge drinking
o Most cts. exclude religious habits that are being used as an alibi (e.g., I was at home on the Sabbath)
Halloran v. Virginia Chemicals.: Mechanic has changed a bunch of AC freon cans, and sometimes has to heat
them up. When he heats up, the can explodes. Mechanic brings claim that can was defective. Chem. Co. says that
he used an immersion coil to heat, which is improper/dangerous. Chem. Co. wants to admit witness who’ll say
Mechanic had habit of using immersion coil all the time
o Trial court barred evidence, saying its propensity. COA says evidence should have come in as habit
evidence
o Rule: Evidence of habit is occasionally admissible, even to show propensity (so long as an actual habit
can be established by evidence)
Problem 3.19: Man dies. Autopsy shows he took steroids, but victim thought it was an antihistamine. Family sues
doc. Wants to intro 8 other patients in the same boat.
o Evidence from 8 others is NOT admissible  8 people might not be enough to be a habit, there’s no lack
of volition, this isn’t innocuous
Witness Character
404(a)(3) IMPEACHMENT
Rule 404(a)(3): Evidence of a witness’s character may be admitted under Rules 607, 608, 609
 404(a)(3) – witness character truthfulness: If you want to talk about truthfulness, you need to look at 607, 608,
609
 Three ways to impeach a witness
o You’re wrong/mistaken (in this instance)
 i.e., the witness is mistaken b/c of narrative inaccuracy, gaps in memory/perception
 e.g., too dark/drunk to see what he claimed
 Permissible mode of impeachment
 Not a character attack
o You’re lying
 E.g., you’re lying in this instance, even if you’re not a liar by character (this creates a route
around the propensity box)
 Bias theory: you’re lying to protect yourself or self interests
 Permissible mode of impeachment
 Impeachment by prior inconsistent statement – person said diff. things at diff times,
so don’t believe him now
 This is not necessarily a character attack, but in certain circumstances, it can be
o If it’s not a character attack, then the door doesn’t open to rehabilitation under
608
o You’re a liar
 This IS a character attack (i.e., you have a character for untruthfulness)  asking the jury to infer
the witness is a liar generally, so he must be lying here
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

 But then 607/608/609 kick in for procedure on how to do this
Rule 607: Any party may attack a witness’s credibility
o This rule explains WHO can attack a witness’s credibility  anybody
o This includes the party that called the witness to the stand (i.e., you can call witness to stand and then
attack their credibility)
 i.e., a lawyer can impeach its OWN witness
o This is a new rule
 Old: used to have to vouch for your witness’ credibility
 Some states still make you do this  variations on voucher rule
 Justification for new: practical necessity  sometimes you have to call a hostile witness, and you
should be allowed to attack
Rule 608: A Witness’s Character for Truthfulness/Untruthfulness
o This rule explains HOW to attack a character for truthfulness
o 2 times when used
 Impeachment by prior bad acts that are probative of truthfulness
 Impeachment by opinion and reputation regarding character
o Procedure
 No extrinsic evidence & this doesn’t apply to extrinsic evidence of bias (b/c not a characterbased attack b/c it doesn’t point to propensity)
 Direct and redirect – 608(a)
 Rule 608(a): A witness’s credibility can be attacked OR supported by opinion/reputation
evidence showing truthfulness/untruthfulness. BUT, evidence of truthfulness is only
admissible after the witness’s character has been attacked
 On direct, can only ask about reputation/opinion
o Testimony for reputation/opinion MUST be about truthful/untruthful character 
i.e., you CANNOT ask about another character trait
 A party can only introduce testimony about truthfulness of the witness to rehabilitate (i.e.,
the witness’s truthfulness must be attacked first)
o i.e., you can only introduce evidence of a witness’s good character after it’s been
attacked
 Cross examination – 608(b)
 Can attack reputation/opinion OR specific acts
o Of principal witness or other witness
 All about character for untruthfulness
 If you’re asking about specific acts, you can’t make up whatever you want (FRE 273)
o Instead you need a reasonable, good faith basis
o Extrinsic evidence is NOT admissible (can’t admit the evidence your good faith
is based on)
o If the person lies on cross, then you have to accept the answer as true
 This limitation only applies for character evidence
 i.e., you CANNOT intro extrinsic evidence to show the person is lying
 Open/closing remarks – attacks CAN occur in opening/closing remarks
 But the attack must be on the witness’s character for truthfulness (i.e., no bias)
 If there’s not an attack, it does NOT open the door for rehabilitation
 Limits
 Can only relate to the trait of *un/truthfulness*
 If the character of the witness is attacked, then the opposing party can respond by trying
to build the character back up (but can’t do this if the character of the witness isn’t
attacked)
o Standard for 608 (and 412)  questioner must be in possession of some facts which support a genuine
belief that the witness committed the offense or the degrading act to which the question is related
 i.e., need reasonable, good faith basis
 No extrinsic evidence under 608(b), only testimony about specific acts
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o
o
o
o
That is, you CANNOT intro into evidence the thing that actually creates the good faith
basis that allows the testimony
Rehabilitation
 608(a): one party has to accuse the witness of untruthfulness before rehabilitating the character
for truthfulness
 Can only restore once the character has been attacked
 Attacks come in diff forms  cross-examine, past convictions
 MUST be an attack on the person’s character for truthfulness
Comparison with 405
 Differences
 We’re talking about different types of character
o 404(a)(3)/608/609: talking only about truthfulness
o 405: talks about any pertinent character trait
 Types of applicable cases
o 404(a)(3)/608/9 applies to ALL cases (civil/criminal)
o 405 applies only to criminal
 Extrinsic evidence
o 608: extrinsic evidence is NOT allowed
o 405, 609, 613: extrinsic evidence allowed
 Similarities
 Same methods of proof
o Direct: reputation/opinion
o Cross: reputation/opinion & specific instances
 w/ both, you’re stuck w/ the answer given on stand for cross examine
(only applies to character evidence)
 No extrinsic evidence (Note that 609 is DIFFERENT and extrinsic
evidence is permitted)
 405 – can’t intro extrinsic evidence about the specific act
 608 – can’t intro extrinsic evidence to show person is lying
 609 - CAN intro extrinsic evidence of past conviction (i.e.,
record of prior conviction)
 Have the same prescribed order
o 405: if the D opens the door, then prosecution can attack
o 608: if the character of the witness is attacked, then opposing party can respond
by trying to build the witness’s character back up (rehab)
Justification
 for why the system operates like this: only plausible answer is that this is the only chance the jury
will get b/c trial testimony is so rehearsed/scripted). Impeachment allows us to break through the
artificial testimony (i.e., allows you to get a glimpse of witness’s personality)
 This setup seems illogical  propensity for truthfulness is NOT more predictive; not b/c
community is better at determining; not b/c the jury is better
 608(a)/rehabilitation: we exclude truthfulness evidence (i.e., good character evidence) until
attacked b/c we don’t want unnecessary evidence/unending credibility boosts
 For keeping answer given on cross: we want to avoid mini-trials
 This creates irony b/c the system only functions when the witness (who you’re trying to
prove is a liar) is honest enough to acknowledge the prior impeaching acts
U.S. v. Whitmore: D runs from cops and allegedly tosses gun while fleeing  convicted of gun/drug
offenses. D says evidence is fabricated/planted. One cop takes stand, and D wants to impeach
 D want to cross-examine the officer about certain instances of past conduct under 608(b)
 Ct. says it’s abuse of discretion to exclude cross-exam b/c the D should have the
opportunity to push back on the cop’s assertions
 HOWEVER, when this evidence is admitted on cross, you MUST accept the cop’s
answer, even if he lies
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i.e., even if you have documents saying otherwise, you’re stuck w/ the liars’
answer
D wants to admit other witnesses who will testify about mendacity
 Ct. excludes some witnesses b/c they’re too remote (but ct. is probably wrong to exclude
some character witnesses)
o

609: PAST CONVICTIONS
Rule 609: Past convictions can occasionally be used to show a witness’s character for untruthfulness
 Generally, think of 609 as a grouping of 6 distinct sub-rules
o This rule is focused on truthfulness
 i.e., when doing a 403 balancing test for 609, look at the probative value of the witness’s
character trait for truthfulness
o All of these go right THROUGH the propensity box
 How it works w/ 404: 609 + 404 say that showing you previously robbed a bank isn’t supposed to
show a propensity to rob banks; it’s to show you have a propensity to lie
 Act 1 --//-> Act 2
 Act 1 ----> Lie
o Under 609, you CAN introduce extrinsic evidence (i.e., record of past convictions)
o Rationale: people w/ past convictions are less trustworthy and therefore more likely to lie
 Problems
 Lies are contextual, rather than character-based (i.e., just b/c you lie in one situation
doesn’t mean you’ll lie in another)
 No empirical evidence that past convictions make your more of a liar
 404 suggests that old acts aren’t predictive of new acts, but 609 assumes old acts are
predictive of new lies
o Juries end up making an inference about bad act, rather than tendency to lie
 Creates Hobson choice (see below)
 Impact on 609 for felons  Hobson’s choice
o Comparison w/ common law
 Common law: Felons couldn’t testify at all
 609: Felons can testify, but there’s a risk they’ll be impeached w/ their past conviction
o 609 creates a Hobson’s Choice for felons (i.e., D has 2 bad choices w/ this rule at trial)
 Option 1: Let the defendant testify
 If D takes the stand, it opens the door to him getting ripped to shreds on cross-examine
(specific instance) w/ his past convictions
 Option 2: Do NOT let the defendant testify
 Jury will infer the worst from the fact the D didn’t testify (assumption of guilt)
 You CANNOT appeal a 609 issue in fed. ct.
o You also can’t appeal if you preempt (i.e., let the jury know about the crimes
first)
o Rationale: it’s too speculative and you can’t know how non-testimony affected
the outcome of the trial
 This creates the worst situation for a D
 If you want to reserve your right to federal appeal, you MUST testify and you cannot
preempt
o i.e., must testify and not disclose prior conviction, but risk it coming up on crossexamine
 As a general matter, the court will apply the rule that is the most demanding
o Silent category = not punishable by 1 year or more and not a crime of deceit/falsity
 Evidence of this type of crime may be able to come in under 608 (reasonable basis, specific
instance, related to pertinent trait)
 Chance of getting in = 0/100 (totally inadmissible under 609)
o Juvenile Adjudications – 609(d)
 Requirements for a juvenile adjudication to be admitted:
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o
o
o
o
 Must be for a criminal case
 The witness (w/ prior) must NOT be the defendant in the case
 The conviction is of a type that would be admissible if it were an adult conviction
 The conviction is necessary to fairly determine the D’s guilt/innocence
 Chance of getting in = 1/100 (very rare)
 The final element (conviction necessary to determine guilt/innocence) makes it hard to
get this type of evidence in  D can’t be the witness being impeached, so it’s unlikely
that impeachment of a witness would necessary for fair trial outcome
Old Crimes – 609(b)
 Requirements for witness’s old crimes to be admitted:
 Crime must be punishable for more than one year (felony)
 At least 10 years must have passed since the latter conviction or release from
confinement
 Reverse 403  admissible if the probative value (of the witness’s character for
truthfulness) substantially outweighs prejudice
 Must give written notice
 The ten-year requirement tells us when to start counting but not when to stop
 Criminal stop date: most cts. use the date of indictment
o i.e., 10 years starts at conviction/release from confinement, and stops at the date
of indictment
 Civil stop date: varies (trial date/start of civil trial, when witness took the stand, etc.0
 Chance of getting in = 20/100 (small chance)
Criminal D as witness – 609(a)(1)(B)
 Requirement for past convictions when criminal D is the witness:
 Criminal D is the witness
 Crime is punishable for 1 year or more
 Crime occurred w/i the last 10 years
 Crime is NOT a crime of deceit/falsity
 The probative value (of the D’s character for untruthfulness) of the evidence outweighs
prejudicial effect  PV > P
 Explanation of PV > P element
 Does the probative value outweigh prejudicial effect?
o If YES, evidence comes IN
o Note that this does NOT have “substantially”/ “unfair”
 Probative value assessment is focused on the character witness
 List of factors to determine if probative value outweighs prejudice (Brewer)
o (1) The nature of the crime
o (2) time of conviction and the witness’s subsequent history/behavior since
o (3) similarity b/w past crime and charged crime
o (4) importance of defendant’s testimony
o (5) centrality of the credibility issue
 Chance of getting in = 50/100 (toss up)
Any other person as witness – 609(a)(1)(A)
 Requirement for past conviction to come in when any other person is the witness:
 Any one besides defendant is the witness (civil or criminal case)
 Crime is punishable by 1 year or more
 Crime occurred w/i 10 years
 Crime is NOT a crime of deceit/falsity
 Admission gets past/is subject to 403
 Chance of getting in = 80/100 (significant)
 Rationale: we are more protective of criminal Ds in particular incidents. Relaxed
Hobson’s choice for the other person who’s testifying. Greater risk of 404 dangers
manifesting.
Crimen Falsi – 609(a)(2)
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Crimen Falsi = crime of falsity
 E.g., perjury, criminal fraud, embezzlement, false pretenses, forgery, tax fraud (probably)
 How to determine a crime of falsity
o Statutory elements of the charged crime
o Face of the trial court’s judgment
o Indictment
o Statement of admitted facts
o Jury instruction
o What the other person actually did
Requirements to admit crimen falsi
 Crime relates to deceit/falsity
 Crime occurred in the last 10 years
If the requirements are met, it MUST be ADMITTED
 There is NO punishment minimum element
o i.e., this evidence comes in, regardless of if it’s felony/misdemeanor
 This does NOT undergo a 403 balancing test  403 does NOT apply
 Exception: If the charge is annulled/pardoned, then the court acts like you didn’t commit
Chance of getting in = 100/100 (always must be admitted)
Appeal
o 609(e) – Pendency of appeal: For the above list, a conviction satisfies this rule even if appeal is pending.
But evidence of the pending appeal is also admissible.
Pardon/annulment/certificate of rehab - 609(c)
o 609(c)(1) – if the conviction has been subject of pardon, annulment, certificate of rehab AND the person
hasn’t been convicted of another crime since that’s punishable by one year or more  evidence of the
conviction is NOT admissible
o 609(c)(2) – if the conviction is pardoned/annulled b/c you were found to be innocent  evidence of the
conviction is NOT admissible
TABLE FOR 609 SUB-RULES  when past convictions can be brought in
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RAPE SHIELDS
Rule 412: Sex Offense Cases, The Victim
 General  protects victims against the introduction of evidence of sexual-misconduct victim’s past sexual
conduct (specific instances) and reputation
o This is all about the character of the victim
 This contrasts 414–416, which allow evidence of defendant’s sexual misconduct
 i.e., we treat victims and defendant’s sexual misconduct differently
 Why?
o Public policy for 412 reporting
o Privacy  victim has privacy interest in consensual past acts. D doesn’t have
same interests
o Probative value  recidivism rationale for D’s past
o Presumption of innocence problem for Ds, not victims
o Risks are different. D faces prison. Victim faces embarrassment
o Think of 412 as a limit on the exceptions allowing evidence of witness’s pertinent traits
 In certain situations, you CAN bring up pertinent traits of the witness
 412 takes some of the evidence of witness’s pertinent traits (witness’s sexual past) off the table
o 412 is a German rule (everything is prohibited, unless the rule specifically permits it)
 Policy Justification:
o Rape shields protect alleged victim’s privacy/dignity by making sure that personal, private, maybe
embarrassing info doesn’t come out in ct.
o Rape shields try to encourage victims of sex. misconduct to report/engage in proceedings
 i.e., you’re more comfortable in reporting if you don’t fear that your entire sexual
history/predisposition will come in at court
o 3 question to ask to determine whether 412 protection applies to protect victim’s credibility
 Whether the conduct implies that sexual behavior occurred?
 Is the question specific enough to do more than attack the victim’s credibility?
 Whether the prior charges (i.e., allegations) were actually false?
 All American jxd have rape shields  this is new (post-1975)
o W/o rape shields/Rule 412, you can question victims about their past sexual history to show the victim is
“unchaste”
 Lawyers could make arguments that b/c the victim “behaved badly” in the past consensually,
she’s more likely to have engaged in consensual behavior here (and thus, is lying about being
raped)
 Under 404(a)(2)(B), pertinent trait of the victim can be attacked and would allowed
 Under 608, slutty behavior could potentially show character for untruthfulness
o 412 tries to change this by protecting victims against introduction of evidence of past specific sexual
conduct/reputation
 Rule
o 412(a): No evidence of a victim’s “sexual behavior” or “sexual predisposition” is allowed in any case
involving alleged sexual misconduct
 Scope of application to types of cases
 Applies to civil and criminal cases
 Scope is broad  includes rape, attempted rape, sexual harassment
 Sexual behavior is meant to be interpreted broadly
 Includes physical activities and mental activities (e.g., fantasies)
 Is NOT so broad that it includes false allegations (see below)
 Sexual predisposition is meant to be broad
 Includes mode of dress, speech, lifestyle
o Exceptions: you can bring in evidence of victim’s sexual behavior in a case involving sexual misconduct
IF it fits into one of the following exceptions
 CRIMINAL – 412(b)(1)
 412(b)(1)(A): Physical evidence … other than the accused
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you CAN introduce evidence of specific instances of victim’s sexual behavior if
offered to prove that someone other than the D is the source of the semen,
injury, or other physical evidence
 i.e., specific instances of victim’s past sex behavior is admissible ONLY
IF it’s being used to show that someone else (other than the accused) is
responsible for the physical evidence in the case at hand
o Problem 5.2: defendant trying to show he previously left fingerprints during a
past sexual encounter is not admissible b/c it’s not offered to prove someone else
left the finger prints
 412(b)(1)(B): Past acts w/ the accused … consent on this occasion
o Offered by D: Specific instances between the victim and defendant are
admissible, if offered by defendant to prove consent in this instance (incident of
trial’s focus)
 Evidence must show consent at the time of the alleged rape
 i.e., can’t use evidence to show victim consented to sex in the
past
 The only acts that come in are the acts that preceded the alleged
rape and that show the rape was actually consensual
o These other acts are sort of like motive  i.e., the other
acts are the consent here for this rape
o Offered by P: Specific instances between the victim and defendant are
admissible, if offered by the prosecutor
 E.g., prosecutor can acknowledge that V/D have past history of
consensual sex  it’s powerful then to show that in this instance it
crossed the line from consensual
o Evidence must be between victim and defendant (NO evidence of V’s sexual
conduct w/ people who are not the defendant)
 412(b)(1)(C): You can introduce this evidence when the Constitution mandates it
o See below re: res gestae  res gestae is NOT sufficient for a constitutional
exception
 CIVIL - 412(b)(2)
 412(b)(2): Evidence of victim’s sexual behavior/predisposition is admissible IF
probative value substantially outweighs danger of harm to any victim or unfair prejudice
to any party. Ct. may admit reputation evidence ONLY IF victim has placed it in
controversy.
o Evidence must be:
 Otherwise admissible
 May not pass 403  evidence paints the victim as somehow
deserving of what she got
 404(a)(2)(B) - D offering characteristic of victim’s pertinent
trait does NOT apply b/c it’s not a crim. case
 Probative value must substantially outweigh unfair prejudice/harm to
VICTIM (often the CIVIL plaintiff)
 Reputation evidence is allowed ONLY IF victim places reputation at
issue (e.g., victim seeking damages for harm to reputation)
o Otherwise admissible element
 412(c) – Procedure: If evidence is going to be offered under a 412(b) exception, the party must:
 File a motion that describes the evidence/states the purpose it’s being offered for
o Motion must be filed at least 14 days prior to trial (unless good cause for delay)
o Motion must be served on all parties
 Victim (or guardian/representative) must be notified of use of evidence
 Hearing – before evidence is admitted, ct. must conduct an in camera hearing where
victim/all parties are allowed to attend/be heard.
Stipulations/Res Gestae
o

