Evidence - Saltzburg - Fall 2016

Evidence Fall 2016 – Saltzburg
Rules apply to all litigants, regardless of whether civil or criminal/plaintiffs or defendants
Goal à equal justice and opportunity
Adversary System:
o there is no fight about evidence unless the lawyers pick one
o judges usually just there as a reference, unless a bench trial
Raising Evidence Issues:
o (1) by objection
o (2) by anticipating an objection and seeking a ruling
o (3) if no one objects or requests for an anticipatory ruling, then a judge may raise a question if
there is potentially plain error à this is an error that is so obvious that the judge should have
raised and fixed it on their own
The Jury à the role of the rule is to improve accuracy and fairness; more evidence for the jury is not
necessarily better
Relevance – Art. IV
o all modes and substitutes can only be used if relevant à remember, that you must object to an
object’s relevance
o some evidence excluded even if relevant by operation of other Articles
Procedural Rules = Art. I and XI
o Art. I à how to raise evidence issues
o Art. XI à which proceeding do the rules apply in
Modes of Proof = Art. VI – X
o (1) hearsay witness
o (2) lay and expert witness
o (3) authentication and originals
o (4) contents of writings, recordings, and photography
Privileges – Art. V
o trumps all other rules
Substitutes of Proof – Art. II and III
o judicial notice (art. II)
o presumptions (art. III)
Evidence Fall 2016 – Saltzburg
Trial judges have discretion to make judgment calls on the mode and order of presenting evidence and
examination of witnesses (Rule 403 and 611(a))
• Introduction:
o Rule 403 à relevant evidence may be excluded if it clearly will do more harm than good
o Rule 611(a) à Purpose = (1) make those procedures effective for determining the truth; (2)
avoid wasting time; and (3) protect witness from harassment or undue embarrassment
• Control by the Court:
o (1) make the interrogation and presentation effective for ascertaining the truth;
o (2) avoid undue delay
o (3) protect witnesses from harassment or undue embarrassment; and
o (4) avoid unfairly prejudicing, confusing, or misleading the jury
• most of these are based on Rule 403 (unfair or confusing) or 611 (embarrassing or unfair)
• narrative à indefinite scope (indefinite, too general, lacks specificity)
• non-responsive à response by the witness extends beyond the specific information requested by the
examining attorney’s question
• assumes fact not in evidence à asserts facts that have not been established
• compound à single question seeks multiple answers
• ambiguous à not reasonably clear and specific; confusing and misleading to the jury
• asked and answered à rooted in 403 – if we heard it once, we don’t need to hear it against
• cumulative à calling several witnesses to testify on the same issues introducing similar exhibits
• misstates the evidence à interrogator inaccurately describes evidence or when he draws inferences that
are for the jury to make
• argumentative à when lawyer is making an argument/legal conclusion through statements and not by
proof of evidence through witness
• badgering the witness à being argumentative with the witness in a mean way
o CASE SUPPORT: United States v. Reaves (E.D. Ky. 1986): the court has the power to impose
reasonable time limits on the trial of both civil and criminal cases in the exercise of its
reasonable discretion
A leading question is one that clearly suggests the desired response; “phrased in such a way as to hint at the
answer the witness should give” (Posner)
• should not be used on direct examination except as necessary to develop the witness’ testimony
• leading questions are generally allowed on cross and for hostile witnesses
• ORDER à case-in-chief = party w/ burden of persuasion puts on case first
o party calls witness for direct examination (exhibits may be offered)
o opposing party may cross-examine (party might do re-direct examination)
o opposing party might do re-cross examination
o party rests
o opposing party puts on case-in-chief
Evidence Fall 2016 – Saltzburg
preliminary matters not of material importance
611(c) à leading questions
• leading questions should not be used on direct examination except as necessary to develop the witness’s
testimony. ordinarily the court should allow leading questions:
o (1) on cross examination; and
o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse
Leading à Direct and Cross-Examination
o assumption is that parties “prepare the witnesses” (woodshedding)
o thus, direct examiner must use non-leading questions
§ examiner should know what witness will say
§ witness testifies, not counsel
o cross-examiner may not have prepared the witness
§ examiner usually may ask leading questions
o Straub v. Reading Co. (3d Cir. 1955): here the direct examination of witness was grossly
improper and objected to in a timely fashion by lawyer b/c opposing lawyer effectively testified
§ held: trial judges have discretion to permit leading
o U.S. v. Cephus (7th Cir. 2012): here J. Posner gives examples of both leading and non-leading
§ Did he tell you what P-I-M-P stood for? (NOT)
§ Did C ever tell you that P-I-M-P stands for “power in manipulating prostitutes”? (IS)
§ Was one of the first calls in Illinois? (IS)
§ Was he whipping her with the cord? (IS)
o United States v. McKenna (E.D. La.): here judge told defense counsel not to lead on cross unless
witness became difficult; counsel “threw in the towel”
§ judges have discretion à ordinarily leading Qs are allowed; non-leading questions may
be required of friendly witnesses on cross
Presentment of Theory of the Cases in Case-in-Chief
o direct examiner generally controls the scope of a witness’ testimony
§ idea à a party should be able to present its theory of the case in its case in chief w/o
undue distraction into issues the party believes are unimportant
o opposing party then gets to put forward its theory of the case in its case-in-chief
§ but TJ may want to hear a witness only once, and a witness may want to testify only once
o wide discretion on party of the TJ
Judges have enormous judicial discretion as it pertains to the openness of the cross.
• cross examination should be limited to the subject matter of the direct examination and matters affecting
the credibility of the witness
o EXCEPTION à the court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination (i.e. for purposes of impeaching a witness)
• witnesses testify to substance and they implicitly represent that they are truthful
• cross-examination can attack the substance and/or impeach the witness
Evidence Fall 2016 – Saltzburg
611(b) à scope of cross-examination
• cross-examination should not go beyond the subject matter of the direct examination and matters
affecting the witness’s credibility. the court may allow inquiry into additional matters as if on direct
CASE SUPPORT à Macaulay v. Anas (1st Cir. 2003): here spinal fusion surgery; done wrong in
Boston by Dr. Anas – corrected in Phillie by Dr. Albert; on direct, expert Dr. testified that several
screws were malpositioned and misplaced but on cross said did not mean to say Dr. A had transgressed
the standard of care
o Held: the cross-examiner had every right to probe the meaning of the witness’s statements in an
effort to dispel any intimation of negligence; jury verdict stands
103(a)(1) à preserving a claim of error (when admitted)
• a party may claim error in a ruling to admit or exclude evidence only if the error affects a
substantial right of the party and
o (1) if the ruling admits evidence, a party, on the record
§ (A) timely objects or moves to strike; and
§ (B) states the specific ground, unless it was apparent from the context
o timely objection to question or answer:
§ generally objections to questions must precede the answer of the witness
§ objections to answers must be prompt and usually accompanied by a motion to strike
o specific objections REQUIRED:
§ not necessary to cite rule number (should cite 403)
o “incompetent, irrelevant & immaterial” is a general objection – no better than “I object”
• United States v. Spriggs (D.C. Cir. 1996): salesman at car dealership laundered drug money; two
testimonies to fact garnered no contemporaneous objection at trial
o Held: if no contemporaneous objection at trial, failure to object = failure to preserve
claims; only review available is for plain error (103(a))
A motion in limine is filed by a party to a lawsuit, which asks the court for an order or ruling limiting or
preventing certain evidence from being presented by the other side at trial.
Evidence Fall 2016 – Saltzburg
103(d) à preventing the jury from hearing inadmissible evidence
• to the extent practicable, the court must conduct a jury trial so that inadmissible evidence
is not suggested to the jury by any means
In jury cases, proceeding must be conducted, to the extent practicable, so as to prevent inadmissible
evidence from being suggested to the jury by any means, such as making statements or offers of proof or
asking questions in the jury.
In Limine Objections (“at the threshold before something happens”)
o very useful to avoid surprise by giving judges time to rule
o jury trial is not interrupted
o if made too early, judges will ignore à but if made w/ SJ motion, it may dispose of the case
o Luce v. U.S. (1984): judge rules D can be impeached w/ prior convictions if he testifies; D choses
not to testify and waives any objection to the ruling; never suffered the harm – no way to know
what actual effect impeachment would have had (harmless error determination)
§ Held: in order to preserve an objection as to the convictions, they must take the
stand and face a much higher probability of a guilty verdict once the jury hears
about their past
o Ohler v. U.S. (2000): a party who introduced evidence of a prior conviction on direct
examination forfeited her right to appeal an in limine ruling that the evidence would be
admissible at trial
§ Held: a party introducing evidence cannot complain on appeal that the evidence was
improperly introduced
Rule 103(b) à not needing to revnew an object or offer of proof
• once the court rules definitively on the record – either before or at trial – a party need not
renew an objection or offer of proof to preserve a claim of error for appeal
If the court makes a definitely ruling on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of proof to preserve a claim of error for
• U.S. v. Wilson (7th Cir. 1992): gun seized w/ drugs and admitted – trial objection = irrelevant and on
appeal = 403 too prejudicial; WRONG OBJECTION
o held: party waived 403 objection on appeal – could only review for plain error = none here;
it is important to raise the right objection at trial
• generally, if you lose on an objection, you cannot pursue a different objection on appeal
• but, if you win an objection on the wrong ground, an appellate court can sometimes affirm using the
correct objection
Evidence Fall 2016 – Saltzburg
example: Same RESULT
o (1) party objects at trial to a statement as hearsay
o (2) TJ sustains objection
o (3) CA finds statement is not hearsay but irrelevant
o (4) court concludes statement was properly excluded
o (5) TJ gave wrong reason but reached right result
example: REMAND for fact finding
o (1) trial judge sustains X’s relevance objection
o (2) appellate court finds error, but raises hearsay objection
o (3) exception might apply, but facts would need to be found
o (4) remand for fact finding might be required
• prejudicial error à one that results in reversal
• harmless error à error that doesn’t “hurt” the outcome too much
o Chapman v. California (1967):
§ federal constitutional error must be harmless beyond a reasonable doubt
§ non-constitutional errors are assessed by various standards and courts are often
• plain error à error that was not preserved and meets an especially high standard – outcome
determinative potential – difficult to demonstrate
103(e) à taking notice of plain error
• a court may take notice of plain error affecting a substantial right, even if the claim of error was not
properly preserved
• Supreme court has placed severe limits on plain error (U.S. v. Olano)
o (1) must be error, (2) must be clear or obvious, and (3) must affect outcome of the case
o states can set their own plain error rules and their own harmless error standards but not for
federal constitutional errors
o DO NOT NEED TO OBJECT to preserve for appeal
• Forfeiture v. Waiver
o forfeiture is the failure – negligence, inadvertence, stupidity – to preserve an evidence issue à
can obtain plain error review
o wavier is the knowing and intentional relinquishment of an evidence issue à no review
Rule 103(a)(2) à preserving a claim of error (when excluded)
• if the ruling excludes evidence, a party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context
Evidence Fall 2016 – Saltzburg
o if an objection is sustained, the party whose evidence is excluded must make an offer of proof to
show what actually was excluded (out of hearing of jury) – may change the judges mind;
preserves for appeal à enables appellate court to decide whether there was error and/or
o U.S. v. Winkle (5th Cir. 1979): medicare fraud case; D’s testimony was improperly excluded, but
D made no proffer of what his version was
§ held: it cannot be determined what would have been said by D
How to Offer:
o must make an offer of excluded evidence
o Offers can be made:
§ by counsel’s proffer
§ in writing
§ by citation to deposition
§ by question and answer à if they jury is not there
• cross examiner not required to make same offer as direct examiner
Rule 103(c) à directing an offer of proof
• the court may make any statement about the character or form of the evidence, the
objection made, and the ruling. the court may direct that an offer of proof be made in
question and answer form.
The court may:
o make a record to support a ruling admitting or excluding evidence
o describe the evidence in dispute, the form in which it was offered, the objection made, and the
ruling thereon
Court retains control over how objections and offers are made
court may require Q&A format (especially if the court doubts that the offer accurately describes for
excluded evidence)
Fundamental Principles:
o party claiming benefit of a rule of evidence must show entitlement to it
o rules of evidence will never make it impossible to prove something that is required by law to
establish a claim of defense
All evidence objections are resolved by trial judge under either: Rule 104(a) OR Rule 104(b)
• rulings are usually “objection sustained” or “objection overrule”
104(a) à preliminary questions
• the court must decide any preliminary question about whether a witness is qualified, a privilege
exists, or evidence is admissible. in so deciding, the court is not bound by evidence rules, except
those on privilege
Evidence Fall 2016 – Saltzburg
Rule 104(a) à judge is a fact finder and final decision maker
o Principles:
§ trial judge decides any issue required to be decided by a rule of evidence
§ standard = the preponderance of the evidence
§ judge is not bound by rules of evidence other than privilege in making a ruling
§ burden in on the party claiming the benefit of any rule
§ hearing may be required
§ party claims A-C privilege – OP says comm. not in confidence;
§ party claims a statement is hearsay – OP says it is an excited utterance;
§ party offers expert testimony – OP objects that it is not reliable.
104(b) à relevance that depends on a fact
• when the relevance of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. the court may admit the proposed evidence
on the condition that the proof be introduced later
Rule 104(b) à judge screens evidence but jury ultimately decides whether it is relevant and what it
purports to be
o when one item of evidence is only relevant if some other evidence is also adduced, the court
decides whether there is sufficient evidence for a jury to find that both items exist
o court is not a fact finder here
o Principles:
§ judge decides whether evidence is relevant if believed under Rule 104(a)
§ if relevant, the standard rule under 104(b) and rule 901(a) is: could a reasonable juror
believe the evidence is what the proponent claims?
