Evidence Outline – Carter – Fall 2011
I. Introduction and Basics: Evidence Law System
 A. Policy: Why Do We Have Rules of Evidence:
 (1) Mistrust of Juries
 Although we rely on juries, a general mistrust exists
 Evidence law is generally a screening function of the Judge
 We believe that some evidence may not be weighed accurately by the jury, so judge screens to determine
adequacy of evidence and whether a jury could appropriately judge the evidence
 (2) Ensure Accurate Fact-Finding
 Many of the rules of evidence help to bolster the accuracy of facts
 Thus, along with the fear that a jury cannot be trusted, we want the jury to evaluate accurate facts
 (3) Pragmatism
 Rules control the amount of evidence, scope of evidence
o This ensures: quick, accurate, and cost-effective, not overly duplicative
 These are embodied in FRE 102, infra
 B. History and the Federal Rules of Evidence General Provisions:
 General:
 California was the first state to attempt to codify evidence rules
 Prior to, evidence rules existed at common law
 Federal Rules followed, first adopted in 1975
o Proposed by advisory committee appointed by the Supreme Court
o Transmitted to Congress pursuant to the Rules Enabling Act
 Thus, if not amended by Congress They become law after 90 days of inaction
 Were amended
 Purpose:
 Accessibility is the main reason
o All rules are in a short, concise 63 rule-book
 FRE 102: Purpose:
o Rules shall be construed so as to:
 1. Create Fair proceeding
 2. Eliminate unjustifiable expense and delay
 3. Promote development of evidence law
 4. In order to ascertain truth and secure justice
o Note:
 This is a fall back objection to get rule construed in your favor
 General Provisions:
 FRE 101: Scope of Application:
o 1101(a) Rules apply to those Courts listed:
 1. US District Courts
 2. US Bankruptcy Courts and Magistrate Judges
 3. US Court of Appeals
 4. US Court of Federal Claims
 5. District Courts of the Territories
o 1101(b) The Rules apply to:
 Civil Cases and Proceedings, admiralty and maritime cases
 Criminal cases and proceedings
 Contempt proceedings
 Bankruptcy proceedings
o 1101 (c): Privilege
 Privilege rules apply to all stages of a case or proceeding
 Note:
 So, although FRE may not always apply, privilege portions do
 The Super Objection
o 1101 (d) The FRE do not apply to (except for privilege):
 1. 104 Preliminary Questions of Fact
 2. Grand Jury
 3. Miscellaneous Proceedings listed***
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C. What Occurs at Trial:
 1. The Beginning
 A. Civil
o Civil Complaint: Explains what was alleged to have occurred
 B. Criminal
o 1. Indictment:
 Grand Jury gets to, in secret, evaluate evidence presented to it to determine whether enough
evidence to indict suspect
 Not adversarial
 ∆ does not present evidence
o 2. Or, Criminal Complaint/Information Statement
 Explains what alleged to have occurred
 Preliminary Hearing
 This hearing follows to determine if probable cause exists
 Witnesses are called
 ∆ may utilize evidence (but may not to avoid exposing arguments to π)
 2. Pre-Jury Selection Motions:
 A. Civil
o Discovery and motion practice occurs
 B. Criminal
o Some type of discovery occurs (jurisdictionally dependant)
o Evidence is collected and cataloged
o Motions occur
 3. Jury Selection
 Generally:
o At this point and trial, differences between the civil and criminal systems converge
o Differences are minor
 “Voire Dire”
o Each side gets to question potential jurors, assessing their ability to beneficially decide the case
o Judge may also question
o Each Side May Challenge:
 A. Challenge for Cause
 Judge must determine if “cause” has been determined
 EG: prejudiced/related
 B. Peremptory Challenge
 Each side is given a limited number of exclusions without cause/for any reason
 Note:
 Some courts have held that race cannot be a factor
 4. Trial begins:
 A. Opening Statement
o Puts together a theme of the case, and explains what the evidence will show and what they will prove
 B. Presentation of Proof
o 1. Case in Chief of Each Party Begins
 A. Plaintiff/Prosecutor Presents Case-In-Chief by calling witnesses
 Direct Examination:
 Testimony elicited
 Demonstrative evidence sponsored, objected to, and admitted/denied
 ∆ Cross-Examines
 π Re-Direct
 B. Defendant Presents its Case in Chief
 Π Cross-Examines
 ∆ Re-Direct
 C. Plaintiff’s Rebuttal
 ∆ Cross-Examines
 π Re-Direct on Rebuttal
o Note:
 The Scope of Direct Rule applies
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The party presenting their case-in-chief gets to determine the order, sequence, and subjects
they present
 The party with the burden of proof always begins and ends
o During Case-In-Chief: Introduction of Evidence:
 Party presenting the evidence:
 1. Introduces it
 Lays foundation for evidence
 Sponsoring Witness to admit the evidence
 Authenticates the Evidence
 2. Offer to Admit Evidence as Exhibit
 3. Objection to Evidence Occurs
 Note:
 If you fail to object to evidence, you waive the right to and do not
preserve for appeal
 4. Offer of Proof
 Note:
 If you fail to make an offer of proof, you waive the right to and do
not preserve for appeal
 5. Ruling
 5. Trial Motions:
 Parties Motion the Court for judgment
o Parties may desire to have case taken away from jury
 Directed Verdict
 This is rare as it removes from jury
 Subject to easier reversal on appeal
 6. Closing Arguments
 Order:
o (1) Plaintiff
o (2) Defendant
o (3) Plaintiff’s Rebuttal
 7. Jury Instructions:
 Generally:
o Parties submit, object to and argue to the instruction
 Two Special Types:
o 1. Curative Instruction
 May occur during trial, after objection is sustained, or at end of trial
 Instructs the jury to ignore certain evidence
o 2. Limiting Instruction
 Instructs the jury on how certain evidence may be considered or applied to one point and not
another
 FRE 105: The Judge may be requested to give a limiting instruction
 8. Deliberations, Verdict, Judgment, and Post-Trial Motions
 Generally
o Time for appeal begins to run
 Post Trial Motions:
o Losing Parties typically move for:
 Judgment as a Matter of Law/Judgment Notwithstanding the Verdict
 9. Appellate Review:
 Generally:
o A “Final” judgment must occur before appeal is granted
 Preservation of Claim of Error:
o To get Full Review:
 Parties must have stated the position to the trial court, objecting/making offering of proof
D. Making the Record:
 1. Generally:
 The record, recorded by a stenographer or computer, is used to present a case to the judge and jury in the trial
court and also a potential appellate court on review
o The Only Consideration of the Appeals Court
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It is extremely important, as it is a permanent writing of what is said and done at trial
Attorneys should get into the record, as clearly as possible, their case and what occurred at trial then, in
preparation for potential appellate review
o Get Evidence in
o Show your attempt to get evidence in with (1) Objection or (2) Offer of Proof
 2. A Record is Composed of:
 A. Pleadings
 B. Filed Documents
o Motions, briefs, discovery, jury instructions
 C. Record of Proceedings
o the written account of what transpires during the trial
 Note:
 The most important to appellate review regarding evidence
o Questions, responses/testimony, objections and rulings by the trial judge
o Side-Bar discussions
 D. Physical Exhibits
 E. Docket Entries
o A dated, chronological version of everything that happened from beginning to end of the action
 3. Issues in Making the Record: What to do and what not to do
 A. What to Avoid:
o Repeating Answers of Witnesses
o Interrupting the Witness
o Failing to explain numbers mentioned clearly as to what they mean
o Failing to Explain who a name corresponds to/spelling
o Which evidence is being referred to
o Non-verbal references should be explained
 B. What to Do:
o Assure that what is in the record is
 (1) Clear, and
 (2) Meaningful when evaluated by a potential Court of Appeals
o Be Aware of the Reporter
 Remember that someone is typing what occurs
 Be as clear as needed to ensure the reporter can get what occurs on paper
E. The Admission or Exclusion of Evidence:
 1. Getting Evidence In:
 A. Testimony from Direct Examination
o Generally:
 When an attorney is questioning a witness, 3 things are done
 1. Background Information:
 Basic Questions that ease the witness, and presents to jury in positive light
 2. Foundation of Testimony:
 Shows witness has personal knowledge of the information (meeting FRE 602)
 Authenticates Evidence
 Background to adequately testify to the information
 EG: at the scene, or expertise as an “expert witness”
 3. Substantive Testimony:
 Testifies as to knowledge of the pertinent facts
o Form of Questioning-FRE 611:
 A. Judge Has Control Over the Interrogation of Witnesses/Court- FRE 611(a):
 Court may exercise reasonable control over mode/order of questioning to
 1. Make procedure effective to determine truth
 2. Avoid wasting time, and
 3. Protect witness from harassment/embarrassment
 Note:
 The judge has inherent authority to control court room subject to the
lawyers right to represent his client
 B. Leading Questions on Direct Examination Are Restricted FRE 611(c):
 Leading Questions should not be used in direct examination except as necessary to
develop witness’s testimony
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 EG: child who is shy, etc… may be able to use leading questions
Permitted When:
 (1) Hostile Witness
 A party whom you thought would testify to benefit you, but turns
on the stand
 You may ask leading questions
 (2) Adverse Party
 The party against whom you are bringing the case
 (3) Affiliate of Adverse Party
 If relationship to an adverse party, you may
 EG: Spouse, mother, brother
 B. Testimony from Cross-Examination
o Generally:
 In this instance, the party cross-examining seeks to control the witness to extract the truth
o Form of Questioning- FRE 611:
 A. Leading Questions are Permitted- 611(c)
 In cross-examination, leading questions are permitted
 Policy:
 Narrows the inquiry
 Invokes the memory to dislodge previous questioning’s track
 Exposes inaccuracies in memory
 Focuses attention on important details
 B. The “Scope of the Direct” Rule- 611(b)
 General Rule:
 On subsequent-examination, the questioning is limited to the scope of the
matters addressed and explored in the previous examination
 This limits the ability of the party to interrupt the case-in-chief
 Thus:
 Cross-Examination is limited to scope of Direct
 Re-direct is limited to scope of Cross
 Re-cross is limited to scope of Re-direct
 Note:
 As each subsequent questioning occurs, the issues get
narrower and narrower until parties have had enough or
judge ends
 2 Exceptions—611(b):
 Limited to Scope of previous examination, unless
 1. “Credibility” issues/impeachment are always permitted
 2. Judge has discretion to allow inquiry beyond the scope of direct
 Note:
 The issue becomes what the “scope” of the previous examination was
 Characterizing as broader or narrower will lead to how questions
may be phrased
 C. Real and Demonstrative Evidence:
o Real:
 Tangible things directly involved in litigation
 Note:
 Evidence does not require “production”, but instead, testimony may
establish real evidence
o Demonstrative:
 Tangible proof that in some way makes a graphic of the point to be proven
 EG: diagrams, maps, photographs
o FRE 901 Authentication Requirement:
 Evidence must be proven to be what the proponent says it is
2. Keeping Evidence Out:
 A. Motion in Limine:
o Generally:
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When a party anticipates that evidence will be objected to, or that evidence will be
significantly contested, may wish to obtain a ruling in advance of the matter
Motion in Limine is the appropriate tool
EG:
 Motion to Suppress is most common version
 Daubert hearing
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Note:
 If the motion is denied, there is not need to later object to preserve an appeal
 103(a)
 Judge may alter ruling, depending on how trial plays out—Motion ruling is not dispositive
B. The Introduction of Evidence, Objection, and Offer of Proof:
o Generally:
 FRE 103 defines how to each side must properly preserve claims of error and get evidence in
or keep it out
 Once evidence has been introduced, these follow
o 1. The Objection:
 Purpose:
 1. Keeps evidence out
 2. Preserves right of appeal if Meets 103 Requirements, and admitted
 Requirements:
 103(a)1(A): A party may claim error in a ruling if it affects substantial right and
 1. Timely Objects/Motions to Strike
 Generally:
 This means that, at the earliest reasonable opportunity, the party
objects to the evidence admitted
 If it occurs after a witnesses’ answer, it becomes a ‘motion to
strike’
 2. States the Specific Ground (unless apparent)
 Generally:
 You must state the reason you are objecting and specifically what
you are objecting to
 Types of Grounds:
 A. Specific/Substantive:
 Rest on a particular exclusionary principle in FRE
 B. Formal Objection:
 Focuses on the manner of questioning
 Tactical usage to break cadence, delay, or obstruct momentum
 Types:
 1. Asked and Answered: the question has already been
asked and answered and questioner is seeking different
response
 2. Assumes Facts not in Evidence: information in
question should be supported by evidence already
admitted
 3. Argumentative: Being rude, sarcastic with witness not
permitted, court may step in per FRE 611(a)
 4. Leading Question: Counsel is telling witness what to
answer
 5. Misleading: Question may misstate evidence
 6. Speculation: If too guess-work of an answer
 7. Narrative: If question calls for broad response, and
opposing lawyer believes that answer may have
objectionable things inside
 8. Ambiguous, Uncertain, and Unintelligable: Points
out flaw in question that record cannot capture or question
is confusing and cannot be understood
 C. General Objection:
 EG:
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 “Objection” or “Irrelevant, Incompetent, Immaterial”
Useful in that, if objection is obvious, court may understand
Or, if attorney believes something is wrong but cannot put his
finger on it, this will give him time to think
Effect on Appeal:
 If Overruled: Does not preserve the right to appeal
 If Sustained: Will preserve right if there are any grounds
which support it
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2. The Offer of Proof:
 Purpose:
 1. Opportunity to convince judge evidence is admissible following objecting
 2. Preserves right to appeal on the matter if excluded
 Requirements:
 103(a)(2): If a ruling excludes evidence, party informs the court of the evidence’s
substance with an “offer of proof”
 To Do:
 Present evidence, and then be prepared to explain its specific purpose to the
trial judge, arguing what would have been said
 A. By Attorney: Attorney may explain what would have occurred
 B. By Witness: 103(c): May Question Witness to Offer Proof
 Offer of proof may be presented in a “question and answer”
form
 This means that, party may have witness on the stand and
ask questions which seek to show the purpose of the offer
 Effect:
 Questioning witness preserves issue on the record for
Court of appeals to see what evidence would have been
 103(d): Must Prevent Jury From hearing Inadmissible Evidence:
 When offering proof, either by attorney, or questioning witness,
jury should leave
 To the extent possible, the Court should conduct a trial so that
inadmissible evidence is not shown to jury in any means
 Therefore:
 If Q&A of witness, parties may ask jury to leave
 Lawyer’s Responsibility
o 3. 103(e), Plain Error, and Preservation for Appeal:
 Generally:
 It is required that an objection and/or offer of proof occur to preserve an issue on
appeal
 However, if these do not occur, 103(e) provides for relief
 103(e) Plain Error
 A court may take notice of a plain error affecting a substantial right despite not being
properly preserved
 Note:
 See discussion, infra, on appeals
C. Judicial Mini-Hearings of 104 Preliminary Questions:
o Generally:
 The Role of the judge is to provide a screening function for evidence, and to judge the parties’
contentions about evidence
 Therefore, when evidence is offered, objected to, and offer of proof occurs, the judge must
rule on these issues
 These objections and offers of proof create ad-hoc mini-evidentiary hearings
o 104(a):
 The Judge must decide any preliminary question of
 (1) witness qualification
 (2) privilege, or
 (3) whether evidence is admissible
 Judge is not bound by rules of evidence:
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Therefore, although a jury can only hear admissible evidence, a judge may consider
any and all considerations when ruling on a piece of evidence
o 104(b) Conditional Relevancy:
 When judge is considering evidence, and it depends on some fact being fulfilled the Judge
may admit it conditionally
 Evidence is then admitted on, or subject to introduction of evidence that supports the
condition precedent
o 104(c) Preliminary Question must be Conducted Outside of Jury’s Hearing if:
 1. Involves admissibility of confession
 2. Defendant in criminal case is witness and requests jury not be present
 3. Justice so Requires
o 104(d) Testimony by Criminal Defendant:
 If a criminal defendant testifies on a preliminary question, he does not become subject to
cross-examination
 EG:
 If there is an evidentiary issue of privilege, the criminal defendant can
testify to show when privilege attached
 This does not waive 5th amendment
o 104(e):
 Even if evidence is admitted by the judge, parties may still argue that credibility of it to the
jury
F. Witnesses and Rules Dealing with Them:
 Generally:
 A large portion of the trial process
 Special rules govern
 1. FRE 601: Witness Competency
 Every Person is deemed competent to be a witness, unless the rules provide otherwise
 2. FRE 602: Personal Knowledge Requirement
 A witness may testify to a matter only if the witness has personal knowledge about it
o To prove personal knowledge—witnesses own testimony may occur
o EG:
 Laying “Foundation” in testimony is meeting FRE 602
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3. FRE 603: Oath or Affirmation to Testify Truthfully:
 A witness must give an oath or affirmation to testify truthfully before testifying
 It should be such that it impresses upon the witness this duty
 4. FRE 604: Use of an Interpreter:
 Must be
o 1. Qualified
o 2. Give oath or affirmation to be truthful
 5. FRE 605: Judges May Not Be Witnesses:
 Presiding judge may not testify as a witness
 Party need not object to preserve this
 6. FRE 606: Juror May Not Be Witnesses:
 A Juror may not testify as a witness
 If called, adverse party must have opportunity to object outside of jury’s presence
 However, a Juror may testify about:
o 1. Whether extraneous prejudicial information was used by jury
o 2. Outside influence was improperly used
o 3. Mistake made in entering verdict on verdict form
G. Appealing from Evidential Error:
 1. Requirements of Appeal:
 1. Must show there was an Error
 2. Show it affected a “substantial right.” (I.E., it was reversible) per FRE 103
o Affecting a “Substantial Right”
 In general, there is a need to distinguish between errors that were harmless and those that are
reversible
 If it is reversible, it effected a substantial right
 Reversible:
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 “Probably did effect judgment/outcome/result and was preserved”
Harmless:
 “Probably did not effect judgment/outcome/result”
 Mistake May Be Harmless If:
 1. Cumulative Evidence/Overwhelming Evidence: Although
yes, there was an erorr admitting/excluding, there was so much
other evidence, a jury would have come out the same way or the
other evidence supports the judgment
 2. Curative Instruction Given: May avoid reversal with a
curative instruction
 3. Have Adequately Preserved it (Via Objection or Offer of Proof)
2. Plain Error: FRE 103 (e):
 Even if an evidential error has not been properly reserved, the parties may still seek review under plain error
o Must be a clearly obvious mistake of admission/exclusion  Rare
3. Standard of Review on Appeal:
 Generally:
o In evidentiary matters, 104 issues are generally within the broad discretion of the trial judge and rarely
overturned
 Standard:
o 1. Abuse of Discretion or
o 2. Clear Error/Clearly Erroneous
o Basically:
 Reversal will rarely occur, and appellate courts want to affirm
4. Common Issues Affecting Appeal:
 1. Failure to Preserve
o You must (1) Object or (2) Offer Proof in order to preserve you right to appeal the issue
o If you do not You waive the right (subject to plain error which is rare)
 2. Appellate Courts Find a Ground Typically
o Even if a judge ruled incorrectly on an objection/offer, if another unmentioned ground exists which
supports the judge’s ruling it will be sustained
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II. The Authentication Requirement
 Generally:
 Prior to the admission of evidence, it must be shown that it is what it is being said to be
 This process is the “authentication” of the evidence
 Applies to All Evidence:
 Tangible evidence (I.E., a gun)
 Testimony (although to a lesser extent, through the “personal knowledge” requirement of FRE 602)
 Note the Two stages of Authentication of Evidence:
 1. A Preliminary 104 Question of Whether Evidence is Admissible:
o This is what we undertake here
o A question for the Judge
 Screening Function of the Court
o Decision of whether the evidence is sufficient to show to a jury
 Whether there is enough that a jury could decide evidence to be authentic
o Possible Results:
 1. If proponent offers inadequate authentication  Excluded
 2. If proponent offer adequate authentication  Included, allowing jury to decide
 2. Jury’s Decision of Whether it is Authentic
o A Question of whether the jury believes you’ve met your Burden of Proof
 A. Laying a Foundation /Authenticating Evidence:
 Generally:
 Foundation is essentially how you authenticate
 The process by which you prove the thing is authentic
 Traditionally, 7 steps occur to lay a foundation and authenticate evidence
 1. Court reporter marks an exhibit for identification
 2. Offering testimony identifying or describing the exhibit
o Sponsoring Witness
o This is where authentication occurs
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 3. Offer of Exhibit Into Evidence
 4. Opposing Counsel’s Examination
 5. Objections
 6. Ruling
 7. Asking Permission to present the exhibit
 Note:
 Prior to getting evidence authenticated and admitted, do not allow the jury to see substance of evidence
 May be reversible error as jury may have seen inadmissible evidence
B. The Standard of Authentication- FRE 901:
 901(a)
 To authenticate, the proponent must:
o “Produce evidence sufficient to support a finding that the item is what proponent claims it is”
 Sufficiency is required ( A very easy standard to meet)
 Evalute:
o (1) What are you claiming the evidence is
o (2) Is it that?
 EG:
 “This is the knife that killed him,” or “This is a knife that resembles,” or “this is a
knife of equal size and weight”
 Depending on what you claim it is, the sufficiency of evidence may change
 901(b)
 Enumerates examples that satisfy the 901(a) sufficiency requirement
 1. Testimony of a Witness with knowledge of what item is
o EG: The baby in the jar presented is the one from hospital
 Use custodian, or chain of custody
 2. Non-Expert Opinion about handwriting
o EG: mother or friend is familiar with it
 3. Expert Comparison
 4. Distinctive Characteristics
o The appearance, content, substance, internal patterns, or distinctive characteristics of the item taken
together
 5. Opinion about a voice from testimony as to who it is
o If you’ve heard before even once or twice (There is no clear limit to giving opinion)
 6. Evidence about Telephone Call
o Call made to a number associated with person showing person was one answering
 8. Ancient Documents
 9. Evidence about a process or system
o Showing a process or system is accurate
C. Specific Types of Evidence and Their Authentication:
 1. Tangible Objects:
 US v. Johnson:
o F: At trial, ax was offered into evidence as the weapon via testimony by witness who was a bit
hesitant. Johnson objected that there was not sufficient authentication to show this was the ax
o R:
 1. The “Sufficiency Standard” is satisfied on a prima facie case:
 The witness was “pretty sure” it was the ax
 He had used it before
 He had seen it before
 Adequate to admit evidence to jury, who was then free to reject
 The “Chain of Custody Rule”:
o Rule:
 One may account for where evidence has been from its seizure until its presentation at trial
 Demonstrating each chain in the link of custody
 A sufficient method of meeting authenticating requirement
 However  Not Required
o If Chain of Custody Cannot Be Demonstrated:
 Typical Authentication must occur meeting “sufficiency” standard
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US v. Howard-Arias (where marijuana seized, but not all of chain of custody established
prior to admission at trial):
 Evidence must be sufficient to “convince court it is improbable that evidence is not
the original item and has not been tampered with”
 Missing Links and gaps are ok, as long as “sufficiency” of 901 met
2. Writings:
 Generally:
o Writings may pose unique issues if they are being claimed to be from a particular party
o Issues of how exactly you demonstrate a letter came from party A, rather than an imposter are difficult
 A. Factors that May Lead to Document being Authenticated as Coming from a Specific Party- US v. Bagaric:
o F: letter presented at trial, stating it was letter from the ∆ to someone regarding drug sale. Objection to
authentication
o R:
 Post-marked from where ∆ resided
 Signed with ∆’s known alias
 Referred to other ∆’s in the letter
 Referenced friends of the ∆
 901(b) 4:
 Distinctive characteristics of the content
 Adequate to meet 901(a) sufficiency requirement
 B. Stylistic and Characteristics in Writing:
o Stylistic, and characteristics in writing may be used to authenticate a letter per 901(b)4
 EG:
 Spelling mistakes known of the party may authenticate
 Use of letterhead may be, along with other evidence, authenticating
 Recognition of Handwriting per 901(b)
 Note:
 If proponent claims it came from a party, there is an issue of
authenticating that it did and avoiding claims that someone else
wrote it
 C. E-Mail:
o Generally:
 Same issues arise as with a letter
 How exactly do we know the e-mail, although from A’s address was sent by A
o Factors to Consider:
 1. Substance and Characteristics per 901(b)4
 Facts only party knows about?
 Writing Styles?
 2. Address (password to utilize the address, only known to one or few)
 3. “Reply Doctrine”
 Writing may be authenticated by showing it was in reply to an earlier communication
to that person
o Overall:
 Remember the issues is one of the sufficiency of presenting it to a Jury
 Convincing a Jury that the e-mail was, in fact from A, is different issue
3. Tape Recordings:
 US v. Oslund:
o F: Tapes were used by prosecutor to assist in conviction. ∆ challenges the authentication of the tapes.
o R:
 1. McMillan Factors May Be Evaluated in Determining Authenticity of Tapes:
 1. Device Capable of Recording
 2. Operator was competent to operate
 3. Recording is correct and authentic
 4. Changes, additions, deletions have not occurred
 5. Recording has been preserved in the manner shown to court
 6. Speakers are identified
 7. Conversation was voluntary and not induced
 Note:
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Although dated with the advent of new improved recording technology,
these are helpful guidelines to evaluate in totality of circumstances
 Not Required
 2. Process and System May be Authenticated
 If the participants don’t testify, reliance on 901(b)5 may be appropriate
 3. Use of Parties Involved
 Officer in charged authenticated
 Identified Speaker
 Was fully responsible for tape when finished
 4. Gaps in Tapes Do Not Go to Admissibility—They Go to Weight Of Evidence
 If there are gaps in the tapes, they do not effect “authentication” of admission
 901(b)5: Hearing Voice:
o Note that a party could identify a speaker in a tape, bolstering authenticity if they have heard the voice
before potentially
 4. Telephone Conversations:
 Generally:
o Like letters and e-mails, determining whether a phone call from a number is in fact the person who the
number is attributed to may not be as easy as it appears
 901(b)5 (recognition of voice) and 901(b)6 (number associated with party), together, may be
enough
o Caller Self Identification Insufficient—US v. Pool:
 R:
 A telephone call from a number, identifying caller as X may not, alone, be sufficient
to authenticate the party as coming from X
 More is Needed:
 Recognition of Voice from familiarity
 Even hearing once or twice before is enough
 Recording
 Style, Characteristics of Content.
 But, that alone is not sufficient to “authenticate” per 901
 D. Self Authenticating Evidence- FRE 902:
 Generally:
 Some evidence does not require authentication, and alone, will be considered admissible
 Opponent may still reject authenticity:
o Gets a 104 Preliminary Question hearing to check if authentic
o However, the proponent has no initial burden to prove authenticity
 902:
 1. Public Documents that are signed and have a seal/crest of some public jurisdiction (US, State, etc…)
 5. Official Publications: Book, pamphlet from a public authority (E.G. The Census or Budget)
 6. Newspapers and Periodicals (E.G. The Wall Street Journal)
 7. Trade Inscriptions: If affixed in the course of business, presumed authentic (E.G. Mountain Dew Bottle does
not need to be authenticated as Mountain Due)
 8. Commercial Paper
III. Relevancy
 A. The Broad Relevance Standard-FRE 401:
 1. 401 Standard:
 Evidence is relevant if: “It has any tendency to make more/less probable the existence of a fact that is of
consequence to action”
 402:
o Relevant Evidence is admissible unless:
 Constitution
 Federal Statute
 Federal Rules of Evidence
 or Court Rules say Not
o Irrelevant evidence is inadmissible
 Note:
 This is where the “objection” to irrelevant evidence lies
 2. Tendency Defined:
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The standard is extremely broad, sweeping most items into the relevant ambit
Leans toward admissibility of evidence
Most evidence is “Logically Relevant” and will be admitted
o Generally:

if it “adds to” or makes something even a small amount more or less probable Relevant
 3. Examples of Relevant Evidence:
 A. Efforts to Avoid Capture:
o Generally, fleeing from police is relevant evidence “tending to establish guilt.”
o However, it may be insufficient to prove guilt
o Note:
 Flight may be predicated on knowing one is being chased/investigated
 This may lead to a FRE 104(b) Contingent Evidence Requirement
 B. Use of a False Identification
 C. Destroying or Concealing Evidence
 D. Killing/Threatening Witnesses
 E. Escape from Prison
 F. Murder Weapon
B. Limitations on Relevant Evidence
 1. General:
 However, even though most evidence is “logically relevant,” it may not be admissible
 Thus, although FRE 401 broadly admits even slightly probative evidence, other rules restrict the use of relevant
evidence
 Rule 403 Limits the expansive scope of relevance
o Evidence will be “relevant but inadmissible”
 2. FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Duplicative Nature, Waste of Time
 A judge may exclude relevant evidence if:
o Probative value is substantially outweighed by danger of:
 1. Unfair Prejudice to the truth
 2. Confusion to the Jury of the issues
 3. Misleading Jury
 4. Undue Delay or waste of time
 5. Cumulative evidence
o Note:
 So, the danger or prejudice must be > the probative value
 Standard still leans towards admissibility
 Determining the Probative Value depends on the “Offer of Proof”:
o The “purpose of the offer of proof” will determine the weight given to the probative value
o Why something is introduced/purpose of the offer may:
 Increase the probative value of the evidence offered or
 Decrease the probative value of the evidence offered
o Applied:
 If The purpose of the offer is to prove something already stipulated to, proven, then the
weight of the probative value will not be significant
 Therefore, the weight of the danger will not have to be as high
 If the purpose of the offer is to prove a contested issue, issue of great importance to the case,
the weight of the probative value will be higher
 Thus, the weight of the danger will have to be extremely high
 3. Application of 403- State v. Chappele (AZ 1983):
 F: ∆ was accused of killing victim, but claimed to have been in another state at the time. Two witnesses, placed
∆ at the scene identifying him as the killer, who later confessed to them of the crime. At the trial, photographs
of the dead body were shown in gruesome detail to the jury. ∆ only contested his being there, and stipulated to
the dead body, means of death.
 Objection: ∆ argues that photos were prejudicial per 403, and relevant but inadmissible.
 R:
o 1. Photographs of a Corpse are Relevant When:
 1. To prove corpus delicti (concrete evidence)
 2. Identify the Victim
 3. Show the nature and location of fatal injury
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 4. Help determine the degree of atrocity of the crime
 5. Corroborate evidence of state witnesses
 6. Illustrate testimony
 7. Corroborate state’s theory of how and why homicide occurred
o 2. To determine the probative value of the photos, determine the offer of proof:
 If state is offering relevant evidence regarding a contested issuemore probative
 If not contested, stipulated to, not at issue in case far less probative
o 3. Probative Value is Substantially Outweighed by the Dangers in 403:
 The evidence is relevant, but the probative value is essentially “zero”
 The issues the photographs were offered for are not contested, but stipulated to
 The issue is where the ∆ was, which the photographs do not help contest
 Thus, Relevant Evidence of little probative value
 Substantially Outweighed by prejudicial, duplicative nature?
 The photographs are gruesome, have been stipulated to so are duplicative
 Used to inflame the jury, and outweigh the probative value of them
 Note:
 State had a weak case and threw in gruesome photos to inflame
jury, most likely
 Limiting Instruction was not enough to cure inadmissibility
o Relevant but, probative value substantially outweighed by 403 dangers
 4. What is Prejudicial, Cumulative, Misleading?
 Modernly:
o Courts may be more willing to let evidence in
o Juries are desensitized to many images and things, and may not be as big an issue
o Note:
 New York is not as restrictive May be more inclined to admit
 Prejudicial Includes:
o Race, Sex, Gruesome Photographs, effect of a bloody murder weapon,etc…
 Tactics:
o Typically, Defense will stipulate to evidence so that it is not contested
o Therefore, will argue that the probative value of evidence is far less than danger of 403
o However, Judge will need to make the call and the purpose of the offer will greatly effect if it is
admissible
 Note that a trial does not have to be sterile:
o Trial does not have to be “Sterile” and many times such evidence will be admitted
 403 merely polices the danger of juries being tricked/confused from important issues
 Therefore, not excluded merely because gruesome
 But may be if probative worth is minimal
o Modification of evidence/pictures will lead to “misleading” jury
 EG:
 Autopsy Photographs mislead jury, as it occurred after event
C. Problem 2-B:
 Probably relevant given broad 401, but may be contingently relevant on where coming from 104(b)
 Also, 403 may be issue of prejudicial effect if boy, black/white
 However, may not substantially outweigh probative valuebe careful in use
IV. Judicial Notice:
 Generally:
 Judicial notice is the process by which a court determines certain things without a need for formal proof/evidence
 Facts of concern are those that would have gone to the jury to weigh
 A. Adjudicative Facts:
 FRE 201 and Judicial notice is largely concerned with adjudicative facts
 Facts that normally would be heard by a jury, and would have to be proven by evidence
 Therefore, taking judicial notice substitutes evidence and relieves party of burden to produce
 More Efficient Trial Process
 EG: What day of the week a date was, what was on tv at a specific time, the weather on a specific date
 B. FRE 201- Standard of Judicial Notice:
 FRE 201(b): A court may judicially notice a fact
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1. That is not subject to reasonable dispute because
o A. it is generally known within the jurisdiction or
o B. Can be accurately and readily determined from sources whose accuracy cannot be reasonably
questioned
 FRE 201(c):
 At any stage of the proceeding a Court:
o 1. May take Judicial Notice on its own or
o 2. Must take it if a party requests and the court is supplied with necessary information
 Note:
 Subject to US v. Jones, infra.
 FRE 201(d):
 A party is entitled to be heard regarding judicial notice and nature of the noticed fact
o Note:
 Thus, even if court takes judicial notice, you may still argue to the contrary and have an
opportunity to be heard
C. Judicial Notice in a Criminal Case versus Civil Case:
 FRE 201(e):
 Instructing a jury regarding judicial notice
o 1. Civil Trial:
 A jury must accept the noticed fact as conclusive
o 2 Criminal Trial:
 A jury may or may not accept the noticed fact as conclusive
 Distinctions:
 In Civil case, judicial notice may occur after the fact at the appellate level-FRE 201(c); (e).
 However, not in a Criminal Case-FRE 201(e)
o US v. Jones (6th Cir. 1978):
 F: After ∆’s conviction, ∆ motioned for acquittal on grounds that π failed to prove that ∆
acted within the definition of the federal statute violated. To save conviction, Prosecution
appealed seeking Judicial Notice of the Fact.
 R:
 1. At the Appellate Level in a Criminal Case, Judicial Notice may not Occur:
 Congress was concerned with the trial by jury and constitutional right
 Jury has large discretion in criminal trial—6th amendment
 Therefore, if Appellate Court in criminal case took judicial notice, it would
bypass FRE 201(e), as jury would not have had the ability to or to not
consider noticed fact
V. The Best Evidence Doctrine:
 General:
 There is no obligation for parties to produce the “best evidence” they have—this is a misnomer
 Litigants are free to choose whatever evidence they feel is appropriate and necessary for their case
 Instead, “The Best Evidence Doctrine” is an evidentiary requirement to protect from in certain evidence
 A. The Doctrine-FRE 1002-1006:
 1. FRE 1002: The Best Evidence Rule
 To prove the content of a writing, photograph, or recording, the original is required unless statute provides
otherwise
 Doctrine applies when:
o 1. Writing, Photograph, or Recording
o 2. When content is being proved
o Note:
 If you are proving something else, other than the content does not apply
 Does not merely apply because writing, photo, or recording exist
o Policy Reasons:
 1. Safeguards against forgery and errors in summary of contents
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2. Helps revolve authenticity disputes
 ensures the document, photo, recording says or shows what you are describing
3. Premised on common law, where modern copying methods were not as sophisticated an
thorough
2. FRE 1001: Definitions
 Writing: consists of letters, words, numbers, or equivalent in any form
 Recording: consists of letters, words, numbers or their equivalent in any form
 Photograph: means photograph or equivalent in any form
o Includes negatives and videos
 Original: 1001(d)
 Duplicate: 1001(e)
3. FRE 1003: Duplicates
 Duplicates are admissible to the same extent as originals unless:
o 1. A genuine question about original’s authenticity or
o 2. Circumstances make it unfair to admit duplicate
o Note:
 Modernly, this largely usurps from original best evidence rule
4. FRE 1004: 4 Exceptions To When Original Is Required to Prove Content
 An original is not required if:
o 1. Destroyed Original:
 All originals are lost, destroyed, not by bad faith
o 2. Judicial Process Cannot Get:
 if an original cannot be obtained by judicial process
 I.E., subpoena
o 3. Party Offered Against is In Control:
 If the party whom the original would be offered against has control, and knew the original
would be needed and fails to produce it at trial or hearing
o 4. Collateral to Controlling Issue:
 If a writing, recording, or photograph is not closely related to a controlling issue
 Whether something is “collateral” is not clear
 The judge has discretion to determine whether evidence is collateral or not
5. FRE 1005: Duplicate of Public Record May Be Acceptable
6. FRE 1006: Summaries to Prove Content
 If writing, recording, or photographs are voluminous, and cannot be conveniently examined in court, a
summary of them may be used
o Summary:
 Includes summary, chart, or calculation
 Proponent must make originals available for examination
 Court may still order them produced in court
7. FRE 1007:
 You may prove content by testimony, deposition, or written admission of party against whom the evidence is
offered
B. Defining a Writing, Recording, or Photograph:
 1. Chattel/Property with writing on it does not apply to BER:
 US v. Duffy:
o F: Jury convited the ∆ of stealing a car and driving it across state lines. In the trunk of the car, there
was found a suitcase with a t-shirt inside. The shirt had initials transcribed on it. However, although
the shirt could have been used, the prosecutors did not use the shirt to describe the initials found.
o I: Does the Best Evidence Rule require the use of the original shirt with writing on it? Is it Collateral?
o R:
 1. The “Chattel Rule”
 A. When disputed evidence is a chattel with writing, and therefore both, the trial
judge has discretion to consider it either
 The Judge may consider the policy justifications of using the BER
 Wide Discretion
 The Words and Object May Merge
 Generally Considered Chattel
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B. Generally:
 This is an issue with programmed/printed words
 EG: A water bottle that has printed on it “Smart Water”
 Also includes, license plate, words on street-sign
 2. Collateral Issue:
 Per 1004(d), even if writing, photo, or recording and content proven, not required to
use original if collateral to the issues in case
 Here:
 Here: the t-shirt with his initials put him in the car, travelling
 However, he claimed he hitchhiked across the country
 Therefore, not really a collateral issue
C. The Independent Knowledge / First Hand Knowledge Rule:
 Generally:
 If you are proving the content of a writing, photograph, or recording, you must, according to 1002, provide the
original document, subject to exception
 The Independent Knowledge Rule:
 However, If a witness is not proving the content on the basis of those items, but instead, is using his own
memory or first hand knowledge or experience of witnessing one of the above
o The Best Evidence Rule does not apply
o EG P. 890:
 Witness on stand is describing the content of a movie, to prove it is an obscene movie
 However, if he was an actor in the movie, he is describing what he experienced, or saw and
not the actual content of the movie
 Regardless of the movie he can describe the content
o EG P. 891:
 Security officer reviewed tape of robbery. He had not been present at the robbery. He
testifies about the parties in the tape
 The BER applies, and the original tape must be used
 Officer has no independent knowledge about the event
 The tape is his only basis of knowledge
 US v. Meyers:
 F: In trial, the government sought to prove that Lamarre lied in his testimony before a senate committee. To
prove it, the government called Mr. Rogers, a party who attended the testimony. Following his testimony, the
prosecution introduced a stenographic transcript of the ∆’s testimony.
 I: Should the transcript have been produced under the BER in order for Mr. Rogers to testify about the ∆’s
testimony?
 R:
o Best Evidence Rule Does not Apply
 The Witness was asked to prove what he heard/saw at the testimony
 There was no attempt to prove the contents of the written transcript
 Not Offering about the transcript’s content
 Instead, offering about what happened at the testimony
o Independent Knowledge Doctrine:
 The Witness was at the hearing, and therefore, could testify to its content regardless of any
writing
VI. Opinion, Expert Opinion, and Scientific, Technical and Special Evidence:
 A. General:
 Lay witnesses commonly testify to facts, and their testimony is their opinion about facts as they perceive them
 B. Lay Witness Opinion:
 Governed by FRE 701
 If witness is non-expert, testimony of opinion is limited to that is:
o 1. Rationally based on witness’s perception
 “Collective Facts Doctrine”
 Witnesses may testify to ideas within the common human experience
 Typically Includes:
 Speed of a car, condition of person, person’s character, reputations, size,
flavor, height, weight, color, time, etc…
 Embodies FRE 602 Personal Knowledge Requirement
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You still must have personal knowledge of the matter, but you may give your
opinion, draw inferences about the personal knowledge you’ve obtained
 EG:
 You saw man drinking all night—you may give opinion that he was
“drunk”
o 2. Helpful to understanding testimony or determining fact
o 3. May not testify to:
 Scientific
 Technical or
 Specialized knowledge that enters scope of “expert testimony” in 702
C. Expert Witness Opinion:
 Governed by FRE 702
 A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in opinion
if:
o 1. Helpful to Trier of Fact in understanding
o 2. Based on sufficient facts or data
o 3. Based on Reliable principles and methods, and
o 4. Expert Reliably applies to the facts of the case
 1. Process of Presenting and Using Expert:
 A. Call Expert:
o Show that they are beyond the layman
o Ask about education, skill, experience, training, and knowledge
o Familiarity with subject of the lawsuit
 B. Qualify the Witness as an Expert
o Note:
 Very broad standard on who can be an expert
 Does not require that you be paid for your work
 Expert Can be Used As Layman:
 Remember that if someone who could be considered an expert, i.e., a cardiologist, is
merely testifying to non scientific, technical or special knowledge, they are a layman
under 701
 EG:
 Cardiologist happened to see the accident and testifies that he saw it
 Not an expert opinion, and is goverened by 701
o Opposing Party:
 Gets chance to “Voire Dire” and question expertise
 Attempt to Limit Scope:
 If expert is an expert, and qualifications are not in question, defense counsel should
attempt to narrow the application of what he may testify to
 Get a 105 “limiting instruction” to alert jury that expert may testify to A, but not B if
applicable
 C. A 104 Preliminary Question:
o The Court will then rule, within the court’s discretion as to whether party is an expert, and what scope
of testimony may be
 D. Testimony
o 1. Scope of Testimony:
 Once qualified as “expert”  may testify to scientific, technical, and special knowledge
o 2. Bases for Expert Testimony:
 FRE 703:
 An expert may base his opinion on
 1. First hand Knowledge
 His personal examination of evidence, testing, of things involved
in the case
 2. Facts Learned at Trial
 If he heard testimony while at trial, may use them to base his
opinion
 Note**
 The 602 requirement of personal knowledge does not
apply to an expert
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3. Outside Data
 An expert can use data and facts which he has acquired through
course of his expertise
 Books, studies, that he is familiar with
 Issue:
 The expert may be relying on things which may be
inadmissible
 Therefore, the inadmissible evidence creeps in, through
the opinion of the expert
 FRE 703:
 “If experts in the particular field would reasonably rely on
those kinds of facts and data in making opinion, they do
not need to be admissible for the opinion to be admitted
 These inadmissible facts may be disclosed to a jury only
if:
 “Probative Value is Substantially > Prejudicial Effect
3. The Ultimate Issue/Hinkley Rule-704:
 704(a)

An opinion is not objectionable because it embraces an ultimate issue
 704(b)
 In criminal cases, an expert must not state opinion about whether a ∆ did or did not
have a mental state/condition that constitutes an element of the crime
 Therefore:
 An expert cannot say the ∆ had mens rea or couldn’t form it
 This is in direct response to the Hinkley rule, and expert’s who testified that
he couldn’t form the requisite mens rea to assassinate Reagen
 But, expert may get near to this in testimony
 Exception: Some States Have not adopted the Hinkley Rule:
 Permit experts to testify to ultimate issue, without any limitation like FRE 704(b)
 Policy:
 There is a fear that a jury may simply adopt what the expert’s opinion is,
folding to the impressiveness of the expert
 Yates is a good example
 Yates v. Texas:
 F: Andrea Yates murdered her 5 children, and defense attempted to get
insanity. State had 1 doctor who testified that she did have the requisite
mental state to understand what she was doing. However, in the process he
misled jury about how she based her murder on a Law and Order episode,
therefore believing she chould get away with murder
 R:
 1. Texas Does Not Have Hinkley Rule:
 Experts in states similar to Texas may testify that ∆ did or
did not have requisite mental state
 In Federal Court, This would not be permitted with
704(b)
 2. Mistrial Standard:
 1. Whether there is a reasonable likelihood that false
testimony affected the juries judgment of
 2. A material fact, therefore
 3. Affecting a substantial right
4. Disclosing the Expert’s Opinion- FRE 705:
 An expert may state an opinion, and give the reasons for it without providing the underlying
facts or data
 However, he may be required to disclose those facts on cross-examination
2. The Court Appointed Expert:
 Generally:
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Although court appointed experts are possible, they are rare
Why:
 1. Adversarial System
 Judges are reluctant to enter the substantive trial
 Do not want to step into the ambit of the attorneys
 2. Compensation
 Judges are reluctant to draw on public funds to do so
 FRE 706
3. Daubert—The Reliability Standard for Evidence Presented by the Expert at Trial:
 Generally:
o Experts testify to scientific, technical and specialized knowledge
o However, how Daubert deals with how courts evaluate that knowledge to determine whether it is
sufficient
o Common Law Standard:
 Frye standard (D.C. Cir. 1923)
 Is the evidence generally accepted?
 Some states continue to follow Frye standard
o Daubert Standard:
 Daubert Standard
 Delaware Follows
 Followed by many states
 A. Daubert v. Merrell Dow (US 1993):
o F: Petitioners brought suit alleging that defendant’s drug caused birth defects. Defendant provided
many expert witnesses on the matter, who testified that no scientific research of the epidemiological
type had found it caused birth defects. Plaintiff expert argued that it did based on other types of
scientific research
o PH: District court held it was not accepted per Frye standard, and 9th circuit affirmed
o I: Whether the Frye Standard was superseded when the federal rules of evidence were decided. And if
so, what standard applies
o R:
o 1. Frye is Superseded by the Federal Rules of Evidence:
 A. 1. Not aligned with the Federal Rules
 Federal rules are pro-admissibility and Frye is not
 702 speaks on the issue and doesn’t cite Frye anywhere
 The statute is not a generally accepting statute
 Frye is superseded
 Federal Courts are not to use Frye
o 2. The “Daubert” Standard:
 A. The Trial Judge is a Gatekeeper
 N.7 in Daubert
 Gives Judges great discretion (or at least they have interpreted this way)
 They decide whether the evidence is sufficient

B. To determine whether science is valid and is therefore applicable to facts
 1. Is the Scientific Evidence Relevant?
 2. Is the Scientific Evidence Reliable?
 1. Can it and has it been tested?
 2. Has the theory/technique been subject to peer review?
 Exposes flaws in research
 Critiqued by other good scientists/community
 3. The Known/Potential Rate of Error
 4. Has it been generally accepted?
 Note:
 This still permits the Frye standard to be used
 But it is now one of several factors to consider
 These are Factors to be considered:
 Are merely guidelines and not required
 The test is flexible, and should determine the relevance and reliability
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Rehnquist Dissent:
 Agrees that it is superseded, but creating a standard goes beyond the question presented
 Should confine ruling to narrow one, allowing trial courts to create jurisprudence, and let it
rise to supreme court if need be
B. The Effect of Daubert:
o 1. 702 and Daubert:
 Note that the new 702 attempts to incorporate Daubert but dos not do so verbatim
 However, Daubert is to be used when analyzing a 702(b) question
o 2. Daubert Hearing:
 Modernly, the Daubert inquiry has turned into a Motion In Limine, prior to trial to determine
if such evidence is admissible
o 3. The Effect:
 There is an ongoing debate of whether Daubert allows more evidence in or excludes more
 Gives trial judge vast discretion
 A. Allows More In:
 Science is made up of where the funding is
 Where funding is is where the scientific community is
 Therefore, the “generally accepted” Frye standard tended to exclude lots of
evidence, as much of the unknown science was not accepted and therefore
inadmissible
 Issue:
 “Junk” or “soft” science may be admitted
 B. Excludes More:
 However, with the judge as a “gatekeeper” and more factors to consider,
judges may be over matched and simply exclude more reasons to do so
 “amateur scientists” may become overwhelmed
 No longer able to simply rely on if “generally accepted”—may
exclude
 Gives more reasons to exclude with at least the 4 Daubert factors to
consider
 *Still considers Frye standard as one factor
o 4. Khumo Tire:
 Daubert was specifically limited to “scientific” evidence in n.8
 Khumo Tire expanded Daubert’s analysis to “scientific, technical, and special knowledge,” as
worded in 702
 Conduct a Daubert analysis when expert evidence sufficiency in question
o 5. Daubert’s Flexibility:
 Remember that Daubert is not an exhaustive list of factors
 Not a check-list but factors that may be considered. Khumo Tire.
 Case-by-case analysis of when they will be helpful, although helpful in many cases
VII. Hearsay:
 A. Generally:
 1. What is Hearsay
 An out of court statement offered into evidence to prove the truth of the matter asserted in the statement
21
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


 FRE 801, 802
2. Effect of Hearsay:
 If something is hearsay, it is excluded unless an exception exists
 If it is not hearsay, no exclusion is needed to admit it
3. Policy:
 We exclude hearsay because the following 3 protections are not available:
o 1. Absence of Cross Examination:
 An out of court statement’s declarant cannot be cross-examined to find the truth of what was
said, whether was lie, mistake, etc…
 Because he cannot be cross-examined, the court’s truth finding function is disabled
o 2. Absence of Oath:
 The out of court declarant was not under oath
 Thus, the judge has no indication whether they felt a moral or legal obligation, punishable by
perjury to speak the truth
o 3. Absence of Demeanor Evidence:
 Because we are relying on a witness to restate a declarant’s out of court statement, we do not
get to see the declarant’s demeanor
 Inflection, expression, pause, appearance of declarant who made the out of court statement is
important to judge and jury to determine truthfulness
o Overall:
 There is a general policy choice of Evidence that live testimony is preferred
 More Reliable
 Reliability is Risked because:
o 4. Misperception of Declarant:
 the declarant may have been mistaken, and cross-examination helps find out but is
unavailable
o 5. Faulty memory of Witness:
 There are issues with exactly how an out of court scenario occurs
 The memory can be tested on cross-examination, but cannot occur due to the out of court
nature
o 6. Risk of Faulty Narration:
 Witness restating what was said out of court may not be correct in narrating
 He may not have fully understood meaning, context of the declarant
 Cross examination and Oath help establish accuracy but the declarant cannot be subject to
them
o 7. Risk of Distortion, Lying, Deception:
 If the witness is completely lying or making something up, there is no realy way to check it
 Thus, exclude hearsay in addition to cross-examination and oath helps assure this does not
occur
 Inquiry into Intention of Statement is Policy of Hearsay:
o Hearsay is premised on the idea that intentional statements, or statements that are intended to imply
something are more at risk of being lied about
 You can think, and therefore, formulate a lie
o However, if unintended, it is seen as more reliable and therefore, not likely to be hearsay
Basic Hearsay Framework:
 1. Is the statement Hearsay?
o Is there a statement?
 Express statement, implication, non-verbal conduct intended as an assertion?
 If No  No Hearsay Issue
 If Yes Examine the purpose of the offer and truth of matter asserted
o Is it offered for truth of matter in statement or implied by statement?
 If Yes Hearsay
 If not Hearsay, and no admissible
 2. If Hearsay, is there a Hearsay Exception to Admit?
o Common Law Categorical Exceptions
o Federal Rules Exceptions
B. The Basic Elements of Hearsay:
 a. General:
22