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o

Stevens v. Miller: Victim says that D attempted to rape her, and both have different stories. D says it was
consensual until he says, “Tim Hall said you liked this; switching partners,” V gets mad, he stops. D
can’t say specifics in ct. but is allowed to say she got mad  D found guilty.
 Issue is whether D has constitutional right to tell his story completely (res gestae arg).
 Holding: D has constitutional right to make a meaningful defense, but that right doesn’t include
being able to tell your story w/o limits.
 Balances D’s story against other things, including rape shield and invitation of bad
behavior (i.e., Ds could make up a tale to get around rape shields)
 Dissent: The details are central to his case
 Rule: Res gestae is NOT sufficient for a constitutional argument
 Problem w/ rule:
o Rule is overinclusive  can harm truthful Ds
o Narrative integrity isn’t dead elsewhere (e.g., DeGeorge)
False Allegations
o False claim/allegation = where there was no encounter underneath the claim
o Rule: Evidence of false claims/allegations are NOT barred by 412 but are subject to 404/403
 412 doesn’t address false allegations (i.e., no formal exception)
o State v. Smith: D convicted of molesting 12 yo girl. D wants to intro that girl once accused cousin of
molestation but recanted b/c nothing happened. D wants to cross-examine victim on stand, and D wants
to put cousin on stand. TC say inadmissible. D is convicted.
 Holding: Evidence of false allegations is NOT barred by 412
 Justification: not in scope of 412; this is not sexual behavior, just claims; Ad. Comm. is
clear in notes to exclude;
 Entire case is about victim’s credibility/veracity b/c there’s no physical evidence  need
to know if she’s made these claims before
 However, evidence of false allegations still needs to get through 403, 404, and 608
 404 says you can’t make a propensity move (i.e., she made claims before, so more likely
to make them here)  not an exception to character evidence ban
 Instead, must attack veracity/character for truthfulness (608)
o Limitations: reputation/opinion only on direct; specific acts on cross.
o D wants to bring up allegations on cross (this is ok, b/c specific act). However, if
victim denies, then that’s the end of it (no extrinsic evidence)
o If cousin is put on stand, he can’t talk about specific instances (b/c it’d be
direct), can only talk about reputation.
 Standard to let false allegation evidence is whether there’s a reasonable good faith basis to
ask the question
 Counsel must have a reasonable basis for asking questions on cross-examine which tend
to incriminate/degrade the witness.
 Reasonable basis arises WHEN “the questioner must be in possession of some facts
which support a genuine belief that the witness committed the offense or the degrading
act to which the questions relates”
o Contested Claims
 Contested claim = there is a claim, but parties’ have diff. interpretation of what happened
 Problem 5.4: D charged w/ rape & wants to intro evidence that victim claimed rape after
consensual sex before.
 608 doesn’t work if D wants to put the witness on the stand under direct (b/c you can’t
ask questions about specific acts on direct)
 This is NOT a false allegation  both parties agree the encountered happened but
there’s a dispute (i.e., it’s a contested claim)
o B/c there is sexual behavior, 412 kicks in
o Rule: If there’s disputed sexual behavior, then it’s NOT a false claim; if it’s not
a false claim (i.e., if it’s a contested claim), then 412 applies
 B/c 412 kicks applies to contested claims, is the evidence prohibited?
o Evidence is about sexual behavior  must look to 412 exceptions
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o
o
 Not really about physical evidence
 Not really about consent
 Not talking about prior encounter with D
o There may be an arg. for an exception under the constitutional exception
 Right to confront accuser (confrontation clause)
 However, whether this works depends on jxd
 May be able to frame the evidence to show bias (like Olden v. KY)
Olden v. Kentucky: After alleged rape, D drops victim at Bill’s house. Vic. Tells Bill she was raped. D
says victim made up story to explain why she’s w/ D b/c she’s having an affair w/ Bill. D arg. = victim
has a particular reason to lie (and thus is lying)  motive/bias arg. D wants to intro evidence that vic. is
living w/ Bill.
 Trial ct. says D can’t intro evidence of cohabitation b/c it’s prohibited under 412 (defines sexual
behavior broadly to include cohabitation out of wedlock)
 Step 1: Is it within 412’s prohibition?
o Evidence of living out of wedlock IS evidence of sexual behavior  this is w/i
412’s general prohibition so evidence normally can’t be admitted
 Step 2: If it’s under 412, does this evidence fit under an exception?
o Doesn’t fit under traditional criminal exceptions (other person/consent)
o Thus, D makes arg for constitutional exception  operation of the rape shield
prohibits me from accusing my victim per Confrontation Clause
 i.e., stopping D from asking these questions is contrary to the
confrontation clause
 D must be able to push for bias
 Step 3: Should the Constitution override 412?
o D argues that he needs to be able to establish her motive to lie b/c it’s crucial to
the case in deciding who to believe
 Rule: The Constitution permits defendants to attack the victim’s credibility
 What evidence you can provide/how you can attack depends on jxd
o Almost every ct. allows D to push that victim is lying somehow here
o Cts. are less consistent about broader attacks on victim’s character
 This does NOT give the D a pass to do whatever they want
o i.e., D’s evidence must be constrained  “I want to use this evidence to show
bias”
o You can’t provide evidence in any way/form you’d like
Kobe Bryant (Eagle, CO): Bryant wants to intro that victim has sex w/ others to prove
motive/knowledge. Bryant wants to intro that she had sex w/ witness who she told about rape.
 Intro of this evidence is prohibited by 412  no exception under consent/physical evidence
 Maybe there’s a constitutional arg. (bias arg. for prosecution’s witnesses)
 However, still wouldn’t get past 403 b/c of dignity concerns (evidence is extremely prejudicial)
RELIABILITY
WITNESS COMPETENCY RULES


Old rules: Certain groups of people were deemed categorically incompetent to testify b/c it was assumed they’d
lie (e.g., felons, atheists, etc.)
Rule 601: Every person is competent to be a witness unless these rules provide otherwise.
o Limits
 Rule 602: Lay witnesses can testify based on personal knowledge
 Rule 603: Oath
 Rule 604: Judge can’t be a witness
 Rule 606: Jurors can’t be witnesses and can’t testify to impeach verdict
 Rule 608–611: Impeachment rules
 Rule 607/608/609: Can’t attack witness’s past acts
o Hypnosis
 Rock v. AZ: There’s no categorical bar on witnesses that have been hypnotized
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o
Children as witnesses
 Federal: kids are presumed to be competent/credible to testify, regardless as age
 Issue: are kids old enough for cross-examine? Does cross-examine actually do its work
with them
TESTIMONIAL CAPACITIES


The 800s are related to hearsay
What are we concerned about when a witness testifies re: reliability?
o 4 testimonial capacities
 Witness’ belief about the story
 Perception (witness’s perception) – did a witness see, hear, feel the situation well enough
to be able to relay it to the jury
 Memory – is the witness recalling details of the story correctly?
 Accuracy of witness’s telling of the story (e.g., is the witness relaying the events accurately)
 Narration of the event – can the witness tell the story accurately enough?
 Sincerity – is the witness lying or trying to deceive
o 3 tools that allow the jury to determine whether the witness is reliable
 3 tools (not perfect way to asses reliability, but we can push back against a witness)
 Making the witness take an oath
o Rule 603 (requires oath/affirmation)
o Rationale: the act of taking an oath sharpens senses/increases sincerity
 Demeanor evidence – judge/jury can assess the witness’s demeanor while testifying (e.g.,
are they squirming/struggling to recall)
o Rationale: Jury can suss out the witness’s sincerity and other issues
 Cross-examination
o Rule 607/608/609
o Rationale: the hostility of cross-examine can expose deficiencies in testimony
 Application  If the witness is talking to the court, these 3 tools test the witness’s 4 testimonial
capacities
o If the witness is NOT in court, there’s no way to test the testimonial capacities of the out-of-ct. speaker
 e.g., Bob tells witness, witness says what Bob says in court (Bob’s statements to witness are
hearsay)
 That is, out-of-ct. statements go untested, so can’t check perception, memory, narration, sincerity
 Something being used for its truth, but that’s outside the system’s ability to check for its
reliability  this is the problem of HEARSAY
HEARSAY (GENERAL)
Rule 801: Definition of Hearsay
 Rule 801: Hearsay is an out-of-court statement/assertion offered to prove the truth of the matter asserted
o (1) Out of court – includes anything other than that made/said by the witness at this court
o (2) Statement/assertion – anything you say/write/do with communicative intent
 801(a): A person making an oral assertion, written assertion, or non-verbal conduct w/ an intent
to communicate
 Assertion = statement/expression (verbal, written, non-verbal) made w/ an intent to communicate
to someone else
 How to check to for an assertion (if yes to both, then it’s an assertion)
o Intent to communicate?
o Audience?
 i.e., Must be meant to assert/communicate something to someone (there must be intent)
 Be careful to distinguish this from a message that you infer from an action
 E.g., if everyone’s walking by with umbrellas, they’re not intending to communicate that
it’s raining
 Animals and machines don’t make statements  Not hearsay
 THREATS are verbal acts
o (3) Offered for the truth of the matter asserted
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


 TEST: does it actually matter if the statement is true? If it doesn’t, probably not hearsay
Problem 7.1: chief witness in class action dies, but writes an affidavit before she dies
o This is hearsay (though may fit an exception)
 Out-of-ct: yes
 Statement/assertion: yes (hearsay can be written words)
 Offered for proof of the matter asserted: yes (blown out tires are caused the accident)
Out-of-court
o Problem 7.3: Witness testifying previously told police that the bad guy is #3 in a lineup
 Here, the declarant/testifying witness are the same person
 i.e., Marilyn is her own declarant
 This is technically hearsay
 Out of ct. = yes
 Statement/assertion = yes
 Offered for proof of the matter asserted = yes (it’s true #3 is the bad guy)
 Quoting yourself is still out-of-court hearsay
 Practically, if the witness on the stand adopts his old statements, then most courts will
allow the statements to be admissible (even though they’re technically hearsay)
Truth of the matter asserted
o To determine if something is hearsay, you need to figure out why the person is offering the evidence to
see if it’s hearsay
 If something is NOT offered for the truth of what is being said, then it’s NOT a hearsay problem
o Out-of-ct assertions can be offered to show notice  not hearsay
 It is unusual for hearsay statements to prove notice (would have to say “I notify you XXX”)
 Shalleck v. Hines: P testifies she told company about sexual harassment before the incident.
 Statements can be hearsay for one purpose, but admitted for another
o If used to show she had been previously sexually harassed  Hearsay
o If used to show that she notified the company  not hearsay (b/c it’s showing
notice)
 In such a situation, you can ask for limiting jury instruction
o Can be offered to show subjective belief/declarant’s state of mind  not hearsay
 Hepburn Video: Lawyer tries to show that woman is abused by husband to show why she did
what she did. Wants woman’s statements that abusive husband says “I’m gonna shake your head
up”
 NOT hearsay
o Out of ct – yes
o Statement/assertion – yes
o Offered for the truth of the matter asserted – NO
 It’s not being offered to prove the husband was actually going to shake
Hepburn’s head up (not hearsay)
 This is offered as effect on listener (to prove her state of mind)
o Can be offered to show its effect on the listener/motive  not hearsay
 E.g., Someone yells fire, so you run away; doesn’t matter if there actually was a fire
 Verbal Acts (legally operative words)
 Certain things uttered have legal impact/implications, regardless of whether the person
means them
 Examples
o THREATS are a verbal act (Hearsay quiz, #7)
o “I do” at wedding
o “I agree” in a contract negotiation (might create a K, even if the person doesn’t
mean it)
o “I declare” at customs
 Problem 7.8: Dude declares stuff at customs and then says “I have
nothing else to declare” when he did have more to declare
 “I declare” in customs is a legally operative word
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Can be offered to show reputation  not hearsay
Can be offered for impeachment  not hearsay
“The car is red”
 If offered to prove the car is red  hearsay
 If offered to prove the car is green and the speaker is actually colorblind  not hearsay
o If the information is offered to show something other than propensity, the judge should instruct that the
statement is not coming in to prove the truth of matter asserted, but only for this reason
Assertions
o Assertion = statement/expression (verbal, written, non-verbal) made w/ an intent to communicate to
someone else
 Assertions must have: (1) intent to communicate to (2) an audience
 Step 1: Was there an audience? (can be an audience of one)
 Step 2: Did the person intend to communicate something the audience didn’t already
know?
 Always ask about the declarant’s goal  did the speaker have an audience and, by word
or deed, mean to communicate to anyone other than herself?
o If it’s not an assertion, it’s NOT hearsay
 Assertions can be words, conduct, or silence, which all can be hearsay
 Words (written/oral) = generally assertive IF said to someone else (i.e., audience)
o Ouch is involuntary  NOT an assertion
o Mumbling to yourself  NOT an assertion (no audience)
 Conduct – can be assertive but need to tease out inferences v. assertions
o Gestures can be assertive IF they’re done w/ communicative intent
 Implied assertions – sometimes you need to unpack what was said
o i.e., what people assert is sometimes different from what they say
 Silence (see below) – silence can be an assertion in the right setting, but only when the
silence has an intent to communicate
o i.e., if there’s no audience/intentionality to the silence  NOT hearsay
 The focus on assertion shows hearsay’s chief concern is sincerity (i.e., if someone is trying to
assert someone, we wanna make sure they’re not lying)
o Problem 7.9 – Ship Inspection Problem: Captain inspects ship and takes family on board. Would it be
hearsay to use the captain bringing his family on board to prove the boat was seaworthy?
 NOT HEARSAY b/c not an assertion (he’s not trying to communicate anything to anyone at that
time, based on the facts)
 What we can infer from what a person says/does is not always the same thing as what they’re
asserting
 i.e., just b/c we can infer the captain thinks the ship is seaworthy, it’s not the same as the
captain asserting it’s seaworthy
 It doesn’t matter that we can infer that he thinks the ship is safe  hearsay is concerned
w/ assertions, not inferences
 If we knew the sea captain was performing for an audience, then his actions might be an assertion
o Problem 7.10 – Amchitka Holiday: Chair of Atomic Energy Commission takes family publicly to nuclear
site
 This is HEARSAY
 Out of ct – yes
 Assertion – yes
o Audience – yes
o Intent to communicate – yes (the base is safe, look I’m bringing my kids)
 Proof the matter asserted – yes (the base is safe)
 Context matters here b/c he knew he had an audience and performed in front of them
o Silence
 Failure to complain: we can infer something from failing to complain, but not complaining is
NOT the same thing as asserting it’s great
o
o
o

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
o
o
Problem 401-2: Husband wants to use boat to murder wife. Did wife know of the boat? Wants to
intro evidence that wife never said anything about the boat and therefore did not know about the
boat
 Her not telling someone about the boat is probably NOT hearsay
o Not an assertion  Silence was not communicative
o Here, silence isn’t meant to communicate “I don’t know about boat”
o If she’s at a party and they ask, “Yell the word boat if your husband doesn’t own
a boat” and she stays silent  hearsay
Audience Problems
 Problem (drug recipes): Police find recipes for drugs in Ds locked briefcase
 Here, inference of knowledge is strong, but he’s not trying to assert that he knows how to
cook the drugs (b/c recipe is locked away)
o i.e., he’s not trying to assert to the world that he knows how to cook meth b/c the
recipe is hidden
 If offered to show he knows how to prepare these drugs, NOT hearsay
 Problem 401-8: Man writes in diary that he thought he was being poisoned.
 Problem: we don’t know whether the diary is meant to have an audience. (i.e., can’t tell if
there was intent to communicate w/ anyone but himself)
o If the diary was left out and open (shows you want people to read it), then it’s
more likely to be an assertion
 Outcome: ct. ends up excluding it anyway
Ambiguous Cases
 Chambers v. Mississippi: Officer Liberty shoots in the direction of D before dying (and other
officer sees this)
 NOT hearsay  4 different ways to interpret shot
o Trying to stop killer
o Trying to disable assailant
o Revenge
o Mark D as the killer for later identification purposes (this one is hearsay)
 B/c officer is dead, you can’t ask him which intent he had for the shot
o Ambiguous cases will be resolved in favor of admissibility
 i.e., don’t call it hearsay (i.e., not an assertion)
o Burden is on the party claiming the assertion existed to prove
Hearsay Exceptions
Rule 802: The Rule Against Hearsay
 Rule 802: Hearsay is not admissible UNLESS it fits an exception
o i.e., hearsay is presumptively inadmissible unless it fits in an exception
o German rule (all hearsay is barred, unless it’s specifically permitted by another rule)
o Exceptions = federal statute, federal rules of evidence, other rules prescribed by SCOTUS
 Overview of Exceptions
o Exemptions (technically, these statements are not considered hearsay b/c they are expressly excluded
from definition of hearsay)
 801(d)(1) – prior statements by witnesses
 801(d)(2) – statement by party opponents
o Exceptions
 803 – availability of declarant immaterial
 (1) present sense impressions
 (2) excited utterances
 (3) statements of then-existing mental/emotional/physical condition
 (4) statements for medical diagnosis/treatment
 (5) recorded recollections
 (6/7) business records
 (8/10) public records & reports
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