• if so, the evidence may be admitted; if not, it may not be admitted
• personal knowledge (rule 602) issues are decided under this rule
• judge decides whether a reasonable jury could believe a witness
o How to USE: example homicide love letter case
§ can only prove ONE fact at a time
§ evidence is admitted subject to connection
§ judge must find that there is sufficient evidence for the jury to find all 3 facts by a
preponderance of the evidence à if not, judge will strike the evidence and tell the jury to
disregard it
§ jury decides whether the believe the evidence during deliberation
o Rule 104(b) applies in FOUR situations
§ when fact B is needed to make fact A relevant
§ personal knowledge – Rule 602
§ authentication – Rule 901
§ Rule 1008 à functions of the court/jury
Evidence Fall 2016 – Saltzburg
104(c) à conducting a hearing so that the jury cannot hear it
• the court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
o (1) the hearing involves the admissibility of a confession;
o (2) a defendant in a criminal case is a witness and so requests; or
o (3) justice so requires
104(d) à cross examining a defendant in a criminal case
• by testifying on a preliminary question, a defendant in a criminal case does not become subject
to cross examination on other issues in the case
o the accused does not become subject to cross-examination as to other issues in criminal case by
testifying on an evidence issue (e.g. motion to suppress evidence, claim of privilege)
o defendant does not waive privilege against self-incrimination in order to lay foundation for
evidence; may only be cross-examined as to the foundation testimony
104(e) à evidence relevant to weight and credibility
• this rule does not limit a party’s right to introduce before the jury evidence that is relevant to the
weight or credibility of other evidence
o if the judge decides to admit evidence, an opposing party generally may offer other, relevant
evidence that puts the admitted evidence into context
o a party who loses an objection may nonetheless attempt to show the jury that the evidence lacks
weight or that a witness is not credible
§ judge decides admissibility
§ if admitted, evidence may be attacked
§ jury decides weight
Evidence Fall 2016 – Saltzburg
COMPETENCY OBJECTIONS à state law applies
601 à competency
• every person is competent to be a witness unless these rules provide otherwise. but in a civil
case, state law governs the witness’s competency regarding a claim or defense for which state
law supplies the rule of decision.
o when federal law applies, basically everyone is competent to be a witness or juror
o in CIVIL cases where state law applies, then we defer to the state’s rules to determine
§ this is echoed in 501 and 301 as well
§ when we have state law apply, this usually means that we have a Dead Man’s Statutes
apply à they can silence living persons who were involved in the transaction if testifying
about someone who is deceased
o IF there is a question about A WITNESS’S competency, judge will make this decision under
Rule 104. They do not make decisions about credibility.
o United States v. Bedone: all of the D’s inconsistent statements are a matter of reliability not
competence; but if you come to court under the influence of drugs, you will likely be considered
temporarily incompetent
606(a) à at the trial
• a juror may not testify as a witness before the other jurors at the trial. if a juror is called to testify,
the court must give a party an opportunity to object outside the jury’s presence
606(b) à juror’s competency as a witness (inquiry into the validity of a verdict/indictment)
• (1) PROHIBITED TESTIMONY OR OTHER EVIDENCE. during an inquiry into the validity
of a verdict or indictment, a juror may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of anything on that juror’s mental processes
concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a
juror’s statement on these matters.
• (2) EXCEPTIONS. a juror may testify about whether:
o (A) extraneous prejudicial information was improperly brought to the jury’s attention;
o (B) an outside influence was improperly brought to bear on any juror; or
o (C) a mistake was made in entering the verdict on the verdict form
Evidence Fall 2016 – Saltzburg
o once a verdict is returned, a juror can’t challenge it by testifying about the juror’s deliberation
o They can testify that extraneous prejudicial information, outside influence, mistake in entering
the verdict
o line between what is extraneous to the jury room and what happens in it is not always clear
o Tanner v. United States (1987)
§ jurors’ use of drugs, alcohol, etc. is essentially part of being human, and we kind of have
to take them as they come
§ also, during most trials, the jurors or someone in the court will raise it to the judge’s
attention during the trial
o 606(b)(2)(B) à extraneous information
§ newspaper accounts
§ bribes
§ jury experiments
§ bailiff’s comments to jury
o things you can’t touch à ignoring instructions & pressure from other jurors
o if a juror lies in voir dire, that may be explored à but you can’t prove a lie on voir dire on
what was said in the jury room
605 à judges competency as a witness
• the presiding judge may not testify as a witness at the trial. a party need not object to preserve this issue
603 à oath or affirmation to testify truthfully
• before testifying, a witness must give an oath or affirmation to testify truthfully. it must be in a
form designed to impress that duty on the witness’s conscience
o you must be able to take an oath to be a competent witness
o must show that you understand the obligation to tell the truth
§ this does not necessarily have to be a swearing or affirmation
o Child Witness
§ Capps v. Commonwealth (Ky. 1977): about a child à trial judge is given broad
discretion to rule on the competency of the child
§ under federal rules, there is no minimum age
§ states often have presumptions HOWEVER sometimes if a child is considered
incompetent, hearsay might be admitted
o if a judge is on the fence, they may want to hear the witness
§ United States v. Phibbs: CoA basically says that the judge was perfectly justified in
asking to see the witness first
Evidence Fall 2016 – Saltzburg
602 à need for personal knowledge
• a witness may testify to a matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. evidence to prove personal knowledge may
consist of the witness’s own testimony. this rule does not apply to a witness’s expert testimony
under Rule 703
o lay witnesses can only testify based on personal knowledge of the subject matter that the
testimony is about
o jury has to ask whether a reasonable juror could believe the witness has personal knowledge
§ if they have seen something, then its almost impossible for this not to be the case
o United States v. Davis (5th Cir. 1986): Police officer witness was brought to testify that two of
the guns that the D showed were released from the HPD property room later than the D said he
had given them to his father
§ ISSUE: Does the officer have personal knowledge of when the guns were released?
• it is likely he didn’t have personal knowledge, but there was a release form and D
didn’t object
• the records themselves could likely have been admitted, but nobody actually
brought them to court
• normally records are hearsay, but you can an exception if you have the records
§ usually hard to contest personal knowledge, but here it’s clear that he doesn’t because he
wasn’t present when they were released
CERTAINTY IS NOT REQUIRED à but you cant make guesses; personal knowledge may also
support a lay opinion (“he drove like he was drunk”)
o You need to look at what the witness is actually testifying to b/c there is an overlap w/ hearsay
§ i.e. “jimmy told me that harry did it”
• an objection on personal knowledge would likely be overrule b/c the witness is
saying that he has personal knowledge, but it would likely get sustained on a
hearsay objection
§ the idea is that you shouldn’t be able to get around hearsay by merely saying that you
have personal knowledge
o inconsistency does not mean no personal knowledge; goes to à credibility (for jury to decide)
612 à writing used to refresh a witness’s memory
o Refreshing Memory BEFORE TRIAL
§ if you refresh recollection before taking the stand, court has discretion to require the party
calling the witness to produce the document for inspection by the adverse party
o Refreshing Memory DURING TRIAL
§ if you use a writing to refresh memory, adverse parties are entitled
• (1) to inspect the writing
• (2) to cross-examine the witness about it, and
• (3) to introduce into evidence the portions that relate to the witness’s testimony
Evidence Fall 2016 – Saltzburg
o 18 U.S.C. §3500 (JENCKS ACT)
§ government does not have to disclose statements that its witnesses made until a witness
testifies on direct examination (rationale = to protect the witness)
§ if there is a dispute about what portion was relevant to the testimony, then the court can
excise irrelevant information
§ most cases involve refreshing on the stand, since most courts will not allow for pretrial
• EXCEPTION is with experts à have to reveal everything they considered in
coming to their opinion
• idea is that opposing party should be able to have everything that the expert saw
à so when it comes to experts, expect that everything you show an expert will be
seen by the other side
§ there is no distinguishing between refreshing and preparing a witness
§ work-product and privilege claims might be waived if you use it to refresh a witness; a
court may order you to produce
o Manner of Refreshing
§ would reviewing ____ refresh your recollection?
§ let them review silently.
§ now are you refreshed?
§ if they say no, then you’re stuck
§ if you refresh and give up a name/location then other side may object. but then if you ask
again and they give you the answer you want... jury may side with you.
o Baker v. State (Md. 1977): officer pretends he has a memory problem so that he doesn’t have to
say that the now-dead victim said the murderer was not the defendant; defense counsel tries to
use other officers’ reports which say as much to refresh the officer’s memory, but the court
doesn’t allow it
§ held: appellate court says that this is just a refreshing of memory, and it can be anything,
even a writing
§ RULE à you can use anything to refresh a memory (at court’s discretion)
803(5) à recorded recollection (HEARSAY exception)
• a record that:
o (A) is on a matter the witness once knew about but not cannot recall well enough to
testify fully and accurately;
o (B) was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
o (C) accurately reflects the witness’s knowledge
o background is that the law prefers to get as much of the information that people know in the case
o differs from refreshing recollection b/c à jury is not being told what the witness now
remembers, but what the witness remembered at an earlier time
o recorded thing is either audibly recorded or written
o we don’t want to forgo your past memory just b/c you can’t remember now à but hypnosis is a
concern b/c we’re not sure if it helps or hurts
Evidence Fall 2016 – Saltzburg
o a memorandum or record
o about something which the witness once had knowledge (can be speculation, but must be
something that the witness actually knew)
o but now the witness does not remember well enough to testify fully (witness does not
remember as well as when he/she made the record)
o record made or adopted by the witness when the matter was fresh in the witness’s memory
o record must accurately reflect the memory
o record may only be read into evidence by the proponent à this is a reflection that we worry
that documents will be given more weight than other things
o adverse party may offer the document into evidence à allows them to contest the record’s
o memory doesn’t need to be completely gone
o may be used with a reluctant witness à but the witness must have a laid foundation
o memory must have been fresh, but the standard is flexible (very)
o witness does not need to have been the one who recorded or signed the statement; he can have
adopted it
o sometimes you will need two witnesses to prove something (i.e. the person that said it and the
person that wrote it down – witness and investigator)
o recorded recollection is more difficult to cross-examine
§ they’re struggling to remember the underlying event, but they wrote it down
§ and you say, OK well, can you read this into evidence
§ other side can’t really examine the veracity of the testimony from the past
o Excluding Previous Statement
§ a witness can exclude the statement by claiming memory was not good or statement was
not accurate à there may not be a foundation to satisfy the trial judge
o Inconsistent Testimonies
§ when a witness testifies, any prior inconsistent statement can be used to impeach him
o Hypnotically Refreshed Memory
§ Rock v. Arkansas (1987): a per se rule says that defendants’ hypnosis is inadmissible is
unconstitutional as it relates to defendants à court does not want to get into another
potential state restriction
604 à interpreters
• an interpreter must be qualified [as an expert witness] and must give an oath or affirmation to
make a true translation.
o person has to be (1) an expert AND (2) must take an oath saying that he will faithfully interpret
o Watson v. State (Tex. Crim. App. 1980): no one knew what the stroke victim was trying to say,
but he could hear the questions; caretaker said she would be his interpreter
§ appellate court said that the witness was incompetent b/c there was no way to show
that he was understanding but interpreter was not qualified (her methodology was
not reliable and there was no way to confirm that she actually knew what she was doing)
Evidence Fall 2016 – Saltzburg
401 à test for relevance
• evidence is relevant if:
o (a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
o (b) the fact is of consequence in determining the action
Defining Relevance
o if it has any tendency to make any fact of consequence more or less possible
o relevancy is not connected to sufficiency
§ sufficiency depends on the standard of proof and once the admitted evidence is before the
trier of fact, issue of could the burden of persuasion be met
Basic Principles
o cases proved one piece at a time
§ 104(b) condition relevance – once piece only admitted on assumption that you will admit
a later piece
§ said “materiality” à was of consequence to the action
• i.e. in a statutory rape case, evidence to show you reasonably believed the person
was of age is not material
§ said “relevance” à was more or less probable
o United States v. Foster (D.C. Cir. 1993): cop says he saw criminal behavior from a football field
and a half away; radios description; other officers arrive and arrest Foster à this was the only
evidence of the deal.. no money, no corroborating witnesses
§ could you see the second person in the car? (question asked of cop) à government
objects and is sustained; idea is that the defense is trying to attack the ability of the cop to
see the defendant (maybe officer confused Foster with someone else)
§ RULE à when you have a witness who sees something, OP should be able to cross
§ CoA says that a minimum the question of whether he confused people is relevant to
whether he knew what he was seeing
Excluding Evidence as Too Remote
o woman is called to testify about person not wearing a seatbelt two years ago à probably
relevant, but likely excluded on Rule 403 grounds b/c unlikely she remembers since event was so
far away; it will get messy
402 à general admissibility of relevant evidence
• relevant evidence is admissible unless any of the following provides otherwise: the US
constitution, a federal statute, these rules; or other rules prescribed by the Supreme Court
Evidence Fall 2016 – Saltzburg
o irrelevant evidence is not admissible, provided an objection is made
o Direct and Circumstantial Evidence
§ direct à if believed, proves a point without the need for inferences
§ circumstantial à requires inferences
CASE EXAMPE: United States v. Lowery (11th Cir. 1999): trial court says plea bargaining looks like
bribery; CoA says we have always said the plea bargaining is fine à also just b/c witness was bribed
doesn’t require that the testimony be thrown out
o RULE à state laws are not a source of exclusion on their own in federal court
§ McDade Amendment makes prosecutors subject to state ethnics rules, but doesn’t include
language making evidence gained in violation of those rules inadmissible
Other outline
403 à excluding relevant evidence for prejudice, confusion, waste of time, or other reasons
• the court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following:
o unfair prejudice à prejudice distorts the trier of fact’s assessment of the case; the
evidence will unfairly advantage or disadvantage a litigant
o confusing the issues
o misleading the jury
o undue delay à this crosses across bench and jury trials
o wasting time
o needlessly presenting cumulative evidence
General Principles
o harm must substantially outweigh probative value
o rules tilts strongly in favor of admission
o must be relevant (or would be excluded under 402)
o cite by number. balancing should be on the record!
Examining Probative Evidence
o (1) if the jury were to believe the evidence, how much weight could they give to it?
§ if I take away the evidence, then I am taking away the maximum potential weight of the
evidence from their decision
o (2) how unfairly does this prejudice the jury
Danger has to substantially outweigh the probative value
Pictures are rarely deemed highly prejudicial
o unfair prejudice à the use of evidence for a purpose other than to prove the point for which it is
offered Terry v. State (Tex. Crim. App. 1973)
o once a prosecutor gets pictures in the desire to convict gets really high Lopinson v.
