Perfecting the record – 103 on preserving issues for appeal
401 – Relevance defined
Any evidence that has a tendency to make a fact of consequence more or less probable than it would be without the evidence.
Common law distinguished between “materiality” and “relevancy”
o
Materiality = connection of evidence to FOC
o
Relevance = probative value of the connection
o
FRE doesn’t make this distinction
No firm definition of what makes sth “more probable” – determined by knowledge, experience, reasonable generalizations
Any tendency strongly favors admissibility
402 – All relevant evidence is admissible, except as provided otherwise by the rule, etc.
403 – Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
Probative value = the degree to which the evidence alters the probabilities of a fact of consequence and an essential element of
the case
2 general categories of exclusion:
o
Inaccuracy (unfair prejudice, confusion of the issues, misleading jury)
o
Inefficiency (delay, waste of time, cumulative evidence)
Misleading the jury: they might assign too much (or not enough) probative weight to a piece of evidence; or, jury will draw a
wrong inference
o
Ex: scientific evidence can appear overpersuasive (ex: polygraph)
Confusion of the issues: jury thinks that the case is about collateral, not main, issue
For inefficiency, have to take into account not only the time to present the evidence, but the time to rebut the evidence
Availability of other means of proof weighs in 403 balancing test
B/c the test favors admissibility, evidence should only be excluded when the judge is quite confident that the prejudicial aspects
outweigh the probative value
Appellate courts give wide discretion to trial courts on 403 – invalidation on appeal is very unusual.
o
Counterex: Hitt, case where photo was introduced that showed lots of weapons, only 1 of which belonged to D
Old Chief
-
-
Before this case, there were some instances where D would offer a stipulation that would give P everything it legally needed
and would keep out some very prejudicial information (stipulate to knowledge of what cocaine is to keep out prior cocaine
sales), and P would be forced to take stipulation
This case rejected that; a certain “narrative richness” in providing the facts, can’t force stipulations
But oddly, Old Chief did force a stipulation – just on “felony-convict status” – found no difference there between the stipulation
and actually producing the felony record, and the prior felony would create prejudice
o
It’s holding is really more in the “narrative richness” dictum than the actual holding on status – not followed
outside status arena
Foundation
601 – Each witness presumed to be competent.
Abolishes common law competency requirements for witnesses
Spouses, persons interested in the suit, atheists, felons, young children, and mentally ill were all categorically incompetent
Trial courts have complete discretion over competency; most disabling factors are treated as matters affecting credibility
But there are still other requirements:
602 – Firsthand knowledge requirement
Directed verdict standard applies here (104(b)) to determine whether witness had personal knowledge
With a lot of undisputed issues, there will be no objection to a witness testifying even if the witness lacks personal knowledge
(officer’s knowledge of bone chip)
603 – Oath or Affirmation
Implicit requirement: witness must understand the oath and obligation to testify truthfully, to be competent
Abolishes moral qualification of religious oath
Insanity / incompetence to stand trial does not necessarily prevent one from taking oath
901 – Foundation requirement for physical evidence
Again, here, court employees directed verdict standard
Provides a list of examples as to what conforms to the rule (non-exclusive)
Chain of custody important here
o
But not necessary – for ex: distinctive characteristics or chain of custody can be used to authenticate same item
o
Chain of custody not always required, if a court is satisfied that a reasonable jury could find the exhibit in question
to be what it was claimed to be
Demonstrative evidence must assist trier of fact, be “fair and accurate”
o
This sort of evidence is reproduction: diagram, photo, etc.
o
Not literal part of 901; court-imposed
3rd requirement for ancient document – that document be in such condition as to create no suspicion concerning authenticity –
has been interpreted narrowly (suspicion as to accuracy or contents don’t count)
Writings created by new technologies are identified and authenticated by analogies to 901(b) illustrations (e.g., e-mail)
Foundation for recordings has been simplified from common law
o
Now require testimony affirming the events & saying that the recording is accurate (w/ percipient witness
o
W/o percipient witness, courts differ as to whether they apply the common law – may require proof of recording
process and chain of custody
o
@ common law, required proof of the operator’s qualifications, that the equipment worked, & complete chain of
custody
“Reply letter doctrine”
o
If you send someone a letter and keep a copy, and get a reply, the original letter (from you) can authenticate the
reply without a need for authenticating the signature on the reply
o
Similarly, can do this with a reply on the phone – dial a number and a voice says “Angelo’s,” that’s the reply
902 – Self-authenticating documents
Not dispositive of authenticity; source, accuracy of information
Standard for deciding whether foundation is satisfied?
Directed verdict standard: proponent must put forth sufficient evidence to support a finding that the foundational fact exists
Other standard: judge decides, yes or no
This is most often a preponderance of the evidence standard, but sometimes “clear and convincing” or “reasonable
doubt” (depends on foundational fact)
In all of this, trial court always makes decision without weighing witness credibility
o
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104 – Preliminary questions
Applies to both civil and criminal cases
(a) Preliminary questions concerning qualification to be a witness, existence of a privilege, admissibility of evidence,
determined by court (exceptions, see (b)). Court is not bound by rules of evidence in making determination (except
privileges).
“Yes or no,” court decides itself, preponderance standard
Judge does not inform jury as to his/her decision on the preliminary question; opponent may attempt to reduce probative value
after admission
Voluntariness of a confession falls in here (even though it arguably should be (b)) – b/c of prejudicial nature and abhorrence of
police conduct
(b) When relevancy depends on a fulfillment of a condition of fact, court admits the evidence subject to [directed verdict
standard].
Here, the judge can only consider evidence that would be admissible to the jury
Again, judge does not inform jury about decision as to sufficiency, and opponent may contest preliminary fact to jury. Jury
decides the preliminary fact as part of its decisionmaking, and judge will instruct on this.
Authentication will always fall in here, b/c relevance depends on authenticity
D’s culpability in a prior bad act also falls in here
(c) Conduct hearings on admissibility of confessions outside jury’s hearing. Otherwise, do so when interests of justice so
require, or when the accused is a witness and asks for this.
(d) Accused doesn’t become subject to cross on other issues by testifying to a preliminary matter.
(e) Rule doesn’t limit party’s right to introduce evidence, before the jury, to weight & credibility
Drafting glitch – all “relevant” evidence is conditionally relevant, but there’s a much higher hurdle in 104(b) than in 401.
More of an academic than practical problem.
Best Evidence:
1001 – Definitions (Writings and recordings; photographs; original; duplicate)
Carbon copy is original – original is the thing or anything else intended to have the same effect
Applies to creative artwork as well. Seiler v. Lucasfilm
1002 – Requirement of Original
To prove content of writing, recording, photo, need original (except as in these rules)
Facts about the writing are not its “contents”
1003 – Admissibility of Duplicates
Admissible to same extent as to original, unless:
o
Genuine question of authenticity of original
o
It would be unfair to admit the duplicate, under the circumstances
1004 – Admissibility of other evidence of contents
Original not required & other evidence admissible if:
104(a) issues for the judge
o
Originals are lost or destroyed (unless proponent destroyed them in bad faith)
o
Original is not obtainable by judicial process / procedure
o
Original in possession of opponent & opponent, w/ notice, doesn’t produce
o
As to collateral matters
1005 – Public records
Don’t need original for these
1006 – Summaries
Contents of voluminous writings can be presented in summary form; originals & duplicates must be made available to
parties
1007 – Testimony or Written Admission of Party
Even w/o original, contents of writing, recording, photo can be proved by:
o
Testimony of the party against whom the thing is offered
o
That party’s written admission
1008 – Functions of court and jury
Most “Best Evidence Rule” preliminary questions are for the judge under 104(a)
But three are singled out for the jury:
o
Whether the asserted writing ever existed
o
Whether another writing, recording, photograph produced at trial is the original
o
Whether official evidence of contents correctly reflects the contents
404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) – Generally, evidence of character is not admissible to prove action in conformity, except:
“Character trait” = attribute of individual, typically w/ moral connotation
If the evidence could be character evidence but is also admissible for a noncharacter purpose, it’s a 403 issue
Exceptions (1) and (2) only apply to criminal trials

A minority of jurisdictions also apply them in civil actions where the civil action is based on culpable conduct proscribed
by criminal law.