804 – declarant MUST be unavailable
 (b)(1) former testimony
 (b)(2) dying declarations
 (b)(3) statements against interest
 (b)(6) forfeiture by wrongdoing
 807 – residual exception
Policy underlying hearsay exceptions
o Necessity: we know it’s hearsay/suspicious, but we really need this evidence (i.e., we won’t have any
evidence at all w/o it)
o Reliability: this hearsay is more reliable for some reason that other run-of-the-mill hearsay
Rule 805: If there’s hearsay within hearsay, you must do each layer of the hearsay separately to determine if an
exception/exemption applies
Rule 806: When a hearsay statement’s admitted into evidence, declarant’s credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
o Ct. MAY admit evidence of declarant’s inconsistent statement/conduct, regardless of when it occurred or
whether declarant had opportunity to explain – exception to XXXXXX
o If the party against whom the statement was admitted calls the declarant as a witness, the party may
examine the declarant on the statement as if on cross-examine.
o i.e., if you think a declarant is lying, you can impeach (under 806, 607/608/609)
Rule 801(d)(2): Opposing Party’s Statements (Hearsay Exception)
 General rule: One party can use the other party’s statements against them for their truth
o i.e., you using my words against me; me using your words against you
o This is considered an exemption from the general definition of hearsay
o Applies ONLY to parties in the case (can’t be bystander witness/someone closely linked to that party)
o 801(d)(2) does NOT require personal knowledge
 i.e., even if you’re making things up and you’re a party to the litigation, then it can be used
against you
 This is a product of the adversarial system
 This contrasts 602, where witnesses normally must have personal knowledge about the things
they testify about.
 Five categories
o 801(d)(2)(A): Party’s own statements, used against that party
o 801(d)(2)(B): Adopted admissions
o 801(d)(2)(C) & (D): Authorized person OR agent/employee w/i scope of employment
o 801(d)(2)(E): Co-conspirators
 Justification:
o Reliability – these statements are more reliable  the statements are more likely to hurt you, and it’s rare
that people say things that will hurt their own interests
o Litigation is adversarial (legal war)  if you’re going to be a party, get ready to fight
o This is NOT necessity: the declarant is already in court and available as a party
 Rule 801(d)(2)(A): A Party’s Own Statements Used Against That Party
o Rule = a party’s own words are NOT hearsay when offered against them at trial
 Statement MUST be offered against the party to satisfy exemption
 Covers ALL statements by that party that are being offered against them
 Can include a plea in a criminal case that’s being used in a civil case
 A statement that may be neutral or self-serving at the time counts (i.e., doesn’t need to be
a statement against the party’s interests)
 Criminal confessions can be tested under 4th & 5th Amendment, but not under hearsay b/c
of this rule
 This is still hearsay, but it’s just exempted by the rule
o Problem 7.11: Woman sues airline after suffering injuries, says she can’t work at full capacity. Airline
shows records that she billed 104 hours to clients
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


The billing docs. could be hearsay: out of ct, assertion/statement, offered to prove she did work at
full capacity/the hours stated
 Whether this is hearsay, it’s ADMISSIBLE under 801(d)(2)(A)
 i.e., it’s the party’s own statement
o Commonwealth v. Karen: Babysitter accused of homicide, tells trooper “she said baby was fussy.”
 Normally, “She said baby was fussy” = hearsay
 Still, this comes in under 801(d)(2)(A) b/c it’s a statement of the defendant against the defendant,
offered by the prosecution
o Problem 7.12: OJ wants to use his own statements to make himself look better
 This is NOT admissible/does NOT fall within the 801(d)(2)(A) exemption
 The statement must be a statement by party OPPONENT used against OPPONENT
 Here, it’s a party’s own statement being used for its own benefit
Rule 801(d)(2)(B): Adopted Admission (by conduct or silence)
o Rule = Statements by someone else that the party adopts as his own are ADMISSIBLE/NOT HEARSAY
 i.e., when someone else says something and you embrace it
o Conduct  makes it easier to determine whether someone manifested their assent to adopt the statement
 e.g., nodding vigorously, saying “I agree”
 Problem 7.13: Undercover cop asks someone for drugs. Someone else gets up and gets drugs.
 This “statement” (getting more drugs) is probably adopted  excepted/admissible
 He must have heard & understood b/c he responded by getting more drugs
o Silence  depends on context to determine whether it’s assertive (i.e., it might signal that the opponent
has adopted the statement as their own)
 4-Factor Test to See if silence creates adoption (considered by the judge)
 (1) the person heard/understood what was said
 (2) the person could/was at liberty to respond (think Miranda)
 (3) the statement/setting naturally called for a response AND
 (4) the party failed to respond
 Rationale: these circumstances suggest you adopted it, despite being silent, b/c if you did
NOT agree, you’d say something rather than stay silent
o i.e., most people would outright reject the statement
 Problem 7.14 (Jailhouse Meeting) – Dad points to sign (that says call is being monitored) instead
of responding to daughter asking about if he murdered
 This is likely an adopted admission (i.e., he accepted daughter’s accusation “you did it”)
 therefore, likely admissible
o We assume he heard/understood
o Statement calls for a response (deny when daughter accuses of murder)
o He failed to respond (stays silent)
o Could he respond (element 2)?  he’s being recorded so doesn’t feel
comfortable saying
 When someone isn’t a state actor, Miranda rights do NOT apply
o Most cts. probably would let this in b/c his daughter isn’t a state actor, so
Miranda rights don’t apply
o However, he could argue he wasn’t at liberty to respond b/c sign says everything
is being recorded (but will likely fail)
 After you’ve been Mirandized, then silence CANNOT be taken as adoption
Rule 801(d)(2)(C) & (D): Authorized Person or by Agent/Employee w/i Scope of Employment
o Rules
 801(d)(2)(C): statement made by a person whom the party authorized to make a statement on the
subject
 i.e., think of a big family scandal, when family friend/attorney speaks on behalf of the
family
 801(d)(2)(D): statement made by the party’s agent/employee on a matter within the scope of that
relationship while it existed
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

i.e., the employee’s statement concerned a matter within the scope of his employment
was made while the employment relationship existed
o Mahlandt v. Wild Canid Survival & Research Center: Wolf bites kid in backyard. Poos is an employee
of Wild Canid. 3 different statements: note from Poos, Poos’ statement to organization, board of director
minute notes
 All 3 statements are hearsay, if offered to prove Sophie bit Daniel.
 Note gets in: Against Poos and against employer (doesn’t matter Poos didn’t have
personal knowledge b/c the rule doesn’t require)
 Statement gets in – against himself and against Wild Canid
 Board of Directors – NOT admissible against Poos; principal doesn’t apply to employee,
but it does against Wild Canid
 Holding: It doesn’t matter that Poos didn’t see the wolf attack b/c you can still use his own
statements against him
 Holding: Poos statements can be held against Wild Canid, BUT Wild Canid’s statements can’t be
held against Poos
Rule 801(d)(2)(E): Co-Conspirators
o Statements by co-conspirators are allowed in against a party
o 3 Elements
 Conspiracy existed at the time of the statement
 Conspiracy included the declarant and the party AND
 Declarant spoke in furtherance of the conspiracy
 You can bootstrap for this final element  i.e., use the statement in question to prove the
conspiracy
o If it’s up for debate, it’s a question for the court under 104(a) (i.e., ct. has to decide preliminary questions
about whether the evidence is admissible)
Rule 801(d)(1): Declarant-Witness’s Prior Statement (Hearsay Exception)
 This group of rules kicks in ONLY IF (1) the declarant testifies and (2) is subject to cross-examination about a
prior statement.
o 801(d)(1)(A): Prior inconsistent statements
o 801(d)(1)(B): Prior consistent statements
o 801(d)(1)(C): Past statements of identification
o These are NOT HEARSAY (exemption from hearsay definition)
 Impeachment vs. 801(d)(1)
o If you’re doing impeachment, then it’s NOT HEARSAY (not being offered for the truth of the matter
asserted
 You’re a liar  Rule 607/608
 Non-character impeachment move (you’re wrong/lying rn)  Rule 613
o If you want the jury to believe the truth of the out-of-ct statement  this IS HEARSAY (must find
exception to be admissible)
 You can use out-of-court statements substantively, BUT there are more stringent standards for
being admitted
 Rule 801(d)(1)(A): Declarant Witness’s prior inconsistent statements
 Rule 803(5): Admission of a record of past event when witness’s memory has faded 
provides for admission of hearsay statements for their truth
 Rule 612: Mechanics of Refreshing a Witness’s Memory
o Information used to refresh isn’t offered as evidence (i.e., evidence does NOT need to be admissible)
 Almost anything can be used to refresh
o Once refreshed, witness just testifies normally
o Adverse party is allowed to inspect evidence, cross-examine it, and intro into evidence any portion related
to witness’s testimony
 Rule 613: Impeachment of witnesses w/ their past statements
o i.e., IMPEACHMENT FROM PRIOR INCONSISTENT STATEMENT
o This is NOT for truth of the matter asserted; it’s to show lack of credibility (but you can ask for limiting
instruction)
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 If evidence comes in under 613, it CANNOT be used substantively
Rules
 (a) = when examining a witness about the witness’s prior statement, a party doesn’t need to
show/disclose the contents to the witness. BUT, on request, the party must disclose the evidence
to an adverse party’s attorney
 (b) = extrinsic evidence of a witness’s prior inconsistent statement is admissible ONLY IF the
witness gets the opportunity to explain/deny the statement AND the adverse party gets an
opportunity to examine the witness about it
 Exception: This rule does NOT apply to 801(d)(2)
 i.e., You can impeach a witness based on a prior statement AND
 you don’t need to disclose prior evidence ahead of time
 extrinsic evidence is fine as long as the witness gets an opportunity to explain/deny the
inconsistency
o U.S. v. Barrett: D charged w/ robbery. Witnesses testify that D had knowledge to steal stamps. D had a
witness who said the witnesses said D didn’t do it.
 D witnesses are extrinsic evidence
 B/c this is non-character impeachment, extrinsic evidence is allowed (these other witnesses are
totally fine under 613 as long as the witness’s being addressed have an opportunity to respond
under cross-examine)
 613 allows parties to introduce extrinsic evidence if trying to make a non-character impeachment
move
o U.S. v. Ince: D charged w/ assault w/ deadly weapon after fight at concert. Neuman writes unsworn
statement saying D is shooter. At trial, Neuman say she doesn’t remember who shot. Prosecutor calls cop
and says she wrote statement (calls cop to impeach witness’ character/she was mistaken)
 With D (“I fired the shots”)  Neuman  Ct. = hearsay solved by 801(d)(2)(A)
 With D  Neuman  Cop  Ct. = there’s another layer of hearsay w/o an applicable exception
(105 – hearsay w/I hearsay)
 If this layer breaks down, evidence is NOT ADMISSIBLE for its truth only option is
for 613 (to offer for impeachment)
 Ct. doesn’t like this but 613 allows this move (i.e., nothing in 613 says you can’t accomplish
indirectly what you want; prosecution hopes jury will misuse this info)
 b/c the gov. only offers the evidence to impeach its own witness and to circumvent the
hearsay rule to expose jury to inadmissible evidence, ct. reverses
 This still has to get past 403  PV is very low but risk of UP is very high (confession is powerful
and jury can misuse this info)  for confessions, it’s out under 403
Rule 801(d)(1)(A): Declarant-Witness’s Prior Inconsistent Statements
o Rule: Prior inconsistent statements by the declarant-witness (dude on the stand) can be introduced when:
 (1) Declarant testifies in court here, subject to cross examination
 (2) The prior statement is inconsistent with the testimony here, AND
 Statement must actually be inconsistent
o saying “I don’t know”/”I can’t remember” is a problem for analysis
o In this situation, it’s up to the ct. to determine whether it’s inconsistent
 (3) Prior statement was given under penalty of perjury
o You use this rule if you want the inconsistent statements to be considered for their truth (so using it as a
hearsay statement b/c of the purpose)
 This is unlike 613 (can’t consider substance of statements), but b/c you can consider the
substance of the statement, you must meet higher standards for admission
 You can use this for non-character and character reasons
 i.e., saying you’re wrong, you’re lying, OR you’re a liar
 You can also use this for substantive truth
o Problem 7.19 (DV): Woman in hospital w/ blow out of eye orbital. Under oath of grand jury, woman says
D hit her. At trial, she says she was hit by the door.
 Prosecution could bring in this evidence for non-character impeachment under 613 as long as
witness has an opportunity to respond
o

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


This isn’t helpful b/c prosecutor doesn’t want to attack complaining witness; instead,
prosecutor wants statements in for their truth
 Need to prove declarant is witness here (yes), subject to cross (yes), prior statement given under
penalty of perjury (yes), prior statement is inconsistent
 If she says she doesn’t remember what happened (instead of saying it’s an accident), it’s
harder  judge has to figure out whether it’s inconsistent
 If it looks like feigning memory loss, then it looks more inconsistent
Rule 801(d)(1)(B): Declarant-Witness’s Prior Consistent Statements
o Rule: Prior consistent statements made by the declarant witness (dude on the stand) can be introduced
when:
 (1) Declarant testifies in court here, subject to cross examination
 (2) There’s a prior statement
 (3) The statement is consistent w/ the testimony here
 (4) The statement is offered to:
 Rebut an express/implied charge of fabrication (motive to lie) OR
 To rehabilitate declarant’s credibility
o What does prior mean?
 The statement must have been made before the motive to fabricate/lie arose
 i.e., not just before testimony
 Justification for pre-motive
 Pre-motive statements
o Fits w/ intent/advisory notes
o Justification:
 reliable  untainted by motive to lie, so probably telling the truth
 relevance  they actually squarely rebut an accusation of improper
motive
 Post-motive statements are NOT prior and NOT acceptable
o Justification
 The policy is off  not more reliable
 Also, ct. fears never-ending parade of witnesses diminishing an in-ct.
statement’s impact
 Tome v. U.S.: Ongoing custody dispute. Mom alleges father sexually molested daughter.
Daughter testifies (kinda). Prosecution intros 7 out-of-ct. statements to rebut fabrication, which D
alleges (i.e., daughter is lying about molestation so she can live w/ mom)
 Statements are made after the custody dispute began
o i.e., made after the motive to lie emerged
o Ct. defines “prior” as pre-motive  only pre-motive consistent statements are
admissible under the rule
 Also, this might not be hearsay at all (being offered to rebut a motive to lie/corroboration,
and not offered for statements’ truth)
 Rule change post-Tome  permissible use of rehabilitation is added
Rule 801(d)(1)(C): Statements of Identification
o Rule = Allows witness’s prior statements of identification to be admitted for their truth
 Test
 Declarant testifies here, subject to cross AND
 Prior statement of identification
 Rule does NOT care about:
 Whether the witness can remember their ID statement at all
 Whether the witness can identify the person in ct.
o i.e., doesn’t matter if the person make an erroneous in-ct. identification
 Whether there’s consistency/inconsistency b/w statements or the IDs
o Example: the witness can’t remember who they ID’s so you want to call the cop to say who the witness
ID’d previously
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
o
o
o
This would be hearsay (detective saying who witness ID’d), but this rule creates an exception
where the witness’s ID can be used for it’s truth
 Only requirement is that detective testifies and is subject to cross
Justification:
 Reliability: the out-of-ct ID is closer in time to the actual crime
 Research shows that memory fades over time, people can change appearance
 In-ct IDs are suggestive (there’s one person in prison garb sitting there vs. out-of-ct.
when you don’t have the ID pushed on you)
 Necessity – if the person loses their memory, then you still have the out-of-ct. ID to get your
identification
U.S. v. Owens: Declarant is assaulted. Memory of attack is in and out (declarant is present but
unavailable).
 Declarant’s out-of-ct ID is ADMISSIBLE  he’s present and testifies here, subject to cross
 Doesn’t matter that he doesn’t remember anything, as long as the declarant is subject to
cross
 Also doesn’t matter if the identifier makes a misidentification
Commonwealth v. Weichell: Composite photo case from victim’s view of assailant.
 Composite sketch is an assertion (“this is what he looked like”)  hearsay
 The composite sketch is admissible
 No requirement of corroboration/consistency
 BUT, don’t forget 403 application after
Rule 804: Declarant Unavailable (Hearsay Exception)
 Rule
o 804(a) – defines what unavailable means
o 804(b) – lists the exceptions when the declarant is unavailable
 (b)(1) – former testimony
 (b)(2) – dying declaration
 (b)(3) – statement against interest
 (b)(4) – statement of personal/family history
 (b)(6) – forfeiture by wrong doing
 804(a): Definition of “Unavailable”
o For the exceptions in 804(b) to apply, you must first be unavailable per 804(a)
o Types of unavailability under 804(a)
 (1) declarant is exempted by reasons of privilege
 (2) declarant refuses to testify despite a ct. order to do so (e.g., contempt)
 (3) loss of memory (but the declarant must testify)
 i.e., the person is physically available but doesn’t remember
 Unavailability turns on the availability of testimony, rather than the witness itself
o W/ temporary memory loss, you’re probably just going to refresh under 612
 (4) death or illness
 (5) absent AND can’t procure their attendance by reasonable means (requires reasonable efforts
to get the person in ct.)
 The offering party must be the one to use reasonable mean.
 In practice, you can piggyback  if party A tried by reasonable means and gets evidence
in, then party B can then admit evidence under unavailable exception (barring a special
relationship i.e., it’s party B’s cousin)
o Note: If you’re the one who CAUSED the unavailability, then you don’t get to bring evidence in under
these rules
 Justification
o Necessity: the declarant is unavailable, so we’ll lose the testimony w/o this rule
 Three-level hierarchy of preference for testimony
 Testimony on the stand > hearsay > complete loss of evidence
 Note that this hierarchy does NOT apply to 803 (803 is diff. b/c hearsay is just as good)
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804(b): Exceptions when the declarant is unavailable
 804(b)(1): Former Testimony
o If the declarant is unavailable to testify here but gave the right kind of testimony in the right kind of case
at another time, you can introduce that former testimony
o Checklist
 (1) Declarant is unavailable under 804(a)
 (2) Declarant testifies as a witness under oath at an old, sufficiently formal proceeding
 E.g., trial, hearing, or lawful deposition
 Testimony can be for this case or another
 (3) The party against whom the statement is being offered here had (a) an opportunity and (b) a
similar motive to develop the declarant’s testimony by direct, cross, or redirect
 E.g., opposing party (or someone w/ same interests) had the opportunity to talk to the
witness in the past trial
 Types of trials
o For civil cases, the party can be a predecessor in interest
 Predecessor in interest = someone who in a prior proceeding was
standing in the same shoes you’re standing in now
 Circuit split for predecessor in interest
 holding the same legal rights held by someone else OR
 someone’s who’s similarly situated
o Criminal cases, the party against whom statement is being offered MUST be the
same person who did the previous cross-examine
 Opportunity: Doesn’t matter if the party was actually cross-examined (just matters that
there was opportunity to develop and a similar motive at time of prior hearing)
o Justification
 Necessity: the declarant is unavailable so we need this evidence
 Reliability: this is more reliable than regular hearsay b/c it carries the hallmark of trial (oath,
subject to cross-exam, etc.)
o Problem 7.22: DV case (woman has broken eyeball orbital, says Robinson hit her during grand jury). At
trial, woman refuses to testify, even when threatened w/ contempt. P wants to intro grand jury testimony
for its truth.
 801(d)(1)(A) (prior inconsistent statements) doesn’t work here
 Issue of whether what she’s saying is actually inconsistent (silence is not necessarily
inconsistent)
 801(d)(1) exceptions require declarant to take stand and be subject to cross  here, this
woman won’t take the stand
 804 analysis  likely INADMISSIBLE
 Unavailable? Yes  she refuses to testify (804(a)(2))
 Testified as a witness under oath at old, sufficiently formal proceeding? Yes
 Party against whom it’s being offered had opportunity/similar motive to develop her
testimony? NO
o Defendant isn’t present in most grand jury proceedings and if they are, they don’t
get to do anything
o Grand jury testimony is v hard to get in under this rule, b/c there’s no opportunity
for development by the party against whom it’s being offered
o Problem 7.23: Crewing/Morgan get into accident b/c Crewing drives drunk. Morgan sues for personal
injuries, testifies under cross-examine about accident. At trial, Morgan has head injury & can’t testify.
Can the transcript from the civil suit be admitted?
 Morgan is unavailable and testified under oath at old sufficiently formal proceeding, and D had
the opportunity to develop testimony
 HOWEVER, is there similar motive?
o No = civil to criminal jump is hard  Higher stakes for criminal trial, higher
burden of proof, dissimilarity on how insurance comes into play
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o