 Must meet the elements of hearsay to show that something is excludable as hearsay
b. When Something is hearsay:
 1. Out-of-Court
o Whenever someone is not at trial, someone is testifying to someone else’s statement begin to consider
hearsay
 2. Statement:
o A. The Declarant:
 FRE 801(b): The declarant is the party who makes the out of court statement
o B. A Statement (FRE 801 (a):
 An oral or written assertion
 Non-verbal conduct if intended as an assertion
 Examples:
 Nodding, shaking of head, pointing to identify
o Statement Under the Federal Rules:
 A. The assertion within the statement must be intended to be considered hearsay
 The Assertion can be
 1. Direct
 2. Implied (if strong implication versus merely circumstantial evidence)
 3. Non-Verbal conduct intended as assertion
 Example:
 1. People outside are putting up umbrellas
 We can draw implication that it is raining, and circumstantial evidence
implies such
 This is unintended, however, and not hearsay
 2. Paul Revere put up two green lanterns to warn of English
 Non-verbal conduct intended to assert that English are coming
 Non-verbal assertion may be hearsay
 3. Letter in Wright
 Implied competence in letter, but was not substance or strong implication of
letter
 Not hearsay
o The Distinction Between Statement at Common Law and Federal Rules:
 Generally:
 Anything implied by a statement was, at CL, hearsay
 Wright v. Tatham (England 1837):
 F: In suit to set aside a will, both parties put forth evidence to show the mental capacity of the
testator. The defendant put forth 3 letters, each of which discussing a business transaction
with the testator. They were used to show he was fully competent as he entered into complex
transactions and stated “you must settle this business dispute or suit will follow.”
 R:
 1. At CL Evidence that can imply a statement or opinion of a third party is
inadmissible just as if the implication had been said:
 Therefore, the letter implied that the testator was competent even though it
did not assert in any way that matter intentionally
 If the statement had been made Hearsay
 Therefore, if it’s implied  Hearsay
 2. This Case Under the Federal Rules:
 Would not be hearsay—the implication was unintended, and therefore there
was no statement
 No Hearsay issue

3. Offered into evidence to prove truth of the matter asserted in the statement:
o Two Part Inquiry:
 1. What is the truth of the matter of/implied by the statement?
 2. Is the statement offered to prove the truth/implication in the statement?
 What is the purpose of the offer?
 Is it to prove substance of the statement?
23



o
Will depend on the claims of the party offering the statement in the
pleadings
The context of the time the statement is offered
Who has the burden of proof at that point of the trial
Four Key Rules:
 1. If offered to prove the truth of the matter asserted in statement
 Will be Hearsay
 A technical and mechanical application of the rule
 Examples:
 1. Victim: “The Dean tried to kill me”
 In suit against Dean for murder
 Truth: is that dean tried to kill her
 Offer: To show dean tried to kill her
 Hearsay
 In suit against paramedics alleging negligent homicide where their
defense is she was dead when they got there
 Truth: is that dean tried to kill her
 Offer: to show she was alive when they got there
 Not hearsay as it shows she was alive, purpose doesn’t
match substance of the statement
 EG p. 108 (2A):
 In trial for armed robbery of defendant, witness testifies he heard
someone say:
 1. “Defendant Did it”  Hearsay
 2. If offered to prove the implication/indirect assertion of the statement/assertion
 A. If implication is so strong that should be treated as statement:
 Will Be Hearsay
 Why:
 The indirect/implied hearsay argument is that—while a mechanical
and rigid application of the hearsay rule doesn’t meet—the offer
and truth don’t match, the statement is still offered for truth of the
matter implied by the statement—implication is very strong
 EG:
 Man arrested, and as walking away with cops yells to his
friend “I didn’t tell them anything about you.”
 Hearsay: The implication was intended that the cops
didn’t know about criminal dealings
 B. Check & Pacelli and Indirect/Implied Hearsay—Framework To Deal With
 1. Determine Implication
 What is the truth of the matter implied in the statement?
 2. Determine the Implication and if offered to prove the implication?
 Argue that Hearsay is beyond a mere technical definition
 Although technical and rigid application of the rule would
not constitute hearsay as truth doesn’t = purpose of offer
 What is truth of the matter implied (strength of implication)
 3. Argue Policy
 That Hearsay is more than mechanical application of rule—must
be broader to include implied or indirect hearsay
 That implication is very strong—hearsay should reach it
 That implied/indirect assertion should be hearsay:
 Added danger of misinterpreting the declarant’s
implication
 No ability to cross-examine
 No Oath
 Implication is so strong that should expand past mere
technical application of hearsay
 Our language is broader than express truth
 That implied/indirect assertion should not be:
24


The danger of insincerity is reduced when implied
assertion of declarant’s
 Definition is technical
 4. Relevancy Question—403
 If dealing with implication’s of a declarant, one may be able to
raise an issue of confusion the jury or misrepresenting the
statement to the jury
 EG p. 108 (2A):
 In trial for armed robbery of defendant, witness testifies he heard someone
say:
 1. “Defendant should be put in jail”; “He carried money bag out”
 Argument:
 Technically, the truth of the matter is that he should be
put in jail; he carried $ out
 Your offering it to show he robbed a bank
 Not the same not hearsay
 Implied Hearsay Argument:
 This implicates defendant, and may intentionally imply
that the defendant is guilty…there is a statement
 It clearly demonstrates the witness’s belief, and
additionally would be unlikely to simply say this unless it
was intended to show the defendant robbed the bank
 Policy
 Hearsay
 EG:
 Negligence trial against doctor that plaintiff could not write any more
 Doctor introduces letter that discusses invitation to party
 Offered to show implication that plaintiff could still write
 No Hearsay— offered to prove the unintended implication of
letter—is not a statement—and no hearsay issue
 EG p. 110:
 Non-verbal assertion by truck driver had no intended implication in it
 Merely reacted to the green light
 Therefore, no hearsay, as no statement
 But:
 If driver yelled “when I move, you move because I know you
cannot see”
 Hearsay—intended implication is that the light is green
and therefore it’s safe for you to move
3. Statements that can convict or prove the ultimate fact in issue in a case will be hearsay
regardless of whether they were intended:
 US v. Pacelli:
 F: Witness, on stand, testified to the statements of the defendant’s wife,
uncle and friend. Implied from their statement was that the defendant
clearly knew and probably did kill the victim. “He bungled the murder, and
should have hid the body”; “He should leave town”
 R:
 1. Implied or circumstantial inference from out of court
statement will be hearsay if it can prove the ultimate issue
 Here:
 Witness is restating out of court statements that imply the
defendant killed the victim
 This fits exactly with policy of being unable to crossexamine such witnesses to assure the implication drawn
from their statement is accurate
 2. Irrelevant Whether Intended or Not:
 To be considered a statement, implications usually must
be intended
25

In a case where speaks to ultimate issue, implication does
not have to be intended



Example:
 In trial for armed robbery of defendant, witness testifies he heard someone
say:
 1. “I saw defendant walking out with bags of $”
 If we can prove this, the ultimate issue in the case is likely
proven, that ∆ committed the robbery
 Because this is the implication, Hearsay
4. A Prior, Out-Of-Court Statement by a Testifying Witness is Hearsay:
 Although a declarant is now in court, their out of court statements are still hearsay
 Note:
 Policy arguments may lead to judge admitting, as he can be crossed and
under oath now
 Prior, in court statements, can be used by testifying witness
 See Exceptions dealing with declarant testifying
c. Common Law Categorical Exceptions to Hearsay:
 Generally:
o As seen above, when the purpose of the offer is to prove something other than the truth of the matter
asserted in the statement there is not hearsay
o Generally, there are several instances that are accepted by courts as other uses of out of court
statements
 These may be considered categorical exceptions or exemptions
 Some will be hearsay and not treated as such, while others will not fit hearsay definition
 1. Interrogatory
o When witness restates an out of court question it is not hearsay
o There is no truth in a question
o Must be an assertion
 Compound Questions with Statement Inside:
 An interrogatory could potentially have compound parts, where one part does have
an assertion in it
 In these circumstances, the interrogatory can be argued not hearsay, but the portion
that is hearsay will circumvent the interrogatory nature of the statement
 Thus, there can be a hearsay issue with interrogatories
 2. Imperative:
o May not be hearsay
 “Go to Florida”
 “Look at the Red Barn”
o Note:
 Can be if “offered to prove the truth of the matter asserted”
 I.E., “Look at the Red Barn” To prove the barn was red Hearsay
o Argue Policy
 3. Negative Hearsay
o Generally:
 Evidence that “no one said anything,” or no one complained is not hearsay
o Cain v. George:
 F: Boy died of carbon monoxide and parents sued hotel. They allege that heater was not
working properly and that ∆ was negligent.
 R:
 1. Testimony that no one said anything is not hearsay
 There is no out of court statement
 No one to rely on, and therefore, policies of hearsay not implicated
 Although implies, circumstantially, something, there is no intentional
assertion
 Note:
 At CL, the implication would be hearsay regardless of the
intent
 4. Impeachment by prior inconsistent statement:
26
o




When a witness made a prior inconsistent out of court statement with testimony being given
 Can occur on cross-examination or by a later witness’s testimony
o Is Not Hearsay
 The purpose is to show the statement is conflicting, not the truth/substance of one or the other
 Whichever one is truthful is irrelevant, as the other must be untrue and therefore witness is
impeached
 Some Counsel may attempt to slip hearsay into testimony with this exception:
 403 objection to the confusion of jury
 105 limiting instruction to limit the testimony to impeachment, but not substance
o P.124 3-C
5. The Verbal Act Doctrine:
o When the substance of a statement is their independent legal significance
o Offered to prove the legal effect of the statement even though it may be the substance
o Thus, the words are a legal action, and that they were said is what they are being offered for
o Policy:
 These types of statements are not casually stated
 Persons using them are typically not likely to lie
o Example:
 Words that create a contract, transfer title, grant authority, a confession
 P. 125:
 Words in the statement have legal significance of passing title
 “I offer you 3000 units” to show offer of contract
 “We guarantee the loan” to show a guarantee
o Not Hearsay
6. Verbal Object:
o When words are on an object they are not treated as statements
o Merge with the chattel and thought of as the object
o Policy:
 Typically used with words that are attached to some good, created by a business
 Thus, more trusting of businesses as they are unlikely to lie on a good they produce
o Example:
 “Smart Water” printed on a water bottle
 It is an out of court created statement, but not considered hearsay
o Not Hearsay
7. Words Offered to Prove Their Effect on The Hearer:
o If the way the hearer of words reacted to them is important to a case, the words or statement may be
offered to establish the reaction
o 105 Limiting Instruction should be used:
 It is easy for a jury to listen to their substance rather than thinking about the effect they had on
the hearer
 Thus, judge should tell jury to limit their use to the hearer’s reaction
o P.126 Example
 Agent of company comes to examine pipe, saying “I work for Pipe company.” Hearer
follows over to pipe, which explodes.
 Reasonableness of Hearer’s Act:
 These words may come in, as they show it may be reasonable to follow a
professional to a damaged pipe if he is doing it
 However: To show he is employee:
 Hearsay: falls directly into the definition of hearsay, as you are offering to
prove the truth of the matter asserted
8. Circumstantial Evidence of State of Mind or Memory:
o When out of court statements are offered to draw an inference or circumstantial evidence of the
declarant’s state of mind or what they remember
o Their indirect implication is what is of importance to claims at trial
 Not Offered to prove truth of the matter asserted
 Instead, their implication proves state of mind
 Implies that they remembered something
o P. 128 Example:
27

The journal writing implies that, by giving him $1, he could not have expected anything else
as she did not like him anymore
 Thus, we can draw the inference that she had a negative state of mind towards him
o Example:
 “Can you give me the key to the library so that I can go downstairs and get the red evidence
book out of the locked container it is in?
 Implication is that she has memory of the location and book Not Hearsay
o See Wright, supra
 9. Animals and Machines:
o Animals are not declarants
 There is no hearsay issue
o Machines are not declarants
 There is no hearsay issue
 d. Hearsay Within Hearsay—FRE 805:
 General:
o Out of court statements may be layered
o There must be an exception for each layer of hearsay for the hearsay statement that contains
other hearsay to be admissible
 ALWAYS LOOK FOR STATEMENTS THAT HAVE OTHER STATEMENTS
 Example:
 “Then, the doctor said that he spoke to the wife, who mentioned her husband had
discussed his feeling sick”
 Out of Court Statements:
 1. Doctor—“Wife said…”
 2. Wife—“Husband Said he felt feel sick”
 3. Husband—“I feel sick”
 Applicable Cases:
o Check; State v. Motta; Petrocelli; Mahlandt
VIII. The Hearsay Exceptions
 Generally:
 Hearsay is excluded from trial, unless there is an exception
 The Federal Rules Exceptions utilize the out of court statement for its substantive evidentiary value
 1. Declarant Testimony Exceptions:
 General:
 There are 3 exceptions for when a declarant’s out of court statement is admissible
 1. Prior Inconsistent Statement—FRE 801(d)1(A):
 A. Generally:
o Substantive Use:
 This is a statement you want to bring into court for its substantive use
o Impeachment Use
 It is different from the Impeachment exception
 With Impeachment, you rely on a common law categorical hearsay exception
 It is not made for substance, but to impeach the witness
o A Witness may get on the stand and change their story—here, you want to bring in the prior out of
court statement to show the truth—to use its substance
 B. Rule: Declarant’s out of court statement is admissible if:
o 1. Testifies and is subject to cross examination about the prior statement
o 2. It is inconsistent with the declarant’s testimony
o 3. The prior statement was given under the penalty of perjury
o 4. And was made at a trial, hearing, deposition, or other proceeding
 C. The Elements:
o 1. “Subject to Cross Examination”
 Often times, witnesses may get on the stand and say they forget the event or cannot remember
what actually happened.
 General Rule:
 You are subject to examination even if you forget what happens
 If you are feigning loss  “Subject” to cross
 If you have actual/diagnosed loss Not “Subject” to cross
o 2. “Prior Inconsistent Statement”
28

o
o
Inconsistency does not require complete opposite of prior statement
 May occur if
 evasive answers
 silence
 change in position
 Loss of memory (if feigned)
 Not if diagnosed
 Overall, these the question of admissibility is usually answered by admitting such
“inconsistencies,” and letting the jury decide what the truth is
3. Penalty of Perjury
 Note:
 Although the old rules required an “oath,” the new rules do not require an oath
 They merely require you be under penalty of perjury when prior statement was made
4. “Trial, Hearing, Deposition, or Other Proceeding”
 General:
 This includes grand jury, and preliminary hearing testimony
 Other Proceeding—State v. Smith:
 F: Victim was assaulted by a man, and gave testimony to police. She went to the
police station, wrote an affidavit in her own words, initialed each page, witnesses
read it back to her, and she agreed with it, signing it. She understood it would be
used, and was under the penalty of perjury. On the stand, she changed her story,
saying it was a different man than the one in the affidavit. Prosecutor admitted it as
a “prior inconsistent statement.”
 I: Is the written affidavit at police station an “other proceeding?”
 R:
 1. Minority View: A Written Affidavit May be an “other proceeding”
 Totality of Circumstances will show what “other proceeding is”
 Reliability is of Key Importance for “proceeding”
 It was near the time of the event, and all the facts show
she knew it was of great importance, she wrote it in her
own words
 It appears to be reliable testimony, and she is now subject
to cross examination if it is not
 “Proceeding”
 Trial, deposition, grand jury demonstrate the significance
of the event—promoting reliability
 The Facts here show affidavit sufficiently reliable
 2. Majority Position: A written Affidavit is Not “Other Proceeding”
 Most states do not abide by the Smith view
 The police station affadavit is too coercive
 Too much possibility that witness’s statements may not be
reliable—given the intimidation of the surroundings
 Policy of Hearsay too strong an issue
 As Reliability is key issue with hearsay, the affadavit may
not be adequately reliable
 Washington is Unique:
 The prosecutors came up with the system of having
witness write her own statement knowing they would
potentially get it in with hearsay exception
 Reliability not as much an issue with the facts of Smith
 3. Practice Note:
 Here, the prosecutor used the prior statement to impeach—which
does not require an exception
 Defense argues for “limiting instruction” to ensure that it
is not used substantively
 He then admitted it substantively
29


Note: when you admit prior inconsistent statements
substantively, you are also impeaching the witness by
showing they contradicted themselves
2. Prior Consistent Statement—801(d)1(B)
 A. General:
o This exception largely mirrors the prior one
 Prior Inconsistent:
 Used to Impeach (Common Law Exception)
 Used Substantively (FRE)
 Prior Consistent:
 Used Substantively (FRE)
 To offer the truth of the prior statement
 Used to Rehabilitate the Witness (Common Law)
 Note:
 For instance, if your witness has been cross-examined and seems
to be impeached, or troubled, you may offer statements made prior
to the questioning to rehabilitate character
 I.E., statements that were consistent with testimony, rehabilitating
character
o Use:
 Again, much like “inconsistent” rule, this rule is used to admit prior testimony that was
consistent as substantive evidence
 B. Rule: A Declarant’s prior out of court statement may be admitted if:
o 1. Testifies and subject to cross-examination
o 2. The statement is consistent with declarant’s testimony, and
o 3. Offered to rebut an
 Express or Implied charge that the declarant recently fabricated testimony, or acted from
a recent improper influence or motive to testify
 C. Pre-Motive Requirement of Prior Consistent Statements:
o Tome v. US:
 F: Tome was convicted of sexually abusing is daughter. She told many people about the
incidents. Her parents had recently been divorced, and she was living with her father. She
was difficult to talk to on the stand, as a child, and the defense suggested that she was
motivated by her desire to live with her mom. The prosecutor then admitted 5 statements by
witnesses, describing what she said to them about the incidents.
 I: Do prior consistent statements have to have been made before the improper motive arose?
 R:
 1. Prior Consistent Statements must have been made prior to improper motive:
 Used in this way, they directly rebut the suggestion
 Although consistent statements made after the motive to lie arose do help,
they do not squarely rebut the improper motive
 Construction of FRE:
 Silence here is construed to incorporate the common law premotive requirement
 Unlike Daubert: which utilized silence to demonstrate that
the common law was superseded
 The Court interprets that if the Advisory Committee was departing
from the common law, it would have stated so
 801(d)1(B) Pre-Motive Requirement:
 To Be used, a prior consistent statement must occur prior to
the motive/improper influence arising
 Dissent (Breyer):
 The common law pre-motive requirement was linked to whether something was
relevant to rehabilitate; not to hearsay, offered substantively
 It was used to rehabilitate witnesses
 Thus, to rehabilitate, it had to have occurred before the improper
motive arose
 The Federal Rules, however, permit prior consistent statements for
substance
30
 They were not concerned when substantive comment occurred
Effect:
 Tome extends the pre-motive requirement to the substantive use of consistent
statements
 It is unclear whether this is required for rehabilitative use as well, but courts
generally construe it as only applying to substantive use
D. Determining When the Motive Arose:
o General:
 The difficulty in applying the pre-motive requirement is to determine when the improper
motive arose, then determining if the statements that are consistent with testimony were made
before
 Effect:
 Every statement after the motive arises is now inadmissible hearsay under this rule
 Defense or Plaintiff, therefore, may exclude much with choosing time of motive
o Note:
 Other exception will likely still lead to prior-consistent statements becoming admissible



3. Prior Statement of Identification—801(d)1(C):
 A. Generally:
o When a party has identified someone prior to trial, that may be admitted
o Policy:
 Pre-trial identifications are more trustworthy
 They are conducted in method to ensure accuracy, and occur closer to the incident
 Less pressure than an in-trial identification
 This rule permits the admission of pre-trial statements, that were made by a witness after
perceiving the subject
 B. Rule:
o 1. Party testifies and is subject to cross-examination
o 2. Prior statement identifies a person as someone they have perceived earlier
 C. Elements:
o Statement
 The prior, out of court statement can be
 Verbal
 Sketch
 Picture
 Identification in line-up
o Remember the Statement must be an intentional assertion
 Analysis may require argument that the out of court action is indeed a “statement”


D. Sketch as a Statement of Identification—State v. Motta:
o F: Coffee store was robbed at gun point. Anna worked with a sketch artist to come up with a picture
of the suspect. Later, ∆ was arrested pursuant to this sketch. At trial, anna confirmed her prior
identification, and the sketch was admitted.
o I: Is the sketch hearsay, or subject to the identification exception?
o R:
 1. A Sketch is a Statement—and Hearsay:
 It asserts the truth of the matter and was an intentional, non-verbal assertion
 Has the same effect as a verbal description of the party
 2. 801(d)1(C) Permits Prior identification:
 The sketch was a prior “statement” that identified the party
 It is properly admitted as substantive evidence under the exception
2. Opposing Party’s Statements—801(d)(2):
 General:
 This is one of the more important exceptions, as it broadly applies to many statements
o Must be offered against a party in the litigation
o Any statement made by the opponent you seek to use statement against applies under this rule
 Does not require a “statement against interest”
 You do not have to concede something, or admit to crime
31

 You merely have to have said something
Must be a “statement” per 801: Intentional Assertion:
 Sleep talk
 Intoxicated
 Injured
 Hospitalized,
 Silence, and non-verbal cues may constitute a statement
 Question is Was it an intended assertion (direct or implied)
 Statement
 Unintentional, coerced, or under duress?
 Not Statement
 Statement does not include admissions by settlement:
 Your acts at settlement may not constitute a statement


Policy:
o Statements by an opponent at trial come in against that opponent because
o 1. We have adversarial system—conduct in and out of court effects you
o 2. Cross-Examination is non-issue—the opponent is at trial, and may testify if they want to defend
statement
o 3. You should be held accountable for what you say and do—it is available against you
 If you disagree, you may take the stand
A. 801(d)2: A prior statement is offered against the opposing party, and
 (A) Made By The Party
o 1. Made by the party individually or
o 2. Made by the party in a representative capacity
o Elements:
 1. “Statement”
 Any statement by the opponent you seek to use statement against applies under this
rule
 2. Made by the Individual
 Made by the party you’re offering against
 3. Representative Capacity
 If the party is representing someone, you may offer the representative’s statements
against the representative
o 1. Statements In Multi-Party Situations in Criminal Trial—Bruton v. US:
 F: Two defendants were tried together. Witness testified that ∆1 stated “he and ∆2 had
committed the robbery.” Judge admitted the statement against both ∆s, but applied a limiting
instruction, telling the jury that they could use the statement only against ∆1, the party who
said it. Both were convicted.
 I: Whether a co-defendant’s prior admission may be used in trial when a limiting instruction
is given to prohibit the jury from using it against co-defendant who didn’t say it?
 R:


1. A Limiting Instruction Is Inadequate to Avoid the Jury’s consideration of an
Out of Court Statement by One defendant against both:
 A. The out of court statement is only admissible against the party who said
it per 801(d)2(A)
 It is not admissible against a co-defendant
 However, when two defendants are tried together, a limiting instruction
isn’t enough to ensure this
 Jury is easily confused, forget to do so
 Difficult to Ignore its effect
 Fails as a legal protection
Effect of Bruton:
 In a criminal trial
 Necessitates having separate trial for the two defendants rather than risk a
hearsay statement’s improper use against a defendant by the jury
 Redaction may not be sufficient, if it still leads to a ∆ in the action
 In a civil trial
32


 May still be permitted to use
 Redaction may be utilized if it adequately avoids referring to one of ∆s
Potentially Harmless Error:
 If an out of court statement by the co-∆ exists, a Bruton objection may not
be sufficient, as the jury already has a statement from both co-∆s
(B) Adoptive/Tacitly Accepted Statements:
o Rule:
 A prior statement is offered against an opposing party and is a statement that the party
manifested to adopt or accept as true
o Generally
 If the opponent did not make a statement, but you manifest an adoption of the statement—it
may be used against you
 Example:
 Your girlfriend says you robbed a bank, and you say “Yep”
 Your girlfriend says you robbed a bank, and you smile and nod
 These adoptive admissions can be used against you
 “Yes that’s correct,” “nod,” can be adoption of statement by another party
 May Consist Of:
 Accepting a statement as true, by repeating it as true
 See Mahlandt
 Note:
 It is not merely repeating the statement heard—but must be
more…a manifestation of belief/acceptance of it as true
 Example:
 Petrocelli, supra
 Wife told Husband that Doctor said “I Cut Nerve”
 Husband Went to a second doctor and said “my nerve was
cut”
 Silence or non-verbal acceptance
o 1. Adoptive Admission’s Effect on Hearsay Within Hearsay:
 For Hearsay within Hearsay, you must have an exception for each level for the statement to be
admissible
 If Adoptive Admission of Another’s Hearsay This Rule Does Not Apply
 Once a statement is adopted, the adoption shrinks all statements within into one
statement
 Therefore, the adoption incorporates all past statements and there is only one
statement for consideration, that is admissible with 801(d)2(B)
o 2. Silence Can Be Adoptive Admission:
 US v. Hoosier:
 F: Witness was told by ∆ that he was going to rob a bank. Later, ∆’s girlfriend said
they had piles of money at home. ∆ was silent on the fact
 I: Whether out of court silence was inadmissible hearsay or permitted?
 R:


Silence May Be Admissible As an Adoptive Admission:
 Test: Under a totality of the circumstances, is the verbal or nonverbal statement so clear and unambiguous that normal human
behavior would usually illicit a response to it?
 If Yes Silence can be an adoptive admission
 If No Ambiguity of statement may not illicit response,
and silence may not adopt an admission
 Note: Subject to Miranda cases, infra
 Here:
 In light of other statements previously, failure to
refute/silence was adoptive admission—appeared he
adopted the statement
More Than Silence Alone Is Needed:
33


o
Had the ∆ merely been present and stayed silent, that would not
have been enough
 However: with totality of circumstances, silence was
adoptive
P. 200 4E: The first statement may be too ambiguous to illicit a response to consider is silence
on the matter a tacit admission. However, the second has enough facts that arguably most
people would respond with “you’re mistaken” or something to that extent. Thus, the second
may be a silent, tacit admission of the statement.
3. Pre and Post-Arrest /Miranda Silence and Adoptive Admissions:
 1. Post-Arrest/Post-Miranda Silence: Doyle v. Ohio:
 F: ∆ was convicted in selling large amounts of drugs. However, he argues that he
was not selling them, but instead wanted to buy them but changed his mind. The
informant the police used merely threw the money at him and walked away. He
remained silent when arrested, and on cross-examination prosecutor attempted to
impeach him with his prior contradiction—that he didn’t say anything, as substantive
evidence. This triggers hearsay, as an out of court statement used for its substantive
value.
 I: Whether Post-Miranda silence may be used as evidence of an adoptive admission?
 R:
 1. Post-Arrest, Post-Miranda silence MAY NOT be used as an adoptive
admission for impeachment or substantive purposes—Violates 5th
Amendment:
 The defendant is merely exercising a right granted to him by the
constitution—using that right against him, that you inform him he
has is unconstitutional
 The defendant relies on his Miranda right
 Note:
 When reviewing, review this case for impeachment
 Uses (1) Sensory perception (police couldn’t see), (2)
prior inconsistent statement, and (3) contradiction
 Note:
 Impeachment by contradiction is a use of the substantive
evidence. Unlike prior inconsistent statement
impeachment where it does not matter whether the out of
court or in court statement is true, here we are asserting
that the prior statement is true, and that the witness is
contradicting himself.
 When using substance to impeach whether the
substantive prior inconsistent statement (rather than
CL), or Contradiction Need a Hearsay Exception
 2. Pre-Arrest/Pre-Miranda Silence: Jenkins v. Anderson
 F: Police went to a suspect’s house, and discussed an incident where he was alleged
to have killed someone. He was silent about any self-defense. Later, he said it was
in self defense. The prosecution argued that he was silent as to the fact that he was
alleged to have murdered someone, and should have been a situation to illicit
response that it was self-defense.
 I: Does pre-Miranda silence permit the adoptive admission doctrine?
 R:
 1. Pre-Arrest, Pre-Miranda silence MAY be used as an adoptive
admission
 801(d)(2)(B) may be used with pre-arrest, pre-miranda silence
 Here:
 Silence was used as substantive evidence of his adoption
of the idea that he killed someone, that it was not in self
defense

Overall:
34




 Pre-Arrest, Pre-Miranda  Jenkins: Silence may be adoptive admission
 Post-Arrest, Post-Miranda  Doyle: Silence may not be adoptive admission
(C): Authorized Agent Exception:
o A. General:
 This exception applies when a principal authorizes an agent to speak on a particular matter
 EG:
 Real estate agent, an attorney
 Board of Directors for the Corporation
 It permits the authorized statement to be attributed to the principal
o B. Rule:
 Statement offered against an opposing party(principal) is admissible if it was made by a
person that party(principal) authorized to make a statement on the subject
 Note:
 This is authority to make the statement that was made
o C. Determining Agency:
 The statement is necessary, but not alone sufficient to determine the agency
 You must have the statement + other evidence
o D. Litigation Documents As Authorized Statement:
 Pleadings, answers to interrogatories are admissible against the party who authorized a lawyer
to speak on the matter on his behalf
 Not “Admissions”
 These are merely designed to be judicially economical, narrowing down the
potential issues for trial
 To encourage their use, and avoid deterring people from using for fear of
being admitted against them in evidence—are not admissible
(D): Admissions by Employee or Agent:
o A. General:
 In this situation, there is no specific authority granted to make the statement
 However, because the agent or employee has the authority to act within his employment’s
scope, and makes a statement on a matter within that scopeattributable to principal
 EG:
 Truck driver crashes. He yells that his brakes were broken and failed. This is
admissible against the employer, as statement was on a matter within the scope
 In Mahlandt, the employee of the Corporation adopted an admission about the wolf
biting, and therefore bound his employer as it was within the scope of employment
 Relation to 801(d)2(C):
 If a statement fits 801(d)2(C), it will likely fit 801(d)2(D)
 However, the reciprocal is not true as just because you are an employee
does not mean you are authorized to speak on a specific statement
o B. Rule:
 Statement offered against an opposing party, and it was made by the party’s agent or
employee, on a matter within the scope of the relationship while it existed
o C. Determining Agency:
 The statement is necessary, but not alone sufficient to determine the agency
 You must have the statement + other evidence
 Factors to Evaluate:
 What was the scope of employment
 Was the matter discussed within that scope
 Corporate Litigants:
 The Board of Directors has broad authority to speak for the
corporation on broad matters—litigation, hiring and firing, etc…
For Review and Study, See Mahlandt Discussion on Separate Sheet*
(E): Co-Conspirator Admissions
o A. General:
 In this scenario, we are dealing with a statement made by a party to a conspiracy, and seeking
to admit it against another party of the conspiracy
o 801(d)2(E):
 A statement offered against an opposing party that
35


1. Was made by the party’s coconspirator during the conspiracy
 Note:
 Not before/after
 Post-Arrest statements are usually not ‘during’ the conspiracy
 2. In furtherance of the Conspiracy
 Note:
 Must be a statement that moves the conspiracy forward
 Not merely conversational language
o B. Predicate Facts that Must be Established Before Use:
 General:
 In order for this exception to apply, the elements must be met
 Bourjaily v. United States
 1. The Court Determines whether the elements have been met:
 The question is one for the court, not the jury, and is a 104 preliminary question
 2. In determining whether the preliminary elements have been met, the proponent must
prove to the Court By a preponderance of the evidence
 Note, again, that at the 104 stage, this is not a question of whether there was in fact a
conspiracy
 Merely a question of whether there is adequate evidence to give to the jury to weigh
 3. The Statement must be considered in determining whether predicate facts existed—
But alone, is not Sufficient to Establish the Conspiracy or Participation therein—FRE
801(d)2
 Thus, in the court’s determination, the statement + other evidence must be
admitted for the court to meet the preponderance standard
 Note:
 This is a limitation on the discretion permitted by FRE 104
3. FRE 803—Unrestricted Use Exceptions:
 General:
 These apply regardless of whether the declarant is available or unavailable—doesn’t matter
o Distinguish from 804:
 804 requires that the declarant be unavailable to utilize
 A. Present Sense Impression, and Excited Utterances:
 General:
o These statements are based on the common law concept of res gestae—a concept which broadly
included statements made at or near an event resulting in the statement
o They are based on the immediacy of the situation and excitement
 Because of the immediacy, it is thought there is less time to think and thus fabricate
 More reliability of statement
o Example:
 In Mahlandt, Clarke’s statement that “Danny got bit by a wolf, he’s dying!”
 Likely admissible under 803(1) and 803(2)
 1. 803(1) Present Sense Impressions:
o Rule:
 A statement describing or explaining an event or condition
 Made while or immediately after declarant perceived it
 Note:
 The statement must have been made during, or immediately after the event
perceived
o 1. Common Uses of 803(1):
 A. Statements identifying a criminal immediately after an event
 *Often occurring on a 911 phone call immediately after the event occurs
 B. A Criminal Defendant’s Statement During an Act
o 2. What Time Limit Constitutes “During” or “Immediately”
 It is clear that “during” is easy to define, but immediately after has limits
 US v. Penny: 10 or 20 minutes following was not immediate enough to fit 803(1)
 Remember Policy when considering time-lapse:
 The immediacy is key, as it avoids reliability issues as there is no time to think
36

o

Thus, consider whether the lapse of time provided an opportunity to fabricate or lose
memory
3. Application: Nuttal v. Reading:
 F: Wife brought suit alleging that ∆ company got decedent to work while they knew he was
ill, in violation of federal law. In testimony, she testified to witnessing her husband on the
phone with his boss, letting boss know he was sick, and immediately after phone call, he said
to her I guess I have to go to work today.
 I: Whether the husband’s statement was a present sense impression?
 R:
 1. Hearsay Within Hearsay Issue:
 The conversation with boss is hearsay within hearsay, as boss’s statements
are also hearsay
 They need an exception, and have one:
 1. 801(d)2(C), and (D)—he is the ∆’s agent and authorized to
speak on the matter
 2. Effect on the Hearer—to show that decedent was forced to work
 3. Circumstantial Evidence of State of mind—that, depending on
what was said, boss was pressuring decedent
 2. The Statements Were Present Sense Impressions:
 Here:
 The statements decedent made were explaining the conversation,
made during and immediately after the phone call
 Thus, they should be admitted
 Policy of Present Sense Exception
 When made substantially at the time the event they described was
perceived, they are free of possibility of memory lapse by
declarant
 Thus, they are more reliable
2. 803(2) Excited Utterance:
o A. Rule:
 A statement relating to a startling event or condition made while the declarant was under
the stress of excitement the event that caused it
 Distinguish from Present Sense Impression:
 1. Here, the time Extends longer into the future, and statement can be made
farther post-event if under the “stress of excitement”…in 803(1), must be
made at latest ‘immediately’ after
o B. Policy:
 The excitement of the event suspends the ability to fabricate, is the statement is made in
reaction rather than thought out
o C. Time lapse between the event and when statement is made:
 1. There is no bright line test:
 People v. Smith—admitted statement describing assault 9 hours earlier
 State v. Stafford—admitting statement that occurred 14 hours earlier
 Post Coma:
 US v. Napier—admitted a statement that was made upon awaking from a
coma, 7 weeks after event occurred
 Fact Specific Inquiry
o D. Typical Usage of Excited Utterance Exception:
 1. Accident Cases
 Often, an injured party describes what happened shortly after the event occurred
 A bystander who is startled may also described what occurred
 2. Violent Crime
 The victim or bystander describes what happened
 3. Child Abuse
 A child might tell someone what occurred following some startling event
 Time Lapse and Children:
 Due to the childs youth, courts may be more lenient in determining that the
alarming nature of the triggering event or excitement lasts longer
37

o
Thus, statements may be more likely to fall under the 803(2) excited
utterance exception
E. Application: US v. Arnold:
 F: Man threatened a women with a loaded gun. She (1) Called 911 in hysterical mood, (2)
made statements to police when they arrived, and (3) When man came back to the scene she
made more statements. From time of the initial event, to final statement was nearly 20- 25
minutes after 911 call.
 I: Are these Excited Utterances?
 R:


1. The 803(2) Excited Utterance Framework:
 1. There must be an event startling enough to cause nervous excitement
 2. Statement must be made before there is time to contrive or misrepresent
 There is no bright-line test for time lapse:
 As long as the testimony occurred when the declarant is
nervous, distraught or emotionally upset, it is adequate
 3. Statement must be made while under the excitement caused by the event
 Overall:
 Whether the utterance was spontaneous or thought out
 Here:
 1. 911 Call, Statement to Police
 Easily Meets 803(2), as the drawn gun startles one
 The statement was made when distraught and upset
 Thus, it was caused under excitement of the event
 2. Post-Initial Event
 Following the initial event, the unexpected re-appearance of the
perpetrator is sufficient to establish a startling event
B. 803(3): State of Mind Exception:
 A. Rule:
o 1. To prove the then existing mental state (motive, intent or plan) or emotional condition (mental
feeling) of the declarant
o 2. To prove the then existing physical condition of the declarant
o 3. Use of present intention to prove future action
o 4. But, not a statement of memory or belief unless it relates to the validity or terms of declarant’s will
 B. Policy:
o Much like 803(1) and (2), the immediacy of the situation with the condition being described increases
likelihood that the statement is reliable and accurate—res gestae
o Statements under 803(3) are about the “then existing” condition—thus, their immediacy to the issue is
very close
 C. To Prove The Then Existing Mental State or Emotional Condition of Declarant
o This Only applies to the declarant’s then-existing state of mind if at issue**
o Does Not Include:
 1. How one felt in the past
 “I Felt”
 2. How one will feel in the future
 3. Statement of Fear/Declarant’s Belief of Another’s State of Mind/intent:
 Generally, an out of court statement of fear of one party or an out of court statement
of the declarant’s belief/intent of another does not fall under 803(3)
 Most Courts Do Not Admit
 Reason:
 1. Most often, the victim’s state of mind is not “at issue”
 2. We treat these statements as ones which do not fit the hearsay exception
 (1) Because of the core policy issues of hearsay—these have issues
of reliability, and relevance to the issue
 (2) Irrelevant: Courts often hold these statements are not relevant
to the ∆’s intent, whether the ∆ did commit a crime
 (3) Because of this, and issues with 403—including the prejudicial,
misunderstanding potential
 Example:
38



“I think he is going to kill me” or “OJ Wants to Kill Me”
 The victim’s mental state is not at issue
 Not Relevant, Highly prejudicial, and risk of confusion is very
great for a jury—so, under 403—excluded or treated as hearsay
and excluded
In Some Cases, Victim’s State Of Mind may be “At Issue”:
 If Duress charge, victim’s fear may be more relevant and may be “at issue”
than the victim’s state of mind in a murder case
D. Present Intention to Perform Future Subsequent Conduct:
 General:
 An out of court statement of the declarant’s present state of mind may demonstrate an intent
to perform some action, and may be admitted to infer that action was performed
 Thus, the Hillmon Doctrine permits inferences to be drawn from the hearsay statement,
admissible under 803(3)
 1. Mutual Life v. Hillmon (US 1892):
 F: Hillmon was suing insurance company for proceeds of her husband’s life insurance.
However, Life insurance company argued that Hillmon was not dead, and instead it was
Berkely. To show that Berkely went to the scene of the crime, ∆ offered letters showing his
intent to “travel with Hillmon.”
 R:
 1.The Hillmon Doctrine
 When the performance of an act by an individual is at issue
 a court may use the declarant’s then existing intention to perform
the act to infer that the intended act was accomplished
 2. Effect:
 If a declarant makes statement of his intent, it may be introduced to show
that the act intended was accomplished
th
 2. US v. Pheaster (9 Cir. 1979):
 F: Declarant said he was “going to meet Angelo” to buy cocaine. He never returned, and was
found murdered. Prosecutors offered the statement to show that, not only did the declarant’s
intent result in his accomplishing the act, but Angelo acted as well.
 I: Can the declarant’s intent be offered to show another’s accomplished act?
 R:
 1. Pheaster Extension of Hillmon
 The present intent to act of the declarant may be offered to show another’s
accomplished act
 2. Arguments For or Against Pheaster:
 A. Reliability is at issue
 The declarant’s statement implicitly has the other party’s intention
and future act within it—The inference from declarant’s statement
to another’s action may be unreliable
 Goes to the core policy concern of hearsay—that out of court
statements may be unreliable
 Or, could raise 403 argument that it is prejudicial
 B. The declarant’s statement still fits 803(3)
 Our Concern is the hearsay statement—It is still equally reliable
based on immediacy of then existing intent
 The issue of declarant’s accomplished act and another’s
accomplished act is one of the inference drawn from the
statement—which is clearly admissible under 803(3)
 Thus—should be question for the jury of inference’s weight
 Here:
 The offer of victim-declarant’s statement of his intent to “Meet
Angelo outside” was admissible as evidence of Angelo’s action of
going to meet victim

 Note:
 Pheaster is the minority View
39


C. Three Divergent Views Of The Reach of The Pheaster/Hillmon Doctrine:
 1. Majority View:
 The Hillmon doctrine may be offered only to show the intended action was
accomplished by the declarant, and not another party
 Policy:
 Most Courts feel that the inferential jump from one’s intended act, to his
accomplishment of that act is reliable
 But the inference from one’s intention to act extending to another’s
accomplished act is too far
 Brings up the quintessential hearsay policy issue of “Reliability” of
the statement—thus, courts find the inference too attenuated
 Use of Limiting Instruction:
 If courts find the statement fits under 803(3), they may give an instruction
to the jury to ensure they only use it to infer the conduct of the declarant,
and not another party
 Effect:
 If offered to show the conduct of another party—Majority view is to reject
it under 803(3), treating as inadmissible hearsay
 2. The “Corroborative Evidence” View:
 The declarant’s statement, alone, may not be offered to show another’s action
 But, with additional corroborating evidence of the other’s action, the declarant’s
statement may be offered
 Example:
 “I’m going to meet Angelo outside” coupled with evidence that someone
saw Angelo outside, or his car outside
 3. Minority View:
 9th Circuit Pheaster View:
 That a declarant’s statement of intent may be offered to show that he
accomplished this intended act, and that another also accomplished the act
implied in the statement
 Example:
 Declarant stating “I’m going to meet Angelo Outside” offered to show that
Angelo went to meet Declarant
C. 803(4) Medical Diagnosis or Treatment Exception:
 1. Rule:
o A statement that
 1. Is made for and is reasonably pertinent to medical diagnosis or treatment and
 2. Describes medical history; past or present symptoms or sensations; their inception; or
general cause
 2. Policy:
o Statements made about ones health, typically to a doctor are considered more reliable
o People—it is assumed—generally want to be accurate when discussing medical issues
 3. Scope of Rule:
o A. There is No Temporal Limit
 There is no temporal limit like present sense impression or excited utterance, or state of
mind—
 Statement can be about present or past symptoms
o B. Extends Beyond Statement to or By Doctor About Your Health
 1. The rule does not require the statement to have been made to a doctor, or by a doctor
 2. It may extend beyond to regular people—EMT, Nurse, Family Member
 3. May be a statement about someone else’s health
o C. Must be “Reasonably Pertinent” to Diagnosis or Treatment
 This does not include anything possible that your doctor has included in the chart—majority
of personal issues may not be “reasonably pertinent”
o D. Limitations to Application:
 1. “Diagnosis and Treatment” do not include domestic disputes
 Removing a child from harmful or abusive household does not constitute “treatment”
by a psychologist—typically does not fit under 803(4)
 2. Statements of Fault
40


A statement of who was at fault does not generally fit into 803(4)
 “I was struck by a vehicle” probably is ok
 “The car that hit me ran a red light” probably is not
o E. Overlaps with 803(3) and 803(6)
 May also be an 803(3) statement of then existing physical condition or within an 803(6)
business record of a hospital
D. 803(5) Past Recollection Recorded:
 1. Generally:
o In certain instances, the past recorded memory of a witness at trial may be introduced as substantive
evidence of the truth of the matter in the recorded statement
 In written form, or other form
 *This Is Hearsay Requires an Exception
 2. Rule:
o A record
 1. That is on a matter the witness once knew about but now cannot recall well enough to
testify fully and accurately
 Witness’s Inability to Recall: Ohio v. Scott:
 Witness was on the stand and simply stated, “I can’t remember exactly….”
 Adequate to meet “cannot recall” requirement
 2. Was made or adopted by the witness when the matter was fresh in witness’s memory and
 3. Accurately reflects witness’s knowledge
 4. Effect of Admitted Past Recollection Recorded:
 May be read into evidence as substantive evidence
 Use as exhibit:
 May only be received as an exhibit if offered by an adverse party

3. Baker v. State—Distinction of “Past Recollection Recorded” and “Present Recollection Refreshed”
o F: Attorney asked the witness, who could not remember, to read a document to herself to see if it
refreshed her memory. The Judge prohibited this as inadmissible hearsay because the document was
someone else’s document.
o R:
 1. Past Recollection Recorded
 Is offered as substantive evidence, and read into evidence
 The Jury hears the out of court statement offered into evidence
 **Is hearsay, requiring exception 803(5)
 Policy:
 The rigorous standard to admit past recollection recorded is because it is
evidence—the competence must be assured as the jury will weigh it
 2. Present Recollection Refreshed
 Use:
 The witness uses for himself—It is not admitted, read to the jury; they do
not hear, see or even know what the witness is using
 Non-Evidence
 This is not used for substance, but instead, to refresh the witnesses
memory
 Then witness testifies from his now-refreshed memory
 **Does not Implicate Hearsay
 What Can Refresh Memory:
 Anything can be used to refresh the memory of a witness, as long as it
allows the witness to recall memory—acting as catalyst
 Document, Song, Item, etc…
 Inadmissible evidence
 Opposing Counsel:
 May inspect the “catalyst”
 May object if the witness attempts to admit the inadmissible present
recollection refresher
 Risk of inadmissible Evidence:
41




Here:

There is a risk that the witness may read, put down and simply
state words on paper
This ploy to get inadmissible evidence into trial must be objected
to by the opposing counsel as Hearsay
Despite the document being someone else’s, and thus not meeting the 803(5)
requirement of being “made by the witness,” it was offered only to refresh the
witness’s memory Not Hearsay; Present recollection refreshed
E. 803(6) Regularly Recorded/Business Records Exception:
 1. Generally:
o This rule is extremely broad in application –because of this breadth, it is very common in use
o Examples:
 Medical Records, Airline reservation data, business meetings, work orders, credit card
receipts, etc…
 *Does not apply to solely personal records
 2. Policy:
o Premised on the idea that records, particularly in business, are more reliable
o Coincides with the idea that business is more trustworthy in general
 In part premised on Common Law “Shopkeeper’s Rule”
 3. Rule:
o A record of act, event, condition, diagnosis, opinion if:
 1. Record was made at or near time by someone with knowledge of it, or from information
transmitted by someone with knowledge
 2. The Record was kept in the course of regularly conducted activity of a business,
organization, occupation, or calling for profit or not
 3. Making the record was regular practice of that activity
 4. These conditions are met by
 A. Testimony of a custodian of record or qualified witness, or
 B. By Certification complying with FRE 902(11)
 An affadavit, by the custodian or qualified witness that shows compliance
with 803(6) requirements, above
 5. Must be Trustworthy:
 The source nor the method or circumstances of preparation indicate
untrustworthiness
 4. Elements:
o A. Personal Knowledge
 The source of the information must have personal knowledge
 If Recording Party:
 The party that made the data entry, recorded it, does not have to have personal
knowledge if they have a duty to record, and information was received by a person
with knowlege
 EG: A Corporate Secretary
o B. At or Near Time:
 This requirement is not interpreted literally
 A record can be made months after the event was observed
o C. Regularly Conducted Activity, and Keeping of Record a Regular Practice of Activity:
 1. Declarant Must Act in the course of the regularly conducted activity:
 See Petrocelli
 2. Hearsay Within Hearsay:
 Not every statement within a business record may be covered by 803(6)
 Will require an individual exception for each level
 3. Internal Investigation Records:
 Often times, when there is an issue inside an organization, they may prepare a record
of investigation in anticipation of litigation—because they know they will be
admitted
 This may not be a regularly kept record in a regularly conducted activity
 Pre-Rules—Palmer v. Hoffman:
 Such records did not meet business records exception
42

Federal Rules:
 Admissible, though suspect and subject to trustworthiness
o


D. Foundation Witness:
 A Custodian or Qualified witness is one who can described the means of keeping the record,
or in some way is knowledgeable about the record
 *Does not have to be the party who made the record
5. Hearsay in Hearsay In Business Records—Petrocelli v. Gallison:
o F: In medical mal-practice suit against doctor A, π’s sought to admit a doctor’s record or doctor B. π’s
wife had spoken with doctor A, who she states said “ I cut a nerve.” Then π visited Doctor B. In their
suit against A, they attempt to bring in doctor B’s record which states that “during the previous
procedure, the nerve was cut.” The trial court held the record inadmissible hearsay.
o R:
 1. 803(6) Requires the Declarant Have Personal Knowledge and Act in the Course of
Regularly Conducted Activity:
 Here, it is unclear how the “nerve” statement got into the record
 It seems possible that the patient made the statement to the doctor, who recorded it
 Therefore, the declarant—here the patient, was not acting the course of the
regular activity of the hospital
 Statements within an 803(6) Record:
 Not every statement in medical record is covered by 803(6), and another
exception is needed for patient’s statement
 2. Hearsay Within Hearsay Analysis:
 Analysis:
 We need a hearsay exception for each level of a statement that has levels
 1. Is each level hearsay?
 If No No Exception Needed
 If Yes Need Exception
 Levels:
 1. Doctor Statement Report: “nerve was cut”
 Here, Court says 803(6) applies to the record, but not all
statements within it—Lack of trustworthiness, and lack of
declarent’s personal knowledge may lead to 803(6) not applying
 2. Petrocelli Statement “my nerve was cut”
 801(d)2(B); 803(4); 803(3)
 3. Petrocelli Wife “He said he cut your nerve”
 803(1)
 4. Doctor A “I cut the nerve”
 Exception: 801(d)2(A)
 3. 803(6)(E) Requires Trustworthiness:
 Here, the ambiguity in how the statement got into the record, and the parties who
may have made it lead it to potentially being untrustworthy
6. Norcon v. Kotowski:
o F: An investigative report of sexual harassment was made by company. The report had the statements
of 2 employees of the company in the report.
o I: Whether 803(6) is sufficient to admit the report
o R:
 1. 803(6) Requires that Each Declarant Operate in the Regular Course of Business
While Making Statement:
 Here:
 Investigator of company was acting in regular course of business, but two
declarants cited in the report may not have been
 2. Hearsay Within Hearsay Analysis:
 Levels:
 1. Investigative Report
 Exception: 803(6)
 2. Employee (Head of Security; Supervisor of Business)
 Exception: 801(d)2(d) and/or (c)
43