Commonweath (1967 – video)
o McQueeney v. Wilmington Trust Co. (3d Cir. 1985): P’s counsel wants to withdraw deposition, D
wants to use it. CoA says relevant. (jury can make inference that P or his lawyer support perjury
and therefore had a weak case)
o People of Guam v. Shymanovitz (9th Cir. 1998): sexual assault case, magazines. possession of
reading materials not relevant
Evidence Fall 2016 – Saltzburg
o U.S. v. Curtin (9th Cir. 2007) (en banc): held à abuse of discretion under Rule 402 for TJ not to
read all stories about sexual conduct with minors in full before admitting them
Similar Incidents & Relevance
o may be relevant to prove product defect or negligence
§ degree of similarity MATTERS
§ similar accidents more likely to be admitted to prove notice
§ differences that could explain why one happened one way, instead of another not likely to
let it in. absence of additional accident claim may be relevant as well
Other Related Acts
o evidence of other lawsuits or claims by P is generally NOT relevant à we don’t want to penalize
people for finding themselves in cases
o prior dealings between parties may be relevant à to establish customary behavior between
o other sales may be relevant à to establish the value of real property (for eminent domain cases)
o Terry v. State (Tex. Crim. App. 1973): wanted to use photos of body after autopsy.
§ held: unfair prejudice b/c use of the evidence was for a purpose other than to prove the
point for which it was offered. proved what doctor did, not about murderer
Potential Constitutional Violations (alternative perpetrators)
o U.S. v. McVeigh (10 Cir. 1998): undercover witness’s testimony was speculative. CoA upheld:
fact that government may not have investigated others once it focused on McVeigh does not
weaken any of the evidence against him. alternative perpetrator evidence was relevant.
o Holmes v. South Carolina (2006): court looked at just P’s evidence to exclude D’s evidence of
3rd party guilt. CAN’T DO THIS. violates D’s right to have a meaningful opportunity to present
a complete defense.
• Old Chief v. United States (1997): old chief offered to stipulate to a “felony conviction” instead of
specifying that the conviction was similar to the one he was on trial for. govt refused. SCOTUS held à
that the nature of the felony is irrelevant. if one item is extremely prejudicial and an alternative is not
trial judge must consider substituting the alternative, non-prejudicial evidence. congress has treated all
prior felons alike.
407 à subsequent remedial measures
• when measures are taken that would have made an earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove:
o negligence
o culpable conduct;
o a defect in product or its design; or
o a need for a warning or instruction
• but the court may admit the evidence for another purpose, such as impeachment or – if disputed –
proving ownership, control, or the feasibility of precautionary measures
Evidence Fall 2016 – Saltzburg
o What are remedial measures?
§ i.e. changes in design and policy and firing of negligent employees
§ Must be measures taken after an injury or harm
• i.e. you buy something, someone gets hurt, but you’re fine; they change the
product, and then you get hurt à you can’t generally bring in the changes as
Purpose of the Rule
407 precludes state law, Cameron v. Otto Bock
o encourage fixes, exclude questionably relevant evidence, avoids confusion
o Kenney v. SEPTA
§ RULE à negligence is measured by the knowledge the defendant knew or should
have known before the incident
§ remedial measures don’t really get you out of anything
§ defense also made mistake of saying that the lights were the best available à this would
have allowed the fact that they changed the lights to come in on impeachment
Limits of 407
o repairs made prior are admissible to show negligence (knowledge, foreseeability)
o reports of accident investigation are not remedial measures
o third party repairs generally not excluded by 407 – but see rules 401 and 403
408 à compromise offers and negotiations
• (a) PROHIBITED USES. evidence of the following is not admissible – on behalf of any party – either
to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
o (1) furnishing, promising, or offering – or accepting, promising to accept, or offering to accept –
a valuable consideration in compromising or attempting to compromise the claim; and
o (2) conduct or statement made during compromise negotiations about the claim – except when
offered in a criminal case and when the negotiations related to a claim by a public office in the
exercise of its regulatory investigative, or enforcement authority
• (b) EXCEPTIONS. the court may admit this evidence for another purpose, such as proving a witness’s
bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
Key Points:
o protects compromises to claims in which there are disputes regarding validity or amount
o otherwise discoverable evidence not immunized from discovery by disclosure
§ i.e. if you show docs in negotiations, but you don’t settle, the other side can still seek
these in discovery
o settlement agreements can be used to show bias
o you cannot use statements made in settlement negotiations for impeachment
o does not make distinctions between the offerors and offerees
§ inadmissible to prove lack of intent
§ inadmissible to prove failure to mitigate
Evidence Fall 2016 – Saltzburg
CASE EXAMPLE: Alpex Comp. Corp. v. Nintendo Co., Ltd. (S.D.N.Y. 1991): alpex sends letter saying
that you might be infringing our patent; licenses granted after negotiation and during litigation were
clearly offers to settle; rule 408 excluded the licenses agreed to during litigation; no waiver by
disclosing license terms
409 à offers to pay medical and similar expenses
• evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury
Key Points:
o when a party offers to pay medical, hospital, similar expenses, this can’t be admitted unless the
person admits fault
o you don’t need to have a dispute
o if you make a statement admitting fault while making this statement, then that IS admissible
CASE EXAMPLE: Galarnyk v. Hostmark Mgmt, Inc. (7th Cir. 2003): hotel and insurance carrier
offered to pay medical expenses of the P, and court excluded it
o held: expressions of dismay and regret were not admissions of liability either, so they didn’t get
it admitted on those grounds
410 à pleas, plea discussions and related statements
• (a) PROHIBITED USES. in a civil or criminal case, evidence of the following is not admissible against
the D who made the plea or participated in the plea discussion:
o (1) a guilty plea that was later withdrawn
o (2) a nolo contendere plea
o (3) a statement made during a proceeding on either of those please under FRCP 11 or a
comparable statement procedures; or
o (4) a statement made during plea discussions with an attorney for the prosecuting authority if the
discussions did not result in a guilt plea or they resulted in a later-withdrawn guilty plea
• (b) EXCEPTIONS. the court may admit a statement described in Rule 410(a)(3) or (4):
o (1) in any proceeding in which another statement made during the same plea or plea discussions
has been introduced, if in fairness the statements ought to be considered together; or
o (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement
under oath, on the record, and with counsel present
Key Points:
o offers to plead and pleas withdrawn are not admissible against any participant in the plea
o anything protected by the rule applies in all subsequent cases
o you can’t use these offers for impeachment
o ONLY covers plea bargaining with prosecutors, not interrogation or questioning by law
enforcement agencies à rationale: encourage plea bargaining
Evidence Fall 2016 – Saltzburg
o United States v. Mezzanatto (1995): you can absolutely waive away you 410 rights and allow the
government to use your offer to plea bargain as impeachment evidence
o United States v. Burch (D.C. Cir. 1998): court notes that 410 may not even apply after your plea
is accepted
411 à liability insurance
• evidence that a person was or was not insured against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully. but the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.
Purpose à we don’t want people to extrapolate anything about a person’s liability from their insurance
or non-insurance
o Bernier v. Bd. of Cty. Road Comm’rs (W.D. Mich. 1983): county says we couldn’t afford to keep
the roads in better condition; state law said needs to be reasonable repair and in a reasonably safe
condition; P says that he should be able to introduce evidence that county has insurance to stave
off an argument that a judgment against the county would negatively affect the county’s ability
to pay
§ held: evidence not admitted; but judge says if you come close to raising the argument
that the county won’t be able to pay for its roads if it has a judgment against it, then said
he would let the insurance discussion in
• (1) When Character Is In Issue
o character is in issue when it’s an element you have to prove to make a claim or defense
(substantive law requires it to prevail)
o you are trying to prove what kind of character a person has
o Examples
§ negligent entrustment
• you need to show that DEF failed to use reasonable care by giving something to
someone carelessly à you need to show that the person is careless, so you will
need character evidence
§ entrapment as a defense
• DEF was not predisposed to commit this crime à this is an element that requires
character evidence
• (2) Circumstantial Use of Character Evidence
o limited by 404 and modes of proof in 405
o using character to show that someone acted in a circumstance in accord with a character trait
Evidence Fall 2016 – Saltzburg
404(a) à character evidence
• (1) PROHIBITED USES. evidence of a person’s character or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the character trait.
• (2) EXCEPTIONS for defendants or victim in a criminal case. the following exceptions apply a in
criminal case:
o (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut it;
o (B) subject to rule 412, defendant may offer evidence of an alleged victim’s pertinent character
trait, if the evidence is admitted the prosecutor may:
§ (i) offer evidence to rebut it; and
§ (ii) offer evidence of the defendant’s same trait
o (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor.
• (3) EXCEPTIONS for witness. evidence of witness’s character may be admitted under rule 607, 608,
and 609.
o when you are required to show a particular trait, character evidence is admissible
o if you want to admit evidence, however, to show that someone has a propensity to act in a certain
way and did so on this occasion, then you are in murky water and will need to look at Rule 405
o you also can’t use character evidence in a civil case, whereas in a criminal case, the defendant
has the keys to open the door
policy rationale
o CE is not probative of how someone acts on a particular occasion
o CE can be extremely prejudicial
o CE is unreliable and people act differently in certain situations – no way to really tell just based
on CE (people change their behaviors)
o Regret Matrix à you don’t want people to let someone win b/c he’s so nice when legally he
should not win
405 à methods of proving character evidence
• (a) BY REPUTATION OR OPINION. when evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of
an opinion. on cross-examination of the character witness, the court may allow an inquiry into relevant
specific instances of the person’s conduct.
(b) BY SPECIFIC INSTANCES OF CONDUCT. when a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by relevant
specific instance or the person’s conduct.
Evidence Fall 2016 – Saltzburg
o Schafer v. Time, Inc. (11th Cir. 1998): magazine misidentifies Schafer as a double agent involved
in Lockerbie plane bombing; Schafer sues for libel and defamation under GA libel laws, which
requires that you prove character
§ court said that character was at issue here, so they could bring in specific instances of
conduct (schafer had a lot of bad history)
o United States v. Williams (7th Cir. 1984)
§ prosecution gets a witness to say that D’s nickname is Fast Eddy in a car theft case
§ CoA sees that this is a ploy by the prosecution to get character evidence in when the
identity was not in issue
Key Points:
o prosecution is reactive à may not initiate inquiry into character evidence
§ defendant must do something before the prosecutor can offer this evidence
§ prosecutor can rebut defendant’s evidence AND cross-examine character evidence
o just b/c the defendant alleges that the victim was the first aggressor in a non-homicide criminal
case does not mean that the character is in question or that he is presenting character evidence
CASE EXAMPLE: Michelson v. United States (1948)
o established
§ (1) D may introduce character evidence of pertinent trait
§ (2) D controls the scope of the character evidence
§ (3) P may cross-examine defendant
o RULE à if D opens the door to character evidence, the P may cross on topic
o you have to show propensity by opinion or reputation, regardless of whether it is offered by
defense or by prosecution
§ note: when you are offering opinion evidence, the comeback is usually, do you know
that... since they can’t talk to what they themselves do not know
General Practice Notes:
o be careful on direct that you don’t open the door for cross-examination
o jurors aren’t suppose to assume the truth of the question asked i.e. “have you heard that the
defendant was arrested 10 years ago”
404(b) à crimes, wrongs, and other acts
• (1) PROHIBITED USES. evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
• (2) PERMITTED USES notice in a criminal case. this evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. on request by the defendant in a criminal case, the prosecutor must:
o (A) provide reasonable notice of the general nature of any such evidence that the prosecutor
intends to offer at trial; and
o (B) do so before trial – or during trial if the court, for good cause, excuses lack of pretrial notice.
Basic Principles and Background
o can’t offer evidence to show propensity
o CAN be offered for another purpose à see 404(b)(2)
o Rule 403 still applies i.e. if prejudice is unfair, then shouldn’t be let in
o can be used in civil cases
o 404(b) evidence is essentially dynamite evidence
Evidence Fall 2016 – Saltzburg
o United States v. Carroll (8th Cir. 2000): prosecutor says that he is offering the prior bad acts to
prove a plan or pattern; CoA says that showing he did one robbery does not show anything about
a plan to conduct a separate robbery à also the prior crime was too remote and generic
§ held: finds that the error was harmless
o Drug Cases à often involve questions of motive
§ if you are just trying to do another drug conviction it is likely just propensity evidence,
but if you robbed a person and then immediately bought drugs, that could give you
motive for the robbery
o United States v. Martinez (9th Cir. 1999): prosecution wants to show that M was previously
convicted of heroin importation to show that he would have the knowledge of the code that S and
C were using on the phone such that he knew it was a drug deal when he drove S to the airport to
pick up C; no evidence that the code was similar to the code used before, if there was any
§ held: basically say that he would know drug smuggling when he saw it
o United States v. Jones (7th Cir. 2006): judge let in evidence of prior conviction; CoA: the
prosecutor says that the prior conviction was evidence of intent to distribute
introduced four part test:
§ (1) evidence was offered to prove something other than propensity
§ (2) was other act similar enough and close enough in time to be relevant
§ (3) was there enough evidence for a jury to find existence of other acts by a
§ (4) was probative value substantially outweighed by the unfair prejudice
o Huddleston v. United States (1988): SCOTUS is asking how much evidence does there need to
be in order for them to be relevant in a later conviction?
§ held: need to be shown by preponderance of the evidence that other acts occurred
§ some courts require clear and convincing evidence
§ acquittal does not preclude use of acts à b/c acquittal is just failure to prove beyond a
reasonable doubt not BPE
406 à habit; routine practice
• evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the habit or routine practice. the
court may admit this evidence regardless of whether it is corroborated or whether there was an
o specificity and regularity are key
o number of times the act was done divided by the total possible times to do it
o United States v. Angwin (9th Cir. 2001): judge says that using the least confrontational method
was not habit evidence that could be admitted
§ RULE à admission of this evidence is not semi-automatic or reflexive
Evidence Fall 2016 – Saltzburg
• CASE EXAMPLE: United States v. Bear Stops (8th Cir. 1993)
o defendant wanted to show that a year before his trial, the victim had been assaulted by three boys
o court glosses over (b)(1) and instead focuses on constitutional requirements for evidence’s
§ trial court had admitted sanitized version of evidence
o court says that the evidence involving the two brothers was properly excluded
o court found that it was prejudicial error for the first count, but affirmed the other two
413 à similar cases in sexual-assault cases
• (a) PERMITTED USES. in a criminal case in which a defendant is accused of a sexual assault, the
court may admit evidence that the defendant committed any other sexual assault. the evidence may be
considered on any matter to which it is relevant.
• (b) DISCLOSURE TO DEFENDANT. if the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of expected testimony.
the prosecutor must do so at least 15 days before trial or at a later time that the court allows for good
• (c) EFFECT ON OTHER RULES. this rule does not limit the admission or consideration of evidence
under any other rule.