Inconsistent w/ text of the rules, a pending amendment will change that
(1) Accused can open the door to his own character; if he does so, prosecution may offer character evidence to rebut.
Likewise, if Accused opens the door to Victim’s character, prosecution may offer evidence of the same character trait of
Accused
(2) Accused can open the door to Victim’s character; if he does so, prosecution may offer character evidence of the
victim to rebut. Also, in a homicide trial, if D offers evidence that V was the first aggressor, P may introduce evidence of
V’s peaceful character
(3) Incorporaes 607-09 by reference
(b) Evidence of other crimes, wrongs, or acts is not admissible to prove character to show action in conformity w/ that
character. May be admissible for other purposes. Also, notice requirement for prosecutors.
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Laundry list from McCormick of things that fit in here: fill in the story, prove the existence of larger plan, show MO, show that
it wasn’t an accident, establish motive, establish opportunity, show that D acted w/ requisite intent, prove identity, prove
propensity for abnormal sexual relations
The other reasons for which 404(b) evidence can be offered applies across the board – P/D, civil / criminal
Question of the person’s culpable involvement is a 104(b) question
Of course, admissibility subject to 403 as well, even after something is classified as a 404(b) factor.

Of course, 403 favors admissibility and there is a long history of admitting prejudicial specific acts evidence for
noncharacter purposes

In the past, was a tradition of not admitting 404(b) evidence to prove a non-contested point – but that has all changed
after Old Chief (despite Kuhns thinking that it ought not have changed)
Primary determinants of admissibility: probative value of specific acts evidence, whether the relevant propensity can be labeled
a character trait – but the degree of prejudice isn’t a function of either of these factors

Usually need way more than bad person prejudice, since the rules specifically permit entering evidence for the listed
purposes

The degree of probative value often determines (or seems to determine) when something gets the label “character” vs.
when it falls under the 404(b) factors

Ex: random assaults against 3rd parties = “character for violence.” Repeated assaults against the same person = “motive”
Acquittal is no bar to using the conduct as 404(b) evidence (just as a conviction may be excluded as hearsay)
Anticoincidence theory of relevance, or “doctrine of chances.”

Not enough evidence to prove D’s culpable involvement in any one particular act, but too many similar events for it to be
a coincidence; there is instead an alternate, rational explanation

Ex: child abuse (“I fell,” over and over – too coincidental)

The bad acts (that you’re inferring from the doctrine of chances) must still be admissible for a 404(b) permissible purpose
405 – Methods of Proving Character
(a) Proof may be made by reputation or opinion testimony. Can inquire into specific instances of conduct on cross.
When a party inquires into specific instances on cross, technically it’s offering those specific instances to impeach the
reputation or opinion testimony – not as substantive character evidence.
Cannot be offered for the character purpose – 404(b) prohibits this
Specific acts must relate to the character trait in question (i.e. be relevant)
Also, questions on specific acts are limited by whether witness is likely to have heard of the particular act, and the cross-Xer’s
reasonable belief that the act occurred
Asking about arrests falls in here – despite Kuhns’ protests that it should be hearsay
(b) If a character trait is an essential element of a charge, claim, or defense, proof may be made by specific instances of
conduct.
For ex: a claim that a hospital was negligent in hiring a particular doctor puts the doctor’s character at issue
Other ex: character & fitness is essential in custody action; P’s character is essential element to a defense to defamation / libel
(but important to distinguish between character and reputation here – as damage to reputation (not character) is the basis for
assessing damages)
When character is an essential element, can use all 3 types of character evidence – and you must introduce character evidence to
avoid a directed verdict

All other times, character evidence is circumstantial and not necessary
Sexual Assault
413 – Evidence of Similar Crimes in Sexual Assault Cases:
(a) In a criminal case, in which D is accused of an offense of sexual assault, evidence of D’s prior commission of another
sexual assault offense is admissible and may be considered on any matter to which it is relevant.
(b) Disclosure provision for when gov’t intends to offer evidence under this rule.
(c) Rule shall not be construed to limit the admission or consideration of evidence under any other rule
(d) Offenses of sexual assault mean a crime under federal law or any state law that included:
(1) Any conduct proscribed by 18 U.S.C. 109A (contains sexual abuse crimes)
(2) Contact, w/o consent, btw any part of D’s body and the genitals / anus of another
(3) Contact, w/o consent, btw genitals / anus of D and any part of another’s body
(4) Deriving sexual pleasure / gratification from infliction of death, bodily injury, or physical pain on another
(5) An attempt / conspiracy to engage in the above described conduct
414 – Evidence of Similar Crimes in Child Molestation cases
Similar to 413, but applies to offenses of child molestation rather than sexual assault
Section D of 414:

Child = a person below age 14

Removes “w/o consent” as it appears in 413(d)(2)-(3) (statutory rape)
415 Evidence of similar acts in civil cases concerning sexual assault or child molestation
Makes 413 and 414, including the notice requirement, applicable to civil cases in which a claim is based on a party’s
alleged sexual assault or child molestation.
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Rape Shield
Rules suggest that judges have less discretion (“is admissible” rather than “may be admissible”), but not no discretion (“is” vs.
“shall be”)
Trumps 404(b)’s prohibition from using character to show action in conformity
403 applies to offered sexual assault evidence

Courts differ widely as to how (and if) the 403 inquiry changes
Other rules (such as hearsay) probably do too
As w/ 404(b), no requirement of conviction or criminal charge
Preliminary facts fall under 104(b)
Admissible so long as some state has forbidden the conduct (413(d)), even if the conduct is legal in the state where engaged in
Nothing indicates whether “consent” in the rule means actual or legal consent (i.e., if prior conduct that amounted to statutory
rape would be admissible, where the “victim” in fact consented)
Trends:

Evidence very likely to come in, in child molestation cases

Evidence more prone to exclusion in acquaintance rape / sexual harassment than stranger rape cases
Courts especially concerned about bad person prejudice in these situations
This may be undermining the objectives of the rule; greater need for evidence in these cases (less likely to be
physical evidence, devolves into “credibility-off”)
412 – Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Disposition
(a)
Following evidence is not admissible, except as provided in (b) and (c);
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior
(2) Evidence offered to prove any alleged victim’s sexual predisposition
“Other Sexual Behavior” not defined by rule, but examples given in advisory note, includes:

All activities that involve actual physical conduct … or that imply sexual intercourse or conduct

Use of contraceptives, birth of an illegitimate child, VD

Also includes activities of mind (fantasies & dreams)
Evidence that doesn’t directly relate to sexual activities or thoughts, but that the proponent believes may have a sexual
connotation for the factfinder:

Ex: V’s mode of dress, speech, lifestyle
Issue comes up most often in cases where prior activity is offered for some purpose other than to show sexual conduct (action in
conformity) on a particular occasion (ex: motive to lie)
412 applies to hostile work environment cases where purpose isn’t to show action in conformity, but where the defense is that V
welcomed or created the environment that V believes is discriminatory
Potentially large loophole if the evidence is not being offered to prove sexual behavior / sexual predisposition, but to prove D’s
mens rea (if he had to know that V wasn’t consenting)
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) Evidence of specific instances of sexual behavior by alleged victim, offered to prove that a person other
than the accused was the source of semen, injury, or other physical evidence
(B) Evidence of specific instances of sexual behavior by the alleged victim w/ respect to the person accused of
the sexual misconduct offered by the accused to prove consent or by the prosecution
(C) evidence the exclusion of which would violate D’s constitutional rights.
Vast majority of these challenges are unsuccessful
Probably the most successful (most probable use of (C)) are where defendant seeks to introduce the evidence to
impeach the alleged victim by showing bias / that V is falsely charging D
(2) In a civil case, evidence offered to prove sexual behavior or predisposition of any alleged V is admissible, if it is
otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim
and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if the alleged victim
has placed it in controversy.
Reverse 403 balancing test
“Unfair prejudice” is not just prejudice to a party to litigation (as in 403), but also includes the victim (if not a
party)
(c) Procedure to determine admissibility – notice, etc.
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406 – Habit; Routine Practice
Evidence of habit of a person or the routine practice of an organization is relevant to prove that the conduct of a person or
organization on a particular occasion was in conformity with the habit / practice.
Overrides old common law that prohibited habit unless it was a last resort or there was corroboration
Should be able to prove habit by opinion or lots of specific instances, but not by reputation testimony (reputation is hearsay; no
hearsay exception for habit)
“Regular response to a specific situation,” semi-automatic (taking the stairs 2 at a time, for ex.)
Generally, intemperate “habits” are generally excluded (proof of drunkenness in accident cases)

But if an intemperate, repeated act raises to the level of a habit, it can be admissible – this isn’t a blanket
prohibition

Ex: person goes to the same bar on the same night at the same hour, ordering the same drink, and leaves at the
same time, always driving – (a “hard call” in the notes)
Usually, habits are not volitional (so attending Church every Sunday is not a habit)
Unlike character traits, habitual acts are likely to be morally neutral
“Regularity, specificity, moral neutrality” – distinguish habit from character, and the same applies to “routine practice”
Ex. of “routine practice”: a claims procedure, in which you want to show that a letter was sent out

No one likely to remember sending the particular letter

But if you have a business practice of sending the letter and then filing it, and the letter’s in the file, you’re OK
Other Relevance Rules
Cannot use subsequent remedial measures (407), compromises and offers to compromise (claims negotiations) (408), payment of
medical & other similar expenses (409) and liability insurance (411) to prove fault or liability.
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For each of these, there are a list of permissible and impermissible purposes – refer to the rules for the list
“Permissive use” for the evidence are just examples, not an exclusive list
If you have a permissible purpose for offering any of the above evidence, becomes a 403 question
“If controverted” applies to the whole list – can only be used for the permissive uses if other party attempts to controvert it first
(407)
“Subsequent remedial measure” must occur after the event giving rise to liability (after the accident)
Any act that may reduce the likelihood of the event’s reoccurrence is a subsequent remedial measure; the action need not be
effective
Of course, subsequent remedial measures of a 3rd party aren’t barred

Ex: worker gets injured, sues manufacturer of a tool. Employer’s subsequent safety measures aren’t barred. And
vice versa, if worker sued employer and manufacturer improved the tool.

Language doesn’t distinguish btw parties and nonparties taking subsequent remedial measures, but there is
precedent in accord w/ above
Of course, if you get an executive who testifies to the adequacy of the old measures, the subsequent remedial measures can
come in for impeachment (so be careful what you say!)
Also, feasibility is a permitted reason for such evidence – if employer contends it was infeasible (“there’s nothing safer than
ACME”) – can show that something was safer – the subsequent remedial measure
Some precedent for allowing in a safety report that may lead to a subsequent remedial measure admissible, where the measure
itself would not be

Kuhns has a problem with this
Can’t use liability insurance to make an inference of fault / liability, but you can use it to show bias of the witness (“you work
for the insurance company!”)
408:

Must be a claim before testimony, for rule to operate

Although offers to compromise can’t come in, out and out admissions can

When you have something that sounds like an admission, but the next day there’s a settlement offer, can
characterize as a conversation that got interrupted
408 – Withdrawn pleas can’t be used
“Similar happenings” evidence
No specific federal rule dealing with this; thus since “similarity” isn’t a condition of admissibility, this is not a 104 question for
the judge
If we’re dealing with similar nonhuman incidents, talking about 401-403
If we’re talking about similar human incidents, this may be a character evidence issue
Application of 403 here:
o
Pretty lenient when similar happenings are used to show notice
o
When the probative value depends on the degree of similarity, courts are likely to require a high degree of
similarity as a condition for admissibility.
Same types of concerns for similar nonhappenings, but 403 test will also probably require a very large number of
nonhappenings (2 or 3 people not falling on the stairs won’t cut it)
Curative admissibility:
Party may introduce normally inadmissible evidence in response to other party’s introduction of / attempt to introduce
inadmissible evidence
o
“Attempt” really comes in when the attorney asks a question, objection is sustained, but you can’t “unring the bell”
Federal courts use the doctrine, but there is no specific federal rule on the matter
Hearsay Rules: (notes pp. 47 to 91) – got to 80; book p. 607
Keep in mind, throughout this, the necessity of proving 104(a) preliminary facts
GO BACK AND RESEARCH COMMON LAW RULES
801 – Definitions
(a) – Statement
-
Oral or written assertion
Nonverbal conduct intended as assertion

Doesn’t matter how “like hearsay” it is, or how communicative, if not intended as an assertion – categorical.