Yes = could be huge stakes on the line w/ both trials. Every time you litigate, you
try to win so motive to win is high for both trials
 Up to the court to determine whether the motives are sufficiently similar
o U.S. v. Duenas: Drugs/guns case. D feels like he was coerced into a confession. D files motion to
suppress at which Officer Smith testifies; D gets to cross-examine Smith. Prosecution win suppression
hearing. Between suppression hearing/trial, Smith is killed by drunk driver.
 Prosecution can’t bring in Smith to testify  wants to introduce testimony from the suppression
hearing under 804(b)(1)
 Smith is unavailable, testified as a witness under oath, sufficiently formal past
proceeding, & defense got opportunity to develop testimony
 HOWEVER, D did NOT have a similar motive in developing testimony
o At hearing, motive is to show Miranda violation
o At trial, motive would be to cast doubt on Smith’s credibility
 Ct: Testimony should NOT have come in
 Bloom: he think it’s fine and there’s shared motive b/c both parties had the same motive
of keeping the evidence out.
o Lloyd v. American Export Lines: Lloyd gets in fight on ship. Coast Guard holds proceeding against
Lloyd, where Lloyd testifies (says fight was not Alvarez’s fault). Can export line intro Lloyd’s testimony
at civil trial?
 Is the defendant unavailable? Yes  Lloyd repeatedly fails to appear; parties have made
reasonable efforts to procure Lloyd as a witness for trial
 Witness at sufficiently formal proceeding? Yes  Coast Guard proceeding and fed. cts. are
sufficiently similar/formal
 Party against whom it’s being offered? YES  Boat co. wants to offer against Alvarez
 Alvarez does NOT have opportunity to develop testimony at Coast Guard proceeding
(CG does all the examining)
o If this was criminal, the statements would NOT be admissible b/c Alvarez would
need to be the one questioning in the past proceeding
o However, this is for a civil case
 Coast guard has sufficient opportunity/similar motive to develop testimony? YES
 Is Coast Guard a predecessor in interest to Alvarez?
o Ct uses common nucleus of fact (someone’s who’s similarly situated) as the
standard to determine predecessor in interest
 Both are trying to figure out if Lloyds at fault  ct. holds that Coast
Guard IS Alvarez’s predecessor in interest
 Bloom thinks this is wrong (ct. is conflating opportunity and similar
motive elements)
 Concurrence: Predecessor in interest should require privity, be a legal status
804(b)(2): Dying Declaration
o Rule
 (1) Declarant unavailable
 (2) Must be homicide OR civil case
 (3) Declarant believed that death was imminent
 Standard: preponderance of the evidence – 104(a)
 (4) Statement must be about circumstances/cause of death
o Belief that death is imminent
 There must be settled helpless/sense of doom
 To determine whether declarant sincerely believed he was gonna die, used preponderance
of the evidence – 104(a)
 Jurisdiction split
 Fed ct: Declarant can be wrong about whether death is imminent, but they must believe
they’re going to die (settled helplessness/doom)
 Some jxd: Declarant must actually have died
o Justification
 Necessary: declarant is gone/unavailable
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


Reliability: people don’t have reason to lie if they believe they’re gonna die (and you don’t wanna
waste your last words on telling a lie)
 However, this might not be true, since you’re dying and maybe hallucinating lol
804(b)(3): Statements against Interest
o Test:
 (1) Declarant is unavailable
 (2) Statement is against interest (Statement is for far contrary to
proprietary/pecuniary/financial/family interest OR Statement has tendency to expose the person
to civil/criminal liability)
 Needs to be against interest of the maker of the statement (not necessarily the party)
 Statement needs to be against interest at the time it was made
 NOT enough for statement to be embarrassing/bring hatred, ridicule, disgrace, disgust
 Only reliable in pecuniary interest or exposed to civil/criminal liability
 (3) A reasonable person would NOT say it unless they believe it were true
 CRIMINAL CASES: if the statement is used in a criminal case and exposes declarant to criminal
liability, then you need corroborating circumstances to indicate trustworthiness
 Standard: Judge needs to decide by preponderance of the evidence
o Justification:
 Reliability: We admit hearsay if we believe the personal costs associated w/ making the
statements are so high that a reasonable person wouldn’t make them unless they were true
 Necessity: the declarant is unavailable
o Michael Douglas movie clip: Douglas has affair w/ mistress and tells wife. Mistress murdered.
 Scenario 1: Wife murders mistress
 Admissible: Not hearsay  Douglas confession shows wife’s motive (effect on wife)
 Scenario 2: Douglas is on trial for mistress’s murder
 Purpose: introduce affair to show motive for Douglas, access to house
 Admissible: use 801(d)(1)(A) – use Douglas’s own words against him
 Scenario 3: Douglas is dead, mistress is on trial
 Purpose: introduce Douglas’s statements for motive
 Hearsay: yes
o 801(d) doesn’t work b/c Douglas is victim, not opposing party
o 804(b)(6) might work – family statements
o 804(b)(3) works
 Statement against interest? YES  exposes him to civil liability/divorce,
which is costly, and adultery = crime
 A reasonable person wouldn’t say this thing unless it’s true
o Williamson: “Drugs are mine” but he has long explanation for why
 People typically tell long narratives when they explain guilt
 You cannot bring in the whole narrative, you must break it up
 Admit only the statements against speaker’s interest  take out parts that are exonerating
(low reliability)
 Admit only things that are an assertion (have to parse out sentence by sentence)
o Problem 7.24: “Ask Magnolia. It was her idea”
 Implied assertion  this isn’t saying “yes, I did it,” but there’s an implied assertion he did it, but
Magnolia ran the show.
 If he says “”Yes I did it, but ask Magnolia”  “I did it” = IN; “ask Mag” = out
 Bruton: Implicates Confrontation Clause  when there’s joint trial, you likely need to sever
804(b)(4): Statement of Personal/Family History
o Test:
 Declarant is unavailable
 The statement is about
 (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood/adoption/marriage, or similar facts of personal/family history even
though the declarant had no way of acquiring personal knowledge about that fact
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

(B) another person concerning any of these facts, as well as death, if the declarant was
related to the person by blood/adoption/marriage or was so intimately associated w/ the
person’s family that the declarant’s info is likely to be accurate
 No motive to falsify by declarant
804(b)(6): Forfeiture by Wrongdoing
o Rule = If you’re the reason that the person can’t testify here, then you get no hearsay objection here
 Test: the statement can come in if:
 Party against whom the statement is being used engaged/acquiesced in wrongdoing
o Don’t have to be the one doing the wrongdoing (can get someone else to do it)
 That was intended to render the declarant unavailable, AND
o D only needs to partially intend to create unavailability (doesn’t have to be
primary goal)
 Did in fact render the declarant unavailable
o D doesn’t need to render them unavailable only in this case  applies to making
the declarant unavailable in any proceeding
 Standard: ct. decides by preponderance of the evidence - 104(b)
 This rule is broad
 D only needs to intend partially to create unavailability
 Can be a potential witness for a future proceeding
 Can acquiesce to wrongdoing  don’t need to do something active/proactive
 Any kind of significant interference w/ testimony is enough
o Includes persuading witness to invoke 5th Amend.
o Think about application to DV cases
 Justification: No cheating  we don’t want to reward your bad behavior
 Punitive: you did something bad so this is the consequence
o No guarantee of trustworthiness, but this is intended to punish
 Policy: we want to prevent people from doing this
 Necessity: evidence is gone so we need it
o Difference between unavailability proviso – covers slightly different things
 804(b)(6) – you can’t get evidence out by making someone unavailable (e.g., murder someone to
keep them from testifying)
 Proviso – you can’t get evidence in by making someone unavailable and then benefitting from an
exception under 804(b)
o Consider confrontation clause  these 2 things are compatible
o Examples of when this rule often applies
 Statements made by witness while under police interrogation
 E.g., W arrested w/ drugs. While in custody, W tells cops he was smuggling drugs for Q.
Q arrested for trafficking and threatens W, who refuses to testify. W’s statements can
come in.
 Statements made by W in a grand jury / preliminary hearing
 Statements made by W in W’s own criminal trial/criminal trial of a 3rd person
o Josephine Gray (Black Widow case): Queen keeps murdering husbands/lovers. Gray kills 1st husband
for $, to avoid abuse. Kills 2nd husband for insurance but also b/c he suspected she was going to murder.
Kills cousin/lover to stop him from testifying.
 Prosecution wants to use 2nd husbands statements for their truth to show she was actually trying to
murder  this is hearsay (presumptively out)
 2nd husband is dead = unavailable
 Party against whom the statement is being used (Josephine) engaged/acquiesced to
wrongdoing? Yes, she murdered
 Actions intended to make declarant unavailable? Yes
o Her intent was to get insurance $, but intent for unavailability only needs to be
partial/secondary
 Dead husband’s statements come in under the rule
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803: Declarant is Available (Hearsay Exception)
 These statements are allowed to come in as an exception to hearsay, regardless of whether declarant is available
or not
o These all require personal knowledge
o Exceptions under this rule
 803(1) – present sense impression
 803(2) – excited utterance
 803(3) – then-existing condition
 803(4) – medical statements
 803(5) – recorded recollections
 803(6/7) – business records
 803(8/10) – records/statements of a public office
 803(16) – ancient documents
 803(18) – learned treatise
 Rule 803(1) – Present Sense Impression
o Rule:
 (1) Statement describes/explains an event or condition AND
 (2) Statement made while/immediately after the declarant perceived it
 Personal knowledge requirement  declarant needs to perceive it
 Admissibility depends on timeliness (the sooner, the more reliable)
 Standard: 104(a) – preponderance of the evidence
 Office hours hypo: “The dogs are rampaging in the hall” to prove the dogs are rampaging
in the hall.
o Did the witness actually say that?  104(b)
 This is conditional fact/relevance (did he say the thing? Did the dog
exists? Did he know the dogs were rampaging?)
o Does the statement, if said, fit a hearsay exception? Is it admissible?  104(a)
 Judge determines whether the statement fits the requirements of the
exception by a preponderance of the evidence
 i.e., deciding by preponderance of evidence if its admissible
o Should the jury believe the statement?  up to jury
o Policy
 Reliable: more reliable than in-person testimony b/c the declarant isn’t relying on memory; also,
b/c the statement happens in the moment, there’s no time to fabricate it
 Rule 803(2) – Excited Utterance
o Rule:
 (1) Statement relating to a startling event or condition (i.e., excited utterance) AND
 Cannot be about someone blurting out something random  MUST be about the startling
event
 Personal knowledge requirement (must have personal knowledge of what you’re
describing)
 (2) Statement made while the declarant was under the stress/excitement that caused it
 Time matters a lot on whether someone was under stress
 Standard: subjective (looks at whether declarant was subjectively excited, rather than
whether the reasonable person would be excited)
o Justification
 Reliability: spontaneous statements made in the moment are likely to be more true
o Problem 7.29: Neighbor bit by dog. Statement: “Your dog just bit me! U need 2 control ur dog.”
 Timing matters
 If you’re on phone call w/ friend when bit – “I just got bit by a dog”
o 803(1) – statement about bite almost immediately after
o 803(2) – still under stress of the bite
 If you have conversation an hour after the event  less likely to that you’re still under
stress to get in under 803(2), but it’s a subjective standard so depends on whether the
dog-bite victim is still stressed
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o

Problem 7.30: Neighbor makes 911 call when woman dies by dog mauling. Caller says dogs were
running, and owner is trying to control dogs. “I’m just a wreck”
 Phone call is offered by D to show her efforts to try to control the dogs.
 “She’s trying to control them” to prove that D is trying to control the dogs  hearsay
o Both 803(1) and (2) seem to work for an exception
 Personal knowledge matters here  the declarant (woman calling 911) must have personal
knowledge of what she’s describing per Rule 602
 The structure of the 911 call doesn’t matter  here, the neighbor doesn’t have personal
knowledge and didn’t actually see the dogs
 NOT admissible b/c no personal knowledge
o Problem 7.31: Arg. between D and wife. Wife calls cops and says she’s hurt. At trial, says she’s not hurt.
 “He pushed me down” statement to cop to prove he pushed her down = hearsay
 Options that don’t work
 801(d)(1)(A) doesn’t work (prior inconsistent statement) b/c Lori isn’t under oath when
she speaks to cop
 804(b) doesn’t work b/c she’s available
 804(b)(6) – forfeiture by wrongdoing might work
 803(2)
 Startling event? Yes (assault and battery)
 Still happening under the stress of event? Depends (on timing of how quickly police
arrive and take her statement)
Rule 803(3) – Then-Existing Condition
o Rule: A statement of a declarant’s then-existing mental, emotional, or physical condition can come in for
its truth if:
 (1) Statement is of the declarant’s then-existing mental, emotional, physical condition
 i.e., their plans, feelings, emotions, sensations
 (2) Statement has to be about present sense or future.
 Has to be about declarant’s condition right now or in the future  Cannot be retroactive
(about past)
 If being offered to prove that the person followed through w/ their plans, then you need
corroboration (w/o corroboration, it would couldn’t be used to prove the plan actually occurred)
o Justification
 Reliability: A statement about their then-existing condition at the time is the best indication of
how they actually feel  people are just describing things as they are
 Not worried about perception or memory testimonial capacities
 BUT: people lie about their plans too (we lie about future plans)
o Problem 7.33: Larry is meeting his friend at a restaurant and tells them he’s going to leave early to get
weed  never seen again
 Prosecution wants to use these statements to show Larry did not disappear voluntarily (he had a
plan to meet w/ D, and thus D is responsible for disappearance)
 Admissible
o I’m going to the parking lot
o I’m going to the parking lot to buy pot - probably allowed
 Not admissible under 803(3)
o I went to the parking lot yesterday - this is retroactive, and thus, barred
o I’m going to the parking lot to meet Angelo – not about the declarant’s
 Exception: in practice, a lot of jxds will allow Angelo reference IF
there’s corroborating evidence
o Mutual Ins. V. Hillmon: Walter planned to go to Mexico w/ Hillmon.
 Hillmon approach (common law): as long as the statement capture your plans moving forward,
they’re admissible
 Statements come in under common law standard  common law allowed, regardless of
person, purpose, or if it captures what someone else did
 Broad scope: includes other people
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