• (d) DEFINITION OF “SEXUAL ASSAULT”. in this rule and Rule 415, “sexual assault” means a
crime under federal law or under state law involving:
o (1) any conduct prohibited by 18 U.S.C. chapter 109A;
o (2) contact, without consent, between any part of the defendant’s body – or an object – and
another persons genitals or anus;
o (3) contact, without consent, between the defendant’s genitals or anus and any part of another
person’s body;
o (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain
on another person; or
o (5) an attempt or conspiracy to engage in conduct described in paragraphs (1) – (4).
415 à similar acts in civil cases involving sexual assault/child molestations [almost same as criminal rule]
• (a) PERMITTED USES. in a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation the court may admit evidence that the party committed any other sexual
assault or child molestation considered as provided in Rules 413 and 414.
Evidence Fall 2016 – Saltzburg
901(a) à authenticating or identifying evidence
• IN GENERAL. to satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent
claims it is.
o courts do not assume that evidence is what the proponent claims
o proponent must demonstrate what evidence is and how it relates to the case at hand
o could the trier of fact find the evidence is what the proponent claims? (analogous to 104(b))
o judge is not a fact finder, but a screener à decides whether there is enough evidence for a jury
to find evidence is what is claimed
901(b) à EXAMPLES the following are examples only – not a complete list – of evidence that satisfies
the requirement:
• (1) testimony of a witness with knowledge. testimony that an item is what it is claimed to be
• (2) non-expert opinion about handwriting. a non-expert’s opinion that handwriting is genuine, based on
a familiarly with it that was not acquired for the current litigation.
• (3) comparison by an expert witness or the trier of fact. a comparison with an authenticated specimen
by an expert witness or the trier of fact.
• (4) distinctive characteristics and the like. the appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together with all the circumstances.
• (5) opinion about a voice. an opinion identifying a person’s voice – whether heard firsthand or through
mechanical or electronic transmission or recording – based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
• (6) evidence about a telephone conversation. for a telephone conversation, evidence that a call was
made to the number assigned at the time to:
o (A) a particular person, if circumstances including self-identification, show that the person
answering was the one called; or
o (B) a particular business, if the call was made to a business and the call related to business
reasonably transacted over the telephone.
• (7) evidence about public records. evidence that:
o (A) a document was recorded or filed in a public office as authorized by law; or
o (B) a purported public record or statement is from the office where items of this kind are kept.
• (8) evidence about ancient documents or data compilations. for a document or data compilation,
evidence that it:
o (A) is in a condition that creates no suspicion about its authenticity;
o (B) was in a place where, if authentic, it would likely be; and
o (C) is at least 20 years old when offered
• (9) evidence about a process or system. evidence describing a process or system and showing that it
produces an accurate result.
• (10) methods provided by a statute or rule. any method of authentication or identification allowed by
federal statute or a rule prescribed by the Supreme Court.
Evidence Fall 2016 – Saltzburg
Chain of Custody à must be established when necessary to identify evidence or to show condition is
o not needed when evidence is unique and condition is not important
o most courts hold that a break in chain of custody goes to weight not admissibility
o need a substantially unbroken chain – adherence to a defined system of identification and
o Lockhart v. McCotter (5th Cir. 1986): wallet introduced into evidence, no showing of what
happened between removal and offer in court but wallet is readily identifiable and contains
pictures of victim’s girlfriend and children; this unique item and no need to authenticate à
failure to object is irrelevant; held – chain of custody à weight not admissibility
o U.S. v. Edwards (9th Cir. 2000): receipt should not have been admitted b/c prosecutor tampered
with bag – removed it from courtroom in violation of rule
Basic Foundation Questions
o (1) I am showing you what has been marked for identification as [P’s or D’s] exhibit #
o (2) can you identify it?
o (3) what is it?
o (4) for photographs – ADD à is it a fair [or true] and accurate depiction of ___?
Real & Demonstrative Evidence
o demonstrative is representative (i.e. X-Ray); foundation must be laid by technician, doctor or
o real is real (i.e. wallet, bag. etc.)
o Carson v. Polly (5ht Cir. 1982): judge admits knife as one similar to one plaintiff had when
arrested; knife could have been admitted as demonstrative, but witness could not lay a complete
Photos and Videos
o does not matter who took the photo, when it was taken or why it was taken
o important thing à whether the witness says the photo/video depicts what the witness saw or
heard; some courts require showing of no opportunity for tampering
o surveillance films à foundation laid by testimony as to the process and chain of custody – no
live witness needed
o generally, any participant in conversation can authenticate a recording
o generally, an agent, who overhears can authenticate a recording
o foundation may increase where machine is automated and no witness heard the conversation
o you can always call a witness if you are admitting these, but you don’t need to
o Kassim v. City (2d Cir. 2005): trial did not admit translation of his notes that said he made a lot
of money but the trial court said his tax returns said otherwise
§ CoA said relying on the tax returns in a non-tax case is not appropriate BUT dumb b/c
translator did not have personal knowledge regarding the contents of the note
o Barrickman v. Nat’l Utilities (Mo. Ct. App. 1945); like 901(b)(6): don’t need to be able to ID
voice just need to think she called the company
o U.S. v. Ranta (8th Cir. 1973): don’t need handwriting expert – jury can make own examination
o U.S. v. McMahon (1st Cir. 1991): circumstantial authentication of handwritten note OK (i.e. that
person was hard of hearing, so reason he might have wanted to send not), but best evidence
issues here
Evidence Fall 2016 – Saltzburg
o US v. Parker (5th Cir. 1998): conversation was authenticated by wife placing the call and man
calling Mrs. P his “old lady” – sufficient to show Mr. was on the call
902 à evidence that is self-authenticating
• the following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity
in order to be admitted:
o (1) domestic public documents that are sealed and signed
o (2) domestic public documents that are not sealed but are signed and certified
o (3) foreign public documents
o (4) certified copies of public records
o (5) official publications
o (6) newspapers and periodicals
o (7) trade inscriptions and the like
o (8) acknowledged documents (lawfully executed by notary or other officer)
o (9) commercial paper and related documents
o (10) presumptions under a federal statute
o (11) certified domestic records of regularly conducted activity
o (12) certified foreign records of a regularly conducted activity
• Considerations: can you hold the website owner responsible for the content on the website?
o what exactly was on the website
o does the exhibit or testimony accurately reflect it
o if it does, it is attributed to the owner of the website
o length of time posted
o did other see it and if so how many
o is the data/information still there
o whether the owner published it elsewhere
o whether others have posted it
• Chat Room Evidence: is it authenticated?
o if individual used screen name in question when participating in chat room
o if individual showed up at meeting with user
o self-identification by user
o possession of information given to the user
o hard drive containing screen name
• E-Mail Evidence: is it authenticated?
o witness or entity received email
o email bore address of particular person
o email contained typewritten name or nickname or in body of email
o recipient witness followed up with conversation with sender
903 à subscribing witness’s testimony
• a subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the
jurisdiction that governs its validity.
NOTE: very rarely comes up in federal cases
Evidence Fall 2016 – Saltzburg
o no general rule that best evidence is required
o applies to – writings, recordings, and photographs
1002 à requirement of the original
§ an original writing, recording, or photograph is required in order to prove its content unless these rules
of a federal statute provides otherwise
o De Marco v. Ohio Decorative Products: no original, if original existed, no oral testimony would
have been permitted
Proving the Contents:
o original document is NOT required just b/c document exists question is whether the contents are
o witness w/ personal knowledge generally may testify even if doc available (testimony to being
married OK, certificate not required – unless legal marriage in dispute)
1001(a)-(c) à definitions that apply to this article
§ in this article:
o (a) a “writing” consists of letters, words, numbers, or their equivalent set down in any form
o (b) a “recording” consists of letters, words, numbers, or their equivalent recorded in any many
o (c) a “photograph” means a photographic image or its equivalent stored in any form.
o Seiler v. Lucas Film Ltd (9th Cir. 1986): originals required to prove copyright infringement of
drawings by Empire Strikes Back. Ct finds bad faith, so can’t use other evidence
o U.S. v. Duffy (5th Cir. 1972): judge has discretion to require chattels to be brought to court
o Howard (11th Cir. 1992): drug conspiracy case. recorded conversations. not trying to prove
conversations were recorded, trying to prove what the conversations were about. so agent can
testify to his recollection of the conversations.
Pictures & Videos:
o just b/c a writing, photo, recording exists doesn’t mean you need it to prove an event
o could be used to support understanding of witness’ testimony, so don’t need best evidence rule
o pictures and videos generally are not offered to prove contents à they are incorporated into the
o EXCEPTION à obscenity, pornography (contents must be proved)
Films & X-Rays:
o films created to demonstrate an event are not offered to prove the contents
§ they are illustrative or demonstrative evidence
§ usually used in conjuction with exports
o X-rays ARE offered to prove contents à used to prove what it is that is on the photograph
§ U.S. v. Levine (5th Cir. 1977): release prints of pornography made from a prior print. any
print can be used, does not violate best evidence à an original includes negative or any
print made thereform
Evidence Fall 2016 – Saltzburg
§ First Step
o is the proponent offering a writing, recording or photograph?
o if not à best evidence objection OVERRULED
o if yes à second step
§ Second Step
o does the proponent offer either the original or a duplicate
§ if it is an original, rule SATISFIED
§ if it is a duplicate, presumptively admissible, but look at Rule 1003
o if duplicate is admitted à end of analysis (so long as you use a copier, you’re fine)
1003 à admissibility of duplicates
§ a duplicate is admissible to the same extent as the original unless a genuine question is raised about the
original’s authenticity or the circumstances make it unfair to admit the duplicate.
Third Step
o when there is no original or admissible duplicate, proponent must satisfy Rule 1004
1004 à admissibility of other evidence of content
§ an original is not required and other evidence of the content of writing, recording, or photograph is
admissible if:
o (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith
o (b) an original cannot be obtained by any available judicial process
o (c) the party against who the original would be offered had control of the original; was at that
time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the
trial or hearing; and fails to produce it at the trial or hearing; OR
o (d) the writing, recording, or photograph is not closely related to a controlling issue
§ Railroad Management Co. v. CFS (5th Cir. 2005): CoA offers 7 factors in deciding whether a party is
seeking to prove existence of agreement or its contents
o (1) importance of content in the case
o (2) simplicity or complexity of content
o (3) strength of evidence of content
o (4) margin for error that would not undermine point to be proved
o (5) presence or absence of actual dispute
o (6) ease or difficulty of proving writing
o (7) reasons why writing no produced
§ Neville Const. Co. v. Cook Paint (8th Cir. 1982): if original is excused (e.g. destroyed in a fire) any form
of admissible evidence will be received. no preferred degrees of secondary evidence.
Evidence Fall 2016 – Saltzburg
1006 à summaries to prove content
§ the proponent may use a summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined in court. the proponent must make
the originals or duplicates available for examination or copying, or both, by other parities at a
reasonable time and place. and the court may order the proponent to produce them in court.
CASE EXAMPLE à U.S. v. North American Reporting (D.C. Cir. 1984): a summary is as admissible
as the underlying evidence it summarizes. if summarizes hearsay, inadmissible.
distinguishable from 611(a) summaries of trial evidence (often called pedagogical summaries) –
summary witness gets on stand, summarizes testimony
1005 à copies of public records to prove content
§ the proponent may use a copy to prove the content of an official record – or of a document that was
recorded or filed in a public office as authorized by law – if these conditions are met: the record or
document is otherwise admissible; and the copy is certified as correct in accordance with Rule 904(4)
and is testified to be correct by a witness who has compared it with the original. if no such copy can be
obtained by reasonable diligence, then the proponent may use other evidence to prove the content
1007 à testimony or statement of a party to prove content
§ the proponent may prove the content of a writing, recording, or photograph by the testimony, deposition,
or written statement of the party against who the evidence is offered. the proponent need not account for
the original.
1008 à functions of the court and jury
§ ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting
other evidence of the content of writing, recording, or photograph under Rule 1004 or 1005. but in a jury
trial, the jury determines – in accordance with Rule 104(b) – any issue about whether:
o (a) an asserted writing, recording, or photograph ever existed;
o (b) another one produced at the trial or hearing is the original; or
o (c) other evidence of content accurately reflects the content
Evidence Fall 2016 – Saltzburg
701 à opinion testimony by lay witness
§ if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
o (a) rationally based on the witness’s perception;
o (b) helpful to clearly underlying the witness’s testimony or to determining a fact in issue; and
o (c) not based on scientific, technical, or other specialized knowledge within the scope of R702.
o we want to provide the jury with everything that the witness knows
o we also don’t want them to sneak in expert opinions
§ lay witnesses use reasoning familiar to everyday life
§ nature of testimony matters
§ remember that a person can be both a lay witness and expert witness à but you have to
be careful b/c if you have someone like this, the jurors may still decide that certain
witness’ lay testimony is worth more than others
704 à opinion on an ultimate issue
§ (a) IN GENERAL – NOT AUTOMATICALLY OBJECTIONABLE. an opinion is not objectionable
just because it embraces an ultimate issue.
§ (b) EXCEPTION. in a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime charged
or of a defense. those maters are for the trier of fact alone.
o you can’t have an expert tell the jury what they are suppose to come to on their own; they may
value the opinion and it may skew their verdict/judgment
o you can’t use get around prohibition for experts giving unhelpful testimony by veiling it by
o United States v. Hoffner (10th Cir. 1985): nurses opinion was offered but he nurses were not
present when Dr. gave the drugs to these parties. this fails rule 701(a) because they do not have
personal knowledge i.e. the testimony was not “rationally based on the witness’s perception”
o United States v. Yazzie (9th Cir. 1992): DEF claims that he reasonably believed that the victim
was of age; DEF calls witnesses to testify to how she appeared and behaved and whether he
reasonably believed she was over sixteen à the witness would have said that they also believed
she was sixteen but trial court excluded
§ CoA says that this is helpful to the jury so it based Rule 701(b)
o United States v. Santos (7th Cir. 2000): these persons can testify to his management style but not
on whether he actually decided to terminate the plaintiff à uses Rule 701(a)
Evidence Fall 2016 – Saltzburg
§ Introduction:
o expert witness testimony is where the money is in trials
o these are about the substance of the expert’s testimony, not about whether the testimony should
be admitted
o specialized knowledge will assist the trier of fact
o qualification are relevant and testimony must be based on sufficient facts
702 à testimony by expert witnesses
§ a witness who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if:
o (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
o (b) the testimony is based on sufficient facts or data;
o (c) the testimony is the product of reliable principles and methods; and
o (d) the expert has reliably applied the principles and methods to the facts of the case
Basic Principles
o witness can be an expert on the basis of experience
o witnesses can be experts in a subject but not to a particular aspect
o Berry v. City of Detroit (6th Cir. 1994): the expert believes the city’s failure to train its officers
was the cause of the accident; CoA distinguishes between scientific and non-scientific opinions;
CoA issues with expert testimony: (1) it could state the obvious; (2) no foundation for the
witness’s testimony
§ CoA says that you should enter judgment as a matter of law for the city
o Scott v. Sears, Roebuck Co. (4th Cir. 1986): testimony MUST be helpful to the jury
o United States v. Cruz (2d Cir. 1992): common knowledge in one place may not be common
knowledge in other places
POLICE OFFICERS as lay and expert witnesses
o they often get very involved with drug operation, so they can testify as lay person about what
they saw, what happened, etc.
o they may also have a lot of specialized knowledge about drug deals conducted more generally
and may testify as an expert in this area
o when a police officer tells the jury about something it already knows, then it will always be
harmless error
o Frye v. United States (D.C. Cir. 1923): something that is new technology and not widely used by
that industry may be found inadmissible on reliability grounds
o Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993): P wanted to say that drug for morning
sickness was causing deformed babies; but there were 13,000 patients in 30 published studies
and there was no statistical link; court points to 402 relevance and then points to 702 for
• (1) if giving scientific knowledge à assess reliability
• (1) if trying to fit to fats of the case à asses relevance
§ BLACKMUN says that determination of whether it’s helpful is under 104(a)
Evidence Fall 2016 – Saltzburg
• can a theory or technique be tested? can a hypothesis be falsified?