Only thing that matters is intent

At common law, under Wright v. Tatham, even nonassertive conduct was hearsay if offered for assertions implied from
the conduct. This is analytically untenable and stupid to put on an exam, but hey, what can you do.
(b) – Declarant = person who makes the statement
(c) – Hearsay
Statement, made out of court,* offered to prove the truth of the matter asserted.
* Out of court = statement other than one made by declarant at trial
-
-
Doesn’t matter if the declarant is also the person on the stand
Things like traffic tickets, police reports, jury verdicts, etc. – all statements
Machine-generated information is not a “statement” (photos, breathalyzer, radar)
o
But you have to lay the foundation
o
Similarly, “statements” by animals, no matter how well trained, are not hearsay b/c it doesn’t make sense to talk
about crossing them
Kuhns takes the view that things like being a patient is hearsay (because there was a commitment process); arrests are hearsay –
this is “correct” but minority view
“Truth of the matter asserted” is the truth of the factual proposition that the person is asserting, necessary for the inferences that make the
evidence relevant (not the truth of some ultimate issue necessary to the case – this would vitiate the hearsay rule)
Not hearsay if not offered to prove the truth of the matter
o
Effect on the hearer (notice, provocation)
o
Important element that it was said, words as legally operative facts (libel)
o
Important to show state of mind of the speaker (damages in libel action, various mental states)
When evidence is relevant both for a hearsay and nonhearsay purpose, have a 403 issue
Evidence based on hearsay is likewise excludable
“Hearsay Dangers”:
Left-leg:
o
o
o
Right-leg:
o
o
Narrative: Speaker uses language w/ which they are unfamiliar, or speak carelessly
Ambiguity: words are subject to more than one meaning
Sincerity: speaker is trying to deceive listener
Memory: speaker misremembers event that he/she is describing
Perception: speaker did not observe event accurately
Utterances offered to prove the truth of unstated beliefs:
Federal rules treat these as nonhearsay
o
Ex: letters sent to someone offered to prove that person is competent (able to comprehend letters) – doesn’t depend
on truth of any proposition in the letter
o
Ex: “put 25 on Rosebud in the 5th” – intending to make a bet, but not intending to assert “this is a place where bets
may be taken.”
o
The common law treated as hearsay all utterances offered for the truth of implied assertions that made them
relevant, Wright v. Tatham.
But, if a person intends to communicate an unstated belief, it will be treated as hearsay.
o
“Matter asserted” read broadly to include “matter intended to be implied through assertion”

This is what courts will usually do – a gray area in hearsay law

“Intent to communicate” may be difficult to prove b/c of factual uncertainty or b/c of ambiguity in the
meaning of “intent”
o
Ex: “At least I never stole … (he stole)”; “He ought to confess (he’s guilty)”; “That driver must be drunk (he ran
the red light / is negligent)”
Kuhns thinks that the best way to look at this is as spectrum – problem is, we’ve only seen things at the poles!
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(d) – Statements that are not hearsay (exemptions):
(1) – Prior Statement by a Witness
Declarant is testifying @ a trial or hearing (same person @ trial who made out-of-court statement); declarant is subject to crossexamination concerning the statement; and the statement is …:
o
Although witness must be subject to cross-examination on the statement, the witness need not remember the prior
event, or making the statement, to “be subject to cross-examination” (depiste Kuhns’ protests to the contrary)
o
“Subject to cross-examination” has also been construed to mean redirect
One of the following 3:
o
Statement is inconsistent with Declarant’s testimony, and statement was given under oath subject to penalty of
perjury @ trial, other proceeding, or in a depo

The “inconsistent testimony” must be prior in time (and therefore rebutting)

Inconsistency can be found in evasion, feigned memory loss

An alleged inconsistent statement that doesn’t fit this rule can still be offered to impeach
o
Consistent with declarant’s testimony, and offered to rebut express or implied charge of recent fabrication /
improper influence

In order to rebut such charge, the statement needs to have been made before whatever created the
motive to fabricate (i.e., before litigation, compromise offer, etc.)
o
One of identification of a person, made after perceiving the person

Clearly applies to lineup and photo array. No clear answer as to whether this rule should be read as
narrowly as (A) and (B)

Sometimes read broadly enough to include “statements of description” without IDing a person
(2) – Admission by Party Opponent
These were exceptions (rather than exemptions) at common law
Applies to anything offered against party; party need not have perceived it as unfavorable at the time
Do not use the phrase “admission against interest”
No firsthand knowledge requirement, for any of these
Foundational requirement for each exemption is 104(a) requirement
(A) – Party’s Own Statement, in individual or representative capacity
Have to be careful of multiple layers of hearsay; person may make an admission based on what someone else said
Representative = executor, trustee, guardian (lawyer?)
o
Statements made by person, when that person was acting as representative, can be offered against that person as
individual
Establishing the identity of the declarant (D wrote the letter): both a 104(a) and 104(b) problem; should probably be governed
by 104(b) – unless the letter is damning to D even if D didn’t write it
Bruton – statements admitted under this rule by one D that implicate a co-D violate the co-D’s confrontation clause rights
o
But see conspiracy rule, below.
(B) – Statement of which party has manifested adoption or belief in its truth
Foundational requirements:
o
Statement has been made
o
Party has done something to manifest adoption or show belief in truth
o
Statement is offered against a party
Both verbal and nonverbal conduct can count as adoption
Can have adoptive admission by silence
o
Except after Miranda warnings
o
Judge’s roll under 104(a) is the way to address ambiguity in what is adoption (including when silence is adoption)
May be adoption after you get expert report and decide to use expert; but simply hiring the expert & getting a report isn’t an
adoption of whatever’s in there (gives ability to decide not to call)
(C) – Statement by person authorized by party to make a statement on the subject
Foundational requirements:
o
Statement concerns a subject
o
Statement made by someone who a party authorized to make a statement concerning that subject
o
Statement offered against party
Statements by attorneys usually fall in here
(D) – Statement by party’s agent or servant concerning a matter w/in scope of agency or employment, made
during existence of relationship
Foundational requirements:
o
Declarant is agent / servant (employee) of party
o
Statement made during this relationship
o
Statement concerns a matter w/in scope of agency or employment
o
Statement is offered against party
Doesn’t require specific authority to speak
Doesn’t require that statement was made w/in the scope of agent’s duties
o
Speaking about job performance or events on the job is legit
o
When speaker is like a bystander, describing an event that, although perceived at work, has no relation to his job or
concerns, this rule doesn’t apply
Old common law rule – this never applied to the government
o
Now, some courts accept statements from prosecutors under this rule, as they have the power to bind the sovereign
and aren’t disinterested in the outcome
(E) – Statement by coconspirator, made during course of & in furtherance of conspiracy
3 requirements:
o
Speaker / author & person against whom evidence is offered are part of the conspiracy

Need not be formal charge of conspiracy
o
Statement made during course of conspiracy

Majority rule: statements made during concealment phase don’t fall under this exemption
o
And in furtherance of the conspiracy
Contents of statement are evidence of, but not sufficient to prove, authorization (C); agency / employment relationship & scope (D);
existence of conspiracy & participation in conspiracy (E)
802 – Hearsay Rule
803 – Exceptions
Have a firsthand knowledge requirement for all of these (and any hearsay that’s admissible); but not admissions – that’s an
anomaly
(1) – Present Sense Impression
Describe or explain an event or condition; while declarant was perceiving it (or immediately thereafter)
o
Must “describe” (in contrast to excited utterance)
You can lean a lot more on the statement to prove that the event or condition was going on, unlike in 801(d)(2)
-
-
-
-
-
-
-
-
-
-
o
Can use the statement, by itself, to prove the occurrence of the event
Declarant must personally perceive the event or condition about which the statement is made
(2) – Excited Utterance
Statement relating to a startling event or condition, made while declarant was under stress of excitement caused by event or
condition
o
No specific time limit here
o
Declaration need only “relate” to the startling event – broader than (1)
Same deal on bootstrapping, personal perception as under (1)
(3) – Then Existing Mental / Emotional / Physical Conditions
Statement of then existing state of mind, emotion, sensation, physical condition (ex: intent, plan, motive, design, mental feeling,
pain, bodily health).
Does not include statement of memory or belief to prove the fact remembered or believed, unless it relates to a will.
o
So, can’t be used if the relevance is to prove a past historical event / condition, which caused the state of mind
Must be then existing (i.e. present) state of mind
o
Kuhns thinks it’s nitpicky to make this distinction between present state of mind & past state of mind turn on
grammar
o
But, although a statement of a past state of mind is not admissible, the present state of mind may be used, through
inferential process, to prove past & future states of mind, or future conduct
Sometimes, you can also characterize these things as “not hearsay” under the rule, because they’re not being offered to prove
the truth of the matter, but the state of mind of the speaker (if the statement itself is not a literal statement of state of mind)
o
Kuhns thinks this is unsatisfactory, “mechanical” application of the rules
o
But either way you cut it, the result is the same.
o
Kuhns characterizes these statements as “only implicating the left leg of the triangle”
The “I am going to do X activity with Y other person” problem
o
If it’s offered to show agreement or common practice, that’s memory of the past or past state of mind; doesn’t
count under this rule
o
But you could also get the meaning “I’m going to do X and hope Y participates” or “Wherever Y goes, I’m going
too, including if that’s X”