Under 803(3), REJECTS Hillmon doctrine so that statements do NOT get in.
 803(3) ONLY allows own statements about own future plans
 Only future statements about that declarant are allowed  need to parse out nonadmissible stuff
Rule 803(4) – Medical Statements
o Rule:
 (B) - A past statement describing: (1) Medical history, (2) Past or present symptoms/sensations,
(3) the inception of an ailment/injury, etc. AND
 Statement about fault/cause is usually not allowed
o However, if the assertion of fault aids in medical care, may be okay
 (A) - statement made for OR reasonably pertinent to medical treatment
 Diagnosis = determining the nature & origin of the injury/illness
 Requires personal knowledge of the thing you’re speaking about – 602
o Person talking/being talked to
 Rule does NOT require that the declarant be talking to a medical professional
 Statement to someone else is fine as long as they’re trying to get provision of med. care
 Rule does NOT require that the declarant be the patient
 That is, cts. usually let the family be the declarant
 Some jxds exclude statements of doctors (i.e., when declarant = doctor)
 Others says it’s fine as long as test is satisfied (doctors aren’t motivated to lie, rules favor
admissibility, w/I policy justifications to admit)
o Statements of fault are typically NOT allowed under 803(4) UNLESS you can convince the court that
the statement of fault is reasonably pertinent to the doctor’s treatment
 Statement of cause = I was hit by a car  803(4) generally contemplates allowing the general
cause of the affliction
 Statement of fault = the car ran a red light  Savvy litigator can get doctor to say that the faultbased statement WAS pertinent to treatment by allowing for better pinpointing of cause
 Get doctor to say “these particular facts, even though they seem like assertions of fault,
were helpful to me to give treatment AND most doctors would do the same” to get in
o Ct. likes to defer to doctor’s expertise
 Problem 7.35: 4 y.o. boy gets abused by dad. Dad breaks arm by twisting it.
 You might need to parse the statements
o “My arm got twisted”  allowed in
o “My dad twisted my arm”  have to get doc to explain how knowing who did
the twisting is necessary and common practice to render treatment
o Justification
 Reliability:
 Patient motive: we assume people are honest w/ their doctors (no motive to lie, b/c they
won’t get good treatment if they do lie)
 Professional reality: If it’s good enough for doctors, then it’s good enough for us
 Necessity: sometimes people speak more freely to doctors than they do in ct.
o Rule was revised from old version to be more liberal
 Current rule lets in both past symptoms (not just present) AND statements related to the cause of
injury
 New rule abolishes old distinction between doc consulted for treatment v. diagnosis
o Problem 7.37: Wife sees husband who says he’s sick from eating meat and points to deli container.
Husband dies from arsenic poisoning. Wife sues deli for negligence
 Wife’s testimony of what the husband said and did
 Hearsay? Yes (wife wants to say husband said “he ate bad meat from deli” to prove he
ate bad meat from deli)
o Not admissible under:
 804(b)(2) – husband probably didn’t know he was dying
 803(1)/(2) – we don’t have enough info about timing to know if this fits
 803(3) – he’s talking about the past, so not admissible
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

803(4)  likely admissible
o Past statement describing inception/cause of injury? YES
o Made for and reasonably pertinent to med. Treatment for diagnosis? YES
o Husband has personal knowledge? YES (need to check to make sure man knew
he was eating meat from deli)
o Note that this is likely allowed in, even though there’s some assertion of fault for
medical diagnosis and wife isn’t a medical professional
 Nurse’s testimony about what wife said about what husband said (hearsay w/I hearsay)
 H  W  N  Ct.
o H  W: solved by 803(4) - see above
o W  N: also solved by 803(4)
 Nothing in the rule requires the person talking to be the patient (family
statements usually come in here)
 Wife’s testimony about when doctor arrives and says “this is arsenic poisoning”
 This technically fits the formal requirements of the rule
o BUT Jxd dependent on whether statements from doctors are allowed
o Could potentially use 803(1) (present sense impression describing condition)
o Do NOT use 803(2)  we don’t want doctor’s to be super stressed when making
diagnoses
 Remember that after all this, still need to get past 403
o U.S. v. Iron Shell: D is charged w/ assault w/ intent to rape (victim = 9 yo girl). Victim is treated by doc.,
says D tried to rape her. Are the doctor’s statements admissible?
 Clearly hearsay, and fits 803(4) exception for medical statement
 D doesn’t want brought b/c the doc. relays girl’s statements of fault
 However, doc argues that most doctors would have done the same thing/asked the same
question (brings up standardization/importance of questions to treatment)
 We don’t treat kids differently  even the youngest kids are sufficiently old to tell truth, since
rules view kids as people
Rule 803(5) – Recorded Recollections
o Rule: You can use recorded recollections to refresh a now forgetful witness’s memory
 When can you refresh under 803(5)?
 Witness is on the stand
 Witness had first-hand knowledge of the event (602)
 Record made (or adopted) at or near the time of the event
o The record itself does NOT need to be admissible (only to recollect)
o The witness does NOT need to make the record themselves (i.e., you can refresh
using a record someone else made)
 E.g., Cops do this a lot w/ reports
 Witness now lacks ability to recall AND
 Witness vouches for accuracy of the record on the stand
o E.g., “I don’t remember, but that’s right”
 Bootstrapping/building voucher into the record doesn’t count
o This prong is about confirming accuracy and the witness having memory
refreshed (i.e., these things are concurrent)
o Mechanics/formal procedures
 If admitted, the recorded recollection may be read into evidence
 Must be read into evidence initially by the proponent of the evidence
 May only be received as an exhibit ONLY IF offered by adverse party
 Must pass 612: Writing used to refresh a witness’ memory
 Need to notify adverse party that you’re going to do this (notice)
 Must make a copy
 Must redact superfluous/extraneous info
 Must pass 803(5) requirements
o Justification:
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

 Reliability: Memory is better closer to event, so since you wrote it down then, it’s more reliable
 Necessity: If witness really is forgetful, it’s all or nothing
o Johnson v. State: D takes stand but won’t cooperate. Prosecution wants to intro this statement to the
police. The record was admitted, D is convicted.
 803(5) does NOT work  all elements are met EXCEPT witness won’t vouch for accuracy of the
record
 803(5) creates risk that witness will stonewall and stop a trial in its tracks
 Solution: get them in front of a grand jury so you can use 801(d)(1) to get the statements
in (prior inconsistent statement)
o Problem 7.38: Man sees hit and runs and calls out license plate #s. Sullivan writes down.
 Scenario 1: Sullivan on stand says she never saw plate, just wrote down what she heard. Now
doesn’t remember, and envelope doesn’t induce recollection
 NOT allowed: hearsay w/I hearsay, and can’t solve all the layers (S can’t vouch for the
accuracy of the record AND it can only be offered into evidence by an adverse party)
 Scenario 2: Man who saw accident on the stand, said during incident he memorized the # by
repeating it over and over again but doesn’t remember now
 ALLOWED  the envelope reminds him (he’s refreshed), even though it’s Sullivan’s
record
Rule 803(6) – Business Records
o Record is admissible if:
 Contemporaneous and knowledge (i.e., entered into record by someone w/ personal knowledge at
or near time of relevant event)
 Business activity (i.e. record is kept/made during regular course of business)
 Regularity (i.e., it’s regular practice/these records are normally maintained)
 Certification (i.e., someone needs to take the stand to certify the above/it’s a business record)
AND
 You must establish the predicates by a live witness or certification
 Trustworthy (burden is on the contesting party to show untrustworthiness of record)
o Business records = how business has to operate
 E.g., customer service complaints, call logs, inventory lists, nurse notes, check lists
 Be wary of:
 Records made in anticipation of litigation
o Not sufficiently trustworthy
o These records don’t seem routine
 Records/statements not made by employees (i.e., records filled out by outsiders)
o Justification:
 Reliability: lack of incentive to lie at work, and there are systematic checks in place to catch lies
 Necessity: there are too many people involved in business for any individual employer to
remember who made what records and get them to testify (w/o this rule, you often don’t get these
records period as evidence)
Rule 803(8) – Records or Statements of a Public Office
o Rule
 (A) Record/statement of a public office must set out
 (1) the office’s activities
 (2) a matter observed while under a legal duty OR
o Does NOT apply to matters observed by law enforcement for criminal cases
(i.e., Police reports are EXCLUDED/INADMISISBLE)
 (3) If in a civil case or against gov. in criminal case, fact findings from legally authorized
investigation
o This is an all together rule (Beechwood), where you don’t parse out BUT only
applies in CIVIL against gov. in criminal case.
 (B) Opponent doesn’t show there’s something untrustworthy about the record/its source
o Justification
 Reliability – no reason to fabricate, people have incentive to be honest while putting records
together, structural checks exist to catch errors
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 Necessity – person might not work there anymore, hard to get people in the same room
Beware of multiple layers of hearsay found in these reports (still have to resolve the layers)
Beech Aircraft Corp. v. Rainey: Navy training flight crash. Ps argue its fault of airplane manufacture; Ds
argue its pilot error. D wants to intro. Gov. report about the crash (report has fact findings, conclusions,
and opinions). Admissibility of gov. report
 Is the report hearsay? Yes.
 Fits public record exception? YES (admissible)
 Record/statement sets out fact findings from legally authorized investigation AND is a
civil case (category 3) // opponent doesn’t show untrustworthiness
 This is an all-together rule  that is, the entire/full report comes in (unless it’s untrustworthy)
 Justification: hard to draw line between facts and opinion, rules err on the side of
admissibility
 If you DON’T want this to come in, you can try to exclude under 403
o Police Reports & Comparison with 803(6) (business records)
 Tension between 803(6) and 803(8)
 803(6) = intentionally broad // 803(8) = purposefully excludes police reports
 Introduction of police reports doesn’t hit the same way racially/socioeconomically (i.e.,
allow police reports in hurts people w/ the least power)
 Can you get police reports in under business records (e.g., 803(6)), even though 803(8) says to
specifically exclude? Maybe, but depends on the jurisdiction (circuits are all over the map)
 If not allowed under either, you need to put the officer on the stand (and watch for
hearsay during testimony)
Rule 803(7) & 803(10) – Absence of Records (Business/Public Office Statements)
o These rules focus on absences in records (i.e., things NOT said)
 i.e., you can use these records to prove the nonexistence of something
o Ct. has discretion to determine whether the absences are even assertions and therefore hearsay in the first
place
 If the ct. treats absence of record as assertions, then there’s an exception carved out in the rules
for their admittance
Rule 803(16) – Ancient Document Exception
o Rule = statements in a document in existence 20 years or more, the authenticity of which is established
 Only applies when the declarant has first-hand knowledge of the event
o Dallas County v. Commercial Union Assurance: Dallas courthouse dome collapses. If due to recent
lightning strike, they get insurance $. If due to old fire, no $. Old newspaper reports arson in the dome 60
years prior. (see Residual Exception – 807)
 Ct. admits under residual exception (807)
 This is a near miss for admittance under 803(16)
 i.e., Court can’t confirm that the newspaper writer actually saw the dome burning 
can’t overcome double-hearsay nature of article (per 805)
o Witness of burning dome  reporter  paper  ct.
 Paper  ct = good
 Reporter  paper = fine (admissible under ancient doc. exception)
 Witness  reporter = NO (not enough info to see if it’s admissible)
o That is, report meets ancient doc. exception, but the source of the article might
not have necessary first-hand knowledge
o
o


Rule 807: Residual Exception
 Rule = Some hearsay is good enough for admission, even if it doesn’t fit into an established exception
o However, this rule is NOT commonly accepted (often argued, rarely successful)
o Elements/Test
 (1) Statement supported by sufficient, equivalent guarantees of trustworthiness
 Equivalent = equivalent to other guarantees we have under other exceptions (i.e.,
necessity/reliability)
 (2) Statement about/addresses a material fact
 (3) Statement is more probative than any other evidence reasonably available
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
 (4) Admission is compatible w/ interests of justice (i.e., fits the general purpose of the rules)
 Notice is required
o General application
 Near miss – it’s super close to being admitted under a diff. rule, but just misses
 New ground – the admittance covers new ground (dissimilar to an existing exception)
o Be careful of Confrontation Clause issues that lurk behind this one
Justification
o Necessity = it’s this or nothing
o Reliability = the evidence has to have guarantees of trustworthiness, per the rule
Dallas County v. Commercial Union Assurance: Dallas courthouse dome collapses. If due to recent lightning
strike, they get insurance $. If due to old fire, no $. Old newspaper reports arson in the dome 60 years prior.
o Hearsay? Yes.
 It does NOT fit under the ancient document exception (there’s double hearsay; the article itself
fits the ancient document exception, but can’t confirm whether the article writer actually saw fire
to check personal knowledge box)
o Ct. says the newspaper report is admissible as a matter of hearsay principle, but not under any rule (gets
in under residual exception)
 i.e., newspaper report is necessary (no one alive who remembers) and reliable (no one has motive
to lie; if there was an error, it’d be corrected)
CONFRONTATION CLAUSE

6th Amendment/Confrontation Clause: “In all criminal prosecutions, the accused shall enjoy the right … to be
confronted with the witnesses against him.”
o Core idea – criminal defendants have a right to confront their accusers, even if that accusation came from
outside of ct.
 E.g., Fred tells cops that Bob stole the car. (Fred’s statement to cops is an accusation outside ct.)
o Limits
 Applies ONLY to criminal cases
 Applies ONLY to the accused (i.e., only criminal defendants have right to confront witnesses)
 Does NOT protect civil litigants or the government/prosecutors
o Procedure: this rule is mutually reinforcing the hearsay filter (see p. 675 chart & Crawford test below)
 i.e., you must satisfy a hearsay exception AND then satisfy the confrontation clause
 Step 1: If evidence is hearsay, does it fit into an exception?
 Doesn’t fit into exception  Not admissible
 Fits into hearsay exception  must do Confrontation Clause analysis (step 2)
 Step 2: Is the evidence admissible under the CC?
 Testimonial?  Categories or primary purpose test
o If testimonial  must have confrontation or exception
 Declarant appears for cross-examine at trial  meets CC, proceed to 403
 Declarant is unavailable to testify and defendant had past chance to
cross-examine  meets CC, proceed to 403
 Statement is NOT testimonial  meets CC, proceed to 403
 Defendant forfeits CC right by wrongdoing (i.e., tried to keep the
declarant from testifying)  meets CC, proceed to 403
 Maybe if statement was a dying declaration  meets CC, proceed to 403
 If none of the above are true  evidence is INADMISSIBLE
o If non-testimonial  No 6A protection and only has protection from hearsay
rules
 Step 3: Does it pass 403?
 If yes  probably admissible
 If no  not admissible
o Justification (why we guarantee crim. D the right to confront accusers):
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

Reliability – we achieve reliability by means of this procedure/the CC  we get more
trustworthy statements if we allow folks w/ the most at stake in the justice system to confront
their accusers
Confrontation Clause History
o Previously, CC and hearsay analysis was the same (i.e., if you could make a hearsay arg. for admission, it
was the same arg. for CC)
o Ohio v. Roberts (Roberts Test - 1980): Ct. could include out-of-ct. assertions for their truth without
getting to confront accusers so long as you satisfied: (1) declarant unavailable, (2) statement is
sufficiently trustworthy (either firmly rooted in hearsay exception OR sufficiently trustworthy otherwise)
 Critiques:
 Too unpredictable
 Turns 6th Amendment into common-law hearsay problem
o Crawford v. Washington (2004): Domestic dispute. Michael argues self-defense, says Lee had a knife.
Sylvia’s statement doesn’t support Michael’s contention. Michael’s statement come in (statements by a
party opponent). State ct. says this 804(b)(3) (statement against interest) and then moves to CC analysis.
SCOTUS says statement to cop was testimonial and should stay out.
 Old analysis w/ Roberts test
 Hearsay? YES - Prosecution wants to intro Sylvia’s testimony to police for their truth
(i.e., “he wasn’t armed” to prove he wasn’t armed  counters Michael’s self-defense
arg)
o Prosecution uses 804(b)(3) exception (statement against declarant’s interest)
 This is suss b/c it’s unclear if the statement is against Sylvia’s interest lol
 Admissible under CC?
o If using Roberts test, YES (b/c sufficiently reliable and witness is unavailable)
 SCOTUS overturns Roberts in Crawford b/c:
 Its too broad and too narrow
 Roberts treats 6A as a substantive guarantee of reliability  SCOTUS says CC is meant
to be about procedure and right to cross-examine
 Roberts is too unpredictable, amorphous, uncertain
 New Crawford Test: If a statement is testimonial, then it can’t come in under the CC unless
confrontation or exception; non-testimonial doesn’t get 6A protection
 i.e., CC prohibits the introduction of testimonial accusations UNLESS there’s a particular
reason to admit (i.e., there’s confrontation or a relevant exception)
o If non-testimonial, no 6A protection and only has protection from hearsay rules
(i.e., if you wanna take non-testimonial testimony out, it must be through a
hearsay exception or 403)
o Things that are TESTIMONIAL
 Prior testimony at other trials
 Police interrogation
 Prior testimony at grand jury
 Affidavits to police officers
 Statements made in forensic lab reports
 Statements made during course of police investigation (if focus is on
investigating a completed crime)
o NON-TESTIMONIAL
 Casual remarks
 Offhand comments
 Excited utterances
 Present sense impressions
 State of mind statements
 Co-conspirator statements
 Kids are complicated  Statements by young kids are rarely testimonial
(b/c unlikely a kid would think their statement would be testimonial)
 Statement to non-law enforcement are typically non-testimonial (Ohio v.
Clark  leaves open possibility that statements could be testimonial)
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
o
Were Sylvia’s statements to the cop testimonial? YES (statements to cops are
testimonial)
o Can’t admit Sylvia’s statements unless Michael can confront her  he can’t
confront her b/c he kept her off the stand b/c of spousal privilege
 3 examples where Crawford applies
 Police interrogations – W interrogated by police. W implicates Q. W doesn’t testify at
Q’s trial (statements to police are INADMISSIBLE)
 Grand jury testimony – declaration is made at grand jury testimony but declarant refuses
to testify at Q’s later trial (grand jury testimony is INADMISSIBLE)
 Forensic/lab report – you need the person who prepared/worked on/observed the work to
testify. If not, then no valid confrontation (and report is INADMISSIBLE)
Primary Purpose Test (for determining non-categorical testimony)
 Primary purpose test = if a statement doesn’t clearly fall into one of the testimonial categories,
per Crawford, then you can apply the primary test to determine if the statement’s testimonial
 Options
o Statement is made to “establish or prove past events potentially relevant to later
criminal prosecution”  statement is testimonial
 i.e., no pending emergency and convo is to gather facts for trial
o Statement is made “to enable police assistance to meet an ongoing emergency”
 statement is non-testimonial
 Primary purpose test uses an objective standard to determine statement’s primary
purpose (i.e., it’s not about what the declarant subjectively thought)
o i.e., do the circumstances objectively indicate that you’re meeting the needs of an
emergency?
 It’s still unclear whose purpose matters  declarant? Listener? Cop/911 operator? Both?
Statement itself?
o Also, we don’t know what to do when people have mixed motives for speaking.
 Ongoing emergency – what do w/ suspects at large (where D is still uncaptured)
 3 factors in determining whether there’s an ongoing emergency
o (1) Immediacy of risk – how immediate is risk in time? Is the person threated
right now or did it happen some time ago?
o (2) magnitude of danger – how was the person threatened (fists v. guns)?
o (3) particularity of risk to this victim – is this particular victim targeted or not?
Will the D do harm again to this person or others?
 Michigan v. Bryant: Police respond to Convington being shot, who tells police he’s shot
by Rick & Bryant. Bryant found guilty. State offered Covington’s statements to police at
gas station.
o Holding: Covington’s statements are NON-TESTIMONIAL
o CC analysis
 Against the accused? Yes.
 Testimonial? NO
 Fits in category? – no
 Primary purpose test? – Maj: statements met demands of an
ongoing emergency after evaluating 3 factors
o Immediacy:
o Magnitude: could be any # of potential victims, guns
o Particularity: Covington is dying, gunman on loose
o Justification: Sotomayor says statements during ongoing emergency are more
reliable b/c less likely to lie (but no reliability rationale allowed per Crawford)
o Scalia dissent (big mad): says Sotomayor/maj. Misconstrues facts and is angry
about using reliability justification. Sees Crawford being undermined
 Davis: woman calls 911 during DV dispute (while assault is in progress). She says “he did it”
 Hearsay? Yes. And there’s an exception
 Confrontation Clause?
o Statement against criminal D? Yes.
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
o Testimonial? Jxd dependent. Some say no (admissible), others say yes
 Outcome: some stuff is non-testimonial and come in (b/c of ongoing emergency)
 Hammon: woman calls 911 after DV assault (i.e., incident over). She says “he did it”
 Hearsay? Yes. And there’s an exception
 Confrontation clause?
o Statement against criminal D? Yes.
o Testimonial? Yes. Witness must take the stand for statements to be admissible
 Outcome: All the statements are testimonial so prohibited by CC unless confrontation or
exception
 Ohio v. Clark: 3 y.o. makes accusation to pre-K teacher. SCOTUS says non-testimonial.
 Holding: statements to non-law enforcement are much less likely to be testimonial
 Holding: young kids rarely, if ever, utter testimonial statements
o Justification: young kids don’t have the intent necessary under the primary
purpose test to say something w/ the intent to be used for criminal prosecution,
b/c they don’t know what that is.
 911 Call hypo: woman calls 911 describing assault but then says “D is running now”
 Approach 1: bold/unrealistic prosecutor (all comes in b/c non-testimonial)
o i.e., D is fearful, all is about meeting needs of ongoing purpose
o Issue: the 911 operator changes approach halfway through call
 Approach 2: bold/unrealistic defendant (none comes in unless confrontation/exception
b/c it’s all testimonial)
o i.e., all of the call was about gathering facts
o Issue: there’s clearly some kind of emergency
 Approach 3: REALISTIC approach  call is non-testimonial UNTIL caller says “he’s
running now”
o After D starts running, caller is out of immediate danger and the convo shifts to
fact gathering
o Issue: there’s stuff between him running away that seems testimonial
Post-CRAWFORD TEST for admissibility of hearsay
o Step 1: Is it hearsay?
 No  end analysis
 Yes  check for exception
o Step 2: Is there a hearsay exception?
 No  evidence is OUT
 Yes  does it pass 403?
o Step 3: Does it pass 403?
 No  evidence is OUT
 Yes  does it pass 6th Amendment?
o Step 4: 6th amendment analysis
 Part A: Is it against a criminal defendant/the accused?
 No (civil/against gov)  CC doesn’t apply
 Yes  is the hearsay statement testimonial?
 Part B: Is the hearsay statement testimonial?
 If the statement is NOT testimonial, the CC doesn’t apply at all
 If the statement IS testimonial, then the CC applies  must have (1) confrontation OR
(2) exception to be admissible
 What is testimonial?  the test is categorical
o Things that are TESTIMONIAL
 Prior testimony at other trials
 Police interrogation
 Prior testimony at grand jury
 Affidavits to police officers
 Statements made in forensic lab reports
52