Was speaking within the scope of his employment as a
supervisor and head of security on the sexual harrassment
issue, and may also have been authorized to speak on
matter
F. 803(8)—Public Records Exception:
 General Policy:
o 1. It is presumed that public servants take care to keep records, and are unbiased in doing so
 Thus, they are seen as reliable records
o 2. Also, due to the fact that there are so many public records in existence, an exception needs to exist
to avoid interrupting government
o Application:
 The rule covers 3 categories of public records
 Rule:
o A record or statement of public office of
 1. An Office’s Activities, or
 Example:
 A court transcript that shows marshal served process on someone
 2. Matters Observed Under a legal duty to Report, or
 But—Not a matter observed by “law enforcement” in a criminal case
 Example:
 FAA, because of legal obligation to report on plane crash, report observing
the crash site; Building Inspector Report
 Note:
 This is a report done as part of their job
 3. In Civil Case or against the prosecution, Factual Findings from a legally authorized
investigation, and




4. That neither the source nor information indicate lack of trustworthiness
1. 803(8)(3) “Factual Findings”
o Baker v. Elcona Homes Corp:
 F: A civil case about a car accident that occurred. A Police officer at the scene interviewed
witnesses, and then went to the hospital to interview one of the drivers. The driver made a
statement that was included in the policeman’s report. That driver was at trial, and was
questioned—it was implied that he made up his story at trial. The statement he made in the
report was used to show he was consistent. The trial court admitted the police statement
under 803(8), and the plaintiff appeals.
 I: What is a “factual finding”
 R:
 1. A Factual Finding is an “Evaluative Report”
 It may include the interpretive conclusions of the preparer of the report, if
the report includes opinions based on and factual findings
 A Police Report Is a “Factual Finding”
 2. Trustworthiness Factors To Consider Under 803(8):
 1. The Timeliness of the investigation
 2. The special skill or experience of the official
 3. Whether a hearing was held
 Note:
 This is only a “factor” to consider—it is not required, and
does not effect trustworthiness if absent
2. 803(8) In Civil Cases:
o 803(8) does not have use restrictions in civil cases
o Effect:
 Under (2), a law enforcement report may be admitted freely in civil cases
 Under (3), legally authorized investigations may be admitted freely
3. 803(8) In Criminal Cases:
o General Policy:
44

o
o
Public reports, law enforcement reports, and factual findings may be biased—because of this,
the lack of cross-examination ability, and bias in the report lead to reliability issues
 Thus, in a criminal case, they are treated differently than in a civil case
1. “Matters Observed By Law Enforcement under legal duty” and “Factual Findings,” 803(8)(2) and
(3), Are Not Admissible Against a Criminal Defendant:
 A. 803(8)(2)
 Prosecution may Not use if “Law enforcement report”:
 Prohibits use of law enforcement report in criminal case by Prosecution
 Only Criminal Defendant May Opt To Utilize
 If it is not a “law enforcement” report, both parties may use
 Oates Idea of “Law Enforcement”:
 Includes laboratory technicians in government crime labs
 This, as a result, excludes much evidence from trial
 B. 803(8)(3)
 Prosecution may not utilize “factual findings” from a legally authorized investigation
 Only a Criminal Defendant May Opt to Utilize
 Result:
 Only the Defense may offer a record from a law enforcement official, or a
factual finding from a legally authorized investigation
2. These Restrictions May Not Be Bypassed by the Prosecution Via Other Hearsay Exceptions:
 General:
 In other cases, hearsay may be admitted if it fits under any exception—thus, if one
exception does not fit, another one may be used
 For 803(8), that is not the case—unique hearsay exclusionary rule


Oates Decision:
 General:
 If that were the case here, it would lead to an odd result—Congress clearly
did not want these public reports being admissible against criminal
defendants
 If parties could simply go to, for instance, the business records exception—
it would bypass Congress’ intent
 Use Restrictions Act as Exclusion Rule:
 If evidence fits into a “factual finding” or a “law enforcement report,”
prosecution may not bypass the restriction of their use in a criminal case by
finding another exception
 If they fit 803(8)’s use restriction—they may not be admitted under
other hearsay exceptions
G. Miscellaneous Exceptions in 803:
 General:
o 803’s core usage exceptions for hearsay are those aforementioned. However, there exist many other
exceptions that deal with miscellaneous issues. They include the following
 1. Absence of Records:
o 1. 803(7) Absence of a Record of Regularly Conducted Activity
 Evidence that a matter is not included in a business record, under 803(6) if:
 1. Evidence is admitted to prove that matter did not occur/exist
 2. Record was regularly kept for a matter of that kind
 3. Nothing indicates lack of trustworthiness
 Effect:
 The lack of a business record that meets 803(7) may come in as
substantive evidence
o 2. 803(10) Absence of Public Record
 Testimony or certification under 902 that a diligent search failed to show a public record if the
testimony or certification is admitted to prove:
 1. Record/statement doesn’t exist
 2. Or, matter did not occur or did not exist, if public office regularly kept a record for
matter of that kind
 2. 803(9) Vital Records:
o A record of birth, death, or marriage, if reported to public office in accordance with legal duty
45




3. 803(11) Records of Religious Organization Concerning Personal/Family History:
o A Statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage,
or similar personal family history
o Contained in a regularly kept record of a religious organization
 Note:
 1. Must be “Regularly Kept”
 If not, some records that fail to fall under this exception may fall under
803(6) Business Records Exception
 2. Coincides with 803(6) Business Records
 3. Must be a “Religious Organization”
 Catholic Church, etc…
 4. Policy:
 Religion and records are more accurate
 Because of this, their reliability is not easily as questionined—also premised
on the CL view of religion as a trustworthy—perhaps the most
trustworthy—tenet of society
4. 803(12): Certificate of Marriage, Baptism, Similar Ceremony:
o A statement of fact in a certificate:
 1. Made by person authorized by a religious organization or by law to perform the act
 2. Attesting that the person performed a marriage, or similar ceremony, administered
sacrament, and
 3. Purports to have been issued at the time, or within reasonable time after event
 Note:
 Can be religious or governmental action
 Must be a piece of paper—certificate
 Policy:
 Not a casual event, and therefore it is more reliable and trustworthy
5. 803(13): Family Records:
o A statement of fact about person or family history contained in family records such as:
 1. Bible
 2. Genealogy Chart
 3. Engraving on Ring
 4. Engraving on Urn or Tombstone
6. Exceptions Dealing with Property:
o 1. 803(14) Records of Documents that Affect Property
 A Record of a document that purports to establish an interest or affect one of property if:
 1. The record is admitted to prove content of the original original recorded
document, along with its signing and its delivery by each person who purports to
have signed it
 2. Record is kept in public office
 3. Statute authorizes the recording of that document in that office
 Note:
 This exception deals wit a record of the document
 Example:
 A Record that a deed was recorded may fall under this exception—
it does not involve the deed itself
 Must be pursuant to statute authorizing
 EG:
 Recording Statute
o 2. 803(15) Statement in Document that Affects Property Interest:
 A statement contained in a document that purports to establish or affect a property interest if
the matter stated is relevant to the document’s purpose
 Unless later dealings with property are inconsistent with the statement’s truth
 Note:
 This exception deals with the actual document itself…i.e., the deed itself
o 3. 803(20) Reputation About Land Boundaries or General History
 Reputation in a community—arising before controversy—about
 1. Boundaries of Land in community or customs that affect land or
46




7. 803(16) Ancient Documents:
o A statement in a document that is at least 20 years old and whose authenticity is established
 Note:
 Policy:
 1. These are more likely to be reliable as they are unlikely to have been
tampered with
 2. Passage of time adds to reliability
 Court May Limit Use:
 A court may exercise discretion, pursuant to its inherent authority, to
prohibit something’s admission under this exception
 Argument pursuant to the policy of hearsay—arguing that
something is not reliable or unauthentic
 To Authenticate Ancient Documents:
 See 901(b)(8)
8. 803(17) Market Reports and Commercial Publications:
o Market quotations, lists, directories, other compilations generally relied upon by the public or persons
in particular occupations
 Note:
 This exception is premised largely on stock quotes, and newspaper periodicals
quoting such information
 Also Includes:
 Stock quotes, catalog lists, tables, charts
 May extend to internet listings as well
 Argue policy
 Business, generally relied upon, based off of WSJ, Bloomberg,
etc…and thus reliability
9. 803(18) Statement in Learned Treatise, Periodical, Pamphlet:
o A statement contained in a treatise, peridocial, or pamphlet, if:
 1. Expert Involved
 2. The statement is called to expert’s attention on cross exam or relied upon by expert on
direct exam, and
 3. Publication is reliable authority by:
 1. expert’s admission/testimony
 2. Another expert’s testimony or
 3. Judicial Notice (Rule 201)
o Effect of Admission:
 The evidence may only be read into evidence
 It may not be received as an exhibit
10. Exceptions Dealing With Reputation:
o 1. 803(19) Reputation of Personal or Family History
 A reputation among person’s family by blood, adoption, or marriage, or associates in
community
 Concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death,
relationship by blood, adoption, or marriage, or similar personal or family history
o 2. 803(20) Reputation About Land Boundaries or General History
 Reputation in a community—arising before controversy—about
 1. Boundaries of Land in community or customs that affect land or
 2. Concerning general historical events important to that community
o 3. 803(21) Reputation About Character
 General:
 Character evidence is only admissible if it meets other rules, see infra Part ___
 However:
 However, if evidence meets these rules, and is admissible, if it is objected to
as hearsay—803(21) applies
 Rule:
 Reputation among a person’s associates or in the community concerning the person’s
character
 Note:
47

Reputation evidence may be based on multiple layers of hearsay—
all is admitted under 803(21)
This includes “what people say” and “what people think”

11. 803(22) Judgment of Prior Conviction
o Evidence of a final judgment of conviction if:
 1. Judgment entered after trial or guilty plea but not nolo contedere (no contest)
 2. The conviction was for a felony
 3. Evidence is admitted to prove a fact essential to judgment
 4. And, when offered in a criminal case for purpose other than impeachment, the judgment
was against the defendant in the case
 Note:
 Therefore, you may not introduce prior convictions of non-defendant third
parties unless to impeach
 Only applies to substantive evidence of a conviction against the defendant
4. FRE 804—Declarant Unavailable
 Generally:
 An 804 exception requires that the declarant be unavailable, (1) according to the statute and (2) constitutionally
unavailable, and meet one of the 5 exceptions
 Requires:
o 1. Unavailability
 If available The Rules prefer live testimony to hearsay statements, and the proponent must
produce a live witness—the out of court statement, under 804 will not be admitted
o 2. Meet Exception
 A. Unavailability:
 1. Federal Rules:
o Generally:
 The definition reaches beyond merely being physically unavailable—requires, in essence, that
the testimony of the declarant be unavailable for one of the enumerated reasons
 104 Preliminary Question:
 The judge will determine whether the declarant is unavailable
o 1. Claim of Privilege
 804(a)(1)—if court rules that a privilege applies to the declarant
 5th Amendment Privilege:
 Does not require you to take stand to invoke
 Other Privileges (Attorney-Client, etc…):
 Requires you to take stand, invoke, and court to decide whether it is
applicable
o 2. Refusal to Testify Despite Court Order
 804(a)(2)—a refusal to answer, despite a court order and being placed in contempt will
constitute a declarant’s unavailability
o 3. Lack of Memory
 804(a)(3)—if the declarant takes stand and testifies that he does not remember subject matter
 Court Will Decide:
 Whether the declarant is feigning memory loss or legitimately does not
remember
 Relation to 801(d)(1)(A):
 Though a declarant may not have sufficient memory to be “available” for
804, may have enough memory to be “subject to cross” and to be crossexamined under 801(d)(1)(A)
 Therefore, 804 statements may come in and prior inconsistent
statements may come in
o 4. Death, Illness
 804(a)(4)—declarant not present because of death or then-existing illness, or infirmity
 Minor Illness:
 If illness is minor and speedy recovery is expected, requiring a declarant to
miss but a day of trial, court may consider unavailable or may adjourn until
declarant is available
 Reviewing courts will largely defer to trail court’s decision whether
declarant is sufficiently unavailable: US v. Faison (3d Cr. 1982).


48


Children:
 In some instances, children may by psychologically unavailable or mentally
unavailable given the fear a child may have
 Most states accommodate this by statute that permits testimony in another
room via video—thus, they are not unavailable
o 5. Absence from Trial And Inability to Procure
 804(a)(5) Generally, if a party is outside of the subpoena power of the court, he will be
unavailable due to inability to procure
 There are Many Ways to procure:
 There are many avenues to gain access to individuals—through interstate
compacts, federal prisons usually supply prisoners to testify, federal
criminal trials have subpoena power nationwide
 By invitation from party
 Someone May Be Available, even though physically unavailable:
 If someone is not at the trial, but is within subpoena poweravailable
o Unavailability May Not Be Procured By Wrongdoing:
 If a statement’s proponent procured or wrongfully caused the declarant’s unavailability to
prevent attendance or testifyingthe declarant is not unavailable, and 804 does not apply
 2. Constitutional Unavailability:
o General:
 In addition to being unavailable for the purpose of the federal rules, a constitutional
unavailability requirement has been set
o Barber v. Page (US 1968):
 F: An attorney represented two criminal defendants. One decided to testify against the other,
and the attorney recused himself from representing him. At the preliminary hearing, he did
not cross examine his prior client (would have violated ethics rule 1.9). When his client was
tried 7 months later, the ex-client was in prison, so the prosecution used a transcript of his
testimony at trial. Defense counsel objected that the defendant was not unavailable.
 R:
 1. Constitutional Unavailability is Required:
 Prosecutorial authorities must make a “good faith” effort to obtain the
declarant’s presence at trial to meet the constitutional requirement.
 Note:
 This stemmed from Marshall’s view of the confrontation clause—requiring
actual cross-examination at trial. However, this view of confrontation has
ended. See Confrontation Clause Discussion, infra.
B. The Exceptions:
 1. 804(b)(1) Former Testimony Exception
o A. Rule:
 1. Testimony that was given as a witness at a trial, hearing, or lawful deposition whether in
current or different proceeding and
 Note:
 This is formal requirement—requires oath
 2. Is now offered against a party who:
 1. In Criminal case had or
 2. In a civil case had or whose predecessor in interest had
 A prior opportunity and similar motive to cross examine
o B. Who this Applies Against:
 In a criminal trial—the party offered against must have been a party to the previous case
 Thus, prior witness testimony is not admissible against a criminal defendant who was
not a party to the prior action under 804(b)(1)
 In civil trial—the party offered against may be party, or may have “predecessor in interest”
o C. Distinguish from 801(d)(1)(A):
 Here, prior testimony must have had opportunity to cross
 However, 801(d)(1)(A) requires a present opportunity to cross
 This makes sense, as 804 exceptions require declarant to be unavailable
o D. Hearsay In Hearsay Concern:
 The prior testimony likely has two levels of hearsay:
 1. The statement of the court reporter
49

 May be an intentional statement
 803(6) Business Records Exception
 2. The testimony of the declarant
 804(b)(1) Exception
o E. Predecessor In Interest—Lloyd v. American Export (3d Cir. 1978):
 F: Lloyd and Alvarez got into a fight with each other aboard a ship. Lloyd sued the Ship
Company ∆, and Alvarez was interpleaded. Alvarez then sued ∆. After the incident, the
Coast Guard had proceedings to determine what had happened. They placed parties under
oath, and got their testimony. When the trial occurred, Lloyd disappeared, and ∆ attempted to
offer Lloyd’s testimony under 804(b)1 against Alvarez. Appealed the decision to exclude it.
 R:
 1. Lloyd was sufficiently Unavailable
 Neither his nor defense counsel could locate him
 2. Predecessor In Interest:
 Under 804(b)(1), the former testimony must be offered against someone
who had, or whose predecessor in interest had the ability to cross.
 Community of Interests:
 If a prior party had an interest that was within the community of
interests of current party, they are a predecessor in interest
 Combines motive and predecessor in interest element
 If it appears the former party had a like motive to cross
about similar matters as present party, and had
opportunity to do so, it is predecessor in interest
 Here:
 Alvarez sought to determine the culpability as did the coast guard
 Alvarez wanted to vindicate his injuries
 Because both parties had same interests and motive, testimony fits
801(b)(4)
2. 804(b)(2) Dying Declaration
o Rule:
 In a (1) prosecution for homicide or (2) a Civil Case
 A statement, while the declarant believes their death to be imminent
 Made about the cause or circumstances
o Policy and Elements:
 1. Policy:
 1. Fear of God
 This exception is premised on the CL belief that fear of god made
statements near death reliable—no one would lie, but instead would be
honest on their death bed
 2. Psychological Forces
 That people are more honest when they are dying
 2. “Imminent belief of death”
 It is unclear how imminent the belief of death must be
 Inquiry:
 Look at the facts and circumstances surrounding statement to determine the
declarant’s belief
 Shepard v. US:
 Statement made by women 1 week before she died to check her wine bottle
for poison was not applicable
 Near same time she had said she felt ok, no doctor told her of
potential death, Told nurses she felt better,
 Not enough to believe in eventual death
 Must be statement made while declarant had belief of
imminent death
 Common Method of Laying Foundation:
 A statement by the declarant of their belief that death was imminent
 3. Cause or Circumstances;
50


May include assailant, describing the accident, injections, ingestions, physical pain,
what occurred
 4. Death Not Required:
 In a civil case, the declarant does not have to die—only needs to believe that his
death is imminent
 If this is the case, the declarant must be unavailable for some other reason to meet
804(b)(2)
 I.E., still in the hospital “ill” after the incident
3. 804(b)(3) Statements Against Interest:
o Rule:
 A statement that a reasonable person in the declarant’s position would only have made
if believed true and, when it was made, was:
 1. Against declarant’s pecuniary or property interest
 2. Had so great a tendency to invalidate the declarant’s claim against someone else or
 3. Against declarant’s interest, creating civil or criminal (penal) liability, and
 If Offered In A Criminal Case:
 If it exposes declarant to criminal liability, is supported by corroborating
circumstances that indicate trustworthiness
 Includes:
 Facts, Circumstantial evidence, and all evidence that indicates
reliability
 Certain Interests are Not Included:
 One of the three categories must be met
 No Social Interests:
 But, this does not include a statement against someone’s personal
interest—like humiliating a person, or embarrassment
o A. Distinguish From 801(d)(2) Admissions:
 1. This requires declarant’s unavailability
 2. 801(d)(2) Requires it to be against a party
 3. This requires a statement against interest at the time the statement was made, while
801(d)(2) does not (any statement)
o B. Policy:
 It is extremely unlikely that a person is willing to state a fact or make a statement that is
against his self interest and harmful, unless it is true—there is not any incentive to
o C. Must Evaluate Whether a Statement Is “Against Interest”:
 Inquiry:
 1. Contextual
 You must consider:
 the facts
 circumstances surrounding it
 Intention of making such a statement
 The same statement may be neutral or in someone’s interest, but may
change to against interest depending on the facts
 2. Conflicting Interests
 Every person has multiple interests. Therefore, a statement may be against
one interest, but for another interest
 Potential Courses of Action
 A. Exclude the statement because it is not totally against interest
 B. Determine the predominate interest the statement seeks
 Predominately self-serving  Exclude
 Predominately Against self Admit
 See Williamson, infra
o D. Statements Against Penal/Criminal Interest—Williamson v. US (US 1999)
 F: Harris was stopped and arrested for cocaine possession. He made many statements to the
officers, some of which were narrative and exculpatory, some of which were inculpatory, and
some of which were neutral: “I got cocaine from Williamson, and rented a car and drove to Ft.
Launderdale.”
 I: When is a statement against Penal interest?
51



R:

O’Connor Majority View:
 1. Each Statement Must Be Evaluated :
 The statement must be self inculpatory, based on the circumstances
of a particular case
 804(b)(3) Test:
 “Would a reasonable person not make it unless true?”
 2. Collateral, Non-Self Inculpatory Statements are Not Included:
 A. Broad statements or narratives that have self-inculpatory
statements mixed in are not included
 B. Only those that are inculpatory are against interest and
included under 804(b)(3)—not collateral statements
 Effect:
 1. Neutral, or self-exculpating statements, even if
connected to a self-inculpating statement Not Admitted
 2. Those statements that implicate another may be selfexculpating, and should be looked at as suspect
 Scalia View:
 1. Each Statement Must Be Evaluated:
 Do the remarks at issue meet the Rule standards?
 2. May Extend to Collateral Statements:
 Statements that move from self-inculpating to more neutral may be
included—even though collateral
 Effect:
 Scalia’s view may extend O’Connor slightly to some
collateral statements, depending on the facts and
circumstances of each case
Courts Application of Williamson In Evaluating Statement’s Purpose:
 Statements that curry favor with law EnforcementAre not against self interest
 Statements that implicate another defendant
 Range:
 Exclude Statements that:
 Curry Favor/Self Serving/Collateral/Exculpatory/Shift Blame
 Admit statements that are
 Neutral/incriminate another but evenly allocate
blame/Inculpatory/against self interest
4. Statement of Personal or Family History—804(b)(4):
o Rule:
 A statement about
 1. Declarant’s own birth, adoption, ancestry, marriage, divorce, relationship… even
if declarant had no way of acquiring personal knowledge about the fact or


2. Another person concerning these facts, if the declarant is related to the person, or
is so intimately associated with the person’s family that the information is likely to
be accurate
 Note:
 When speaker is speaking about another person, Court may require
that evidence be presented to assure the declarant is so related
 Statements motivated by greed, ill will, suggesting unreliable:
 A Court may, in such an instance, determine that such
statements do not constitute a “fact”—and, therefore, that
804(b)(4) does not apply
5. Statement Offered Against a Party That Wrongfully Causes Unavailability—804(b)(5):
o Generally:
 This was formulated in 1997 to combat witness intimidation in criminal cases
 Essentially, it operates as a waiver to a hearsay objection
 See infra, Effect on Confrontation Clause—Giles v. California (US 2008):
52

o


An intention to make a speaker unavailable waives accused’s right to
confrontation
Rule:

A statement offered against a party that wrongfully caused or acquiesced to the causing of the
declarant’s unavailability, if that was the intended result
5. The Catch-All Exception—807:
 Generally:
 Even if there is no exception that exists under 801, 803, or 804, the 807 catchall may apply—admitting hearsay
 * Very rarely used and accepted by courts
 Rule:
 1. The statement has circumstantial guarantees of trustworthiness
 2. It is offered as evidence of a material fact
 3. Ir is more probative on the point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts, and
 4. Admitting it will best serve purpose of the federal rules and interests of justices
 A. The Catchall Exception and Child Abuse:
 General:
o In applying the catchall, courts have developed a list of factors to consider, to help determine the
trustworthiness of the declarant
o Factors:
 1. Precocious Knowledge: need experience to describe event
 2. Age Appropriate Language: described in such a way that it’s plausible a kid perceived
something
 3. Behaivoral Changes
 Fear, regression in sleeping, toilet, eating habits
 4. Demeaner
 5. Indications of pain and emotion
 6. Is there bias or other motivation
 7. Number of consistent repetitions of the story
 1. Rifle Shot Hearsay Exceptions for Children:
o Some states have enacted legislation that permits certain subject matters (child abuse) and certain
declarant’s (children of a certain age) of hearsay to be admitted depending on fixed criteria
o In essence, another hearsay exception for children
6. The 6th Amendment Confrontation Clause and Hearsay:
 General:
 The 6th amendment states, “In all criminal prosecutions, the accused shall enjoy the right …to be confronted
with the Witnesses against him….”
 This “Confrontation clause” has been interpreted in many different ways by the Supreme Court over the last 50
years, with the modern version appearing in 2004, in Crawford
 Application:
o Even if hearsay meets an exception, the criminal defendant has a last resort—to argue that the
confrontation clause has been violated
 A. Historical Evolution of Confrontation Clause and Hearsay:
 Pre-1980:
o The Confrontation clause was an amalgamation of different applications to different fact patterns, and
there was no clear framework from which to deal with
o In the 1960s, the Warren court, however, was very protective of the defendant in its use of the
confrontation clause
 1. Barber v. Page (US 1968):
o F: An attorney represented two criminal defendants. One decided to testify against the other, and the
attorney recused himself from representing him. At the preliminary hearing, he did not cross examine
his prior client (would have violated ethics rule 1.9). When his client was tried 7 months later, the exclient was in prison, so the prosecution used a transcript of his testimony at trial. Defense counsel
objected that the defendant was not unavailable.
o R: Justice Marshall
 1. Confrontation Clause Requires Cross-Examination At Trial:
 Confrontation is a “trial right”
 There must be a right to cross-examine an unavailable witness at trial
 Irrelevant what happened before:
53