Then you have 403 problems

Such interpretation may be a linguistic stretch
Judge can determine content from proof of the statement itself
(4) – Statements for Medical Diagnosis / Treatment
Foundational requirements:
o
Must describe medical history, past or present symptoms, pain, sensations, inception or general cause or external
sources of symptoms
o
Statement about the cause or source must be reasonably pertinent to diagnosis or treatment
o
Statement must be made for purposes of diagnosis or treatment
Rule applies even if you’re seeing a physician for diagnosis in litigation context
o
This is a huge departure from the common law: statements made for diagnosis in preparation for litigation were
unadmissible, and accompanying expert testimony had to be based on admissible evidence
o
But, if you’re visiting just for consultation in a lawsuit, and not really even to get diagnosis, doesn’t count
Can be statements coming from someone other than the patient
o
Ex: mother making statements for her son’s diagnosis
Biggest issue: what do you do with inculpating statements (e.g. I got these injuries b/c X beat me, or b/c I used Y products)
o
Determine if they’re necessary to the diagnosis
o
Just saying “X beat me” not enough, but if it’s necessary to diagnosis to explain that the child is abused by parent
… (identity of the abuser usually ruled pertinent; there are special psychological scars going along w/ that)
o
Just saying “Y burned me” is not enough, but if there is a certain chemical reaction unique to that substance …
(5) – Past Recollection Recorded
Foundational Requirements:
o
Declarant is testifying as witness
o
Statement is in the form of memorandum or record
o
Statement concerns a matter about which the witness cannot remember sufficiently to testify fully and accurately
o
Witness once had personal knowledge of the matter
o
Statement was made / adopted when the matter was fresh in the witness’s memory
o
Statement correctly reflects witness’s knowledge
The statement is read into evidence, but may not be received as an exhibit unless offered by an adverse party
Doesn’t need to be a document that is otherwise admissible
Multiple person creation of the record isn’t inconsistent w/ the exception
o
So, can use this to get around 2 layers of hearsay
o
If you have extra people making the record, want to call them to testify to their part in the process
Separate, on refreshing recollection:
o
Anything can be used to refresh recollection
o
If some physical object is used to do so, it’s marked, but is not evidence
o
If the person’s memory is not actually refreshed, but rather the person is testifying from a document, that document
must be admissible somehow (for ex: under 803(5))
612 – Writing Used to Refresh Memory
Stealth discovery rule. If in preparing for litigation you show something to the witness, the other side can seek to compel you to
turn over that thing
This trumps privileges – atty-client, work product, etc.
-
-
(6) – Records of Regularly Conducted Activity
Foundation requirements:
o
Statement is in written or recorded form
o
Record concerns acts, events, conditions, opinions, or diagnoses
o
Record was made at or near the time of the matter recorded
o
Source of the info had personal knowledge of the matter

Source must also have a business duty to take the record. Ex: in a police report, 803(6) will get you
around the layer of hearsay for the police officer making the report – but a pedestrian whose
statements he takes has no business duty, so 803(6) doesn’t apply there
o
Record was kept in course of a regular business activity, and
o
It was the regular practice of the business activity to make the record
Also requires proponent to produce a “custodian or other qualified witness” to testify about the foundational requirements or to
certify the foundation facts pursuant to 901(11) or 901(12)
Also permits judge to exclude business record otherwise fitting the exception if the circumstances show lack of trustworthiness
o
Opponent to the business record bears the burden on this issue
o
This motivation applies especially to documents prepared for litigation; also when original source of info, or
method, is unclear or unknown; when record contains serious mistakes or inconsistencies
-
In spite of the existence of (8), this exception applies to gov’t and public documents as well
Computer / electronic / web data OK
Police and valuative reports that don’t satisfy 803(8)(B)-(C) can’t come in through this rule. Oates
--(8) – Public Records and Reports
Statement is in form of record or report from a public agency
Contents of the record involve:
o
Activities of the agency
o
Matters observed & reported pursuant to a duty imposed by law (but not including police / law enforcement in a
criminal case)

Unclear whether “matter observed” only means “seeing” or also includes “hearing”

If it does not include “hearing,” then the Oates bar against using 803(6) to backdoor this
doesn’t apply

The “law enforcement personnel” is to be read broadly to include officers / agents with law
enforcement responsibilities (such as a Customs dept. chemist testifying about drugs) Oates

This prohibits you from going to business records exception, but you may still go to
another hearsay exception

Routine, bureaucratic, & nonadversarial reports are not subject to exclusion from the exception (ex:
911 call log, records of date & time of all crimes, records of serial #s of weapons received in N.
Ireland).

But, it is generally held that criminal Ds can offer such records against the gov’t
o
Factual findings from an investigation authorized by law (but not against D in a criminal case); this applies to civil
actions & against the gov’t in a criminal case

Evaluative opinions & conclusions also come in under this rule

Preliminary & interim opinions, findings, memoranda do not satisfy this rule

This part (C) does not authorize admission of otherwise inadmissible hearsay sources (statements
within the report) for their truth); but multiple hearsay may be used as basis for findings

General exclusion for lack of trustworthiness (even though it only appears to apply to (C))
(22) – Judgment of Previous Conviction
Evidence of final judgment after trial or guilty plea (but not nolo contendere) of a felony is admissible to prove any fact essential to
sustain the judgment. Judgment offered against a criminal D must be a judgment entered against that D (except when offered for
impeachment). Pendency of appeal does not affect admissibility.
-
804 – Hearsay Requiring Declarant’s Unavailability
(a) – Definition of Unavailability
Preliminary question under 104(a)
(1) Exempt from testifying on subject matter of statement, b/c of ruling of privilege
Just claiming privilege isn’t enough; court must accept it
Some courts: crim D. using the 5th cannot use that as a foundation for his unavailability, to get in prior statement (Kuhns
doesn’t like that)
(2) Persists in refusing to testify concerning subject matter of statement, despite order of court
(3) Testifies to a lack of memory of subject matter of statement
(4) Unable to be present to testify b/c of death or infirmity
Physical infirmity must be substantial; continuance otherwise
(5) Absent from hearing; proponent unable to procure attendance
Preference for former testimony over other statements
Representations of counsel are enough if a good faith effort has been made to locate the person; doesn’t require a futile act
(serving worthless subpoenas)
(b) – Hearsay exceptions
(1) Former testimony
Requirements:
o
Statement must be given at a hearing or depo
o
In a criminal case, the party against whom the statement is being offered must have had an opportunity and similar
motive to develop that testimony
o
In a current civil case, either the party against who the statement is being offered, or a predecessor in interest, must
have had an opportunity and similar motive to develop the testimony
Doesn’t matter whether the earlier testimony was criminal or civil
Factors indicating similar motive:
o
Being on the same side of the issue
o
Similarities in the factual issues
o
Similar interest in asserting & prevailing on the issue
o
Trial strategy & finances
o
Procedural context (don’t “tip your hand” early, for ex.)