Statements made during course of police investigation (if focus is on
investigating a completed crime)
o NON-TESTIMONIAL
 Casual remarks
 Offhand comments
 Excited utterances
 Present sense impressions
 State of mind statements
 Co-conspirator statements
 Kids are complicated  Statements by young kids are rarely testimonial
 Ohio v. Clark - unlikely a kid would think their statement would
be testimonial
 Statement to non-law enforcement are typically non-testimonial
 Ohio v. Clark  leaves open possibility that statements could be
testimonial
o If it doesn’t fit category above, then apply the primary purpose test to
determine if the statement’s testimonial
 Statement made for prosecutorial preparation  testimonial
 Statement made for ongoing emergency  non-testimonial
Part C: If the statement is against accused and testimonial, is there an exception that would allow
the statement to come in?
 If any of the following occur, then the testimonial hearsay statement is ADMISSIBLE
o (1) Actual confrontation here (Green)
 i.e., D can probe/impeach declarant on cross-examination at trial here
CC is satisfied b/c there’s actual confrontation
o (2) Declarant is unavailable but D had opportunity to confront before (Mattox)
 i.e., this is like 804(b)(1) (prior testimony)
o (3) Forfeiture by wrongdoing (Giles)
 i.e., if you forfeit by wrongdoing your hearsay objection, you also forfeit
your CC objection
 There’s symmetry b/w CC and hearsay purposes
o (4) Statement is being used for non-hearsay purposes (Crawford, fn. 9)
 i.e., if statement is used for a non-hearsay purpose (not offered for its
truth but for, e.g., impeachment), statement can come in, even if it’s
testimonial
o (5) Dying declarations (maybe)
 The ct. hints that dying declarations under 804(b)(2) are admissible but
it’d be sui generis (a category of 1 by itself)
Kids
o Ohio v. Clark (see above): Young kids statements’ rarely, if ever, are testimonial
o If kids talk to cops, it could be testimonial in the right circumstances
o Older kids understand criminal process better  may be testimonial
o We do NOT treat statements from kids the same as statements from adults
Forfeiture by Wrongdoing
o You waive your 6th Amendment right when you keep the witness off the stand
o Narrow construction  THIS IS WHAT THE COURT PICKS
 Giles: Creates narrow construction of forfeiture by wrongdoing in the 6A context  you waive
only when the D did something wrongful
 Benefits: creates symmetry b/w hearsay and 6A
 Elements to determine if 6A right is forfeited
o Intent to engage in wrongful act
o Act was intended to keep witness off the stand (doesn’t have to be primary
purpose)
o Actually engaged in wrongful conduct
o Broad construction of waiver (legally or illegally)
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Benefits: easy application, avoids strategic invocation of objections
Negatives: makes you pick b/w 6A and other rights
Not how we understand forfeiture under 804(b)(6)
 i.e., in hearsay space, there must be intent to keep them off stand and must be wrongful
o Problem 8.4: Julie asks neighbor to deliver letter to cops is something happens to her (subtext: she’s
scared of husband). Cops say murder. D says suicide
 Is the letter admissible?
 Hearsay? Yes, some exception works
o 803(3) (then-existing condition) – may seem like statement of her plan for
present/future, but can only be herself (statements about husband are out)
o 804(4)(b)(6) (forfeiture by wrongdoing)
 6th amendment?
o Against crim. D? yes.
o Testimonial?
 Not a categorical exception
 Primary purpose test
 Ongoing emergency? Probably not
 Compiling facts? Probably yes  testimonial and CC applies
 Bc it’s testimonial, the evidence is out unless forfeiture by wrongdoing
Forensic Reports/Lab Tests
o Rule: forensic reports are CATEGORICALLY testimonial  this mean they implicate the 6A (and you
need confrontation or an exception)
 Impact: Prosecutors are forced to find someone to testify (huge practical effects)
 State response: Many states have passed laws that require notice and demand
 Demand = Ds have to demand to confront lab reporters (which shifts burden to Ds)
 Remember that lab reports also implicate some 403 (math) stuff
o Melendez-Diaz v. Massachusetts: Powder found  labs says it’s cocaine. Prosecutor offers report but no
person takes stand.
 Are the reports testimonial? YES (categorically)
 Holding: Creates rule that you need someone to testify to the lab results
 Creates huge practical consequences  states respond w/ notice & demand statutes
o Bullcoming v. New Mexico: Man charged w/ DWI. State wants to admit BAC report. Person who ran the
test is unavailable (on unexplained, unpaid leave)
 Issue: Who should be put on the stand? The lab tech. who ran report OR any technician in lab?
 In this case, person who ran the tests is unavailable  the unexplained leave creates
reliability concerns
 State substitutes to the OG tech don’t work here (on these facts)  analyst was
interpreting the data (not just the scrivener)
 Holding: Not anyone will do to meet CC for lab results  CC clause generally requires the
prosecution to intro a lab report containing testimonial certification through the in-ct. testimony
of the scientist who signed the certification or who personally performed/observed the test’s
performance
 i.e., you don’t get perfect confrontation, but you must get adequate confrontation
 B/c the report is testimonial, the person who did the test must be made available for
confrontation UNLESS he is unavailable and Bullcoming had prior opportunity to crossexamine
 Outcome: puts pressures on states and court to fund this testimony, makes it more difficult to
meet CC for lab results
 This links to who gets to count as an expert (i.e., is it okay for an expert witness to rely on
these statements that would be otherwise admissible?)
o The expert who read the test couldn’t testify to the accuracy of the report b/c they
didn’t see the test performed
o Williams v. IL: tech on the stand testifies as an expert who based their opinion on missing tech’s report.
 Plurality decision (no opinion speaks for ct)
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Alito: an expert may state an expert opinion that’s based on facts the expert assumes, but
doesn’t know, to be true
o i.e., can explain the facts their opinion is based on w/o testify to the truth of those
facts
o that is, these facts are introduced to explain the basis of the expert’s opinion; they
are NOT being introduced to prove the truth of the matter asserted
 Thomas: DNA report isn’t testimonial  No CC invocation
 Kagan (diss): the expert’s opinion relies on those facts being true
Bruton Doctrine (multiple Ds and confession of 1 D that implicates other Ds in joint trial)
o Bruton v. U.S.: Multiple defendants (2+). Codefendants at joint trial, and there’s a confession by a D that
implicates both of them (e.g.,, we did it; I fired shots, but other dude gave me the gun), but then the D
doesn’t take the stand (invocation of 5A)
o Possible scenarios
 Evidence admissible against both Ds? Statements come IN
 Evidence inadmissible against both Ds? Statements stay OUT
 Evidence admissible against one b/c of hearsay? Ct. gives jury instruction
 Evidence inadmissible b/c of the 6th Amendment? This is HARD
 Separate trials
 Separate juries
 Bench trial
 Confrontation
 Redaction of statement
COMPULSORY PROCESS & CHAMBERS
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Chambers: Cops go to execute warrant but riot ensues. Cop is shot  before he dies, he fires shot w/ deliberate
aim that hits Chambers. Chambers charged w/ murder.
o Chambers presents 2 defenses: he did not shoot cop and McDonald shot cop
 McDonald made sworn confession to Chambers’ attorney & 3 eyewitness statements
 At trial, Chambers can intro some evidence (signed confession, 1 witness testified but then jury is
instructed to ignore)
 Chambers is NOT allowed to intro:
 Witness’ recollection of McDonald’s confession (b/c hearsay)  it would fit the
exception against interest but MS only allows for statements against pecuniary interests
 Impeach McDonald  MS has voucher rule (you can’t impeach your own witness)
 Chambers arg: He was not given a meaningful opportunity to present a complete defense
o Holding: On occasion, the Constitution will override the rules of evidence and permit the introduction of
evidence that is (1) critical (essential to the presentation of a meaningful defense) AND (2) reliable (bears
persuasive assurances of trustworthiness)
 This is fact specific b/c MI had a shitty mix of laws that violates Chambers’ rights to defense
 If the constitutional arg. is convincing enough, it can trump common law rules of evidence
o Under current fed. rules of evidence, would Chambers have come out different?
 Maybe yes, maybe no  Chambers is tough case legally
 W/ 804(b)(3)(B), Chambers would have done better  if hearsay is offered in a criminal
case that’s offered against interest, but only if there are corroborating circumstance
 Just b/c FRE is fed, it doesn’t mean they’re constitutional compatible (constitution overrides if
necessary)
 Chambers was a narrow fact-specific holding, but it’s been extended so Ds can present a
meaningful defense
Holmes: Holmes is convicted of sodomizing woman. P has witnesses that saw D at scene + forensic evidence
against D. D wants to intro evidence of 3rd party guilt (witnesses who saw White at scene who supposedly
confessed to them)
o Evidence admissible under FRE: Probably
o Evidence admissible in SC? NO
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o
SC has a 3rd party guilt rule (racist) = can only intro evidence of someone else’s guilt if that
evidence raises a presumption of innocence for D (not admissible if it only casts doubt on the
events)
 This rule uses bootstrapping unconstitutionally (i.e., the prosecution has such a great case
that the D can’t bring in this evidence)
Holding: SC law prevented Holmes from making a meaningful defense (SC law arbitrarily prohibits D
from presenting a meaningful defense, which violates constitution)
TESTIMONY
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The 700s involve different types of testimony
2 types of testimony
o Lay testimony
o Expert testimony
o This is NOT about witnesses as a whole  a single person can offer lay and expert testimony
LAY OPINIONS
Rule 701: Lay Testimony
 Who testifies under 701 (lay testimony)?
o A witness who is NOT testifying as an expert
o Note that a single witness can offer lay and expert testimony
 What does lay testimony include?
o Facts
 Facts allowed IF witness has: personal knowledge (per 602)
 Example: “The body was cold”
 Generally admissible: size, sound, weight, speed, height appearance
o Opinions
 Elements: Opinions allowed IF:
 (1) Witness has first-hand knowledge
 (2) Opinion is helpful (determining a fact as an issue) to a finder of fact (jury) AND
o Factors:
 Jury can’t judge this themselves
 Witness’ opinion offers something useful beyond just pure fact
 (3) It’s not expert testimony (i.e., not based on 702)
 Can include inferences
 Particularly for opinions, you may need to set a foundation
 Foundation = giving specific information so the jury can understand what you’re talking
o i.e., You need to go through procedural hurdles to get that witness’s opinion in
 Getting the witness to establish that they perceived the thing you’re
about to ask their opinion on  getting a rational basis for their opinion
o Foundation can be set before or after the opinion
o E.g., if the dude says the guy was “floopsy,” you have to explain what “floopsy”
means so that the jury understands the term
o It’s ok for lay witness to speak in ordinary language (but it’s lawyer’s job to make sure the foundation is
laid so jury can understand the witness’ language)
 Exceptions re: lay testimony
o Drugs: Lay witness can testify that something is a drug
 HOWEVER, can’t specify the drug’s Colombian pot
 Problem 9.3: Trial about drug possession. Daughter finds white powder. Says it tastes like coke
b/c she’s done a lot of coke
 Probably ok as lay testimony (opinion)
o 1st hand? Yes – tasted it
o Helpful? Yes – jury didn’t taste the coke
o Not expert? Taste is what lay opinions are about
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Rule: You can testify under 701 as lay testimony that something appears to be [X drug],
so long as foundation of familiarity is established.
o Particularized knowledge from personal experience: Businessman can testify about things most people
wouldn’t know about, but that the witness specifically knows b/c they worked a particular job for a long
time
 This is an extremely narrow exception  generally only applicable to owning a specific kind of
business, and even then, the person likely can/should be admitted as expert testimony
 i.e., Don’t need to go through expert testimony BUT generally, air toward it being expert
testimony
 Rationale: This rule is narrow b/c cts. are very concerned about the presentation of expert
testimony in lay witness clothing (and concerned about blurring lines b/w these distinctions)
Problem 9.1: Did the person filing claim set the car on fire? Asks how D responded, “Look, mister. I’m just a
poor man.” According to listener, “D sounded depressed”
o Admissible under 701? Probably
 Fact testimony? Maybe
 Opinion?
 1st hand knowledge? Yes - Listener heard voice
 Helpful? Yes - Jury isn’t there so can’t hear tone themselves (though you might want to
set foundation by asking what sounding depressed means)
 Not expert? Yes - You don’t have to be an expert to show someone’s depressed
o Does this still need to go through hearsay? NO, b/c this is not being offered to prove that the speaker is
actually a poor man.
Problem 9.2: Testimony about appearance of age. D charged w/ selling cig to minor. D says buyer looked to be of
age
o Fact? Probably not (though could argue that she did look 22 as a fact)
o Opinion? Probably (i.e., she looked 22 to me)
 1st hand knowledge? Yes
 Did they set the foundation using facts? (tall, clothes, facial, hair, etc.)
 Helpful? Yes – jurors aren’t there, and buyer’s appearance has changed
 Expert? Do not need to be expert to know someone’s age
Brother’s Keeper: Want to put brother on stand to testify and say:
o (1) body was floopsy/cool when I was there
 Valid lay testimony under 701  could be fact OR opinion
 1st hand? Yes
 Helpful? Yes, jury doesn’t see body
 Expert? No, don’t need to be expert for sense of temp.
o (2) Bill was dead
 Valid  probably a fact (but may require foundation  cool/lack of pulse/lack of response)
o (3) he hadn’t been dead too long.
 This is NOT lay testimony (i.e., it’s expert testimony)
 Saying how long someone’s been dead requires medical expertise
 Could argue it’s particularized knowledge (but probably won’t work b/c courts view this
exception extremely narrowly)
Ganier: CEO of business deletes relevant emails and spoils the evidence. Prosecution wants to put forensic
computer specialist on stand to testify.
o Prosecution fucks up b/c they forget to list comp. specialist as an expert, so can’t use as an expert under
702  instead tries to intro comp. nerd as a lay witness
o Ct. excludes evidence b/c his testimony is beyond the knowledge of a lay witness
 i.e., tried to present him as an expert in lay witness’s clothing, which courts HATE
 Justification: cts. are afraid that parties will sneak in experts as lay witnesses, so they can avoid
the procedures/requirements governing expert testimony
EXPERT TESTIMONY
Rule 702–706: Expert Testimony
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FIVE ELEMENTS TO BE AN EXPERT WITNESS
o Proper qualifications – 702
o Proper topic – 702
o Sufficient basis – 702
o Relevant & reliable methods – 703
o Pass 403
Issues related to expert witnesses get hammered out pre-trial w/o jury at Daubert Hearings
o Goal is to keep junk out of court (i.e., evidence that purports to be better than it is)
o Justification: promotes efficiency and court resources, encourages better evidence for jury review
o Problem: hearings are expensive/time consuming  why can’t the opposing party just do this on crossexamination?
 Shows it’s more than protecting jury  also about keeping out garbage, not wasting time on junk,
court. Resource concerns
 Also shows we don’t rely on cross-examine as we pretend to
Distinction between lay and expert testimony
o There are different procedural consequences (Civ. Rule 26 & Crim. Rule 16)
o Type of testimony allowed as lay is different than testimony for experts
 Experts – can testify on basis of hearsay (even inadmissible hearsay)
 Generalized opinions
 Lay – need first-hand knowledge
o Jurors view experts w/ more credibility (risk that they’ll overweigh, so need more vetting)
Element 1: Proper QUALIFICATIONS
o i.e., is the person qualified to testify as an expert?
o For an expert to be qualified, 2 elements
 (1) Knowledge/skill/experience/training/education  “specialized knowledge” under 702
 i.e., formal education OR experience that adds up/exceeds what an average person
has
o Formal education can qualify you as an expert, but it’s not necessary
o Enough experience can add up to be sufficient qualification
 (2) “Fit”  the experience/education needs to match up/connect with the information being
offered
 i.e., the qualification/area of specialty must MATCH the content of the testimony
o Even if you’re qualified, that does not mean the jury must believe your expert testimony
o Dueling experts happen frequently  jury has to decide who to believe
o Problem 9.6: Drug trafficking case. P wants to call cop who has first-hand knowledge of trafficking code/slang.
o Is the cop qualified? Yes
 Testimony allowed as long as his experience matches the info offered (which it does)
 Formal education is NOT necessary  has enough experience to create sufficient qualification
o U.S. v. Johnson: Pot’s imported from Colombia. Dude testifies that he’s smoked weed 1000x and has identified
the weed as Colombian. Thinks he’s never been wrong.
o Can he testify as a lay witness? Probably not.  dude is not just identifying the drug, but saying it’s a
particular kind of pot
o Can he testify as expert? Yes, he has a valid qualification
 Qualification?
 He has sufficient expertise by virtue of his experience (i.e., 1000x smoking)
o This is NOT particularized knowledge under 701 (lay witness)
o If you talk about the manufacturing of drugs, you MUST be an expert witness
(per the Ad. Comm. Notes)
 His experience aligns w/ what he’s testifying about (expert in identifying Colombian
weed saying that the weed was Colombian)
 Other elements  this only looks at qualification. However, this testimony still probably
wouldn’t get in b/c his method isn’t great
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o
Jinro v. Secure Investments: D’s expert testifies that Korean companies have propensity to engage in fraudulent
activity. Expert’s info is based in (1) having Korean wife [so fucking gross], (2) “hobby” of studying Korean
business practices, (3) generalized impressions on Korean business based on personal investigation
o 702 allows expert testimony if the expert has “specialized knowledge”
o Testimony is not allowed  abuse of discretion by allowing him to testify as expert
 No qualifications: not trained in a discipline that allows him to talk about Jinro specifically
 Instead is just offering unreliable personal opinions
 No fit  his experience says that Korean businesses are generally corrupt, but this doesn’t
actually allow him to say if Jinro is corrupt
 Pelham’s testimony is based in stereotypes  unfairly prejudicial (doesn’t pass 403)
Element 2: Proper TOPIC
 i.e., is the topic proper for expert testimony?
o Standard = whether the expert testimony will assist the trier/jury?
 i.e., must be something that the jury couldn’t understand on its own
 Justification: we can’t have experts wrap common knowledge in expert testimony b/c juries are
too trusting of experts, so you gotta make sure the topic is appropriate
o Experts CAN provide context, nuance, structure for the jury, detail that will assist the jury above and
beyond ken of average juror
 Topic does NOT need to be at the very core of the case (i.e., it can be slightly removed)
 Topic does NOT need to be totally unfamiliar to the jury (just needs to add something)
 Topic does NOT need to be dispositive (jury still has room to make own decisions)
o Improper topics:
 Expert can’t talk about things that should be left to the judge (explaining the law)
 E.g., can’t define applicable law
 Expert can’t talk about things that should be left to the jury (credibility/guilt determinations)
 E.g., can’t say what result to reach, can’t say who to believe
 Rule 704: (a) an opinion is not objectionable just b/c it embraces an ultimate issue
o i.e., experts can opine about an ultimate issue  just b/c an opinion goes to an ultimate issue, that’s not
enough to keep the expert opinion out
 Ultimate issues = dispositive issues (e.g., fault, intoxication, price, harm, cause, necessity)
 This is a change from common law, where experts could NOT talk about ultimate issues
o If an expert does talk about an ultimate issue, there are still 5 SUB-RULEs
 (1) Testimony still has to be helpful to jury
 (2) Expert can’t usurp jury’s role (i.e., can’t say who to believe, what result to reach)
 (3) Expert can’t usurp judge’s role (i.e., can’t define what law applies)
 (4) Expert can’t tell jury it meets a particular standard
 (5) 704(b) Exception – in a criminal case, an expert witness CANNOT state an opinion about
whether the D had a mental state/condition that constitutes an element of the crime
charged/defense. Those are reserved for the jury alone.
 i.e., in crim case, expert CANNOT say the person meets the legal requirements for
insanity (i.e., this person has/lacks the requisite mens rea)
o However, expert CAN come in and talk about whether the DSM elements for a
diagnosable condition are met
o Problem 9.10: Retired ministers drive around and buy supplies that could be used to make meth. Expert
says that evidence suggests possession w/ intent to distribute
 Problems:
 704(b) problem  expert can’t say the D had the necessary intent/mens rea
 Expert makes credibility determination  implies D is lying when he offers reasonable
explanation of why he had ingredients (invading jury box)
 “Intent” is a legal term of art, and it’s up to the JUDGE to define (i.e., expert is casting
himself as an expert in law; invading judge’s role)
 Topic? Here, the expert goes TOO far beyond what’s appropriate
 Expert CAN testify that the ingredients are necessary to make meth (i.e., the purchases
are compatible w/ making meth) BUT needs to be an expert on drug manufacturing
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High v. Jacobs: Excessive force case where cop breaks D’s cheek w/ flashlight.
 The expert saying cop used “deadly force” is IMPROPER
 “Deadly force” = legal term (defining it invades judge’s role)
 Expert saying what’s proper force for cop (invades jury’s role to determine guilt)
o State v. Batangon: Daughter accuses dad of sex assault (evidentiary gaps in story). P worries jury won’t
believe young victim. P wants to bring in expert to testify on kid’s reaction to this type of abuse (so that
jury will think victim is believable)
 Expert witnesses, if they structure their testimony properly, can help the jury decide who to
believe
 This behavior is not understandable by jury  expert can provide context to jury’s
credibility determination by offering assistance/context to victim’s behavior
 Expert CANNOT say that this particular victim is believable (invades jury)
o State v. Guilbert: Parade of eyewitnesses saying D did it. Expert wants to talk about falliability of
eyewitness testimony
 Historically: Ct. would exclude experts from talking about eyewitnesses
 Now: Ct. may allow this type of expert testimony on eyewitness reliability if it’s used for context
BUT cannot usurp role of jury by making credibility determinations
 Some jxd: require corroboration to allow this evidence in
 This ct: says that denying this evidence would restrict D’s ability to mount defense
Brother’s Keeper: Talking about looking at how someone has died. Dude seems like a dick.
o You could object here b/c this is NOT a proper topic  expert is offering basic facts that the jury could
probably understand on their own (i.e., people can differentiate b/w cause & manner of death)
 However, objection wouldn’t be that helpful, since the dude was hurting himself
 Also, it depends on where the testimony was going  this could be appropriate if this was
harmlessly introductory and expert was setting foundation for future testimony
Problem 9.7: Trademark argument w/ Macho v. Match. English Prof. is brought in as expert to talk about how
these two words sound similar and are confusing
o NOT a proper topic  avg. person is capable of determining whether the words are similar enough to be
confusing
 Qualified? Yes, probably (though qualification may not even match/fit)
 Proper topic? NO
 This is common knowledge and conventionally understood  expert isn’t adding
anything the jury couldn’t figure out by themselves
 May have 403 issue  Trademark looks at if avg. person thinks it’s confusing, so it doesn’t
matter if the expert thinks it’s confusing
o The question for topic is whether an untrained lay person could determine the issue intelligently w/o
expert intervention. If yes, it is NOT helpful to the jury (and not a proper topic)
Problem 9.8: Hotel ads only depict white people (racially segregated ads). D wants to bring expert
psychologist/statistician who says ads have adverse effects on potential black tenants (looks at focus groups)
o Qualified? Yes  prof. of psych/statistics
o Proper topic? Close question, but probably yes
 Not proper: you don’t need an expert to talk about how people are affected by ads
 Proper: This is a proper topic b/c an expert can contextualize and provide nuance on top of
conventional wisdom
o Rule: expert witnesses can contextualize by providing nuance, context, structure, detail that will assist the
jury above & beyond ken of avg. juror
 Court will look at the actual content of the testimony (i.e., details/substance) to determine if it
contextualizes or not
 If expert says all-white ads make black people feel excluded  not appropriate topic
 If expert says all-white housing ads have particularly pernicious affect b/c of XXX 
appropriate topic
Problem 9.9: Lady slips on cruise and brings tort claim. Wants to bring Aussie expert to talk about friction
gradient of floor.
o Analysis
 Qualified? Yes – floor safety specialist
o
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o
o
Topic? Maybe
 Improper topic arg: we don’t need an expert to tell us wet tiles are slippery
 Proper topic arg.: It’s appropriate if he’s contextualizing (e.g., the glaze of these tiles, the
angle, etc. make them extra slippery)
Issue: the expert fucks up by making the conclusion that it was not reasonably safe
 Expert witnesses CANNOT give legal conclusions b/c it invades province of jury
Good experts translate the esoteric and persuade jury
Element 3: Sufficient BASIS
 i.e. What can an expert base expert testimony on? What information/facts/opinions/evidence?
o Contrast w/ lay testimony, which must be based on personal knowledge
 Rule 703: Expert can testify on the basis of (1) personal knowledge, (2) facts presented at trial, (3) facts
made available to expert before hearing.
o (1) Expert can testify on personal knowledge (i.e., things the expert has personally perceived)
o (2) Expert can testify on facts presented AT trial / “made known”
 Facts presented at trial are okay, even if the expert doesn’t have personal knowledge of them
 Expert could sit around and watch trial to know facts from trial  unusual bc it costs $$
 Often, this basis is created through hypotheticals
 If you present a hypo, you MUST have a good faith basis for making it
 i.e., using hypos to reframe facts/issues presented at trial (e.g., “if the car was going
south, would it be possible for XXXXX?”)
 Under this prong, it’s implicit that the evidence expert testimony is based on is admissible
o (3) Expert can testify on facts made available BEFORE trial / “has been made aware of”
 This is typically based on hearsay & could create 6A confrontation problem
 If testimony is based on admissible hearsay  then proper basis
 i.e., if the hearsay fits an exception, then admissible in ct.
 If testimony is based on inadmissible hearsay  Expert CAN base testimony on inadmissible
hearsay IF the hearsay is the kind that experts in the field would reasonably rely on
 IF testimony is based on inadmissible hearsay, the underlying inadmissible hearsay is
NOT transformed into admissible hearsay UNLESS
o It’s a learned treatise under 803(18)
o It satisfies 703’s reverse 403 test (i.e., probative value in helping jury
substantially outweighs the prejudicial effects)
o Using 705, the evidence’s opponent introduces the hearsay on cross-exam (to
push back against the expert’s testimony)
 Brother’s Keeper: Cause of death opinion. Was his testimony based on fact he knew D confessed to homicide.
Assumption expert read police report before and he is taking report’s assertions as true (hearsay).
o Defendant  Police  Report  Expert
 Defendant  Police: hearsay admissible b/c of opposing party statements exception
 Police  Report: This doesn’t quite fit any exception
 No public records exception b/c rule specifically excludes police reports
o Expert is basing testimony on inadmissible hearsay.  allowed IF coroners reasonably rely on police
reports to determine the cause of death
 Problem 9.13: Guns discovered in D’s car. Cop is expert testifying on people concealing weapons in engine.
o Qualification? Probably. / Topic? Probably. / Basis?
 If cop did 100s of searches, then basis = personal knowledge
 Cop got info from interviewing inmates  inadmissible hearsay
 Would people in the field reasonably rely on this? Maybe.
 When looking at this prong of inadmissible hearsay, you must define the field
o Smart lawyers can re-define field to get evidence in/out
o i.e., law enforcement is a big field, so could come in, while gun confinement
field is small and may be more particular
Element 4: Relevant & Reliable METHOD
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