• was there peer review and publication/general acceptance
• what is the known or potential rate of error
§ trial court must also be aware of the data relied upon (R703), can consider a court
appointed expert (R706), and whether its prejudicial (R403)
§ judge must look at the methodologies, not the conclusion and be aware of the difference
between truth in the laboratory and truth in the courtroom
o General Elec. Co. v. Joiner (1997): P alleged lung damage caused by PCBs; SCOTUS reverse
the CoA and emphasizes the court’s gatekeeping role; court declines to look at the evidentiary
decision more so b/c a reversal would end the case; court also agrees that the relevant standard of
review is for an abuse of discretion
§ court finds no AoD on the part of the trial judge and says conclusions and
methodology are not entirely distinct
• trial court is the gatekeeper, looking at methodology and seeing whether the
methodology was reliably applied, thereby requiring them to look at the
Applying Daubert to Electronic Evidence
o In re Three Mile Island Litigation (3d. 1999): expert uses plume dispersion theory and
geo/topographic evidence to say that the radiation was lower than would have been otherwise;
district court threw it out, saying that he didn’t use the standard computer model
o United States v. Quinn (9th Cir. 1994): government wants to rely on photogrammetry evidence
on the height of the robber from a bank’s footage; trial judge ADMITTED evidence without a
hearing; 9th Cir. says its not an abuse of discretion
Daubert gatekeeping in non-scientific expert testimony
o Kumho Tire Co., Ltd. v. Carmichael (1999): gatekeeping role extends to Rule 702 to all experts,
not just scientific ones; judge may consider Daubert, but may use discretion; expert in this case
formed an opinion on tire without really laying foundation and trial court excluded, CoA
reversed and then SCOTUS reversed CoA
§ RULE à experts need to use the same level of intellectual rigor inside of the
courtroom as they do outside the courtroom.
§ here the expert just read the deposition and eyeballed it even though he had all the
expertise necessary to properly examine it
ENDING the Daubert, Electric Co. and Kumbo TRILOGY
o results in 2000 amendment purporting to codify Daubert and Kumbo
§ identifies other factors to consider:
• (1) study done independent of litigation
• (2) unjustified extrapolation
• (3) failure to account for alternatives
• (4) as careful in court as out
• (5) field of expertise known to be reliable
§ says that rejection is the exception, not the rule
§ also says that Rule 702(1) is quantitative not a qualitative analysis
§ don’t need to tender the expert but if you do, looks good for the P
POST-2000 Amendment Cases
o FORENSIC: United States v. Baines (10th Cir. 2009): FBI witness explained fingerprints and
state law enforcement officer said they were a match; ultimately, there is still a subjective
element to finding a match; DEF says there is no scientific basis
Evidence Fall 2016 – Saltzburg
§ COA says that fingerprint analysis is well established to admit, and if the DEF
dislikes, it can allege that it’s not a real match or call its own witness
o PROBABILITIES: California v. Collins (Cal. 1968): you can’t create numbers and then ask an
expert to declare probabilities
703 à bases of an expert’s opinion testimony
§ an expert may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed.
§ if experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted
§ but if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them
to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs
their prejudicial effect.
o an expert does not necessarily need personal knowledge
o second party is a reverse of 403 to deal with hearsay
§ experts can rely on things that are NOT independently admissible, but we’re not going to
disclose that information to the jury
o United States v. Leeson (4th Cir. 2006): DEF says you can’t just rely on two inmates’ obviously
biased statements when making a psychological assessment of the DEF à TJ nevertheless let it
in; shows judges discretion on these issues
705 à disclosing the facts or data underlying an expert’s opinion
§ unless the court orders otherwise, an expert may state an opinion – and give the reasons for it – without
first testifying to the underlying facts or data. but the expert may be required to disclose those facts or
data on cross-examination.
706(a)-(b) à court-appointed expert witnesses
§ (a) APPOINTMENT PROCESS. on a party’s motion or on its own, the court may order the parties to
show cause why expert witnesses should not be appointed and may ask the parties to submit
nominations. the court may appoint any expert that the parties agree on and any of its own choosing. but
the court may only appoint someone who consents to act.
§ (b) EXPERT’s ROLE. the court must inform the expert of the expert’s duties. the court may do so in
writing and have a copy filed with the clerk or may do so orally at a conference in which the parties
have an opportunity to participate. the expert:
o (1) must advise the parties of any findings the expert makes;
o (2) may be deposed by any party
o (3) may be called to testify by the court or any party; and
o (4) may be cross-examined by any party including the party that called the expert.
Evidence Fall 2016 – Saltzburg
o court-appointed experts are reasonably compensated (c)
o court may choose to disclose this appointment to the jury (d)
o both parties can still there own expert witnesses (e)
o Fed.R.Civ.P. 26(a)(2) à requires disclosure of the expert witness; require expert to submit a
report that he expert submits and signs and contains everything the witness is going to say (if it is
not in the report then it won’t be in the case)
801 à definitions
§ (a) STATEMENT. “statement” means a person’s oral assertion, written assertion or nonverbal conduct,
if the person intended it as an assertion.
§ (b) DECLARANT. “declarant” means the person who made the statement.
§ (c) HEARSAY. “hearsay” means a statement that:
o (1) the declarant does not make while testifying at the current trial or hearing; and
o (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
§ (d) STATEMENTS THAT ARE NOT HEARSAY. a statement that meets the following conditions is
not hearsay:
o (1) declarant-witness’s prior statement. the declarant testifies and is subject to crossexamination about a prior statement, and the statement:
§ (A) is inconsistent with the declarant’s testimony and was under penalty of perjury at a
trial, hearing, or other proceeding or in a deposition;
§ (B) is inconsistent with the declarant’s testimony and is offered:
• (i) to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
• (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another
ground; or
§ (C) identifies a person as someone the declarant perceived earlier.
o (2) an opposing party’s statement. the statement is offered against an opposing party and:
§ (A) was made by the party in an individual or representative capacity;
§ (B) is one the party manifested that it adopted or believed to be true;
§ (C) was made by a person whom the party authorized to make a statement on the subject;
§ (D) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
§ (E) was made by the party’s coconspirator during and in furtherance of the conspiracy
the statement must be considered but does not by itself establish the declarant’s authority under (C); the
existence or scope of the relationship under (D); or the existence of the conspiracy/participation in it under (E).
802 à the rule against hearsay
§ hearing is not admissible unless any of the following provides otherwise:
o federal statute;
o these rules; or
o other rules prescribed by the Supreme Court.
Evidence Fall 2016 – Saltzburg
o (1) sincerity – did the declarant believe what he was saying?
o (2) narrative – did the declarant intend to say what he said? did the jury understand the
o (3) perception – did the declarant actually see or hear the event clearly?
o (4) memory – did the declarant actually remember the event?
§ when there are no answers to these questions, we usually keep the information out à but
we don’t need an answer to every single question
§ Declarants:
o we don’t admit hearsay b/c we can’t cross-examine declarants à we can only cross the witness,
but the witness has no personal knowledge
o declarants must be human à we don’t permit animals or machines to testify b/c usually it’s
human who are making the statement or judgment that is genuine
§ Witnesses:
o the people who come to court to report what they hear from the declarant
o sometimes the declarant and the witness are the same person
o what is not hearsay?
§ significant utterances
§ party must prove a state to prevail on a claim or defense (unlikely)
§ offers
§ oral statements establishing a contract, gift, or demand
§ questions à b/c generally don’t assert the truth of the mater; unless something like “what
time did you shoot John”
§ orders (from law enforcement)
• i.e. put your hands up, I’m arresting you b/c you committed an armed robbery
• unless if offered to prove that person committed armed robbery
• we care about what was said here, not that it was truth
laws and regulations à neither true nor false and no declarant
§ statements offered as false or misleading à often meant to prove the opposite of the truth
of what was stated
o you should object when asked to repeat something b/c you don’t know what the witness will say;
allows the judge to hear the statement outside of the hearing
o offerors can offer statement to prove the truth or for some other purpose
§ i.e. officer says I arrested him because he robbed a bank
§ relevant at suppression hearing b/c we need to know why he was arrested
§ not relevant at trial because it doesn’t matter why; trying to dis/prove it at this point
o United States v. Sadler (8th Cir. 2000): trial judge excluded attorney’s testimony that would
show that a police officer was lying that the defendant confessed; CoA reversed saying that
attorney was offering to show that police likely perjured himself rather than the truth of the
statement by the DEF
§ Limiting Instructions
o should object under 403 when evidence will surely be used for its truth despite the instruction
o but this can also highlight the information and make them more likely to misuse it
§ Acts of Production
o Stevenson v. Commonwealth (Va. 1977) à wife provides clothing to police officers, but isn’t
called to stand b/c of privilege. VASC says that when wife handed clothes over to police she is
saying “these are the clothes my husband was wearing last night”
Evidence Fall 2016 – Saltzburg
Out-of-Court statements of declarants that testify at trial
o United States v. Check (2d. Cir. 1978): investigator uses middleman to investigate Check, but the
middleman refuses to testify at trial; prosecutor asks investigator what he said to the middleman;
basically backdoor of getting the middleman’s testimony in
§ even if it is hearsay, don’t forget that there are exceptions
§ Rule 801(d)(1)(A) à see above where the declarant and the witness are the same person
o a declarant-witness’s prior statements à the declarant testifies and is subject to crossexamination about a prior statement and the sate (A) is inconsistent with declarant’s testimony
and was given under penalty of perjury at trial, hearing, or other proceeding or in a deposition
§ admits some prior inconsistent statement for their truth and excludes others à admits
statements in those situations when there is a record available and with a perjury penalty
§ makes the statements more reliable
o CASE EXAMPLE: what are “other proceedings”? United States v. Livingston: witness tells a
postal investigator that DEF bragged about committing robbery, denies on stand, but postal
inspector had typed up and asked her to sign under oath, which she did – she says that she didn’t
read it à court holds: statements made to investigators do not qualify for 801(d)(1)(A)
o Underlying Principles
§ admits some prior inconsistent statements for their truth and excludes others
§ admits statements in those situations when there is a record available and with a perjury
§ makes statements more reliable
o What is inconsistent?
§ a judge will make this call à judge will sometimes say that the memory problem is really
an inconsistency
§ statements admissible under this rule can be given the same weight as trial evidence
§ statements that don’t qualify under this rule can still be admitted for impeachment
purposes under Rule 613
§ only prior inconsistent statements that meet the formality/under oath/perjury
requirements are coming in for their truth à ones that aren’t may come in for
§ Rule 801(d)(1)(B) à see above
o a declarant-witness’s prior statementsà the declarant testifies and is subject to crossexamination about a prior statement and the state (B) is consistent with the declarant’s testimony
and is offered
§ (i) to rebut an express or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying; or
§ (ii) to rehabilitate the declarant’s credibility as a witness when attack on another ground
o Principles
§ certain prior consistent statements are important
§ triers will use the statement for the truth anyway b/c they’re the same as the trial
o CASE EXAMPLE: Tome v. United States (1995): at trial, child asked a leading question on
direct, and on cross-examination she wouldn’t answer; judge admits statements to her babysitter
and social worker and statements to three doctors
o RULE à statement must have been made before alleged improper motive/influence arose
Evidence Fall 2016 – Saltzburg
o December 2014 Amendment à added the rehabilitation amendment
§ to extend substantive effect to consistent statements that rebut other attacks on a witness
– such as charges of an inconsistent or faulty memory
Rule 801(d)(1)(C) à see above
o a declarant-witness’s prior statement àthe declarant testifies and is subject to crossexamination about a prior statement and the state (C) identifies a person as someone the
declarant perceived earlier.