Sometimes you have to make this clear at the time; otherwise, may not convince the court
Before this rule, some courts had an “offered on exactly the same legal issue” requirement
Party offering the former testimony need not be a party to the original proceeding
What is a “predecessor in interest?”
o
Some courts (& older view): required privity (minority view, but Kuhns thinks it’s correct); acknowledge 2
interpretations on exam
o
Also might include joint interestholders
o
Now: substantially similar motive to develop testimony
(2) Statement under belief of impending death
Must be either a prosecution for homicide or a civil case
o
At common law, only allowed in homicide cases
Declarant must be under belief that death is imminent
Declarant’s statement must concern the causes or circumstances about which declarant believes is his impending death
(3) Statement against interest
Requirements:
o
Content of the statement, at the time that it was made, was:

Against D’s pecuniary or property interest

Could render D subject to civil / criminal liability

Could render invalid a claim held by D
o
Statement was so strongly against any of those interests that a reasonable person wouldn’t make it if not true
o
If statement exposes declarant to criminal liability and is offered to exculpate accused, must offer evidence of
corroborating circumstances that clearly indicate the trustworthiness
If the facts can no longer cause trouble for declarant, then the against-interest element may not be satisfied
-
-
-
-
-
-
Statements inculpating another may not be offered if they are just part of some larger, self-inculpating narrative. But if they
really inculpate both the declarant and another, they can be admitted under this rule. Has to do w/ how intertwined the
statements are. Williamson
Probably doesn’t count if the statement is against your long-term interest but in your short term interest (ex: giving up a claim to
get $$ now)
(4) Statement of personal or family history
Requirements:
o
Statements concern declarant’s family history

Same as common law
o
Statements concern family history of one to whom the declarant is related or was intimately associated

Expands common law; common law only allowed statements by others related by blood or marriage to
come in
Required b/c no one really has personal knowledge of his / her birth
Exception limited to past facts & events of objective nature – statements of motives / purposes for marriage are beyond this
Old common law required that the statement be made before controversy; now, this is more appropriate to weight than
admissibility
(5) Excised
(6) Forfeiture by wrongdoing
Elements:
o
Declarant must be an actual or potential witness against a party
o
Statement must be offered against that party
o
The party must have engaged in or acquiesced to conduct that made the witness unavailable
Codified a line of cases
Can “bootstrap,” i.e. use the statement as proof under 104(a) that the party procured unavailability
For “acquiescence,” standard conspiracy rules work
805 – Hearsay within Hearsay
For multiple layers of hearsay, need exception / exemption for each layer
807 – Residual exception
Radical departure from the strict, common-law approach
Statement must be offered as evidence of a material fact
Evidence must be “more probative than other evidence”
Must be “circumstantial guarantees of trustworthiness”
o
This means “guarantees that inhere in the statement itself” (abstract) vs. “circumstantial corroboration of this
particular statement.
Something that’s a near miss for the rules might have circumstantial guarantees – but might also be undermining the categorical
exceptions by stretching them.
Confrontation clause issues:
Roberts: two-pronged test for determining whether hearsay satisfies confrontation clause
o
Hearsay declarant had to be unavailable
o
Hearsay statement itself has to be reliable

Firmly rooted hearsay exception

Indicia of trustworthiness in the circumstances in which the statement was made
Then a few years later, White v. Illinois, SC modified the test
o
Require unavailability only for former testimony
o
If you’re going to use former testimony and the person’s been cross-examined before, still require unavailability
o
But for any other hearsay, doesn’t matter so long as there’s reliability
Crawford
o
6th amendment primarily concerned with testimonial evidence – then the court offered 3 rough definitions of what
may be “testimonial”

Ex parte in court testimony or its functional equivalent (affidavits, custodial interviews, etc.); Similar
pretrial statements that people would expect to be used testimonial

Extrajudicial statements contained in informalized testimonial materials

Statements made under circumstances that would lead objective witness to believe that statement is
made @ trial
o
For evidence that is testimonial, there are two requirements

Declarant must be unavailable @ time that testimony is offered

Declarant has to have been subject to cross-examination before
o
For whatever “testimonial” evidence is, this will keep out much more than the old Roberts / White test
Go back and read Crawford
----Impeachment
-
Important to keep in mind: difference between impeachment and substantive purposes for evidence
608 – Evidence of Character and Conduct of Witness
(a) Credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these
limitations:
- “Credibility” should be “character,” otherwise this rule would really be prohibiting testimony that is admissible (like an expert testifying to
colorblindness)
(1) Evidence may refer only to character for truthfulness or untruthfulness
This repudiates a few jurisdictions where general bad character suffices.
If you have reputation testimony:
o
If it’s not reputation of a character trait: hearsay problem
o
But if it is: must be reputation of character for truthfulness (faulty memory probably won’t count).
(2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been
attacked, by opinion or reputation testimony or otherwise.
“Or otherwise”: impeachment by prior conviction, bad acts not resulting in convictions
o
Proof of witness’s bias, particularized motive to lie, is NOT an attack on character