If there was no opportunity to cross-examine at trial, the hearsay
should be excluded as a violation of the 6th amendment
 Even if cross-examination occurred before, it is irrelevant
 Anything less than cross in trial fails 6th amendment
 Very Broad View:
 Justice Marshall’s view was extremely broad in application
2. Ohio v. Roberts (1980) Era:
o A. General:
 Following the 1960s, we see the slow erosion of the broad right to Confrontation afforded by
the 6th amendment (As Warren Court justices die)
 Eventually, in 1980 in Roberts, the Court sought to systemize the confrontation clause and
hearsay issue into a simple framework
o B. Roberts Framework:
 1. Unavailable:
 To meet the 6th amendment, the proponent must either produce the witness-declarant,
or show that he is unavailable for cross examination at trial
 If unavailable, the declarant’s statement must meet prong 2
 2. Reliable Statement:
 Hearsay is only admissible if there is “indicia of reliability” of the hearsay offered
 “Indicia of Reliability”
 When the evidence falls within a Firmly Rooted Hearsay Exception
 Effect:
 1. Watered Down the Confrontation Clause
 A. Unavailability:

was not always required when the utility of confrontation was
remote
 B. Reliability was very watered down:
 most, if not all hearsay exceptions were “Firmly rooted
exceptions”
 Time of existence was looked to to determine whether one was
firmly rooted—eventually, however, all exceptions would be
around long enough to meet the “time” requirement
 Courts looked to Federal History to Determine “Firmly Rooted”
 2. In substance, essentially read out confrontation clause concern:
 This was a very pro prosecution, and proponent argument—as most, if not
all hearsay exceptions were “firmly rooted,” all were reliable, and therefore,
all came in without 6th amendment Confrontation Clause Concern
 Additionally, more and more hearsay exceptions were considered “firmly
rooted”
o C. Scalia and Thomas:
 Following Roberts, both Justice Scalia and Thomas began to disagree with the Court’s
framework and interpretation of the clause
 Scholars and Academics additionally began to disagree with Roberts, and its
application of the history of Confrontation
 Their dissents began to increase in frequency, citing the history of the Confrontation clause,
and its limited application—
 Maryland v. Craig (1990)
 White v. Illinois (US. 1992)
 R:
 Excited utterance, and medical exception were “firmly rooted” hearsay
exceptions, further expanding the erosion of the 6 th amendment under
Roberts
 Thomas and Scalia Dissent:
 Utilize Scholars and Academics argument in their dissent and engage in
historical analysis of the Confrontation clause
 The Solicitor General’s arguments also incorporated these scholar
arguments, dissent used these
o D. The End of Roberts:
 Roberts lasted for 24 years before Crawford came along
54


Dissent in White eventually leads to Majority in Crawford
 Walks away from Marshall’s view in Barber, and pro-defendant view of
confrontation
 Change in composition of Court, from Warren Court, to Modern Roberts court
affected alteration to confrontation clause jurisprudence
 Relies on historical Analysis of Common Law England
B. Modern—Crawford Doctrine and its Progeny:
 A. The “Crawford Doctrine”—Crawford v. Washington (2004):
o F: Crawford was convicted of stabbing Lee. Crawford said to police that he used a knife because he
“swore he saw lee going for some weapon.” However, Crawford’s wife said that “lee had open arms”
and nothing in his hands. The court admitted both statements and prosecutors used the wife’s
statement to contrast Crawford’s self defense claim. The wife was unavailable because of spousal
privilege.
o R:
 Witness Against:
 Because the 6th amendment itself, textually, does not give much as to what a
“witness against” is, so Justice Scalia enters into a historical evaluation
 1. Historical Evaluation of Confrontation Clause:
 In 1600s, England used a type of civil law—where prosecutors and law enforcement
would use a pre-trial interrogation of witnesses, often using torture, and would get
statements
 They would use these statements against defendants, and the Court would certify the
results—convictions were often
 After one case, involving Sir Walter Raliegh, confrontation clauses were born
 People wanted a right to confront their accusers
 In 1791, this seeped into American sentiment, as Federal Constitution
created the 6th amendment confrontation clause
 2 Implications from History:
 1. Applies to Testimonial Statements
 Confrontation clause historically applied to in court and out of
court statements—but only those that are “testimonial”
 That is when one is a “Witness Against”
 Not all out of court hearsay statements
 2. Required Unavailability and Prior opportunity to cross
 Thus, if a declarant was unavailable, a prior opportunity to cross
examine was sufficient
 2. Roberts Is Not Aligned With Historical Reach of Confrontation:
 Justice Scalia never explicitly overrules Roberts, but in substance does
 1. Roberts is too broad
 applies to some non-testimonial statements, where the declarant is
not a “witness against” in historical sense
 2. Roberts is too narrow
 Admits some statements that are testimonial, without giving
confrontation right
 3. Court’s Determination of Reliability is contrary to purpose of
Confrontation
 The whole purpose of confrontation in England was to avoid the
Court’s biased certification that statements made ex-parte were
reliable, to avoid use of interrogated, coerced statements
 Under Roberts, that’s exactly what court is doing
 3. Crawford Doctrine:
 The Confrontation Clause only applies to hearsay that is “Testimonial”
 1. If hearsay is non-testimonial
 Confrontation clause does not apply, and state and federal rules of
evidence may regulate hearsay as they wish
 2. If hearsay is testimonial
 For The 6th Amendment to not exclude the statement:
 A. If Available
 If declarant is available to testify and Cross examine
55




A. Or, If Unavailable
 The opposition must have had a prior opportunity to cross
examine the declarant
“Testimonial”
 It Includes, at least:
 1. Prior testimony at a preliminary hearing
 2. Prior testimony before a grand jury or at a former trial
 4. Police interrogations
Effect of Crawford:
o 1. If non-testimonial
 Confrontation Clause does not apply to the statement
o 2. If Available
 Confrontation clause does not require exclusion of statements by a declarant who can be
cross-examined at trial
 At trial cross examination is sufficient
 Prior opportunity to cross examine is minimum required if unavailable
o 3. Non-Criminal
 If the trial is non-criminal, the confrontation clause does not apply
B. The “Emergency Exception to Crawford:
 General:
o When a declarant has made a “testimonial statement,” is unavailable in a criminal case, and the
opposition has not had a prior chance to cross-examine the declarant, the 6th amendment excludes the
statement
o However, the “Emergency Exception” provides one potential exception to the 6 th amendment’s
exclusion—when a statement is not testimonial
 1. Davis v. Washington (US 2006)
o F: 911 operator received a call, and women said that Davis was allegedly beating her up in a domestic
dispute. The transript showed she was frantic, and he was there, and then left quickly. The operator
asked her questions about what was going on, and cops then arrived. The court admitted the prior 911
call. ∆ objected on 6th amendment confrontation grounds.
o R:
 1. There is an emergency exception to what a testimonial statement is under 6th
amendment:
 “Ongoing Emergency & Primary Purpose Test”:
 Statements are non-testimonial when made in the course of a police
interrogation under circumstances that objectively indicate the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.
 They are testimonial when circumstances objectively indicate there is no
ongoing emergency, and that the primary purpose of interrogation is to
establish or prove past events relevant to later criminal proceeding
 Effect:
 Thus, what would otherwise be testimonial—statement to
officer—is not, if made for primary purpose of assisting
in ongoning emergency
 2. How to Evaluate Primary Purpose and Ongoing Emergency:
 1. Formality of interrogation
 if more exigent, odd circumstances, and no formaility, then will likely not
be testimonial under Davis test
 911 calls are likely usually to deal with occurring event—non-formal
 If more like a typical interrogation, sit down, parties separated, etc…may be
testimonial
 2. Ongoing Emergency
 See Bryant
 3. A Non-testimonial Emergency can evolve into one:
 Though the primary purpose, at first may be to quell an ongoing emergency by
talking, once this is achieved, the interrogation may be more testimonial and move to
establishing past events for trial
56

2. Bryant v. Washington (US 2011):
o F: Man was found bleeding in a gas station parking lot, dying of gunshot wound. When police arrived,
they asked him what happened—he said that Bryant show me, at his house through the door. Police
went to Bryant’s house, arrested him because they found blood and bullet on porch. Police recounted
victim’s statements, admitted as excited utterances.
o I: How does one determine the primary purpose of interrogation for an “ongoing emergency”
o
R:


1. To Determine What the Primary Purpose of Interrogation is, and therefore whether it
is Testimonial:
 Consider the Circumstances In Which the Interrogation Occurred:
 1. Statements and Actions of the Parties
 1. Evaluate Both Interrogator and Declarant’s Statement:
 By evaluating both, get a more clear understanding of
what the primary purpose of the interrogation is—for
ongoing emergency, or past information
 Look at questions and the answers
 Do they discuss emergency type questions or does
objective inquiry suggest they are more directed at
developing past past events related to criminal
proceeding?
 2. Objective Inquiry:
 look at the circumstances, objectively, and determine
what the purpose of reasonable participants in the
circumstances would have been
 2. The Scope of the Emergency
 Factors to consider for whether ongoing:
 Is it ongoing, a threat to the public, or other individuals
 Is it between two parties, or potentially broader—if so,
where is the threat to the public?
 Weapon involved—gun is significant, and extends threat
beyond initial incident as violence may perpetuate—
potential ongoing emergency to public beyond the
incident into the future
 Emergency does not actually have to exist, but whether the
primary purpose of the interrogation was the enable the police to
meet one
 2. Formality of the Interrogation
 Was it exigent, confusing, informal?
 If more informal, suggests primary purpose to address an
ongoing emergency
o Scalia Dissent:
 1. Should be evaluated from the declarant’s perspective
 This is because it is the declarant’s perspective that will demonstrate whether they
understood that their statement may be later used in a court
 This is the common law, English understanding
 Only perspective that works in every fact pattern-as some statements are volunteered
that are testimonial
 Here:
 From Declarant’s perspective—was not any emergency ongoing—was over
 He gave them information involving facts to apprehend
 No chance that gunman would reappear and open fire on the public with cops
everywhere—was drug related to 1 drug deal
 2. Creates “violent crimes exception”
 Because gun involved, other violent crimes will lead to expansive definition of
emergency—thus, confrontation clause will be eroded, as most information is given
to police immediately after emergency
C. Constitutional Confrontation Clause Forfeiture
 Giles v. California:
57
o
o
o
F: Prosecution used murder victim’s statements against the ∆, without confrontation. They were
admitted under a California statute that stated confrontation clause rights were forfeited by
wrongdoing—murdering someone, thus making them unavailable waived confrontation rights.
I: Does Forfeiture require an intent to make a witness unavailable?
R:
 At Common Law 2 Forms of Testimonial Statements Were Included Even Though
Declarant Was Unavailable and Uncrossed:
 1. Dying Declaration
 If testimonial, still admissible under Crawford
 2. Forfeiture by Wrongdoing:
 Requires an intent/design to prevent the witness from testifying
 **Not just doing something that makes the witness unavailable
 Effect:
 Murdering someone makes them unavailable—but doesn’t forfeit
the 6th amendment right
 You must murder with the intent that they not testify to forfeit
 Policy:
 Was used to avoid killing, bribing, or intimidating witnesses
IX. Forbidden Evidence
 A. Generally:
 This section deals with certain types of evidence that are simply not permitted to be introduced, or are restricted in
certain ways by the rules
 They simply are a result of policy concerns about admitting them and their effect on the trial process
 B. Enumerated Forbidden Evidence:
 1. Subsequent Remedial Measures—407:
 General:
o When an accident occurs, often times parties involved will take steps to avoid that accident again—
they may physically change something, procedure, fire parties, etc…
o These are “subsequent remedial measures,” and are restricted as to when they are admissible as
evidence
o Policy:
 1. Avoids discouraging remedial desire
 We, as a society, want parties to make things better after accidents—chilling this for
fear that it will be used against them at trial is not beneficial to society
 Unfair to introduce against a party that he behaved responsibly
 2. Relevance
 Introducing the subsequent remedial measure does not have a tendancy to show that
past practice amounted to some fault—may not be any connection there
 3. Confusion
 Party because of the relevancy issue and because of the potential to confuse, it is
impossible to show that changes are really made because of an accident—too
speculative
 Rule:
o When measures are taken that would have made an earlier injury or harm less likely to occur—
evidence of a subsequent remedial measure is inadmissible to show:
 1. Negligence
 2. Culpability
 3. Defect in product or design
 4. Need for a warning or instruction
o But, Subsequent Remedial Measures May be Admissible by a Court:
 For another purpose such as
 1. To impeach
 2. If disputed, proving ownership, control, or the feasibility of precautionary
measures
 Note:
 1. Tuer v. McDonald:
58






Just because parties in the past did no recommend
something in their professional belief, does not constitute
it being a disputed issue of feasibility
2. Use of Limiting Instruction
 If the subsequent remedial measure is admitted for an
enumerated reason—use of a 105 limiting instruction may
be beneficial to avoid jury’s consideration for
inpermissible reasons
2. Compromise Offers and Negotiations—408:
 Rule:
o Evidence of the following is not admissible by any party to:
 1. Prove or disprove the validity of a disputed claim or
 2. The amount of a disputed claim or
 3. To impeach by prior inconsistent statement or contradiction
o Impermissible Evidence:
 1. Furnishing, promising, or offering, or accepting, promising to accept, or offering—
consideration in compromise of a claim
 2. Conduct or a statement made during negotiations about a claim—except when offered in a
criminal case and when the negotiations related to claim by public office in exercise of its
regulatory, investigative, or enforcement authority
o Exceptions:
 But, the court may admit this evidence for another purpose such as proving witness’ bias or
prejudice, negating contention of undue delay, or proving an effort to obstruct criminal
investigation
 Policy:
o 1. Settlement is god
 the settlement of issues is beneficial for society, avoiding clogging of court systems and nonmeritorious trials
o 2. Not really relevant since motivation to settle may for reasons other than the claim’s validity
D. Offers to pay Medical Expenses—409:
 General:
o Similar policy concerns to 408, supra
 Rule:
o Evidence of furnishing, promising to pay, or offering to pay medical, hosptical, or similar expenses
resulting from injury is not admissible to prove liability for injury
E. Plea Deals—410:
 Policy:
o 1. Encourages plea bargaining and settlements, facilitating the judicial process
o 2. What was said may not really prove guilt or innocence, and therefore may not really be relevant
 Rule:
o In a civil or criminal case, evidence of the following is not admissible against defendant who made
plea or participated in plea discussion
 1. That was guilty plea that was later withdrawn
 2. A nolo contender plea
 3. At arraignment
 4. A statement made during plea discussions with an attorney for the prosecuting authority if
the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea
o Exceptions:
 But, a court may admit a statement described in (3) or (4), above:
 1. In any proceeding where another statement made during the same plea discussion
bas been introduced, and the whole thing should be introduced for fairness
 2. In criminal proceeding for perjury or false statement, if defendant made the
statement under oath, on record, and with counsel present
 Mezzonato Case:
o Prosecution may seek waiver of 410, however, as condition of plea negotiations starting
o If you agree, statements made during plea discussions and negotiations will be admissible against you
at trial
F. Liability Insurance—411:
 Policy:
59
o

Rule:
o
o
1. Avoids Put of Loss to Insurance Company
 A jury may, instead of considering the culpability of the parties, put the loss to the insurance
company as the defendant won’t pay, the plaintiff will be made whole and the insurance
company will do what it does
Evidence that a person was or was not insured against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully
Exception:
 But, the court may admit this evidence for another purpose—such as, proving witness’s bias,
prejudice, or proving agency, ownership, or control
 EG:
 If the defendant claims he does not have insurance—the court may admit the
evidence of insurance for “another purpose”
XII. Character Evidence
 General:
 Here we are dealing with general substantive character of the witness, defendant, or victim
 “Propensity Rule”
 The general rule that person’s character shows he has propensity to act and acted that way—inadmissible
 Policy:
o (1) Character evidence is highly prejudicial
o (2) Mistrust of the jury to consider the charged crime at hand, rather than the party being a “bad”
person
o (3) We want the jury to consider the charged crime, rather than to be confused by other character
evidence or past crimes
 REMEMBER:
 403 is always available to exclude even if admissible under 404(a), or (b)
 105 Limiting Instruction is important too
 404(a) has several exceptions
o 1. Enumerated cases in 404(a)
o 2. 404(b)
o 3. 406
o 4. 413-415

A. General “Propensity” Rule—Evidence to Show Party Acted In Accordance With Their Character Inadmissible
 1. 404(a)(1)
 Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion a party
acted in accordance with that character or trait
o Purpose of the Offer Is Critical:
 If purpose of the offer is to prove acted in accordanceprohibited under 404(a)
 If not purposemay be admitted under 404(b), infra
 EG:
 Offering evidence that the dean’s criminal background includes threats, violence…
 If offered by prosecution to show that this time, he acted according to that violent
character—inadmissible under 404(a)
 2. Enumerated Exceptions in Criminal Trial—404(a)(2)--∆ May Open Door, and Use
 General:
o Prosecution may not offer character evidence at all in case-in-chief (Subject to 413-415)
 But, the defendant may offer evidence of defendant or victim’s pertinent character trait
 If he opens the door, the prosecution may rebut this character evidence
 Therefore, a ∆ may present character evidence freely if 404(a) exceptions apply
o If Defendant “Opens Door” Prosecution May Rebut on Cross-Examination:
 If the defendant opens the door, under one of the 404(a)(2)(a) or (b) exceptions, the
prosecution may then offer character evidence to rebut the defendant’s argument
 105 Limiting Instruction may be appropriate:
 This may be done in order to restrict the jury’s consideration of the prosecution to
rebut the defendant’s proffered character rather than to actually speak to character of
∆, violating 404(a)
 Exceptions:
60
(a) A defendant may offer evidence of defendant’s pertinent trait
 If Admitted:
 Door is open for Prosecutor may offer evidence to rebut
 What is a “Pertinent Trait”
 A “pertinent trait” will depend on the nature of the charges
 Must be specific and pertinent to the crime—not merely general character
 Examples include:
 In a battery case, showing that the defendant was not violent or a
peaceful person
 Honesty of the defendant would not apply—not specific enough
o (b) A defendant may offer evidence of a victim’s pertinent trait
 If Admitted:
 (1) Prosecutor may offer evidence to rebut
 (2) Prosecutor may offer evidence of defendant’s same trait
 Note:
 This is limited by 412, rape shield statute, discussed infra
o (c) In a homicide case:
 The prosecutor may offer evidence of alleged victim’s trait of peacefulness to rebut evidence
that victim was first aggressor
o 404(a)(3): Exceptions for Impeachment of Witness:
 Evidence of a witness’s character may be admitted under impeachment rules
 Note:
 One must take the stand or be a hearsay declarant
3. Character Evidence is Prohibited in Civil Case:
 Though there are 3 enumerated exceptions to criminal cases, character evidence has no exceptions in a civil
case
o Note:
 412 Exception
 404(b) exception
 415 is the one exception to sexual assault and civil damages in a rape or child molestation
case
o Effect:
 When character evidence is offered to show that someone acted in accordance with that
character, it is never admissible
4. Methods of Proving Character:
 Rule 405(a)
o When character evidence is admissible it is provable by:
 1. Opinion testimony or
 2. Reputation testimony
 The Use of Evidence of Specific Acts:
o (1) 405(a) Specific Acts are not permitted, unless on cross-examination of a character witness,
court permits inquiry into specific acts of a person’s conduct
 Policy:
 Specific Acts are so powerful and prejudicial that they are reigned in by the courts
 They are so compelling that they tend to distract jury from truth of the matter
 Note:
 However, a prosecutor will likely not object under 405(a) that the defense
used specific acts, however
 It opens the door for them—so, their silence permits them to come back and
admit character evidence with specific acts
o (2) 405(b)
 Specific Acts are permitted to prove an “essential element of the charge, claim or defense”
 If Character is an element of the crime, or at issue—it may be demonstrated by
evidence of a specific event
 Examples:
 In Criminal Case:
 Very unlikely that this is the case
 In Civil Case:
o


61


1. Defamation suit
 Evidence of character is necessary to show whether the
statements were true
 Therefore, to prove character—an element of the
charge—specific acts may be used
B. When Evidence is Offered For Reason Other than Party Acted In Accordance With Character—404(b):
 General:
 Character evidence, offered for a reason other than to show that person acted in accordance with that character
is admissible however—escaping the narrow application of 404(a)
 404(b) Applies to Civil or Criminal Cases—providing means for character evidence into Civil case
 Effect:
o Even if evidence is admissible under 404(b), for some purpose other than 404(a), 403 always exists to
exclude it—therefore, courts have come up with a 4 part framework to evaluate character evidence
issues. Huddleston v. US
o 4 Part Character Evidence Framework: Judge Considers, under 104:
 1. If the evidence relevant only for acting in accordance with character—exclude under 404(a)
 2. Is it relevant for a proper purpose, under 404(b)
 3. Does 403 apply, and include or exclude?
 When there is an argument between what purpose of the offer, 403 decides
 Judge May Apply 403 to some, admit other
 4. 105 Limiting instruction, upon request (to restrict use to 404(b) use and not 404(a) use)


1. 404(b)
 Evidence of past character, however, may be admissible for another purpose, including:
o 1. To show motive
o 2. Opportunity
o 3. Knowledge
o 4. Identity
o 5. Intent
o 6. Preparation
o 7. Absence of mistake or lack of accident
o Example:
 GW student found dead, with “GW” carved into his forehead. Dean is arrested, and evidence
is offered by the prosecution to show people have heard that he, in the past has severed the
heads of cats before. They argue that it is offered to show that he has “knowledge of the use
of a knife,” “opportunity” to use his knife collection. However, defense argues that it can be
distilled into a character of violent nature that, therefore, it is excludable under 404(a)
 1. Is it relevant?
 Yes, it does have a tendency to make more probable that he killed student as
has violent past
 Likely, it will always be relevant under 401
 2. Hearsay?
 Yes, it is hearsay
 However, may be admissible under 803(21) reputation of character
evidence
 If his own statement, may be admissible under 801(d)(2)(A)
 3. 404/403
 Arguably, it fits both parties arguments under 404, though 403 seems to be
more likely
 Under 403, the probative value is high, unless stipulated to. The prejudicial
effect is substantial, as it shows a propensity to act with violence—likely
excluded under 403
C. Habit Evidence—406:
 General:
 Even though this may be “character evidence” under 404(a), it is permitted and therefore acts as an exception to
the 404(a) prohibition
o If something is excluded under 404(a), it may be admitted under 406
 Policy:
62
o
o
o

(1) It is very probative as the character evidence is essentially “semi-automatic” and requires no
thought because it is so habitual
(2) Unlike typical character evidence, therefore, as this is not confusing to a jury—it is so repetitively
occurring that it is reliable, predictable
(3) Reliable because faced with the same circumstances you will always act in the same way
406:


Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular
occasion, that party acted in accordance with that habit or routine practice
D. Special Sexual Assault Exceptions to 404(a)—412-415:
 Generally:
 412-415 afford special exceptions to the rules in 404(a)
o 412 restricts the ability to present character evidence of sexual assault victim
o 413-415 permit evidence of defendant’s past sexual assaults to come in, regardless of 404(a)
 Note:
o Even though these rules provide exceptions 403 is available and commonly used by courts, regardless
of a rule, such as 413-415 permitting certain evidence

1. 412—Federal “Rape Shield” Statute:
 A. General:
o 412 is the “rape shield” statute, that prohibits evidence of the victim’s sexual reputation from being
admitted in many instances
o It significantly alters the common law view, that had an exception to the general prohibition on
character evidence for rape victims
 B. History:
o Common Law Rule:
 Evidence of the alleged rape victim’s sexual character was admissible to show acted in
accordance with character
o Reasoning:
 It showed that victim acted in accordance with character and likely consented to sex
 Therefore, the lack of chastity of a women, what a women wore, etc… was admitted
to rebut the women’s claim of rape
 These attributes were seen as “bad” and therefore, unbecoming of a women of the time—
therefore, this type of women was seen as more likely to consent to sex
 Usually in “reputation” or “opinion” evidence, though reputation evidence was, at
CL, hailed as the most reliable
o Examples:
 McQuirk v. State (1887); State v. Ogden (1901); Gish v. Wisner (1923):
 Though character evidence was generally prohibited, it was admissible in rape case
to show victim’s sexual character
o Evolution:
 Beginning in the 1970s, the states led the way in revising their rules of evidence
 The Federal Rules changed in 1994, with the advent of 412
 Effect:
 Ends use of historical common law view of rape victim’s character as
admissible
 Restricts use of alleged rape victim’s sexual character to several narrow
instances
 Policy:
 Protects the victim of a rape from a smear campaign by the defendant
 Avoids invasion of privacy
 Encourages their participation in the proceeding because they may avoid
having their reputation potentially drug through the media
 C. Modern Victim’s Sexual Character—Rule 412:
o (a) Evidence is not admissible in a civil or criminal proceeding about sexual misconduct:
 1. Evidence offered to prove that the victim engage in other sexual behavior or
 2. Evidence offered to prove the victim’s sexual predisposition
 “Behavior or Sexual Predisposition”
 Includes sex, sexual acts, births, STDs, contraceptive use, speech, manner
of dress, short skirts, etc…
63
o
o