§ consistent or inconsistent is IRRELEVANT
o CASE EXAMPLE: United States v. Owens (1988): SUBJECT to cross-examination doesn’t
mean the witness is good; a third party can always come in and corroborate; if a witness is
present in court then the confrontation clause is satisfied
Rule 801(d)(2) à see above opposing party statements (formerly “admissions”)
o all of these are non-hearsay – not based on reliability, based on idea that people are responsible
for what they say
o Principles
§ no showing of personal knowledge
§ trial judge decides whether something is admissible
§ statement by another party can be offered by a party, though the second party may not
introduce its own statement
§ generally co-defendants or co-plaintiffs are not party opponents
o Rule 801(d)(2)(A) à the statement is offered against an opposing party and:
§ (A) was made by the party in an individual or representative capacity
§ CASE EXAMPLE: State v. Johnson (Wis. 1976): statement made to accountant against
him, though he couldn’t admit his own statements
o Rule 801(d)(2)(B) à the statement is offered against an opposing party and:
§ (B) is one the party manifested that it adopted or believed to be true
§ CASE EXAMPLE: Carr v. Deeds (4th Cir. 2006): family was trying to show that police
officer was a bad guy b/c he didn’t say anything when the victim pointed him out and
therefore adopted the statement; court says the police officer adopted by silence; trial
court adopted the wrong standard and should have just made a determination as to
whether the police adopted the pointing rather than whether the family presented enough
evidence to convince a reasonable jury
• accusation made that a normal person would deny
• party accused heard the accusation
• party accused had the opportunity to deny it and didn’t
• assertion may be adopted for truth
o Rule 801(d)(2)(C) à the statement is offered against an opposing party and:
§ (C) was made by a person whom the party authorized to make a state on the subject
§ judge decides whether the person was actually authorized
o Rule 801(d)(2)(D) à the statement is offered against an opposing party and:
§ (D) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed
§ differentiating from C
• you could not be authorized as a spokesperson but still be an employee and you
make a statement in the course of your employment that would bring you under D
• this is essentially respondent superior concept
Evidence Fall 2016 – Saltzburg
§ CASE EXAMPLE: Hill v. Spiegel, Inc. (6th Cir. 1983): P couldn’t prove that the people
said things in the scope of their employment
§ does not extend to government employees
§ personal knowledge is not required
o Rule 801(d)(2)(E) à statement is offered against an opposing party and:
§ (E) was made by the party’s co-conspirator during the course and in furtherance of the
§ CASE EXAMPLE: Bourjaily v. United States (1987): Buyer-seller not historically
considered to have a conspiracy relationship; could you rely on the challenged statement
itself to show a conspiracy or do you need independent evidence
§ statements in the furtherance of one conspiracy can be used in another case
§ person to whom statement made doesn’t need to be a conspirator
§ declarant and party against who the statement is offered have to be members of the
§ CASE EXAMPLE: City of Tuscaloosa v. Harcros Chems., Inc. (11th Cir. 1998): double
hearsay – conspirator rule requires the statement to be in furtherance of the conspiracy,
whereas the agents’ statement doesn’t have to be in furtherance of anything
EXCEPTIONS TO HEARSAY à (when declarant is unavailable)
804(a) à unavailability
§ (a) CRITERIA FOR BEING UNAVAILABLE. a declarant is considered to be unavailable as a
witness if the declarant:
o (1) is exempted from testifying about the subject matter of the declarant’s statement because the
court rules that a privilege applies;
o (2) refuses to testify about the subject matter despite a court order to do so;
o (3) testifies to not remembering the subject matter;
o (4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness or mental illness; OR
o (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure:
§ (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or
(6); or
§ (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule
804(b)(2), (3) or (4)
o but this subdivision (a) does not apply if the statement’s proponent procured or wrongfully
caused the declarant’s unavailability as a witness in order to prevent the declarant from
attending or testifying
Rule 804(a)(1) and (2) involve privilege
o CASE EXAMPLE: United States v. Pelton & Rich (8th Cir. 1978): Rich’s lawyer subpoenas
Pelton so that she can repeat the denial that Rich set her up on a prostitution date; Pelton’s
lawyer says she’s going to be unavailable since she is going to claim the privilege against selfincrimination; CoA says that the witness has to actually invoke the privilege to satisfy the
rule and we can’t just assume the witness will do so; judge has to find that the witness has a
privilege or has to find an order, then the witness can refuse
§ RULE à parties cannot refuse to testify and then claim unavailability to get
hearsay in
Evidence Fall 2016 – Saltzburg
Rule 804(a)(3) à does not remember
o CASE EXAMPLE: United States v. Amaya (5th Cir. 1976): attorney indicted as a conspirator in
a drug deal; former client told the DEA about him but has an accident before the second trial
against the attorney and he lost his memory à there was no showing that his memory would
return so a continuance would not help and it was not reversible error to admit his prior
statements as hearsay
Rule 804(a)(4) à death or illness
o death is obvious but illness can be worked around à take testimony at hospital, send jury to
hospital, etc.
o CASE EXAMPLE: United States v. Faison (3d. Cir. 1982): DEF stole blank checks and asks M
to help him cash them, who contacts S who reports them to the FBI; M cooperates in the trial
against F and the jury hangs; M is hospitalized before the second trial with a heart problem; trial
judge mistakenly believes that the speedy trial clock might run out so says the trial has to go
§ CoA decides that the trial court erred, but wasn’t sure if it was reversible
Rule 804(a)(5) à absent and not able to procure
o requires a showing that you can’t get the declarant’s deposition even though yu have made an
attempt to do so
o CASE EXAMPLE: Campbell v. Coleman Co. (8th Cir. 1986): deposed a babysitter who had
previously admitted overfilling a lantern and then denied at the deposition; he had deposed so
deposition testimony available, so no exception under them rule
CANNOT MAKE SOMEONE BE UNAVAILABLE à United States v. Mathis (4th Cir. 1976): rule is
not aimed at negligent conduct but intentional conduct
804(b) à EXCEPTIONS (declarant unavailable as witness)
o the following are not excluded by the rule of hearsay if the declarant is unavailable as a witness:
o (1) former testimony
o (2) statement under the belief of imminent death
o (3) statement against interest
o (4) statement of person or family history
o (5) refer to residual exception à rule 807
o (6) statement offered against a party that wrongfully caused the declarant’s unavailability
Rule 804(b)(1) à former testimony. testimony that:
§ (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during
the current proceeding or a different one; and
§ (B) is now offered against a party who had – or, in a civil case, whose predecessor in
interest had – an opportunity and similar motive to develop it by direct, cross, and
redirect examination
o Key Words à now offered against a party: focuses on whether the party had an opportunity to
contest it
o prior opportunity to examine the witness should be sufficient
o CAS EXAMPLE: United States v. Salerno (1992): prosecution calls two witness to a grand jury;
witnesses give exculpatory evidence regarding the DEF; DEF calls the witness at trial and then
they plead the 5th; DEF offers their testimony under 804(b)(1) and CoA says its fine
§ SCOTUS says CoA got it wrong à the way you treat a witness at a grand jury may not
be how you do it at a trial i.e. you’re looking for different information and the motives
are different
Evidence Fall 2016 – Saltzburg
Rule 804(b)(2) à statement under belief of imminent death
§ in a prosecution for homicide or in a civil case, a statement that the declarant, while
believing the declarant’s death to be imminent, made about its cause or circumstances
o rationale is the declarant won’t die telling a lie
o most of the time dying declaration is also excited utterance (R803)
o CASE EXAMPLE: New Mexico v. Quintana (N.M. 1982): DEF convicted of involuntary
manslaughter; victim does not actually die on the scene, and then makes a statement fives days
later in the hospital; not an excited utterance, but trial court fins that death was imminent
o this exception requires personal knowledge
o equally available to all defendants à if charged with a crime but victim says its someone else
you can use this
Rule 804(b)(3) à statement against interest. statement that:
§ (A) a reasonable person in the declarant’s position would have made only if the person
believed it to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s
claim against someone else or to expose the declarant to civil or criminal liability; AND
§ (B) is supported by corroborating circumstances that clearly indicate its trustworthiness,
if it is offered in a criminal case as one that tends to expose the declarant to criminal
o CASE EXAMPLE: Williamson v. United States (1994): statements made to government were
using used; harris realizes that his original story was going to get discovered, so he says that W
actually drove by and the whole thing was a lie; H refuses to testify so he became “unavailable”
à raised the question of whether the statement he made was against his penal interest
§ O’CONNER says that we need to look at each individual statement
§ GINSBURG agrees but says that they still would have ben inadmissible
§ KENNEDY says that we should look at the whole thing and only exclude self-serving
statements or those motivated by the desire to obtain favorable treatment
o How disserving must a statement be?
§ so contrary to or had so great a tendency to be disserving à doesn’t have to be a
completely devastating statement
§ just b/c you include a third party does not necessarily mean its disserving
§ courts now say that both defendant and prosecution need to corroborate disserving
statements in all criminal cases
§ corroboration may mean other, consistent evidence or it can mean that the circumstances
surrounding the making of the statement suggest that the statement was true
Rule 804(b)(4) à statement of personal or family history. a statement about:
§ (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood or marriage, or similar facts of personal or family history, even
though the declarant had no way of acquiring personal knowledge about the fact; or
§ (B) another person concerning any of these facts, as well as death, if the declarant was
related to the person by blood, adoption, or marriage or was so intimately associated with
the person’s family that the declarant’s information is likely to be accurate.
o rarely used in federal court b/c we rarely have family law issues in federal court
o CASE EXAMPLE: Queen v. Hepburn (1813): P claimed that they were free b/c their mother was
in free territory, so she was free; son had stated in deposition that mother told him about what her
father had said; court rejects the mother-declarant’s testimony as hearsay
Rule 804(b)(5) à moved to Rule 807 residual hearsay
Evidence Fall 2016 – Saltzburg
Rule 804(b)(6) à statements offered against a party that wrongfully caused the declarant’s
unavailability. forfeiture by wrongdoing.
§ a statement offered against a party that wrongfully caused – or acquiesced in wrongfully
causing – the declarant’s unavailability as a witness, and did so intending that result.
o CASE EXAMPLE: United States v. Cherry (10th Cir. 2000): the court says that you may forfeit
your hearsay objection if the murder of a witness is reasonably foreseeable as a necessary
consequence of your conspiracy; on the confrontation side, if you satisfy 804(b)(6) rulings, then
you lose your confrontation objection
EXCEPTIONS TO HEARSAY à (regardless of unavailability)
803 à EXCEPTIONS to the rule against hearsay
§ the following are not excluded by the rule against hearsay regardless of whether the declarant is
available as a witness:
o (1) present sense impression
o (2) excited utterance
o (3) then-existing mental, emotional, or physical condition
o (4) statement made for medical diagnosis or treatment
o (5) recorded recollection
o (6) records of regularly conducted activity
o (7) absence of a record of a regularly conducted activity
o (8) public records
o (9) public records of vital statistics
o (10) absence of public records
o (11) records of religious organizations
o (12) certificates of marriage, baptism, and similar ceremonies
o (13) family records
o (14) records of documents that affect an interest in property
o (15) statements in documents that affect an interest in property
o (16) statements in ancient documents
o (17) market reports and similar commercial publications
o (18) statements in learned treatises, periodical, or pamphlets
o (19) reputation concerning personal or family history
o (20) reputation concerning boundaries or general history
o (21) reputation concerning character
o (22) judgment of previous conviction
o (23) judgments involving personal, family, general history, or a boundary
Rule 803(1) à present sense of impression
o a statement describing or explaining an event or condition, made while or immediately after the
declarant perceived it
§ Rationale à spontaneity stifles the ability to make something up; i.e. 911 calls
§ CASE EXAMPLE: United States v. Brewer (2d. Cir. 1994): the defense was trying to say that the
identification of the client in a photo line-up was not a present sense impression
o in most courts you usually need to show corroboration by a preponderance of the evidence
o another reminder that personal knowledge is usually required in hearsay
Evidence Fall 2016 – Saltzburg
Rule 803(2) à excited utterance
o a statement relating to a startling event or condition, made while declarant was under the stress
of excitement that it caused
§ PRINCPLES: it’s a statement relating to a startling condition, so it does not need to be about the
§ CASE EXAMPLE: United States v. Marrowbone (8th Cir. 2000): kid says to the police that he had been
sexually assaulted when he was arrested for drinking underage; trial court says that it was an excited
utterance and CoA reverse à but statement to his mother was definitely excited utterance and he
testified at trial, so harmless error
§ hard to establish personal knowledge in an anonymous declarant excited utterance case
Rule 803(3) à then-existing mental, emotion, or physical condition
o a statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory or physical condition (such as mental feeling, pain or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed unless it
relates to validity or terms of the declarant’s will.
o you are not allowed to make statements on event hindsight 20/20; had to be exiting then
o i.e. my leg hurts b/c X hit me à not admissible b/c it’s an assertion of a thing that’s already
§ CASE EXAMPLE: Mutual Life Ins. Co. of N.Y. v. Hillman (1892): tried to collect insurance money
from husband but insurance company defended on the ground that husband was still alive. sister of a
victim says that she got a letter saying that he was going with H to where his body was found; finance of
W also gets a letter mentioning H and saying he intended to go somewhere with him; court says that a
statement that he intends to do something is basically as good as testimony to that effect
o no memory problem b/c nothing has happened
o intention as a state of mind is demonstrated by statements of intent à here doesn’t prove
that he went but goes to show that he intended to go and likely went
o but letters were suppose to show what H did à admissibility third-party declarants’ statements
to show the acts of the other party in split in federal courts
o RULE à whenever a person’s intention is of itself distinct and material fact in a chain of
circumstances, it may be proved by contemporaneous oral or written declarations of the
§ CASE EXAMPLE: Shepard v. United States (1933): doctor accused of killing his wife, wife’s nurse
said that she said that “Dr. Shepard poisoned me”; trial judge admitted the statement as a dying
declaration à court reversed saying that I’m going to die is not a statement that shows eminency
o SCOTUS says that you can’t raise a new argument at the appellate level à but notes that if the
DEF had claimed suicide as a defense, it could have opened the door
o RULE à only statements made in the shadow of impending death (no hope of life) are
admissible under this rule
Rule 804(4) à statement made for medical diagnosis or treatment. a statement that:
o (A) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and
o (B) describes medical history; past or preset symptoms or sensations; their inception; or their
general cause
o statement must be used for the purpose of diagnosis or treatment
o there must be a medical history or symptoms
o cause of medical symptoms must be pertinent for diagnosis
§ no requirement that the statement be made to the patient
Evidence Fall 2016 – Saltzburg
CASE EXAMPLE: Rock v. Huffco Gas & Oil Co. (5th Cir. 1991): court says that it was important for
the doctor to know that the P twisted his ankle, but it wasn’t necessary for the doctor to know the way in
which the accident happened à it could be if the injury’s treatment differed by the situation e.g. if he
cut himself
Rule 803(6) à records of a regularly conducted activity (i.e. business records)
o a record of an act, event, condition, opinion, or diagnosis if:
§ (A) the record was made near the time by – or from information transmitted by –
someone with knowledge;
§ (B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
§ (C) making the record was a regular practice of that activity;
§ (D) all these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
§ (E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness
§ CASE EXAMPLE: Palmer v. Hoffman (1943): engineer made a statement to a trade official and a
representative from the PUC; trial court and all subsequent courts affirm that this statement did not
constitute a business record
o RULE à records being produced in anticipation of litigation are not considered business
records b/c the business is incentivized to paint things in the light best suited for their needs
o a witness just needs to know enough to satisfy the rule but doesn’t need to have personal
knowledge of a particular recording or how it was made if the event is an isolated incident or a
type not regularly recorded
§ “BUSINESS RECORD OF A REPORTER”? not business records b/c there is no business duty
Rule 803(7) à absence of a record of regularly conducted activity
o evidence that a matter is not included in a record described in paragraph (6) if:
§ (A) the evidence is admitted to prove that the matter did not occur or exist
§ (B) a record that was regularly kept for a matter of that kinds; and
§ (C) the opponent does not show that the possible source of the information or other
circumstances indicate a lack of trustworthiness
o you have to be able to satisfy (6) in order to use (7)
o activities of the office always admissible
o non-final reports i.e. draft reports are not admissible
o opinions must be made by qualified persons, otherwise opponent can probably show
§ CASE EXAMPLE: Beech Aircraft Corp. v. Rainey (1988): P screwed by the Ferris doctrine from suing
the government; L. Commander does an investigation and says that pilot error likely caused the crash
and the jury returns a verdict for B; CoA reversed, saying that it didn’t involve “factual findings” but
was an opinion
o SCOTUS reverses à holds that factual findings include conclusions and opinions and notes;
almost impossible to distinguish between them
§ ISSUES: can contain third party hearsay; exception will get public record in, but third party hearsay will
still have to deal with rule against hearsay
Evidence Fall 2016 – Saltzburg
Rule 803(18) à statements in learned treatises, periodicals, or pamphlets.