But impeachment by prior conviction is (see below) as are bad acts not resulting in conviction
o
But bias rising to the level of corruption might be OK
o
Other impeachment techniques – prior inconsistent statements, demonstration of contradiction – courts are divided
on rehab
An attempt to impeach credibility is sufficient; doesn’t need to be successful
(b) Specific instances of conduct.
For purpose of attacking or supporting credibility [character for truthfulness], can’t be proved by extrinsic evidence,
except as in 609
That is the same as the common law rule
Just means that party is bound by the witness’ answer
Proposed clarifying amendment (in brackets) makes it clear that the extrinsic evidence ban only applies to character evidence,
not bias evidence
o
This is appropriate interpretation even w/o amendment, as it is in keeping w/ court decisions before & with rest of
the text
But they can be inquired into on cross-X, in discretion of court, concerning
o
W’s character for truthfulness
o
The character for truthfulness of another witness, to whose character W (the one being crossed) has already
testified
Wide variety of disagreement over what constitutes acts that pertain to character for truthfulness
Must be a good faith basis to inquire about specific acts
Testifying is not a waiver of privilege, w/ respect to questions that are permissible only to undermine credibility.
609 – Impeachment by Evidence of Conviction of Crime
(a) General rule – For the purpose of attacking credibility
Similar to the rules in most states
Based on common law disqualification of witnesses for certain crimes (of the sorts in (1) and (2))
Generally, can’t offer the details of the crime (but can offer the name) – courts differ
o
Some courts prohibit impeached witness from explaining conviction; in some, witness may testify about
circumstances, but if witness tries to explain away crime, party may be able to elicit otherwise inadmissible details
Witnesses can testify to crime beforehand, to come clean
Judge can choose not to rule on motion in limine; in order the party to be harmed and for reversal to be an option, the party must
choose to testify after motion in limine is rejected or unconsidered. Luce
Also, a D who acknowledges prior convictions on direct can’t, on appeal, claim that the admissibility decision was erroneous.
Ohler – not necessarily a state-level rule.
(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to 403, if the
crime was a felony, and evidence that an accused has been convicted of such a crime shall be admitted if [reverse 403]
Reverse 403 test does not apply to civil parties
One thing that might motivate a court to let in D’s prior crimes is if D has been attacking P witnesses on the basis of their prior
crimes
(2) Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement,
regardless of punishment
Crime in this exception must involve untruthfulness, deceit, or falsification bearing on accused’s propensity to testify truthfully
Some courts look at the legal elements of the crime; some at the factual circumstances surrounding the crime
This rule is the one place that is not subject to 403
(b) Time limit – 10 years, from date of conviction or date of release, unless the court determines that the probative value
substantially outweighs the prejudicial effect
Theory of relevance here: specific bad-acts are basis of showing a general character trait or disposition inconsistent w/ truthtelling, from which we can infer that W is not being honest on the stand
o
NOT admissible for the propensity to have the sort of character to commit similar acts – that is the forbidden
inference (also bad person prejudice)
o
Thus, similarity between prior and charged acts cuts against admissibility (prejudice), not in favor of it.
613 – Prior statements of witness.
(a) Can examine witness on prior statement; statement need not be shown or disclosed to witness, but on request shall be
shown to opposing party
- “No-show” formally abolishes an old English rule
(b) Extrinsic evidence of prior inconsistent statement is not admissible unless:
Witness has opportunity to explain or deny the statement, and
Opposite party is afforded opportunity to interrogate the witness thereon, or
Interests of justice otherwise require
(b) departs from the common law’s rigorous foundation requirement for extrinsic evidence here: precise time & place of
statement, person to whom made, and then asking the witness whether the witness made statement
o
There was also a general common law prohibition against inconsistent statements offered on a collateral matter
Now, in contrast: W testifies to something on direct, party gets witness to confirm it in cross. Can introduce extrinsic evidence
later in trial; so long as witness is subject to recall, that’s OK
But, b/c of some of the benefits, some courts are unwilling to give this full expansive reading to 613(b) – especially when
there’s been no effort to explore the inconsistency w/ W on cross
If W owns up to inconsistency statement, admissibility of extrinsic evidence as to the statement should be a 403 question
Current lack of memory should only be seen as “inconsistent” w/ a prior statement when feigned.
-
Used to be a common law rule allowing experts to be impeached by statements in treatises; now, treatises can come in as
substantive evidence under 803(18); they’re permitted apart from whatever impeachment purpose they have.
-
Prior consistent statements:
o
At common law, were not admissible for truth; only to rehabilitate after a express / implied charge of recent
fabrication / influence
o
Now, there’s a hearsay exemption which makes such statements admissible for their truth (in addition to the
nonhearsay purpose of showing consistency) – 801(d)(1)(B)
Statements are cotemporaneous with the “prior inconsistent statement” (context) and don’t fall under 801(d)(1)(B) may be
admissible to clarify or explain.
o
In other contexts, there are two views:

FRE 801(d)(1)(B) governs hearsay and nonhearsay purposes; if the prior consistent statement isn’t
admissible for truth, it’s not admissible to rehabilitate

The reverse: 801(d) is just a hearsay exemption; doesn’t govern nonhearsay uses
If the consistent statement is admissible, there’s no specific prohibition or limitation on extrinsic evidence, but not likely to be a
need for them, since the witness is likely to be friendly
-
-
Nothing in the FRE about these last 3, but all well established and it’s permissible to use each under the FRE
Since there’s no specific rule, we’re governed by 401-03
As a practical matter, courts are likely to permit more exploration on cross examination with these techniques than they will
with extrinsic evidence – so more leeway w/ cross, but no absolute bar on extrinsic evidence for any of these 3 types of
impeachment
Bias
o
Clearly extrinsic evidence is OK
o
-
If bias is in written statement, then some jurisdictions require the same foundation before using that statement as
with prior inconsistent statement
o
If the witness acknowledges the bias on cross, then no need for extrinsic evidence
o
Issue whether inconsistent statements tending to show bias are a “collateral matter”
Impeaching witnesses by attacking their perceptive abilities, ability to distinguish fact from fiction
o
Again, governed by 403; May be worth exploring the extent of this w/ witness on cross
Contradiction (by facts, not statements)
o
Common law: extrinsic evidence was not admissible to show contradiction on a collateral matter
o
Governed by 401-403; 403 should lead to same result as common law.
o
Things that are not collateral:

Facts relevant to the substantive issues in the case

Facts relevant, apart from contradiction, to impeach credibility

Facts recited by witness that, if untrue, logically undermine the witness’s story
o
Test: is the evidence admissible for some purpose other than to show a “mere” contradiction?
701 – Lay Opinion
If witness is not testifying as expert, can only testify to opinions that are:
o
Rationally based on the perception of the witness
o
Helpful to a clear understanding of W’s testimony or the determination of a fact in issue
o
Not based on scientific, technical, or other specialized knowledge under 702

This part was added to stop backdooring of “expert testimony” that didn’t qualify under 702, but
required specialized knowledge, as lay opinion
Might be more liberal than the common law, but unclear b/c of confusion as to what is “opinion”
Virtually no appellate cases finding decisions under 701 to be reversible error
Concern is that a witness’s opinion may sometimes deprive jurors of needed info; this depends not on a logical distinction, but
on what will be most helpful to them (summary or underlying details)
702 – Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in
issue, a witness qualified … may testify thereto in the form of an opinion or otherwise, if:
Testimony is based upon sufficient facts or data,
Testimony is the product of reliable principles and methods, and
The witness has applied the principles and methods reliably to the facts.
Adopts a functional approach to the meaning of 3 kinds of knowlege
The bold, hyphenated parts are additions after Daubert
o
First have Frye, which cited the “general acceptance” test that other courts later adopted.
o
Daubert: rejects “general acceptance” as a categorical test (displaced by FRE), but lists some factors, which seem
awfully Frye-esque:

Whether the theory or technique can be (& has been) tested

Whether it’s been subject to peer review & publication

Known or potential rate of error; standards controlling the technique’s operation