(b) Exceptions:
 Criminal Case:
 1. Evidence of specific instances of victim’s sexual behavior if offered to prove that
someone other than the defendant was the source of
 a. semen
 b. injury or
 c. other physical evidence
 2. Evidence of specific instances of victim’s sexual behavior with the person accused
of sexual misconduct if offered by the defendant to prove consent, or by the plaintiff
 3. Evidence whose exclusion would violate constitutional rights
 Note:
 This is a Chambers, issue, where the defense may be able to call to
impeach
 Civil Case:
 Court may only admit evidence of victim’s reputation if victim has placed it into
controversy
 The court may admit evidence offered to prove victim’s sexual behavior, sexual
predisposition if:
 Probative value substantially outweighs the danger of harm to any victim
and unfair prejudice to any party
(c) Procedure to Determine:
 If a party intends to offer evidence under 412:
 1. Must file a motion that describes the evidence and purpose of the offer
 2. At least 14 days before trial, unless good cause is shown
 3. Serve motion on all parties
 4. Notify victim
 Court must conduct a hearing
 In camera hearing and give victim and parties right to be heard
 Unless otherwise ordered by court, all information must be sealed
2. Similar Crimes in a Sexual Assault Case Offered Against Criminal Defendant—413:
 General:
o This is a huge exception to 404(a)
 Supersedes 404(a)
o Permits past sexual assaults to be admitted as evidence to be considered against defendant in relevant
manner
 However, this was hotly debated and most states and parties do not like it
o Policy For:
 (1) Protects the public and victim from repeat offenders
 (2) These types of crimes are so unique and so repetitive that, by nature, they are particularly
predisposed to occur again—a trait that simply does not exist in ordinary people
 (3) Past victim might not want to testify
 (4) Is very probative, and rarely outweighed by the prejudice
o Policy Against:
 (1) Not supported by any empirical evidence
 (2) 404(b) already deals with admitted certain evidence
 (3) Most lawyers, judges, professors disagree with it
 (4) Very prejudicial—contradicts core policy reasons against character evidence
 (5) Erodes innocent until proven guilty, by punishing defendant for “past bad acts”
 Not the crime charged for but because they may be a bad person
 (6) Unreliable if uncharged
 413:
o Permitted Use:
 In a criminal case where defendant is accused of sexual assault
 The court may admit evidence that the defendant committed any other sexual
assault
 Note:
 Whether charged or uncharged
64
o



Disclosure:
 If prosecutor will offer, must disclose to the defendant, including witness’ statements or
summary of expected testimony at least 15 days before trial
o What is a “Sexual Assault”
 1. Contact without consent between any part of defendant’s body/object and another person’s
genitals or anus
 2. Contact without consent between defendants genitals or anus and victim’s body
 3. Deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical
pain on another
 4. Attempting or conspiring to do so
3. Similar Crimes in a Child Molestation Case Offered Against Criminal Defendant—414:
 General:
o Supersedes 404(a)
o Generally, this was not as difficult or as controversial to pass—children are seen as more protected,
and there is simply no excuse for such events to happen. In a alleged rape, however, sex is something
that could have been consensual
 This rule is the mirror image of 413
4. Similar Acts in Civil Case of Sexual Assault or Child Molestation—415:
 General:
o Supersedes 404(a)
 415:
o In a civil case involving claim for relief based on party’s alleged sexual assault or child molestation,
the court may admit evidence that the party commited any other sexual assault or child molestation
Overall:
 Character Evidence is very damaging
 403 Always applies, regardless of 404(a) exception, and is often used given the highly prejudicial nature of the evidence
XIII. Impeachment of a Witness
 A. General:
 1. There are 5 types of impeachment
 1. Bias
 2. Sensory Perception, lack of memory or capacity
 3. Character for truth and veracity
 4. Prior Inconsistent Statement
 5. Contradiction
 2. Methods of Showing:
 1. “Vertical Impeachment”
o Impeachment offensive is launched on cross-examination
o There is no need to wait until your case in chief, or rebuttal
 2. “Horizontal Impeachment”
o Use of other evidence and testimony from another witness is used to impeach the target witness after
they have left the stand
o Effect:
 Will have to wait until case-in-chief for defendant or case-in-rebuttal for plaintiff
 3. Character Evidence is Permissible to Impeach—404(a)(3)
 3. Parties Who May be Impeached:
 A. In addition to witnesses, you may impeach
o 1. Rule 607—Who May Impeach:
 Any party may attack a witness’s credibility
 The party that called a witness may attack that witness’s credibility
 Note:
 Rejects “Voucher Rule:
65

This is a rejection of the common law “voucher rule,” which
prohibited the impeachment of one’s own witness
o



2. A Hearsay Declarant—806
 When a hearsay statement, or statement in 801(d)(2)(c)-(e) is admitted, the declarant’s
credibility may be attacked by any evidence that would be admissible for that purpose if the
declarant had testified as a witness
 B. You May Not Call a Witness Solely to Impeach—US v. Webster:
o F: The prosecution called a witness to inculpate the defendant. Indeed, the witness had given prior
statements to this point. However, on the stand, the witness turned hostile and instead said that the ∆
did not commit the crime. So, the prosecution attempted to impeach their witness by prior inconsistent
statements—both for impeachment and substantive.
o R:
 1. 607 Requires a Good Faith Usage:
 Must have a good faith reason to call a witness
 It is bad faith to call solely for impeachment
 But, bad faith requires knowledge that you will need to impeach them
 Here: Prosecution wanted to voire dire witness to determine how they
would testify—but defendant objected. Thus, prosecution didn’t have bad
faith reason to call witness as they did not know need to be impeached
 C. Overall Use of Witness to Impeach:
o 1. You may impeach your own witness under 607, subject to Webster Good Faith
 Hostile or Adverse
o 2. But, may not call solely to impeach under Webster, unless constitutional right is at stake
 Chambers v. Mississippi (US 1973):
 F: ∆ on trial for murder. However, another—McDonald had confessed and then
recanted his confession. The defense wanted to call McDonald as a witness, treated
him as adverse under 611(c), and then use leading questions to coax out his
confession, and if he said he did not confess, to use his prior confession to impeach
him. However, Mississippi still had the voucher rule—prohibiting impeachment of
your own witness, so he ∆ prohibited from doing so.
 R:
 1. There is a Right to Cross Examine and Impeach Under Due Process
and Confrontation
 In certain circumstances, permitting defendant to call to impeach
witness is constitutionally required under due process and
confrontation clause of 5th/6th.
 Restricting attempt to cross your own witness—to
impeach them, violated due process in this case
 Unable to present or cross witness vital to fair trial
 Cross Examination is a constitutional right—helping assure
accuracy of truthful proceedings
 Not always available (i.e., typical calling to impeach)
 But, denial of it requires close examination (as in here, a
murder trial with inability to cross prior confessor)
 2. Confession as hearsay:
 1. Verbal Act
 2. May not be hearsay, if not offered for truth—that confessor
did—but, instead, that it was said by speaker, to impeach
 In essence, a prior inconsistent statement
4. Impeachment and Hearsay:
 You may need a hearsay exception to impeach a party using any of the 5 types
o Most common with contradiction
o If you are using a statement to impeach someone, and the statement must be true to impeach them, you
must have a hearsay exception to impeach with a statement
 See Smith case, supra, under 801(d)(1)(a); See Abel, infra for example of bias and hearsay
5. Scope of Direct Rule Does Not Limit Impeachment:
 Under 611(b), on cross, you may exceed scope of direct for any issue of credibility or impeachment
6. Religious Beliefs Prohibited to Impeach:
 610:
66
o

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support credibility
B. The 5 Types of Impeachment:
 1. Sensory Perception:
 General:
o Not discussed in the rules, but accepted as part of common law
o For an example, see infra Doyle v. Ohio
o In general, it is used to show that a witness’s perception of something lacks reliability of evidence that
is being presented
 Use:
o Seeks to show that the witness does not have enough information
 1. Defect in any one of the 5 senses (sight, hearing, smell, feel, taste)
 2. Not enough time to visualize
 3. Did not hear
 4. Could not properly perceive due to influence of alcohol or drugs
 5. Mental defect which affected their ability to perceive
 EG: Schizophrenia, mental retardation—subject to 403 (Embarrasment…)
 403’s Application:
o 403 will be used to limit the use of sensory perception evidence to impeach someone
 2. Bias and Motivation:
 General:
o Bias is a term used at common law to describe a relationship between a party and a witness which may
lead the witness to slant, consciously or unconsciously, or otherwise, his testimony in favor of or
against a party. US v. Abel (US. 1984) (Reneqhist, J.)
o May Include essentially, any factor that may make a witness appear slanted, not impartial
 1. Fear of someone
 2. Like or dislike
 3. Self-Interest
 a. Paid Expert, paid informant, witness’s paid expenses
 b. Leniency and deals with prosecution. Giglio v. US
 4. Relation as friend, relative, or business partner
o Method:
 May use extrinsic evidence, specific acts, opinion, or reputation to do so
 Impeachment by Bias Framework—US v. Abel (US 1984):
o F: Abel and 2 cohorts robbed a bank. They were indicted, and two pled guilty. Abel, however,
wanted trial—one of cohorts, Ehle agreed to testify against Abel. Defense would bring Mills to show
that Ehle had told him in prison he would lie to convict Abel. Prosecution countered that they would
impeach Mills as witness by showing he was member of Aryan Brotherhood—an organization that
lies, cheats, and steals, and that there was no way Ehle would have said this to a member.
o PH: Judge heard these arguments in chambers and made determinations. Defense argued 403
prohibiting statements about Mills to come in. Judge Admitted evidence, but offered defense to use a
limiting instruction
o R:
 1. The Federal Rules Do Not Discuss Bias—But it Remains as Method of Impeachment
 A. Although the federal rules failed to discuss bias, and to include a rule—the
common law widely accepted it as a means of impeachment, and it is well
established. Additionally, the A.C.N. mentioned it
 Bias Continues as a Means of Impeachment
 Because of its wide acceptence by common law, history of use,
and scholars, it seems unlikely that Promulgaters did not include
 Simply an obvious form of impeachment
 Although rules are silent, Bias remains
 2. Method of Evaluation:
 Bias should be evaluated in terms of relevance
 1. Is it Relevant—401
 Bias is almost always relevant under 401
 It has tendency to show a relationship which might slant, alter, or
falisify testimony
 2. 403 Inquiry:
67




1. Evidence used to impeach a witness by bias must be evaluated
under 403
 2. Court may limit evidence without excluding
 3. Use of 105 limiting instruction may help
 May Use Extrinsic Evidence to Show:
 Specific Acts are appropriate to admit as evidence of bias
 May use extrinsic evidence to show bias
 You may bring in documents, papers, etc… that show bias
3. If One Type of Impeachment Admits, Irrelevant whether another excludes:
 If evidence can come in under an impeachment form, use that form, regardless of if
inadmissible under another form
 Like Hearsay, find an exception
 Bias versus 608(b) Non-Conviction Misconduct:
 Extrinsic Evidence may come in under bias
 It may not under 608(b)
 Thus, the use of bias to include extrinsic evidence is acceptable
3. Applied Here:
 The evidence of Mills’ association with organization is clearly relevant
 403: It is not unduly prejudicial, and deference is given to the trial court’s
determination
 The organization was very probative
 Has strong tendency to show his reason to slant or fabricate
testimony
 Witnesses membership to an organization is probative of bias
 Jury is permitted to draw an inference from membership
to an organiation
 The “type” of organization is probative
 If has nothing to do with subject matter of litigation than
not probative
 If has something to do—more probative
 Here, Aryan Brotherhood is very probative as shows
strong tendancy to perjur
 Prejudice:
 Trial court did exclude name “Aryan brotherhood” and offered 105
limiting instruction
 Thus, prejudicial effect was minimized
 Reference to Organization Does Not Violate 1st Amendment to Impeach:
 It was not offered to convict them—merely to impeach because of witness’s
bias
 Therefore, impeachment due to membership of organization is acceptable
3. Impeachment by Character for “Truth and Veracity”/Credibility
 Generally:
o A. Here, we are dealing with the use of character evidence to impeach a “witness”
 What is a “Witness”:
 1. Must be a party who takes the stand or is hearsay declarant
 If they take the stand, 404(a) 3 permits you to use character evidence to
impeach under 607, 608, and 609
 Targeted Witness
 2. If they do no take the stand
 You may not use character evidence to impeach
 Simply 404 character evidence
 404(a) framework applies (likely inadmissible, unless ∆ opens door)
o B. 404(a)3 Exception to Character Evidence Impeachment:
 404(a)3 provides an exception for character evidence’s use to impeach if 607, 608, and 609
apply
o C. Policy:
68

o
1. Parties who testify (Criminal ∆, or witness) lose much of the protection from character
evidence
 But not all protection Character may only come in that questions “truthfulness”
 If beyond this scope, than 404(a) applies
 2. What was excluded under 404 may now come in under 607, 608, and 609 to impeach them
 3. 403 May Limit:
 Probative value is question of evidence’s probativeness to “impeach”
D. There are 3 Ways To Impeach for Character of Truth and Veracity:
 1. Use of Character Witness regarding Opinion and reputation—608(a)
 2. Use of Specific Acts of Prior Non-Conviction Conduct—608(b)
 3. Prior Convictions—609

1. 608(a)—Use of Character Witness To Impeach Character for Truth and Veracity
o A. Rule:
 1. You May attack credibility of witness by:
 1. Opinion or
 2. Reputation
 Regarding character for truthfulness or untruthfulness
 2. Evidence of truthful character is only admissible after it has been attacked
o B. Effect:
 Only reputation or opinion evidence may be used
 No specific acts
 Only applies to character for truthfulness or untruthfulness
 404(a) May Trigger:
 If testimony goes beyond character for this specific instance, may no longer
be covered by 608, and therefore may fall out of 404(a)3 exception
 Therefore, 404(a) regular character evidence rules will apply

2. 608(b)—Use of Non-Conviction Misconduct/Specific Acts Of Untruthfulness
o A. General:
 This rule deals with acts other than convictions—which are dealt with under 609
 Permits use of Specific Acts on cross of a witness
 3 Key Objections To 608(b)
 A. May turn the evidence into 404(a) character evidence
 1. If It is not “probative of truthfulness or untruthfulness”
 B. Improper use of extrinsic evidence
 C. 403 May Apply to Exclude for Prejudicial effect
o B. Rule:
 1. On Cross Examination, a Court may allow specific acts to be inquired about if:
 They are probative of character for truthfulness or untruthfulness of
 Witness
 Another witness whose character the witness being crossed testified about
 Subject to 403
 2. Extrinsic Evidence Limitation:
 You may not introduce “extrinsic evidence” of specific act, unless it is a 609
conviction
 A. What is “Extrinsic Evidence”
 Any evidence other than the witness’s testimony
 Includes documents, tapes, recordings, etc…
 B. Effect:
 If you are cross-examining a witness about their character for
truthfulness, you may refer to specific acts
 But, you must accept their answer as definitive and may not
use extrinsic evidence to rebut their statement
 Example:
 To cross about character for untruthfulness, if you ask
“Are you a member of the Aryan brotherhood—an
organization whose tenet is to lie about other members”
69


o

If the answer is “no”—you are done; you must accept the
answer, and may not use a tape, paper, or other evidence
to rebut this
C. Policy:
 1. Avoids confusing the jury with a mini-trial
 The trial is about the defendant and plaintiff, not about
this one witness’s character
 Gets too off topic
 2. Not really relevant to the case
 3. Other remedies Exist
 A. Perjury
 B. Extrinsic Evidence may come in under bias, sensory
perception and other impeachment forms—therefore, not
really excluded
C. Type of Prior Acts That Are Probative of “Character for Truth/Untruthfulness:
 1. Threatening Witnesses—US v. Manske:
 F: Trial of Manske. Prosecution brought Zeneeka to testify against Manske. The
defense sought to bring out prior actions of Zeneeka—(1) that he was getting
leniency (to show bias), (2) to show that he had a history of threatening witnesses so
that they would not testify (to show prior act probative of character for
untruthfulness). Court excluded this evidence in motion in limine.
 I: What types of acts are probative to show character for truthfulness or
untruthfulness?
 R:
 1. Behavior that seeks a personal advantage by taking a right from
others is Probative to Show Character—Witness Tampering:
 Threatening others to avoid their testifying is very probative of
one’s truthfulness
 Concealing, Scaring Witness demonstrates one’s
disregard for the truth in a court of law—and disregard for
the ability of others to testify truthfully—thus, it is very
probative of character for truth or untruthfulness
 There must be a connection between the specific act and it’s
relevancy to show truthfulness or untruthfulness
 2. Other Past Acts Include:
 1. Adultery
 May or may not be probative of character for honesty
 2. Prior Theft
 May or may not be probative
 3. Violent Crimes
 Likely are not probative
3. 609—Use of Prior Conviction To Show Character For Truthfulness/Untruthfulness:
o Generally:
 Another means of showing a witness’s character and veracity for truth is evidence of past
convictions
 This is extrinsic evidence—but, under 608(b) this is permitted
 Effect:
 You do not have to go by witness’s statement
 You may use evidence of a conviction to contradict their statement
 Hearsay Concern:
 The conviction is an out of court statement
 Admissible under 803(22) and, arguably 803(6)
 Policy of Use:
 Conviction is a reliable tool, and very powerful and probative
 The convicted party has had their fair trial, counsel, and constitutional protections—
therefore, it may come in as extrinsic evidence
o A. Rule:
 A (1). For a Felony in the convicting jurisdiction
70
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



1. Against the Criminal Defendant in the Case:
 The conviction must come in if:
 the Probative Value of the conviction is greater than its
prejudicial effect
 Effect:
 This is the opposite of 403
 Only requires 51% prejudice to keep out
 Pro-∆ balancing test
 2. Against All Other Witnesses:
 The conviction must come in if:
 The probative value of the conviction does not fail 403
 The probative value must not be substantially outweighed by its
prejudicial effect
 Effect:
 Pro-admissibility
 It will come in, unless it is ‘substantially’ outweighed by prejudice
A (2). For Any Crime (Felony or Misdemeanor):
 This is the only exception that misdemeanors may come in under
 For a Felony or a Misdemeanor, evidence of a prior conviction must be admitted if
 The Court can readily determine that elements of the convicted for crime
required proving
 1. A Dishonest Act or
 2. False Statement
 Effect:
 1. 403 Does Not Apply Here
 2. The Balance has Been Struck In Favor of Admitting
 Examples of Crimes Whose Elements Meet 609(a)(2):
 1. Perjury
 2. Fraud
 3. Embezzlement
 4. Counterfeiting
 5. Forgery or other False Statements
B. Crimes Older than 10 Years:
 If more than 10 years have passed since the later of the conviction or release from
prison, apply this section
 Conviction will come in only if:
 1. Probative value substantially outweighs its prejudicial effect
And
 2. Proponent gives adverse party reasonable notice in writing
C. Effect of a Pardon, Annulment***:
 Evidence of conviction is not admissible if:
 1. Pardoned, annulled, or other equivalent procedure based on finding that
person has been rehabilitated And
 2. The person has not been convicted of a later Felony
 ***
D. Juvenile Adjudicaton:
 Evidence of a Juvenile Adjudication is admissible only if:
 1. Offered in a Criminal Case
 2. Conviction of a witness other than the defendant
 Cannot come in against defendant
 3. An adult’s conviction of the offense would be admissible to attack their
credibility
 4. Admitting it is necessary to fairly determine guilt or innocence
 Note:
 “Juvenile Adjudication” is not defined, and lack of clarity has led debate
whether this means tried as an adult or child, or the age
 In Federal Courts Look to the Age of the Person
71
 If Minor—they are juvenile
E. The Effect of Appeal:
 A conviction may be used here, even if it is on appeal
 Evidence of the pending appeal may be admitted
B. Application:
 1. General:
 609 deals with convictions that are relevant to the witness’s character for truth or
veracity—not simply any conviction
 Each of the balancing tests, therefore, is interested in showing the probative
value of the conviction to the character for truth or veracity to impeach
 609(a)(2) provides an easier way to get in crimes whose elements themselves deal
with a false statement or dishonesty
 2. What Types of Crimes are Probative of Character for Truthfulness:
 Gordon Factors:
 1. Look at the nature of the conviction
 2. Recent or remoteness
 3. Clean or Dirty Record?
 4. Importance to credibility issue
 5. Pleading not guilty, testifying, and conviction shows untruthfulness
 Crimes:
 1. Robbery may be somewhat probative
 2. Stealth/Deception crimes more probative
 3. Ways to Limit Prejudicial Effect:
 1. 105 Limiting Instruction
 2. Limit questioning on cross examination about conviction
 3. Permit explanation on redirect
 4. Restrict revalation of the “name” of the crime or its nature
 However, too much restriction will leave jury unable to evaluate its effect
on the truthfulness or untruthfulness of the witness
 4. What Must Be Disclosed to Trial Judge To Conduct Balancing—US v. Lipscomb:
 F: Lipscomb had two trials. In first, he testified and was impeached by a prior
robbery conviction—ended in hung jury. On retrial, ∆ motioned to exclude cross
examination about prior conviction—judge admitted under 609(a)(1). Also admitted
other convictions of other witnesses
 I: How much information about a crime must be revealed to judge?
 R:
 1. At a Minimum, Prosecution Must Disclose:
 1. The name of the prior crime convicted for
 2. Date of Conviction
 2. District Court Has Discretion to Decide What Additional It Needs:
 In conducting its balancing test regarding the prior felony
conviction, whether something fits under 609(a)(2) or whether a
crime fits under 609(b)
 District court may inquire into additional background
facts and circumstances
 Does not have to—discretion of the court
 3. Policy Supports the Disclosure Requirement:
 1. Facts show whether past felony is really probative of
truthfulness or not
 “All felony convictions are probative of credibility”
 2. Helps determine what portion of 609 crime falls under
 3. It is a de minimus burden to have to produce this information
 4. Most of the time, information available to court will be
sufficient

o

5. Requirement To Appeal 609 Motion In Limine—Luce v. United States:
72
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


F: Petitioner was indicted. During his trial, petitioner moved to exclude using a
prior conviction under 609 under a motion in limine. The District Court held that the
crime fell under the ambit of 609. The defendant never testified.
I: Is a ∆ who did not testify at trial entitled to an appeal of a motion in limine ruling
admitting prior conviction evidence to impeach if the ∆ takes the stand?
R:
 1. A Defendant Must Testify to Object to a Motion In Limine Ruling
Admitting Prior Convictions:
 A defendant must testify to gain review
 Without his testimony, there is no means of determining
whether the conviction would have been used, if it would
have impeached the defendant
 Adverse motion in limine ruling cannot be seen as the motivation
not to testify—otherwise, all adverse motion in limine’s are
reversible error
4. Prior Inconsistent Statement:
 Generally:
o Look at hearsay, supra, regarding prior inconsistent statement
o The use here is not one for substance No Hearsay exception is needed
 If offered for substance, it must fit 801(d)(1)(a)
o Policy:
 It is very powerful impeachment means—if one statement is untrue, how can we trust at all
 A. Application:
o Any prior statement inconsistent from current testimony may be used to impeach
 The use of a prior inconsistent statement to impeach is to show that one of the statement’s is
false and one is true—Regardless, they show inconsistency, contradiction, and therefore
impeach
 No Hearsay Exception is Needed
 B. 613 Applies (No Rule Really Addresses, However):
o Generally:
 At Common law, being polite to the target witness was necessary—you could not simply
come out and impeach a person
 Modernly, however, this polite gentleman approach has eroded
o Rule:
 613(a)
 You do not need to disclose contents of prior statement
 But, on request you must disclose it to an adverse party’s lawyer
 Effect:
 There is no need to approach a party with manners
 You may simply come out, straight away, and impeach
 613(b)—Extrinsic Evidence in Prior Inconsistent Statements
 1. Extrinsic Evidence is admissible about prior inconsistent statement
 2. Witness and Opposing Party Must have Opportunity:
 A. Explain or deny the statement
 B. Opposing Party Must have opportunity to examine witness about
statement—to rehabilitate them, permitting them to explain on re-direct
 Example:
 “You Just testified to x”
 “But, 6 months ago, didn’t you answer the same question
y?”
 If the answer is “No,” extrinsic evidence—“the affadavit,
recording, or whatever” may come in to contradict the
witness
 Effect:
 Extrinsic evidence may be admissible if these requirements are met
 However, 613(b) doesn’t really act to limit extrinsic evidence, unlike
608(b), supra, because the requirements of 613 may be met
 Before or after extrinsic evidence is brought
 C. Miranda and Impeachment By Prior Inconsistent Statement—The Trilogy:
73
o
o
o
Generally:
 The Jenkins-Harris-Doyle trilogy cases govern the application of Miranda and its effect on
impeachment
 Note:
 Miranda applies to “custodial” “interrogation”
1. Pre-Arrest, Pre-Miranda Silence—Jenkins v. Anderson:
 F: Man was prosecuted for murder. Said he followed a person home who had robbed his
sister, and that person pulled a knife. However, after his killing of the alleged robber, he did
not come forward to police for 2 weeks. He testified, and on cross-examination, prosecution
used the 2 weeks of silence pre-arrest to impeach him
 I: Is pre-arrest, pre-miranda silence permissible to impeach?
 R:
 1. Pre-Arrest, Pre-Miranda Silence May be Used to Impeach:
 1. This will not fetter use of 5th amendment privilege, or impair decision to
testify
 Party was not relying on their 5th amendment Miranda warning to
remain silent
 2. Cross examination is legitimate practie of American Adversarial
system—enhances reliability, and tests credibility
 3. When a party takes the stand, their honesty is key—thus, use of prearrest, pre-miranda silence may be used to impeach
2. Post-Arrest, Pre-Miranda Statements—Harris v. New York:
 F: ∆ was arrested for heroin possession. When Defendant testified, he said that he didn’t sell
the police heroin—it was baking powder, and he needed to make money. The prosecution
then cross-examined him on this, arguing that statements he made after his arrest but prior to
Miranda were prior inconsistent statements to impeach him.
 I: May Post-Arrest, Pre-Miranda statements be used to impeach?
 R:
 1. Miranda Bars the Use of Statements for Prosecution’s Case-In-Chief:
 Statements made while in custody, prior to Miranda warning (pre-counsel
or waiver) are not admissible for case-in-chief
 Thus, a Miranda violation is not useable
 But, it does not follow that it cannot be used to impeach
 2. Even So, Miranda Violations Are Admissible to Impeach a ∆ Who Testifies:
 When a defendant voluntarily takes the stand to testify, they are under an
obligation to speak truthfully and accurately
 The traditional truth-testing device—cross-examination—must be
available to assure truthfulness
 Has to Apply:
 If it didn’t, defendant could get on the stand and lie,
uncontroverted, without risk of impeachment or perjury
 Police Remain Deterred:
 Many defendants do not take the stand, and police remain on
notice that statements cannot be used in case-in-chief
 Therefore, post-arrest, pre-Miranda statements may be used to
impeach
 Note:
 The use of a 105 limiting instruction may be necessary—
“consider for impeachment, but not guilt”
 Dissent (Black):
 This should not be permitted to impeach
 1. Fetters choice to testify, and erodes 5th amendment
 2. Miranda already addressed this—and did not distinguish between casein-chief or impeachment use
 3. Essentially permits violationg of 5th amendment against a party
 “Monstrous”
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o
o
o