o a statement contained in a treatise, periodical, or pamphlet if:
§ (A) the statement is called to the attention of an expert witness on cross-examination or is
relied on by the expert on direct examination; and
§ (B) the publication is established as a reliable authority by the expert’s admission or
testimony, by another expert’s testimony, or by judicial notice
o if admitted the statement may be read into evidence but not received as an exhibit
o you can cross examine an expert about the learned T regardless of whether they’ve seen it
o will often be used as exhibit only where there is a chart, audio or videotape
o need to have an expert to set foundation
o need to be shown as reliable by:
§ (1) expert
§ (2) another expert
§ (3) judicial notice
§ CASE EXAMPLE: Costantino v. Herzog (2d. Cir. 2000): P calls a doctor as witness and uses a treatise
to examine him; the doctor disagrees with T; DEF uses a different T and gets P’s expert to concede that
there are other approaches à doctor then says its malpractice to do what the other T says; P’s expert
says that no other journal, no matter how reputable, is right other than himself; D WINS!
o P appeals on videotapes from T – CoA affirms that it is included
o RULE à not every article in every journal is reliable; need to look to the particular article,
though the reputation of the journal is certainly relevant
o Court holds à video’s disclaimer and the test of the journals complaining about malpractice
suits was trouble (R403)
805 à hearsay within hearsay
§ hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule
o both statements need to admissible on their own if they are being offered for the truth
o i.e. a document contains an assertion saying “X said”
o really common for business or public records to contain hearsay
o past recollection recorded may contain hearsay
CASE EXAMPLE: United States v. Dotson (5th Cir. 1987): triple level hearsay. police report says that a
sergeant made a statement; report says that S said that Y made a statement à inadmissible; statement
was being offered to prove the truth; court says that the middle one was inadmissible (S said that Y
said), so you can’t get to Young’s statement and the report should have been thrown out
Evidence Fall 2016 – Saltzburg
807 à residual hearsay
§ (a) IN GENERAL. under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or
o (1) the statement has equivalent circumstantial guarantees of trustworthiness;
o (2) it is offered as evidence of a material fact;
o (3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
o (4) admitting it will best serve the purposes of these rules and the interests of justice.
§ (b) NOTICE. the statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including the
declarant’s name and address, so that the party has a fair opportunity to meet it.
o can only use if the other exceptions don’t fit
o (1) and (3) are the most important AND (2) is tautological
CASE EXAMPLE: United States v. Valdez-Soto (9th Cir. 1994): no confrontation problems b/c he was
available for cross-examination; court denies that this is a prior inconsistent statement; court also says
that just b/c you merely miss an exception does not mean that you can’t fit in under 807; if it fits into
something, use that, but if it doesn’t, then you can use 807
§ historically, we weren’t sure what the relationship was between CC and HR then huge change with
SCOTUS cases:
o Crawford v. Washington (2004): Crawford charged with assaulting a man who tried to rape his
wife; claimed self defense and spousal privilege to prevent the wife from talking; prosecutor
admitted recorded statements under the residual hearsay rule; goes on appeal in state system,
ultimately approved by the Washington Supreme Court
§ SCOUTUS HOLDS à confrontation clause does not apply; conviction upheld
• 6th amendment was principally concerned with testimonial evidence; framers
would not have allowed testimonial evidence from a witness unless unable to
testify and defendant had a prior opportunity for cross-examination; if declarant
appears at trial, then there are no issues with confrontation and no limits to the
admission of testimonial evidence
§ RULE à “where testimonial statements are at issues, the only indicium of
reliability sufficient to satisfy constitutional demands is confrontation”
o Davis and Hammon à testimonial only when circumstances objectively indicate that there is no
ongoing emergency
o Wharton v. Bockting (2007) àsays Crawford is not retroactive for habeas petitions
o BRUTON RULE: Bruton v. United States (1968): court says the juries won’t be able to
distinguish or understand the different uses when limiting instruction are provided; if DEF has
confessed and has implicated another DEF, the gov’t can do 3 things:
§ (1) the government can try them together and not offer confessions against each other
§ (2) the government can redact the confession
§ (3) separate the two and have two separate trials
Evidence Fall 2016 – Saltzburg
201 à judicial notice of adjudicative facts
§ (a) SCOPE. this rule governs judicial notice of an adjudicative fact only not a legislative fact.
§ (b) KINDS OF FACTS THAT MAY BE JUDICIALLY NOTICED. the court may judicially notice a
fact that is not subject to reasonable dispute b/c it:
o (1) is generally known within the trial court’s territorial jurisdiction; or
o (2) can be accurately and readily determined form sources whose accuracy cannot reasonably be
§ (c) TAKING NOTICE. the court:
o (1) make take judicial notice on its own; or
o (2) must take judicial notice if a party requests it and the court is supplied with the necessary
§ (d) TIMING. the court may take judicial notice at any stage of the proceeding.
§ (e) OPPORTUNITY TO BE HEARD. on timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the fact to be noticed. if the court takes judicial
notice before notifying a party, the party, on request, is still entitled to be heard.
§ (f) INSTRUCTING THE JURY. in a civil case, the court must instruct the jury to accept the noticed
fact as conclusive. in a criminal case, the court must instruct the jury that it may or may not accept the
noticed fact as conclusive.
o legislative facts à things that don’t change depending on the case or litigants
o adjudicative facts à facts that would otherwise have to be decided by the trier of fact
§ under this rule a court can prohibit the parties from proving the fact
o RULE à parties have the opportunity to contest judicial notices
o judicial notice common in à courts records but will not take judicial notice of factual
determinations unless they fit into a hearsay exception
CASE EXAMPLE: Varcoe v. Lee (Cal. 1919): judge took the position that a particular street was in the
Business District and the speed limit was 15 mph; CalSC said proper judicial notice, but that the parties
should have had the opportunity to contest it
Criminal v. Civil:
o criminal à jury may accept as conclusive
o civil à jury must accept as conclusive
o United States v. Bello (1st Cir. 1999): judge instructs jury that it doesn’t have to agree with a
finding; unusual b/c judge took judicial notice after the testimony; but CoA says it was still
permissible b/c the jury could have rejected it
o United States v. Dior (9th Cir. 1982): no judicial notice on the value of Canadian currency whose
worth would have determined whether the crime had been committed; conviction overturned but
dissent says that jurors should be able to reason from their own knowledge
o United States v. Gould (6th Cir. 1976): judicial notice of cocaine hydrochloride as Schedule II;
this was adjudicative judicial notice
Evidence Fall 2016 – Saltzburg
PRESUMPTION à state law applies
301 à presumptions in civil cases generally
§ in a civil case, unless a federal statute or these rules provide otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption, but this rule
does not shift the burden of persuasion, which remains on the party who had it originally.
o state law will apply
o rationale à logic dictates that if two things often happen together, you get a presumption that if
there is one there is the other
o party facing a presumption can challenge:
§ (1) the proved fact
• evidence against does not destroy presumption
§ (2) presumed fact
• makes presumption burst
§ (3) or both
• but only presumed fact will make it burst
o if presumption is not rebutted, it is binding. if rebutted, presumption disappears.
o evidence that rebuts a proved fact does not burst the presumption – you MUST contest the
presumed fact to “burst” the presumption
o some states and federal statutes shift the burden of persuasion
CASE EXAMPLE: McCann v. The George W. Newman Irrevocable Trust (3d. Cir. 2006) à trial judge
mistakenly equates citizenship with domicile; estate has burden of proof to show the domicile; trial court
said that the estate was basically rebutting the presumed fact, but it was still P’s burden of persuasion (to
PoE) that there was diversity, so he raises the burden to clear and convincing
o CoA says no à you rebut the presumption, and then the P has to show diversity through the
burden of persuasion
o presumption = husband is the father of the child born during marriage
o proved fact = child born during marriage
o presumed fact = husband is the father
302 à applying state law to presumptions in civil cases
§ in a civil case, state law governs the effect of a presumption regarding a claim or defense for which state
law supplies the rule of decision
BURDEN SHIFTING (state law): in a burden shifting states, the presumption has one of two effects
o (1) if there is no evidence rebutting the presumed fact, the presumption requires the judge or jury
to find the presumed fact
Evidence Fall 2016 – Saltzburg
o (2) if there is a rebuttal evidence, the burden of disproving the presumed fact is shifted to the
party against whom the presumption was directed
§ scenario #1
• p offers evidence that baby was born during marriage. d offers no rebuttal
evidence. jury is told: if you believe that the baby was born during the marriage,
you must find that D was the father (same result as Rule 301)
scenario #2
• p offers evidence that baby was born during marriage. d offers DNA evidence
disputing paternity; judge says nothing to jury about presumption; but burden of
proving that he is not he father shifts to the DEF.
shifting the burden results in confusing jury instructions: “if you find that the child
was born during the marriage, the DEF must prove he was not the father; otherwise, the P
must prove that he was the father”
if the jury does not believe the child was born during the marriage, the presumption is not
triggered and the burden remains on P
if the jury does believe the child was born during the marriage, the burden shifts to D
§ government must prove guilt and D bears no burden
§ a permissible inference instruction is valid as long as it is rational
§ CASE EXAMPLE: County Court v. Allen (1979): NY statute says that if you find a firearm in the car,
its presumptively illegally owned; SCOTUS says the judge’s instructions telling the jury that it could
infer possession from the DEF presence in the car and the guns presence in the car so long as the judge
does not tell the jury that they HAVE TO do something
o cf. Sandstrom v. Montana: “the law presumes that a person intends the natural consequences of
his actions” à this was overruled b/c jurors would view the word presume as binding
o judges can sum up and comment on the evidence à thought to be a rule of procedure
§ these methods are used against witnesses on the stand and declarants
§ Ways to Attack Witnesses:
o (1) attack on character à should not matter who the parties are or what the issues are
o (2) case-specific attacks
§ bias – showing a relationship between witness and party
§ prior inconsistent statements
• relevant in one case and may be collateral in another
• no general rule against impeaching witnesses on collateral matters (can attack on
anything subject to 403)
• Rule 608(b) à bar extrinsic evidence, kinda a ban on using collateral evidence
607 à who may impeach a witness
§ any party, including the party that called the witness, may attack the witness’s credibility
Evidence Fall 2016 – Saltzburg
Three Essential Points:
o (1) whenever you assert something as true in a question, you need to have a good faith basis for
that assertion
o (2) any form of relevant impeachment is permissible so long as it is prohibited by the rules
o (3) you need to be cognizant of the differences between Rule 801(d)(1) and Rule 613
Impeaching OWN WITNESS à you can’t call a witness with the intention of impeaching him
knowing that he will deny making a statement; you are not trying to impeach you are trying to get a
prior inconsistent statement in BUT if statement is said in deposition and changes on the stand you can
impeach own witness under Rule 801(d)(1)(A)
609 à impeachment by evidence of a criminal conviction
§ (a) IN GENERAL. the following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
o (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment
for more than one year, the evidence:
§ (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which
the witness is not a defendant; and
§ (B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant; and
o (2) for any crime regardless of the punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime required proving – or the witness’s
admitting – a dishonest act or false statement.
§ (b) LIMIT ON USING THE EVIDENCE AFTER 10 YEARS. the subdivision (b) applies if more
than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is
later. evidence of the conviction is admissible only if:
o (1) the probative value, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect; and
o (2) the proponent gives an adverse party reasonable written notice of the intent to use it so the
party has a fair opportunity to contest its use.
§ (c) EFFECTS OF A PARDON. evidence of a conviction is not admissible if:
o (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or
other equivalent procedure based on a finding that the person has been habilitated, and the person
has not been convicted of a later crime punishable by death or imprisonment for more than one
year; OR
o (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure
based on a finding of innocence.
§ (d) JUVENILE ADJUDICATIONS. evidence of a juvenile adjudication is admissible under this rule
only if:
o (1) it is offered in a criminal case;
o (2) the adjudication was of a witness other than the defendant;
o (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility;
o (4) admitting the evidence is necessary to fairly determine guilt or innocence.
§ (e) PENDENCY OF AN APPEAL. a conviction that satisfies this rule is admissible even if an appeal
is pending. evidence of the pendency is also admissible.
Evidence Fall 2016 – Saltzburg
o 609(a)(1)
§ applies a balancing test in all civil cases and against prosecutors in criminal cases
§ applies to felonies
§ one rule for all witness other than accused
§ special balancing for accused à probative value must outweigh the prejudicial effect, but
not substantially
§ there is always some potential prejudice that a jury may use as character evidence rather
than see it only as impeachment evidence
o 609(a)(2)
§ basically covers perjury, false statements, lies, etc.
§ “dishonest acts” is a term of art à involves some sort of deceit that is close to lying
§ two approaches to “dishonest acts”
• (1) look to the facts underlying the conviction
• (2) look to the elements of the crime for which the D was convicted
o 609(b)
§ uses reverse 403 balancing
§ has a notice requirement
o impeaching corporate witnesses à prior corporate conviction can be used to impeach a person
in particular positions that would have had knowledge of the prior
CASE EXAMPLE: United States v. Hayes (2d Cir. 1977): dishonesty is perjury or offenses involving
some element of deceit, untruthfulness or falsification; crimes of force are not dishonesty offenses;
importation of drugs depends à did it involve falsifying customs documents; recent convictions more
relevant that older ones; crimes that are less like the actual case are less prejudicial b/c they don’t really
bear on the defendant’s thoughts during a particular crime – no correlation more likely to be admitted
SCOTUS had held:
o if the DEF must take the stand and testify to complain about an in limine ruling then a
prior conviction can be used for impeachment; taking a chance that it will be thrown out.