i.e., is the method by which the expert arrived at her conclusions/opinions appropriately rigorous?
Old Rule: Frye  method is sufficient when “sufficiently established to have gained general acceptance in the
particular field in which it belongs”
o Benefits: predictable, easy to administer
o Costs: Intolerant of good new science; too tolerant of old bad science
o NO LONGER THE RULE IN FEDERAL COURTS
New Rule: Daubert (case about birth defects from drugs. Experts base testimony on methodologies that haven’t
gained acceptance in science community)
o Frye superseded by Rule 702
o Holding: Judges need to be gatekeepers to make sure experts’ methods are reliable and relevant
 Reliability factors:
 (1) testable? (i.e., can you prove/disprove the method’s accuracy?)
 (2) peer review/publication
 (3) known error rates (i.e., how big are the error rates for this method?)
o Indeterminate rates are really problematic
 (4) control techniques (i.e., can you control how this method works?)
 (5) general acceptance in field (revival of Frye  not dead, just factor now)
 (6) independence (was the research independent or prepared in anticipation of litigation?)
o This is added by 9th Cir. & widely adopted
o If done w/ eye toward litigation  cts. view more suspiciously
 Relevance factors:
 All about the “fit” of the expert and the issues in the case (mirrors fit question for
qualifications/topic)
o Does the method produce something relevant to the case?
o The method speaks clearly/directly to the issue in dispute and will not mislead
the jury
 More demanding than bare relevance (under 401/402)
 Method must speak clearly/directly to the issue/testimony’s topic
o Who determines if the method is sufficient?
 Judge  Judge as Gatekeeper: This is a nearly impossible job b/c judges are expected to be
scientific evaluators in fields they know nothing about
 Judge must look to whether methods are good enough and conclusions sufficiently robust
 Creates irony: requires judges to invade province of experts, but experts can’t invade
judge's area
 Uses 104(a) preponderance of evidence standard
 Looks at whether the method was reliable, NOT whether conclusion is correct
 Allows for dueling experts
 i.e., to get expert testimony excluded, just have to prove method is wrong (rather than the
method’s conclusion is wrong)
o Scope of Daubert:
 Originally, Daubert only applied to scientific expertise
 Kumho Tire Co. v. Carmichael: Expert says tire separation is caused by defect. DC excludes b/c
doesn’t satisfy Daubert. COA reverses & lets expert testify b/c it’s not “scientific”.
 Extends Daubert factors/analysis to apply to ALL EXPERT TESTIMONY (not just
scientists)
 Ct. says that expert’s method is NOT sufficiently reliable
o Expert disregards his own methodology (ignores 2 of his own 4 factors)
o Expert can’t estimate tire’s use
o Expert didn’t actually inspect the tire until the day of (just looked at photos)
o Expert notes subjectiveness of his analysis
 Justifications:
 Args. for treating science differently (rejected by SCOTUS under Kumho)  weak
o Language: when you say something is “science”, it independently communicates
rigor/reliability
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o