Permits police to interrogate, without counsel,
incommunicado (what Miranda targeted) knowing that
any statement can be used to impeach
 Will not deter police at all
3. Post-Arrest, Pre-Miranda Silence—Fletcher v. Weir (1982):
 Absent any type of assurance given by the government (Like in Doyle, infra where he had
Miranda warning), post-arrest, pre-miranda silence is permissible to use for impeachment
purposes when a defendant voluntarily takes the stand
 Post-Arrest, Pre-Miranda Silence May Be Used to Impeach
5. Post-Arrest, Post-Miranda Statements—Oregon v. Haas:
 Post-Arrest, and post-miranda statements were permissible—here, suspect was Mirandized,
and invoked his right to counsel—instead of police ceasing interrogation, which they were
required to, they continued to question him
 May Be used to Impeach
4. Post-Arrest, Post-Miranda Silence—Doyle v. Ohio:
 F: ∆ was convicted in selling large amounts of drugs. However, he argues that he was not
selling them, but instead wanted to buy them but changed his mind. The informant the police
used merely threw the money at him and walked away. He remained silent when arrested,
testified, and on cross-examination prosecutor attempted to impeach him with his prior
contradiction—that he didn’t say anything.
 I: May Post-Arrest, Post-Miranda Silence be used to impeach?
 R:
 1. No—Reliance on 5th amendment Cannot be Used to Impeach:
 After a suspect has been told of their right to remain silent, their usage of
that silence cannot be used against them
 Fundamentally contrary to the 5th amendment
5. Contradiction:
 A. General:
o This is not addressed in the federal rules
o Impeachment by contradiction is a substantive impeachment—that is, the evidence used to impeach
must be true to show that the party has contradicted themselves
o Hearsay and Contradiction:
 To impeach by contradiction with use of statement—you must have a hearsay exception
 It is being offered for its truth
 B. Rule:
o Show that something the witness said is not accurate
 C. Limitations on Impeachment by Contradiction:
o Types of Evidence:
 You may use all types of evidence, including counterproof extrinsic evidence to prove,
subject to limitation
o 1. Collateral Use Limitation of Extrinsic Evidence:
 General:
 Like in other examples, above, extrinsic evidence can be used to impeach by
contradiction—but, to avoid a fishing expedition into matters not really relevant to
the trial—we limit the use of extrinsic evidence
 A. To Use—Must Not Be “Collateral Matter”
 1. What is Collateral (And, Therefore Excluded)
 Evidence that is not relevant for any other purpose but to contradict what
the witness just said may be collateral to the case
 Policy:
 1. Excluding this avoids arguing in a direction that takes
far away from relevancy of trial
 2. Avoids confusion and mini trial into irrelevant matter
 Means of Limiting Collateral Matters:
 403, 105, and 611 will be used to limit collateral points

2. What is not Collateral (And Admissible Extrinsic Evidence):
 Matters that are not collateral generally have a “dual relevancy”
 1. Contradicts and proves a substantive point
75
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
2. Contradicts and proves another form of impeachment
 If extrinsic evidence shows contradiction and bias
C. Repairing Credibility:
 General:
 After an attack has been made, an attorney may seek to “repair” or “rehabilitate” the witness’s credibility
 2 Limitations:
o 1. Must await an attack before you attempt to repair credibility
 608(a) explicitly embodies this principle
 May not present evidence of character for truthfulness until it has been attacked
o 2. Repair should be made at the point of attack
 What Attacks Lead to Repair:
 1. Impeachment by credibility of character for truth and veracity
o Repair by bringing character witness under 608(a)
 2. Bias, Sensory Perception
 3. Prior Inconsistent Statement
o Show that prior statements were consistent:
 1. Rehabilitation Use:
 Using a prior consistent statement to rehabilitate does not require a hearsay
exception
 Merely showing that the same thing was said—not that it was true
 2. Substantive Use:
 801(d)(1)(b) hearsay exception needed to bring in substantively
 Thome pre-motive requirement must be met
 Strategy to Avoid Repair:
 To avoid impeachment of a witness and therefore need to repair, there are several tactics one may undertake
o 1. Bring out, on direct, that they are paid
o 2. Bring out, on direct, of their convictions
o 3. Prosecutor bring out, on direct, that he has given leniency, plea deal
o 4. Bring out, on direct, any relationship of calling party to witness, defendant, or plaintiff
XIV. Privileges
 General:
 Unlike most evidence law—which attempts to support the truth-finding function, privileges impede the truth finding
function
 Protection of certain valued relationships
 Policy:
o 1. Encourages free-flow of communication between these parties
o 2. Promotes ability of counsel to best represent from having client who freely volunteers important
facts
 Distinguish from Professional Ethics Duty of Confidentiality:
 Model Rule 1.6
o An attorney must not disclose any information relating to the client ***
o Deals with voluntary disclosure
 The Privilege deals with compelled disclosure
 Not Codified In Rules—Instead, Subject to Federal Common Law:
 There was an attempt to codify 13 additional federal rules of evidence to include rules on privileges, however
they were not successful
o Congress disagreed with the rules and deleted them
 501 and 502 are the only rules that deal with privilege
o Rule 501:
 The common law, as interpreted in light of reason and experience, governs privilege…
 Conflict of Laws:
 But, in a civil case—state law governs privilege regarding a claim/defense where
state law supplies the substantive rule of law
 Effect:
 When there is a diversity case or supplemental jurisdiction case, and choice
of law applies state’s law, that state’s privilege law applies
o Effect:
76

Throughout the cases, infra, the Courts use 501 and the proposed rules to justify their creation
or augmentation of privilege law according to “reason and experience”


The “Super” Objection:
 1101 (c): Privilege
o Privilege rules apply to all stages of a case or proceeding
 Note:
 So, although FRE may not always apply, privilege portions do
 The Super Objection
A. The Attorney Client Privilege:
 1. General:
 For communication that is privileged, a court may not compel an attorney to disclose it
 Policy:
o (1) Though it may obstruct truth finding and protect guilty, it promotes full-disclosure of a client to an
attorney, promoting effective counseling and assistance
o (2) Encourages parties to see lawyers, beginning legal process—not hide as lack of a privilege might
encourage
o (3) A lawyer may sufficiently represent only if they know all facts of case—both strong and weak, and
privilege encourages this—thus, privilege facilitates better advocacy
o (4) Absence of privilege would encourage misconduct
 1. Parties would call lawyer to testify—eroding lawyer client relationships/trust of lawyer
 2.Trilemma for lawyer (perjury, contempt, or hurting client and client confidence)
 Survives Death:
o Privileged communication between client and lawyer remains privileged after client’s death
o Attorney may not thereafter be compelled to disclose
 Swindler & Berlin v. U.S. (1998)
 Pre-Existing Documents Not Privileged:
o The transfer of pre-existing documents to a lawyer from a client to not attach the privilege to them
 Must be Claimed or is Waived
o The Client is the Holder of the Privilege, but attorney may claim for him
o FRE 1101(c)
 Privilege may be claimed at all stages of a case
 2. When Does it Apply:
 A privileged communication is
o 1. A communication
 Communications that are not privileged:
 1. The Identity of the Client
 2. Information on client bills
 3. Non-Communicative Observations/Actions
 Physical characteristics, appearance, tattoo, etc… are not privileged
 Matters observable by general public not privileged
 May be compelled to testify about non-communicative matters
 Must be intended to communicate
o 2. Between privileged parties
 1. Client
 Who is a Client:
 A party who expresses their intent to enter into a relationship with the
lawyer for the purpose of obtaining legal advice and the attorney (1) assents
to the representation or (2) fails to, but client reasonably relies
 Prospective Client:
 Including party seeking advice, or prospective client, agent of client
 2. Lawyer
 Lawyer
 3. People “Reasonably Necessary”
 Parties that are privileged include
 Those necessary and reasonable to the communication
 This will create a “privilege circle”
 4. Agents and Supervised Parties:
 An agent of the attorney or client
77

E.G.

Paralegal, secretary, private investigator
3. In confidence
 Reasonable Expectation of Privacy:
 A Communication is confidential when made with the “reasonable expectation of
privacy”
o 4. For the purpose of acquiring legal advice:
 “Legal Advice”
 A very narrow application of what the privelege applies to
 Does not include:
 Business, accounting, shipping, investigation, social advice
 Preparing Tax Return (but may include legal tax advice)
3. May be Waived If Disclosed to Third Party:
 Disclosure to Third Party
o 1. Without a reasonable expectation of privacy not “In confidence,” and not privileged
o 2. To Third Party, not reasonably necessary not between privileged parties and not privileged
 Rule 502:
o (b) Inadvertent Disclosure
 Disclosure to federal office, agency, or federal proceeding, disclosure is not a waiver if:
 1. Inadvertent
 2. Holder of privilege took reasonable steps to prevent it
 3. Holder promptly took reasonable steps to rectify it
o (c) Disclosure Made in State Proceeding
 Disclosure made in a state proceeding not subject of court order, it is not a waiver in federal
court if
 1. Would not be a waiver had it occurred in federal proceeding or
 2. Is not a waiver under state law where it occurred
o (d) Court may order something not waiver
 A federal court may order privilege has not been waived by disclosure
o (e) Parties may Create Waiver Agreement
 Those parties who contract on effect of disclosure binds only parties to contract
4. When Attorney May Voluntarily Disclose Client Privileged Information:
 1. When reasonable likelihood of substantial bodily injury or death
o *Note:
 A Past crime is privileged information—not disclosable
 2. To Defend Against Claim from Client
o Breach of duty, malpractice, to get fees back—attorney may disclose client confidentiality to sue or
defend from his client
 3. To Get advice about ethical duties and responsibilities
 4. Model Rule 1.6(b)
 5. Contesting Will beneficiary and claimant
o Following a client’s death, you may testify as to what the party intended or wanted with regards to his
estate
o



5. Exceptions to privilege when Attorney may be compelled to disclose information:
 1. Communications between concurrently represented parties are not privileged
 2. Moving and Disturbing Evidence:
o People v. Meredith:
 R:
 If an attorney uses privileged information to go find evidence and moves, removes,
or alters it—privilege does not bar revelation of original location and condition of
evidence
 If Leaves Undisturbed:
 Evidence observed is privileged
 3. The Crime-Fraud Exception:
o In re Francis:
 1. If a client makes a communication with attorney with the intention of furthering an
unlawful or fraudulent act (Using their services) and
78
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

2. Client actually carries out the act
 The communication may be compelled to disclose
 Note:
 The lawyer does not have to know that they are being used for the
crime/fraud exception to apply
6. Lawyer’s Duty Upon Receipt of Confidential Information From Other Party:
 You have an ethical duty to immediately notify the other party of your receipt of their information, and await
their instruction
o Recommended:
 To return it
7. The Attorney Client Privilege and Corporations:
 Upjohn Co. v. United States:
o F: During an audit, accountants determined that some employees of π’s subsidiarys were engaged in
bribery. They obtained outside counsel, who prepared a questionnaire and sent it out to the managers
and certain employees of the corporation. After they made a voluntary 8-k disclosure, the IRS began
investigating the matter, and subpoened “all investigation documents.” Π refused to produce
documents of the questionnaire, arguing it was privileged.
o PH: There was a split of circuits on whether privelege applied to corporation—(1) the test adopted by
Upjohn, and (2) the 6th circuit “Control Group” Test. The “control group” test states that if the
employee making a communication, is in a position of control to take part in a decision about action
the corporation may take….”
o I: What is the scope of the A-C Privilege in Corporations?
o R:
 1. The Privilege Has Vital Purpose which “Control Group” Test Hinders:
 It encourages full and frank communication between an attorney and client
 It therefore promotes public interest by having sound legal advocacy—available only
if attorney knows all the facts
 The “Control Group” Test Fails This Purpose:
 1. Too Narrow
 Many lower level employees will have vital information needed
for legal representation
 Inability to have full and unfettered disclosure with these
employees frustrates corporate representation
 2. Makes Difficult for Corporate Lawyers to advise on how to comply with
the law
 They need predictability and certainty in what is privileged to
provide best advice and full disclosure between parties
 But, 6th Circuit’s test is uncertain as to who “control” group is
 3. “Zone of Silence” not really an issue
 like all A-C privilege, only those confidential communications for
legal advice are privileged
 2. Privilege Applies to Communications that Follow Upjohn “Factors”:
 1. Made by corporate employee to corporation’s counsel
 2. Made at the direction of corporate superiors to secure legal advice
 3. Communications concerned matters within scope of employee’s duties
 4. Employee’s knew they were speaking to attorney regarding corporations legal
advice
 5. Overall legal implications were addressed in the letter
 Effect:
 If you follow these factors laid out in Upjohn, written communications to
corporate employees should be considered privileged
 In essence, follow basic elements of the attorney-client privilege
 Note:
 Never disclosed to 3P Would have waived
 From attorney to employee—, for practice purposes, to
ensure privileged communication, using lawyer on one
side of communication helps ensure privilege applies

3. Work Product Doctrine:
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A lawyer’s preparation of documents in anticipation of litigation
Generally, may not compel disclosure of attorney work product
Two Types:
 1. Factual:
 Compelled Disclosure Only If:
 1. Substantial Need and
 2. Undue Hardship Without
 EG:
 You’ve spoken to only living witness, and he then dies…a
court may compel disclosure
 2. Opinion:
 The lawyer’s creation of his mental impressions, opinions,
strategies, and beliefs
 Compelled Disclosure Rare, Only If:
 Extraordinary showing of need
B. The Spousal Privilege:
 General:
 A. Policy History:
o (1) Man and Women Were Same
 The spousal privileges are derived from the view that a man and women, at common law,
were one—that is, the women was part of the man
 Therefore, the women could not testify against the man for any reason—it would be the man
testifying against the man, violating his 5th amendment privilege against self incrimination
o (2) To Preserve Marriage and Family
 Prohibiting the testimony of one against the other protected the family unit
 This was seen as beneficial to society, and good for all
 Protected children too, as family unit remained cohesive
 B. Two Versions:
o 1. Privilege Against Adverse Spousal Testimony
 Prohibiting the testimony of one spouse against the other
o 2. Spousal Confidences Privilege
 Those communications made between spouses are privileged
o Note—They Overlap:
 If a spouse does testify against the other, communications between spouses are still privileged
 Thus, the two versions work together according to Trammel and Montgomery, infra
 C. Effect:
o Court May Not Compel Disclosure
 D. Same Sex Couples and Privilege:
o 1. States that Recognize Gay Marriage, or Other States Marriage Laws:
 Those states that have their own “marriage” law or do not permit gay marriage, but recognize
gay marriage laws of other states have “spousal privilege” for those couples
 EG:
 NY: Has gay marriage law and recognizes other states’ marriages
 MD: Does not have gay marriage law, but recognizes other states’
marriages
o 2. States that have Domestic Partnership or Civil Union, Where those Couples, Although not
“Married” Have, By Definition, the Same Rights As a Married Couple:
 In those states that have a different title than marriage for gay couples, but whose statute says
those couples have the same rights as married couples—will have spousal privilege
o 3. All Other Statutory Regimes:
 Most states have no gay marriage, civil union, or domestic partnership, or if they do, treat
them differently than married couple—likely, they do not have a “spousal privilege”
o 4. Federal Law and DOMA:
 DOMA Defines, for all federal law, marriage as between one man and one women
 Thus, there is no federal privilege for gay couples
 Note:
 Under 501, if there is choice of law issue, and that state’s privilege law applies, than
that states marriage law would also apply—may be a spousal privilege
 1. Privilege Against Adverse Spousal Testimony:
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Trammel v. US:
o F: Husband was indicted with his wife for trafficking heroin. She eventually entered into plea-deal
with prosecution, and agreed to testify against the defendant—her husband. Husband, ∆, moved to
exclude her testimony as privileged under the spousal privilege.
o I: Who is the holder of the spousal privilege against adverse testimony?
o R:
 1. History and Policy of Spousal Privilege Is Extensive:
 Historically, either spouse could prevent the other from testifying
 Both had to consent
 Fostered harmony in marriage and
 But, Rule 501 expressly permits flexible, case-by-case construction
 According to “reason and experience”
 Rejection of the proposed rules was to provide courts with flexibility to
develop rules of privilege on case by case basis
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2. Adverse Spousal Testimony Privilege Is Too Broad on Balance:
 Court Balances:
 Exclusionary rules of evidence must support sufficiently important interests
that outweigh need for probative evidence in name of justice
 Here, Not Weighty:
 1. Other version is corollary, and already protects confidential information
 2. No Other privilege is as broad
 This excludes confidential and communications made in front of
3P, if both spouses don’t consent
 3. Historical View Is Dead
 Man and women are not treated as the same person anymore
 4. Spouses May Have Desire or Need to Testify Against Other
 If so, the privilege isn’t going to save that marriage—already little
“marital harmony” that remains in such marriage
 3. The Witness-Spouse Has The Choice Whether to Testify Against Spouse—No Longer
Requires Both Consent:
 Rule:
 The witness-spouse alone has the privilege to refuse to testify adversely
 May not be Compelled
 May not be foreclosed by other spouse
 Spouse has choice
 What type of “Marriage” Is Sufficient To Invoke Testimonial Privilege:
o 1. The marriage must be valid when the privilege is invoked
 Note:
 Long separation or divorce likely will lead to its inapplicability
 You may be compelled to testify
o 2. Recent marriage to utilize privilege to block testimony
 Lutwak v.US (1953)
 Use of marriage as a sham, phony means to use privilege is not acceptable
o 3. Terminates at End of Marriage/Does not exist post-marriage
 Privilege against adverse testimony ends at end of valid marriage
2. Spousal Confidences Privilege:
 United States v. Montgomery:
o F: Husband was engaged in illegalities in property rental operation. His wife realized this, and wrote
him a note—leaving it on the kitchen table saying “Dear Husband…”…”love, wife” alerting him that
she disagreed with fraud and wouldn’t be a part of it. When IRS searched house, they found note and
attempted to admit it. Wife agreed to testify against her husband, but husband argued that spousal
confidences privilege extended to the note and it should be inadmissible.
o I: What is scope of spousal confidences privilege
o R:
 1. The Spousal Confidences Privilege Applies When:
 A communication between spouses, made in private are presumed to be confidential
and therefore are privileged
 1. A Valid Marriage
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Communications must have been made during valid marriage—not
communications prior to marriage
 2. Communication
 Must be intended to be communicative in nature
 Daghita/Estes (husband walking into room, pouring stolen
cash on bed was communicative)
 3. That is confidential (evaluate whether it was intended to be confidential)
 Government bears burden to rebut presumption
 2. Here, It Was Confidential:
 Factors Court Looked At:
 1. Wasn’t Shown to 3P:
 The Letter itself was not shared to third party—no waiver
 Even though husband disclosed substance, the letter itself was not
shared with a third party
 2. Wording and language:

Shows between two spouses
 “Dear husband” and “love, wife”
 3. Location:
 Was left in house, on kitchen table—Even if kids may have seen it,
the house is private—shows intent to be confidential
 Was confidential—government didn’t rebut presumption
 3. Both Spouses are Holder of Spousal Confidences Privilege:
 Either spouse may assert the privilege regarding spousal communications to prevent
testimony regarding such communications (Requires both consent to waive)
 Effect: may not be compelled, and either may prevent other from testifying on it
 Note:
 Unlike Trammel, and corollary privilege
 There, either may decide to testify
 Here, either may prevent other from testifying on
substance of communications between spouses
 Waiver:
 Even if one has waived their communications under
spousal privilege—the other hasn’t waived their
communications—therefore, privilege still intact
 4. Survives Termination of Marriage:
 Unlike adverse testimony, spousal confidences privilege exists post-marriage
C. Exceptions to Spousal Privileges:
 1. US v. Marashi—Joint Criminal Activity Exception
o Spouses who jointly participate in criminal activity presently or in the future do not have a spousal
communications privilege
 Effect:
 Communications between them are not privileged
 2. Crime Against Another or a Child of Either
o If one spouse is prosecuted for a crime against the other spouse or a child of either, the privilege does
not apply to communications between them
 3. Suits between Spouses
o In a divorce or child custody litigation, there is no privilege between spouses
 4. Non-confidential Communications: In Presence of Third Party/Children/ No Reasonable Expectation of
Privacy:
o Under Wolfe v. US, communications between husband and wife made in presence of children who are
old enough to understand them or other third parties (members of family) are not privileged
 Effect:
 If confidential—is privileged; if not confidential—not privileged
 5. Matters Occurring Prior to Marriage are Not Privileged
o Need a Valid Marriage and communication during it
 6. Waiver:
o Adverse Testimony:
 Spouse-witness may waive, and testify—they are holder and may waive
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Spousal Confidences:
 Because both hold, even if one waives, the other has not waived their communications—thus,
the privilege has not been waived and may be invoked by the other spouse
C. Psychotherapist Privilege:
 General:
 Jaffe creates a federal version of this privilege Must comply with typical privilege requirements
o 1. Communication, 2. In confidence, 3. Between privileged parties, 4. For the purposes of obtaining
psychotherapy treatment
 Jaffe v. Redmond:
 F: Officer called to come to a fight. As she arrived, she saw a man chasing another with a knife, shot and killed
him. She saw a certified social worker 50 times regarding the incident. When family of decedent filed suit,
they sought to discover the documents, notes, and statements made in these sessions.
 I: Is there a federal psychotherapist privilege?
 R:
o 1. 501 Lets Courts to Create and Flexibly Interpret New Privilege Law on Case by Case basis:
 Must begin with the concept that “public has a right to everyman’s evidence”
 When exempted, need adequate justification
o 2. Psychotherapist Privilege Is Needed:
 Benefits Private Interests
 Treatment is only successful if confidential and full disclosure occurs
 The risk of disclosure would chill use of therapy
 Benefits Public Interests
 Facilitates treatment of mental/emotional problems of people—good for all
 Especially beneficial when treatment of police—they benefit society
 If it didn’t exist, people wouldn’t disclose as much to their psychotherapist, for fear
of future discovery in litigation
 Most States Have Version
 Court often looks to how states deal with—here, states recognize and federal courts
should also recognize a variant
 Proposed Federal Privilege Rules Had
 Therefore, there was past intention to utilize such a privilege
 Note:
 Also, in majority, there is underlying theme of extending the privilege to social
workers
 This is a pro-state view, as many states want to save money by using social worker
instead of psychotherapist for workers (cops) who need therapy
 Thus, Stevens takes a pro-state view in this process
o 3. There is a Federal Psychotherapist Privilege:
 A privilege against compelled disclosure exists for communications between a licensed
psychotherapist and their patients
 Must be made for the purposes of psychotherapy treatment and diagnosis
 Extends to Social Workers:
 Certified Social Workers gain this too
 Dissent (Scalia):
o Question presented was regarding social workers—court went out of its way to address other privilege
o 1. States are inconsistent in their application—it is not very clear, or as clear as court seems to make
o 2. Extension to social worker is too broad
 They do not do the same thing as medical doctor psychotherapist who had training
o 3. Proposed Rules did not extend to social worker
o 4. History Doesn’t Support
 For years, there was no such privilege and no such practice—people talked to bar tender or
parent without privilege
 Therefore, not really necessary
D. Priest/Penitent Privilege:
 Communications and counseling between a priest and penitent (non-religion specific) is recognized by the law of
evidence
 But, communication must be made for purposes of religious guidance or advice
 Policy:
 (1) Religion often has its own code of confidence—thus, law simply recognizes it as an evidentiary privilege
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E. Political Vote Privilege:
 The way you voted may not be compelled to disclose –this is a privileged event
F. State Secrets and Executive Privilege:
 1. Executive Privilege:
 The President of the United States of America has a privilege to communicate with employees of the executie
 May not be compelled to disclose such information
 2. State Secrets:
 Federal Agencies and branches may claim privilege on materials necessary for national security
G. Non-Existent Privileges in Federal Courts (These may still exist in some state courts):
 Generally:
 For the following non-existent privileges, a party may be:
o 1. Compelled to Disclose
o 2. And, if they refuse to disclose, face contempt charges
 1. Child-Parent
 2. Accountant Client:
 Note: Because of this, a company may ensure the accountant communicates to an attorney—that way, privilege
argument exists
 3. No Medical Doctor Patient Privilege
 4. News Reporter Privilege (they do not have a privilege to refuse to disclose their source)
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