“General acceptance” can count in the inquiry
o
But, Daubert still seen as liberalizing the standard
o
Kuhmo Tire: Daubert applies to “technical, or other specialized knowledge”
705 – Disclosure of facts or data underlying expert opinion
Expert may testify in terms of an opinion or inference & give reasons w/o first testifying to the underlying facts or data, unless court
requires otherwise. Expert may be required to disclose the underlying facts anyway, on cross-examination.
Changes common law, where it was necessary to elicit the basis for the opinion before asking it
o
This requirement, w/ the requirement that the opinion be based on admissible evidence, tended to force reliance on
hypothetical questions
o
This rule eliminates that artificiality in trials
This rule exists as a matter of trial strategy.
703 – Bases of Opinion testimony by experts.
May be those facts or data perceived by or known to expert @ or before hearing.
If they’re of the type reasonably relied on by experts in their field, the facts & data need not be admissible in evidence
for the opinion to be admitted.
Facts or data that are otherwise inadmissible are not disclosed to the jury, unless their probative value to evaluate the
opinion substantially outweighs their prejudicial effect [reverse 403].
As stated above, common law tended to demand that other fields conform themselves to legal standards (could only rely on
admissible evidence).
o
Also, common law overlooked that expert gets to be expert by book larnin’. This rule fixes the common law’s
oversight / fraud
Problem: is 703 a rule of admission that can trump other rules?
o
Is evidence of the underlying facts / data that is admitted, able to be considered for substantive use in the case? Or
only to probe the expert’s opinion? No clear answer (and a lot of logical muddling) from courts
704 – Opinion on the Ultimate Issue
(a) Except as in (b), opinion / inference testimony that is otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by trier of fact.
(b) No expert witness testifying w/ respect to mental state or condition of a D in a criminal case may state an opinion or
inference as to whether D did or did not have the mental state constituting an element of the crime charged, or of a
defense.
Before, a number of courts had rules that no opinion – neither lay nor expert – to the ultimate issue could come in
(b) was added in the aftermath of John Hinckley’s acquittal on the assassination of President Reagan.
o
Also, concern about cabining psychiatric testimony w/in legal terminology
Judicial notice
FRE governs admission of adjudicative facts
Rule 201, in effect, says that “if the criteria for judicial notice exist (spelled out in (b)) must be sth that’s not subject to
reasonable dispute – either because it’s generally known or capable of ready and accurate determination by sources that can’t be
reasonably questioned”
Judge shall instruct jury to accept as conclusive any fact that judge takes judicial notice of
It’s a mini-directed verdict on the particular fact, judge taking it away from jury
That’s judicial notice in civil cases
In criminal cases, judicial notice is non-binding
o
Same criteria
o
Jury may, but is not required, to accept any fact judicially noticed
o
Exactly the same as res ipsa loquitor – blah blah blah
This is a comment on the evidence – in federal courts, judges have authority to summarize & comment on the
evidence, give the jurors their views
o
They don’t do that very often
o
A lot of states have a rule that judges cannot comment
o
Res ipsa developed as a way around them, to nudge the jury?
Sometimes the term “judicial notice” is used in other terms – factors that the judges use in determining the law
Judges have to make factual assumptions about the real world in determining the law all the time
It’s not an adjudicative fact if it’s used to justify the interpretation of some law
Burden of Proof
Production burden
If you have that burden to produce evidence, and don’t meet it, never get to the jury – directed verdict
How much evidence do you have to produce to meet that burden?
It’s a function of the burden of persuasion
You have to produce enough evidence so that the jurors could conclude, by the requisite persuasion burden, that the fact does /
does not exist
We do have something like a directed verdict against defense, in favor of prosecution
If there’s no (or virtually no) evidence of D’s defense, D is typically not entitled to a jury instruction
When D has not produced enough evidence to warrant an instruction, what in effect is happening is court is directing a verdict
against D on that particular claim
Possibility:
Conclusive presumption: if fact A exist, it is conclusive that fact B exist
o
All that is, is a substantive rule of law.
Then, there are various varieties of rebuttable presumptions
o
Mandatory persuasion burden presumptions: shift the burden of persuasion to the party against whom the
presumption works

Ex: a case where P normally has to prove that a letter is received – if the burden is shifted once P
proves that (D has burden of proving nonreceipt)
o
Mandatory production burden presumption: shifts the burden of production to party against whom the presumption
works (if the party with the burden doesn’t produce evidence, lose as a matter of law)
o
Permissive presumptions – permits but does not require factfinder to find
Rule 301 – the presumption rule
Presumption in civil cases under FRE is production burden and that’s it
Meaningless rule b/c there are alternative devices / terms that are used for these very same notions – if a court wants a
presumption to be sth more / different than a production burden presumption, just has to characterize it differently
“Mandatory persuasion burden presumption” is a fancy term for “affirmative defense”
“Mandatory production burden presumption” = spec. d.v. rule
“Permissive presumption” = comment
Becomes more complex by due process requirement that prosecution has to prove every element of a crime beyond a reasonable doubt
Old criminal case that said that if there’s proof that the killing is intentional, malice is presumed, and D must prove otherwise
by a preponderance
Unanimous SC rejected that – that’s shifting burden of proof on D
This case wreaked havoc – tons of cases invoking this
o
What about affirmative defenses, sentencing factors, anything that P didn’t have to prove beyond a reasonable
doubt that may have affected D’s guilt or the length of his sentence
2 years later, SC effectively overruled this case (although it claimed that it didn’t)
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Another homicide case, NY statute happened to define murder as “an intentional killing”
o
Made provocation / extreme defense an affirmative defense
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D claimed he was in the same situation; SC said this was perfectly ok
Next significant case in this line: Martin v. Ohio
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D claimed self-defense
o
Typically in such a case, D will acknowledge killing
o
You’d think that if the notion of proof beyond a reasonable doubt meant anything, the pros would have to prove all
of the elements
o
State proved intentional killing
o
Self-defense not one of the elements of the crime; ok to put that on defense
If the state defines something as an element of the offense, it must be proven beyond a reasonable doubt
If state defines sth as an affirmative defense, doesn’t have to prove that beyond a reasonable doubt
SC did say “there’s a limit to how far the state can go in defining as an ‘affirmative defense,’” but didn’t say how far
Apprendi and Booker are déjà vu
Evidentiary Privileges
Originally, FRE contained the whole set of them
When Congress was considering them, they became the most controversial part
Concern that if you had federal privilege rules, in diversity actions they might apply, and it would be better for state rules to
apply
Other thing: having a privilege is a sign of prestige; lot of debate about what the scope of the privileges should be
Became clear that this would be a sticking point; Congress punted on this
o
Enacted 501 – rules of privilege in light of common law & experience
Most are confidential communication privileges; most based on the notion that it’s more important to get the information in the
particular confidential information to other person (lawyer, spouse, etc.) than to court
Who is a representative of the client, for the purpose of attorney-client privilege (when you have an institutional entity)?
Upjohn – Needs to be starting point if you ever come across issue
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Hey, we read that in CivPro!
There are two marital privileges
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Confidential communication privilege – applies to communications that take place during a marriage; doesn’t
matter if people are married during the time that the evidence was sought

Depending on the jurisdiction, have difference as to holder of the privilege

Some: either spouse

Some: only the speaking spouse
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Other spousal privilege: privilege of a spouse not to testify against another spouse

Exists only in criminal prosecutions – not just about confidential communications, but about testifying
at all

People have to be married at the time the info is sought

Purpose is to preserve marital harmony

Who holds this privilege – defendant spouse or witness spouse?

Rule used to be that either spouse could claim the privilege

Then in a case called Trammel – SC said that if the witness spouse is willing to testify,
there’s not any marital harmony left to preserve; silly to allow D to block spouse
Now only witness spouse can claim privilege
o