Juror intuition/ability: jurors can be fooled by science (even bad science), so we
need to hold its admission to a higher standard
 Args. for treating all expert testimony the same (current rule)
o Text – Rule 702 doesn’t distinguish b/w types of expertise
o Difficulty – it’s hard to draw these distinctions in life (nearly impossible in
practice)
 Also, ct. doesn’t want to invite fights about categorization and then be
forced to settle what’s science or not
o Latitude – experts can base testimony on all sorts of things (including
inadmissible hearsay). B/c of this, ALL expert testimony need to be gatekept by
judges
o Juror intuition/ability - jurors are just as fooled by technical testimony as they are
by scientific, etc.
o Irony – if we separate science/non-science, more junk gets in potentially (i.e., if
the science is so bad it’s not science, then it gets to come in under lesser
standard)
o What to do in tough cases
 Confidence in jury to evaluate “shaky but admissible evidence” when aided by cross-examine,
contrary evidence, and ct. instructions  Close calls should maybe be resolved in favor of
admissibility
 However, judge has gatekeeping role  underlying goal of Daubert is to keep junk out, so if
there’s a question that a method isn’t as reliable as it purports to be, err on non-admissible
Problem 9.16 (Hedonics): civil action against police shooting. D brings expert to testify about hedonic damages
(pleasure/happiness of life) based on willingness to pay for safety during life.
o Qualified, appropriate topic, appropriate basis  not necessarily a reliable method and may not pass 403
(limited PV and may cast misimpressions on jury)
o Method analysis
 Reliability  TIED: b/c of Daubert’s purpose to keep junk out, generally would keep OUT
 Testable? No, minimally testable b/c you can’t confirm w/ dead person how much they
value life
 Peer review? Yes
 Error rate? No, can’t know if he’s wrong (not even high error rate; unknowable)
 Control techniques? Probably fine b/c he’s relying of reliable data
 General acceptance? Yes, methodology commonly used by insurance
 Independence? Yes, methodology existed before litigation
 Relevance  Excluded
 Expert only gives us averages, rather than speaking to the specific victim’s value of life
 When the method for hedonic testimony only speaks to averages, probably irrelevant b/c
it MUST speak to the pleasure value of the victim’s life
o Ct. could also omit under 403 b/c of juror confusion/waste of time outweighing probative value
Polygraphs
o Justification
 In favor: gets us closer to truth, roots out liars, depends on things outside person’s control
 Against: carry aura of infallibility despite low accuracy, invades role of jury as credibility
assessor, no limiting principle (if they’re so good, why don’t we use for everyone?)
o Only ONE STATE allows polygraphs routinely  New Mexico
 Everyone else says that polygraphs fail Daubert
 Most states: allow polygraphs if both parties agree to them
o NO confrontation clause right to use this as a criminal defendant
Element 5: Must pass 403
 i.e., does this still pass 403’s weighing test
o 403 = permits judge to exclude evidence, even relevant evidence, when the probative value is
substantially outweighed risk of unfair prejudice, jury confusion, waste of time, etc.?
 All expert testimony must make it through the filter of 403
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
o The ONLY time 403 doesn’t apply is under 609(b)(2) (impeaching a witness by way of crimes/falsity)
Remember that expert testimony has profound risk of jury confusion/overreliance
o See Collins/math case  expert offers garbage testimony but it’s confusing
Privileges
o
o
o
Privilege: shield against disclosure/discovery of information
o In evidentiary space, privilege is a defense that keeps out relevant/reliable evidence (evidence that would
lead to more accurate outcomes) out of the courtroom
o i.e., excludes evidence b/c the interest of screening it out (using the privilege) outweighs the jury’s
interest in seeing the evidence  NOT screening b/c info is unreliable/irrelevant
o Generally, privileges survive the death of the privilege holder
Justification:
o Utilitarian (Wigmore): Privileges help society overall, even if interrupting a particular case (i.e., you need
to feel free to talk w/ lawyer/priest, etc.)
o Deontology: There should be some spaces that are private, that the gov. can’t reach in their own right
History of 501
o Privileges used to be a matter of common law
o FRE enacted in 1973  13 privilege rules were proposed/rejected (THANKS NIXON)
 Instead, Congress only adopts 501 and leaves everything else to cts.
 Initially, people feared this would create ossification of privilege rules (i.e., privilege
laws would be frozen b/c new privileges aren’t intro’d, while bad laws stay in)
o This fear isn’t totally true, BUT privilege develops sloppily
 Not many changes since 1972
 502: Attorney-client privilege
 Reporter-source privilege  proposed but rejected b/c Nixon sux
o FRE 501 only applies in fed. cts.
 Leads to undercutting of state laws potentially  parties can disagree, exploit differences
General Principles & Constitution (Chambers Plus)
FRE 501: Privileges in General
o Sentence 1: fed. judges in fed. cts. can expand/contract privilege rules, as interpreted by the courts “in light of
reason and experience”, UNLESS (1) constitution, (2) fed. statute, (3) SCOTUS rule says otherwise
o Experience = what makes sense based on practice so far (common law, state cts., proposed FRE rules)
 i.e., has this worked in other states? What were the benefits/issues?
o Reason = logic  does logic suggest the privilege makes sense (given goals of utility/privacy?)
 Justification/reasoning in applying reason:
 Utilitarian: ct asks “will this justify society, and how much will adjudication suffer?”
 Deontological: ct asks “how much will privacy interests suffer?”
o Sentence 2: Privilege is substantive for Erie doctrine analysis (in a civil case, state law governs privilege
regarding claim/defense where state law supplies the rule of the decision)
o i.e., fed courts addressing state claims must use state evidence/privilege laws
o This is easy if all questions are state/federal OR if state/fed rules are the same
 In a civil action being tried in fed ct. under the substantive law of the state, fed. ct. MUST apply
the state’s law of privilege
o More complex w/ multiple issues  gests messy but ct. has to apply state to state and fed. to fed.
o 6 FORMS OF PRIVILEGE
o (1) 5th Amendment  right to not self-incriminate
o (2) Attorney-client privilege
 Rule 502: Governs attorney-client privilege (waiver, confirms common law)
o (3) Spousal-testimonial privilege
o (4) Marital confidences privilege
o (5) Psychotherapist-patient privilege
o (6) Clergy-penitent privilege
 You don’t need to be a member of the church/congregation to invoke
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o
o
o
Non-privileges
 Doctor-patient privilege
 Fed cts. DO NOT RECOGNIZE (!!)
 Many states recognize however, and some statutes protect med. Info (e.g., HIPPA)
 Reporter-source privilege  proposed but REJECTED (again, see Nixon sucking)
 Child-parent
PRIVILEGE ANALYSIS FRAMEWORK
o Does a privilege apply?
 (1) Existing privilege: it fits into a recognized privilege and the privilege is activated OR
 Requires (1) established relationship, (2) intent to be confidential
 Coverage applies to communications (i.e., covers communication rather than underlying
facts)
 (2) New privilege: ct. may want to create a new privilege
 Requires
o (1) ct. using “reason and experience” to create new privilege AND
 Experience – looking at state law, common law, proposed rules
 Reason – does this actually make sense to create?
o (2) privilege comporting w/ utilitarian/deontological policies
 Specific privilege application  when the application of the new privilege proposed is
less predictable, then there is less benefit to society
o i.e., Privilege is based on predictability of application/use
 If NO  done w/ analysis, no privilege
 If YES  privilege applies UNLESS there’s an EXCEPTION that would destroy the privilege
(i.e., bring the evidence in)
 (1) Crime/fraud exception
o i.e., the privileged communication was made in furtherance of a crime/fraud
o Can apply to marital privileges
 (2) Dangerous patient exception
o i.e,. there’s a serious risk the patient could be dangerous
o Only applies in certain jurisdictions
 (3) Waiver (voluntary/intentional disclosure by the holder of the privilege)
o Only the holder of the privilege can waive
 Holder = person seeking expert help (patient/penitent/client)
 i.e., priest, psych, lawyer CANNOT waive
o Disclosure = release of information
o This applies to disclosing communications, NOT disclosing facts
 (4) Constitution  CHAMBERS PLUS
o i.e., does the Constitution override the normal operations of privilege
o In order for Constitution to override FRE privilege and allow evidence IN:
 (1) Must be against a criminal D for confrontation clause to be in effect
 (2) Must pass Chambers Plus analysis
 Critical to the presentation of a meaningful defense
 Bears particularized guarantees of trustworthiness AND
 Balances the weight/need of privilege against the need of the
defendant
o i.e., need for evidence in the case > need for privilege
o Jxd split: cts. are split on whether crim. D wins against
common-law privileges (depends on facts)
o Chambers can NEVER overpower a 5A claim against
self-incrimination (i.e., 5A privilege always keeps
evidence out, even if there’s need for the evidence)
Problem 11.2: Grand jury indicts D for rape of 12 yo. D wants to bring in exculpatory evidence that B.R.
committed the crime, but B.R. invokes 5A. D then wants to intro evidence from B.R.’s psych & B.R.’s mom
waives privilege. Mom has COI, guardian invokes privilege.
o Does privilege apply?
65
o
 Appropriate relationship? Yes, psych-patient (existing privilege)
 Intent to be confidential? Yes, nothing says otherwise
o Does an exception apply?
 Crime/fraud? No
 Dangerous patient? Not in this narrow space
 Waiver? Probably not  only the holder can waive (B.R.), mom has COI so can’t waive
 Parents often hold privileges for their kids and can waive, BUT ONLY IF there’s no COI
 Constitution/Chambers Plus?
 Critical  YES (evidence is exculpatory)
 Reliable  YES (B.R. probably wouldn’t lie)
 Balance  Close call (balance of protecting kid from crim. Investigation/embarssment
but D faces serious penalties)
Morales v. Portuendo: Man beat to death by group of people. After D is convicted, real murderer comes forward
and confesses to 4 people (priest, lawyer, co-D’s mom, D’s lawyers). Eventually, real murderer dies
o Statements to co-D’s mom.
 No privilege. Not barred by hearsay b/c it’s a statement against interest
 3rd party confession  it’s corroborating evidence that testimony is reliable
o Statements to someone else’s lawyer
 No privilege. Not barred by hearsay b/c of residual exception (807)
o Statements to real murderer’s legal-aid lawyer
 These statements fall under attorney-client privilege and there’s no evidence of waiver (stopped
telling people he’s the murder & invokes 5A after he consulted w/ lawyer)
 However, these are admissible under Chambers plus (balance = privilege of dead dude can’t stand
in the way of the truth)
o Statements to priest
 These statements fall under clergy-penitent privilege
 Waiver? Yes.  statements are informal, he asked for advice on whether to reveal info and then
acts on priest’s advice to reveal (not confidential), he tells 4 people
 Chambers? Yes  balance is different b/c the dude’s dead
o There is no CC issue b/c the evidence is being presented by criminal defendant (to exonerate), rather than
being used against the criminal D
Marriage/Familial Privileges
General Marriage Privilege
 Justification
o Common law: People weren’t allowed to testify on behalf of themselves b/c they had too high an interest
in case, wife & husband were considered one  spouse can’t testify
o Modern:
 Utilitarian: protecting sanctity of marriage, marriage is good for society, good to encourage
communications b/w spouses
 Deontological: there should be a space outside gov.’s reach
 Problems:
o Coverage might be too broad (all testimony for spousal testimony privilege)
o Both: Based on antiquated views of marriage (women as property)
o Den of thieves  gives all bad people an automatic accomplice
o If a spouse wants to testify against you, your marriage is already fucked
 These two privileges are not coextensive  may affect each spouse differently
 Tom Hanks/Kim Cattrall: man calls wife from phone booth but thinks he’s calling mistress. Wife confronts at
home
o Spousal testimony – applies only if witness-spouse (Kim Cattrall) asserts. Kim can’t be forced to testify
regarding phone call/bedroom convo
o Marital confidences – covers bedroom convo, but not phone call (call can’t be confidential if you thought
you were talking to someone else besides your wife)
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


Problem 13.1: Cop sends email to wife from work about crime. Email requires you to acknowledge you can’t use
email privately.
o Spousal testimony – probably applies if wife asserts (not if cop does)
o Marital confidences – does not apply b/c there’s no reasonable expectation of privacy
Problem 13.2: w/ the kitchen note, reasonable expectation of privacy depends on how tall the kids are? If they can
read?  if yes, less expectation of privacy
U.S. v. Rakes: crime-fraud exception  most cts. won’t apply the crime-fraud exception if you’re the victim/the
one being extorted
Definition
Where
applicable?
Who may
assert?
Survives
marriage?
Coverage?
Rationale?
Spousal Testimonial
Privilege to not testify against your spouse in ct.


Only applies to criminal case
Only applies if testimony would be adverse to
the criminal-defendant spouse
Fed: witness-spouse can assert, but NOT the
defendant-spouse (see Trammel)
States: vary by jxd
NO  once marriage is over, can’t invoke
privilege to avoid testifying
Pretty much everything (observations,
communications, facts, perceived, stuff that
occurred BEFORE the marriage), as long as it’s
adverse to defendant-spouse
Not forcing people to testify against their spouse is
good for the marriage
Marital Confidences
Privilege to not disclose confidential
communications made during the marriage
 Applies to civil AND criminal
Fed: either spouse may assert
State (maj.): follow fed.  either spouse may
assert
YES, privilege survives marriage but only covers
communications made during the marriage
 Temporal – only protects confidential
communications made during marriage
 Confidential – applies only to confidential
communications
o does NOT apply to statements made
in presence of 3rd party
o does NOT apply if there’s an
expectation the communication will
be shared
We want to encourage communication in marriage
(leads to better relationship). Upholds sanctity of
marriage.
Spousal Testimonial Privilege
 Spousal testimonial privilege = allows spouse to not take the stand/testify in a criminal case when the testifying
spouse’s testimony would be adverse
o Scope: only in criminal cases, only when testimony is adverse to D-spouse
o Privilege survives end of marriage? No
o Coverage: Covers EVERYTHING (communications, observations) adverse to crim D.-spouse
o Who can assert: Varies by jxd
 Federal ct. – recognized privilege  only witness-spouse can assert (i.e., has choice to invoke or
not)
 Trammel: In fed. ct., witness-spouse may testify against spouse if she chooses to do so.
 This allows prosecutor to lean on witness-spouse (esp. if witness-spouse could be liable)
 States – only recognized in ~30 states
 Maj. Jxd: permits witness-spouse in crim. trial to testify against spouse (mirrors FRE)
 Min: Criminal D-spouse can prevent spouse from testifying against them
 Super min: Bars spousal testimony against crim. D UNLESS both spouses consent
 Proposed Rule 505:
 (a) accused in crim. Proceeding has a privilege to prevent his spouse from testifying
against him
 (b) the privilege can be claimed by the accused or the spouse. Authority of spouse to do
so is presumed, unless evidence says otherwise.
 (c) Exceptions:
67
o
o
doesn’t apply when the crim D.-spouse is charged w/ crime against
spouse/children.
Doesn’t apply to matters occurring pre-marriage
Marital Confidences Privilege
 Marital confidences privilege = gives spouse privilege not to disclose confidential communications made
during the marriage
o This does NOT authorize either spouse to refuse to testify
o Elements:
 (1) Communication is made during marriage
 (2) Communication was confidential  expectation communication won’t be shared
 Not confidential IF: made in presence of 3rd person OR there’s an expectation
communication would be shared
o Scope: civil and criminal
 Applies even if neither spouse is a party
o Survives marriage?: Yes (but spouse can only assert for communications made during the marriage)
o Coverage: applies only to communications w/ intent to be confidential (reasonable expectation of privacy)
and communications made during marriage
 Communication – most jxd only protect communication (not observations about appearance,
noncommunicative conduct, etc.)
 The content of the communication doesn’t matter (i.e., doesn’t have to be about private
marriage details)
 Exception: almost all fed. circuits do not enforce the privilege if it would prevent a crim. D from
presenting evidence in their defense
 Exception: Fed and most states say there’s no privilege when one spouse is charged w/ an offense
against the other spouse or their children
o Who can assert?
 Fed: either spouse
 Min. state: only grant privilege to communicator spouse, NOT listener spouse
Other Familial Privileges  DO NOT APPLY IN FED. CTS.
 Sibling privilege/general familial privilege
o Not recognized by any court.
o Maybe this is right?
 We want to make it more flexible (apply to particularly close relationships) but would come at a
cost (lost prosecutions)
 Specific privilege application  when the application is less predictable, then there is less benefit
to society
 Privilege is based on predictability of application/use
 Parent-child privilege
o No parent-child privilege  though some courts are considering
 A couple judges seek child-parent privilege as one way (prevents parents from testifying against
kids b/c kids come to seek advice from parents)
o Vast majority say NO
 Reason & experience don’t work
 No need for privilege  it wouldn’t change how parents act/communicate b/c parents would
protect their kids anyway
IMPEACHMENT
Impeachment Type 1: YOU’RE WRONG
 Not a character attack  instead saying “your memory/perception is wrong”
 Admissible evidence: pretty much anything can be used to refresh, need not be admissible (but does
need to be admissible to be entered into evidence)
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
Governing rules:
o 612 (refreshing the witness’s memory): you can use pretty much anything to refresh a witness’s
memory if they don’t recall. Once refreshed, witness testifies normally.
 Adverse party can inspect the evidence being used to refresh, cross-examine it, or intro
any portion of it into evidence.
 803(5) (recorded recollections): maybe admissible in conjunction w/ 612 to get the
evidence used to refresh in substantively for its truth.
Impeachment Type 2: You’re LYING RIGHT NOW
 Not a character attack  just saying they’re lying right now for whatever reason
 Governing Rules
o 613 (impeachment w/ past statements):
 Cannot be used substantively  only to show witness’s lack of credibility
 (a) when examining a witness, you can ask about a prior statement. You don’t need to
disclose the evidence’s contents to the witness, but you must (on request) disclose
evidence of past statements to opponent
 (b) if the statements are inconsistent, EXTRINSIC EVIDENCE is allowed only if the
witness gets opportunity to explain/deny AND adverse party gets chance to examine the
witness about it
 If you want to offer the past statements for their truth (i.e., hearsay kicks in/not impeachment), must find
a hearsay exception:
o 801(d)(1): Witness’s prior statements are allowed for their truth if (1) witness testifies, (2)
subject to cross
 801(d)(1)(A): witness prior inconsistent statements  allowed in for truth if (1) actually
inconsistent and (2) prior statement was given under penalty of perjury
 801(d)(1)(B): witness prior consistent statements  allowed in for truth if (1) prior
statement happens before motive to lie, (2) prior statement is consistent w/ testimony
here, (3) statement is offered as rebutting motive to lie/rehabilitate credibility
 801(d)(1)(C): past ID statements
o 801(d)(2): Opponent’s prior statements are allowed for their truth
 801(d)(2)(A): opponent’s own statements can be used against them if (1) out of ct. and
(2) used by opposing party (3) against the opponent
 See other exceptions for adopted admissions, employee/authorized agent, co-conspirators
Impeachment Type 3: You’re a LIAR by PROPENSITY
 Character attack  this person has the propensity for truthfulness/untruthfulness
 Governing Rules
o 404(a)(3): Says that an exception to 404’s bar on propensity evidence is when you’re offering
evidence of someone’s propensity for un/truthfulness
o 607: States anyone can attack someone’s credibility for truthfulness under 404(a)(3)
o 608: Offers the procedure for attacking truthfulness propensity under 404(a)(3)
 The evidence that comes in CANNOT be used for its truth. Instead, just offered to show
that the person is a liar, so lying here
 608(a): Direct/redirect  can only use opinion/reputation evidence to attack person’s
propensity for un/truthfulness
 608(b): Cross  can use opinion/reputation/specific acts to attack person’s propensity
for un/truthfulness.
 NO EXTRINSIC EVIDENCE  i.e., if you bring up a specific act and the person
denies it, you can’t introduce a witness or other evidence to talk about that
specific act/prove it happened.
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
You can only offer evidence of TRUTHFULNESS if the person’s propensity for
Untruthfulness has already been introduced (i.e., truthfulness evidence can only be used
to rehab witness’s credibility)
o 609: If you’re attacking the person’s propensity for untruthfulness using a prior conviction, use
the rules here (rather than 608’s exception for specific acts). Extrinsic evidence to prove the
convictions happened is admissible.
What it does?
Rule that
activates
Coverage
Type of character
evidence allowed
405
Governs procedure for proving a
pertinent character trait
404(a)(2)(A) – Crim D. offers own
pertinent trait
(P can rebut)
404(a)(2)(B) – Crim D. can offer
evidence of victim’s pertinent trait.
(P can rebut w/ evidence of victim’s
character or same trait in Crim. D)
404(a)(2)(C) – if homicide case,
Crim. D can say victim was first
aggressor. P can rebut w/ victim’s
trait for peace.
Only CRIMINAL trials.
608
Governs procedure for proving
character trait for un/truthfulness
404(a)(3) – evidence of propensity is
truthfulness okay to impeach
character.
Can show propensity for whatever,
as long as it’s pertinent and meets
404(a)(2)
D must open the door, then
prosecution can attack
Applies to civil or criminal
Re/Direct
Opinion
Reputation
Can only show propensity for
untruth. If attacked, can show
propensity for truth.
Witness’s character must be attacked
for untruthfulness, then opponent can
rehab w/ truthfulness
Opinion
Reputation
Cross
Opinion, Reputation, Specific Acts
Opinion, Reputation, Specific Acts
Extrinsic
Evidence For
Specific Acts?
Yes
NO
Prescribed Order
70