610 à religious beliefs or opinions
§ evidence of witness’s religious beliefs or opinions is not admissible to attack or support the witness’s
o specifically limited to proving/disproving credibility of witness
o evidence of religious affiliations may be admissible in some circumstances:
§ to show bias
§ to show motive
CASE SUPPORT: Slagle v. Bagley (6th Cir. 2006): court held that questions about praying and rosary in
the course of rape trial were not inadmissible b/c they were going to bias and motive
Other Impeachment Issues
o use of alcohol or drugs à usually limited to the time of the particular event
o psychiatric treatment -à though rule 403 may apply
o ability to perceive
o memory problems
Evidence Fall 2016 – Saltzburg
608 à a witness
§ (a) REPUTATION OR OPINION EVIDENCE. a witness’s credibility may be attacked or supported
by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or
by testimony in the form of an opinion about the character. but evidence of truthful character is
admissible only after the witness’s character for truthfulness has been attacked.
§ (b) SPECIFIC INSTANCES OF CONDUCT. except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness. but the court may, on cross-examination, allow them
to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
o (1) the witness; OR
o (2) another witness whose character the witness being cross-examined to testify about.
§ by testifying on another matter, a witness does not waive any privilege against self-incrimination for
testimony that relates only to the witness’s character for truthfulness.
PRINCIPLES of Rule 608
o 608(a)
§ similar to rule 405 à but 405 had nothing to do with witnesses, just DEFs and witnesses
in criminal cases
§ only character trait that we look at here is truthfulness
§ we only look at truthfulness evidence after someone has maligned it b/c we assume
someone is truthful until someone suggests otherwise à only after witness testifies or
hearsay is introduced b/c declarants are witnesses
§ reputation or opinion testimony is admissible
§ attack that activates rule does not have to be testimony à if the cross-examination
suggests that the witness is a liar, then this can activate it
o 608(b)(1)
§ allows questions on cross (so long as you have a good faith basis) that goes to whether
the witness is truthful i.e. “did you lie on this employment form?” if they say no, then you
can’t offer extrinsic evidence to prove otherwise
§ Permissible Questions à have to have a good faith basis
• have you ever used an alias?
• have you ever filled out a false credit card application?
§ Impermissible Questions à does not have to be admissible evidence, even rumors are
• have you have used drugs?
• have you every engaged in prostitution?
§ the act of lying is ultimately what we are concerned about, not the content of the lie
§ “extrinsic evidence” ban only applies to Rule 608(b) evidence
• extrinsic evidence applies only when you are offering evidence to contradict the
witness, and the only authority to do so is to show that he lied under 608(b)
• if you have a legitimate other purpose for asking the question, then it can still be
§ prior acts DO NOT HAVE TO BE CRIMINAL à just relevant to truthfulness (403
may limit)
Evidence Fall 2016 – Saltzburg
third party actions
• in response to a denial, a question about a third-party’s actions to show
inconsistencies are as inadmissible as testimony by a third party saying it did and
was being used to contradict
o 608(b)(2)
§ when a character witness is put on the stand and is testifying about a prior witness
• the prosecutor can say, well did you know that the person did this or that, and then
once they deny that’s where you have to stop
§ comparing to 608(b)(1)
• this is about the witness themselves, and you’re stuck with there answer
• (b)(2) is when you put a character witness à you can’t bring in extrinsic
information to disprove the denial
501 àprivilege in general
§ the common law – as interpreted by United States courts in the light of reason and experience – governs
a claim of privilege unless any of the following provide otherwise:
o the United States constitution
o a federal statute; or
o rules prescribed by the supreme court
§ but in a civil case, state law governs privilege regarding a claim or defense for which state law supplies
the rule of decision.
o (1) deceased client
o (2) client consults lawyer about a crime (at issue)
§ client consults a lawyer to obtain assistance to engage in a crime or fraud or aiding a third
person to do so. regardless of the client’s purpose at the time of consultation, the
communication is not privileged if the client uses the lawyer’s advice or other services to
engage in or assist in committing a crime or fraud.
• (a) focus on client’s intent to use or actual use of attorney to do fraud of a crime
• (b) test is what the client knew or reasonable should have known
• (c) lawyers are criminally liable just like others, except in situations where the
jurisdiction criminalizes misprision of felony
o i.e. a client can come to a lawyer saying I think I’ve committed a felony,
and the lawyer can use OK, tell me what happened
• (d) you can’t conceal your client’s evidence
§ in circumstances of alleged crime or fraud
• a judge can hear the communication in camera to decide whether the exception
applies à but the person who is trying to overcome the privilege has to establish
a prima facie case
• this is contrary to Rule 104(a), which normally prohibits this
Evidence Fall 2016 – Saltzburg
o Lawyer’s Fee Rule
§ that is relevant and reasonably necessary for a lawyer to reveal in a proceeding to resolve
a dispute with a client regarding compensation or reimbursement
o Malpractice Exception
§ that is relevant and reasonably necessary for a lawyer to reveal in order to defend against
an allegation by anyone that the lawyer, the lawyer’s agent, or any person for whose
conduct the lawyer is responsible acted wrongfully or negligently during the course of
representing a client
§ rationale à it is only necessary to defend yourself from the charge in the malpractice
suit; you can’t just say anything – BUT we also want lawyers to be able to protect
themselves in cases involving fees and malpractice
o Fiduciary Duties
§ between a trustee of an express trust or a similar fiduciary and a lawyer or other
privileged person retained to advise the trustee concerning the administration of the trust
that is relevant to a beneficiary’s claim of breach of fiduciary duties
§ CASE EXAMPLE: Garner v. Wolfinbarger (5th Cir. 1970): CoA treated the officers of a
corporation as if they were trustees of a trust, and compelled disclosure of the
communications between the officers and their counsel
o what the client tells the lawyer orally is protected
o if the client creates a new document for a lawyer, that’s protected
§ documents that were created outside the A-C relationship are not protected
o clients can’t take physical evidence and give it to their attorney and make it privileged
o generally, what a lawyer observes but is not told by the client is not protected
§ if a client tells you the location of a body, then that’s privileged; but if you go check out
the body and take pictures, that’s not A-C privilege BUT might be work product
o clients identity is generally not privileged except in whistleblower cases
o fees are generally not privileged
o facts are not privileged, only the things the client tells the attorney
§ might be the same, but can’t ask “what did you tell your attorney”
o some things are not privilege because they are not meant to be secret
§ i.e. your trial date is x
o preparation of income tax returns is generally not privileged, though of course tax advice is
o BoD meeting minutes are generally not privileged
o business documents that are sent to a lawyer to keep the lawyer up to date are generally not
o for individuals, the client is the communicator and the holder of the privilege
o for corporations:
§ some courts use the control group test à officers or employees who can hire a lawyer
and decide whether to act on advice are within privilege
§ some courts use a scope of employment test
§ Upjohn Co. v. United States (1981): holds that the scope of employment test is the one
to do; control group test is too broad b/c it would not provide sufficient information for
lawyers to give sound, informed advice
§ Swidler & Berlin v. United States (1998): S&B firm represented Vince Foster; VF went
to them had a two hour meeting and then went and killed himself; judge wanted to know
what the conversation had been about; key difference he sought legal advice from outside,
Evidence Fall 2016 – Saltzburg
independent private counsel; DDC upheld Foster’s estate’s claim that it was privileged,
DC Cir. reversed.
• SCOTUS (REHNQUIST) says à only two cases since the founding of the nation
have allowed it to overcome privilege, which implies that there was a privilege to
be overcome – recognized at common law; estate obviously wants to preserve that
information; court avoids the exceptions here, and says that maybe a DEF’s
constitutional rights could override the privilege (i.e. if a DEF is on death row
and another person confessed to the crime and then died)
§ lawyers need to say they represent the company and not the employees – the privilege is
the company’s – if an employee asks, should I have a lawyer, you can’t answer that b/c
its legal advice
§ you can’t let the employee believe that you represent them b/c the company wants the
ability to throw an employee under the bus (you & company against employee)
502 à attorney-client privilege and work product; limitations on waiver
AGENCY; SCOPE OF WAIVER. when the disclosure is made in a federal proceeding or to a
federal office or agency and waives the A-C privilege or W-P protection, the waiver extends to an
undisclosed communication or information in a federal or state proceeding only if:
§ (1) the wavier is intentional;
§ (2) the disclosed and undisclosed communications or information concern the same subject
matter; AND
§ (3) they ought in fairness to be considered together
o (b) INADVERTANT DISCLOSURE. when made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
§ (1) the disclosure is inadvertent;
§ (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; AND
§ (3) the holder promptly took reasonable steps to rectify the error, including (if applicable)
following Fed.R.Civ.P. 26(b)(5)(B).
o (c) DISCLOSURE MADE IN A STATE PROCEEDING. when the disclosure is made in a state
proceeding and is not he subject of a state-court order concerning waiver, the disclosure does not
operate as a waiver in a federal proceeding if the disclosure:
§ (1) would not be a waiver under this rule if it had been made in a federal proceeding; or
§ (2) is not a waiver under the law of the state where the disclosure occurred.
o (d) CONTROLLING EFFECT OF A COURT ORDER. a federal court may order that the
privilege or protection is not waived by disclosure connected with the litigation pending before the
court – in which event the disclosure is also not a waiver in any other federal or state proceeding.
o (e) CONTROLLING EFFECT OF A PARTY AGREEMENT. an agreement on the effect of
disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is
incorporated into a court order.
o (g) DEFINITIONS. in this rule:
§ (1) “attorney-client privilege” means the protection that applicable law provides for
confidential attorney-client communications; and
§ (2) “work-product protection” means the protection that applicable law provides for tangible
material (or its intangible equivalent) prepared in anticipation of litigation/trial
Evidence Fall 2016 – Saltzburg
o holder has the power to waive (for corporations, it is whoever has control i.e. governs the
o waiver occurs by disclosure
§ disclosure of what was said to attorney
§ repetition of facts not disclosure, unless if what was said to attorney is added
o Selective Waiver
§ generally prohibited à courts don’t like the idea of you being able to pick and choose
when you waive your privilege (you either do or you don’t) - comes up in SEC cases
• privilege is a shield, not a swordx
§ Inadvertent Waiver
• (1) information was sent to the wrong addressee
• (2) some courts take strict liability approach
• (3) trend toward a “culpability” approach à courts increasingly recognize that
disclosure will just happen in major cases
• if you waive at trial, this will be a subject matter waiver, and your opponent can
• whereas if you waive before trial, then it’s likely limited to that document
o applies in criminal cases
o holder of the privilege is the witness spouse asked to testify against their spouse
o you must have a valid marriage
§ (1) crimes against the family à i.e. domestic violence
§ (2) joint criminal activity
§ (3) furtherance of crime and fraud
§ (4) extended separation
o applies in all cases, civil and criminal
o both spouses hold the privilege à only covers communications NOT FACTS (i.e. seeing)
o duration is forever à but if permanently separated then does not apply
§ valid marriage
§ confidential communication à third party capable of understanding the communication
invalidates the privilege
§ crimes against family
§ joint criminal activity that the communications relate to
§ CASE EXAMPLES: Trammel v. United States (1980): wife is involved with the trafficking of heroin;
but she is given immunity and is made an unindicted co-conspirator; court says that there is a trend to
give the privilege to the non-indicted spouse
o RULE à broadly sweeping privilege b/c it cuts off testimony for everything, not just the
content of communication
§ this allows the testifying spouse to testify at their own election à but this allows the
government to arrest on BS and then take your kids away to coerce testimony and you’ve
essentially waived the testimony
Evidence Fall 2016 – Saltzburg
§ there is not general D-C privilege in federal court, though there is one in every state (but one) à but
with Fed.R.Civ.P. 26(c) you could probably protect the witness from being asked to produce medical
documents about themselves
§ EXCEPTIONS à when your medical condition is in issue
§ proposed but not enacted
§ CASE EXAMPLE: Jaffee v. Redmond (1996): SCOTUS created by judicial fiat one that covers
psyhiatrist, psychologist, and social workers; police officer kills someone, seeks psychotherapy then is
sued by the estate of the deceased who tries to get at the things that the police officer said to the social
o RATIONALE à psychotherapy is needed for trust and confidence
o SCOTUS says: privilege is absolute, though there may be exceptions (circumstances in which
someone puts their mental health in issue)
§ CASE EXAMPLE: In re Grand Jury Investigation (3d. Cir. 1990): grand jury investigated a fire and
wanted to know what was discussed in the session with a family’s pastor, and pastor claimed
confidential. district court denies gov’t motion to compel pastor to talk, saying that it fundamentally
based on Judeo-Christian notions of redemption; CoA sets up a TEST of PRIVILEGE:
o (1) made to clergyperson
o (2) in his/her spiritual/professional capacity
o (3) with reasonable expectation of confidentiality
o (4) essential third parties may be present à if the person is not a member of the family, then the
person must be essential
§ in the context of the Black Panthers and drug trafficking, grand jury wanted information from three
reporters about their sources
o Branzburg (1972): didn’t think that reporters had ay sort of privilege; grand juries investigate
crime and only when the source is involved in the crime should they get the protection of a
o In re Grand Jury Subpoena of Judith Miller: government wants to know who told them that VP
was a CIA operative; DC circuit asked to create a common law privilege beyond the confines of
§ if the government is relying on a confidential informant, they won’t put it ina warrant request and won’t
say it
§ SCOTUS says that the point is reliability, not the name of the person on a probable cause question
o but courts can always demand disclosure and if government doesn’t want to, then they can just
drop the prosecution
§ can apply beyond the criminal context, particularly in whistleblower cases
§ government has to show that the informant expects confidentiality, even if from circumstantial evidence
§ holder of privilege is the informant
§ proposed RULE 510
Evidence Fall 2016 – Saltzburg
§ when the government says national security or military security, generally courts have to accept this
§ Classified Information Protection Act à if judge can get a non-classified substitute, then the case can
go forward; if there is no substitute, then the government can’t go forward in a criminal case
o in a civil case à the case just ends b/c there is no due process component
PARENT-CHILD PRIVILEGE à only a few states have this