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EVIDENCE
ROSTAIN
FALL 2015
RELEVANCE
1. General Principles of Relevance
Rule 104: Preliminary questions – (a) In General. 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.
Rule 105 – limiting evidence that is not admissible against other parties or for other purpose: if the court admits
evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the
court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
a. Practical problem w/ jury instructions: you can’t un-remember something and may call attention to a
prejudicial issue
Rule 402 – General admissibility of relevant evidence: Relevant evidence is admissible unless any of the following
provides otherwise: 1) the US constitution; 2) a federal statute; 3) these rules; or 4) other rules prescribed by the
Supreme Court. Irrelevant evidence is not admissible
Rule 401: Test for relevant evidence - Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence and,
(PROBATIVENESS)
(b) the fact is of consequent in determining the action (MATERIALITY)
i. Probativeness
1. Low standard – any tendency. A person with a motive / intent / design to do something
is more likely to do that act than someone without such a motive / intent / design, so any
evidence that can prove that, is probative of that fact
2. Commonwealth v. Zagranski (problem 1.1, p. 21): D suspected of murder and when
police arrived to arrest him at his home his wife shouted “SHOW ME THE BODY!”
Admissible against D at trial because suggests that he told her that he did it and where
he hid it / she knew it would be hard to find, etc.
ii. Materiality
1. Two theories of relevance:
a. Substantive relevance: goes to an element of the claim or defense
b. Credibility relevance (relied on here by 9th Cir): goes toward capacity to observe
/ remember / report.
i. Note: Credibility evidence is ALWAYS material
2. Problem 1.4 (p. 23): D charged w/ possessing firearms being a convicted felon. Defense
is that she didn’t know that her prior convictions (assault and battery) are felonies in
MA. Not material b/c her knowledge isn’t an element of the offense so the fact of her
knowledge isn’t material
3. Montana v. Egelhoff (problem 1.5, p. 24): D shot two people and he was in the back of
the car shouting profanities when police arrived. He claims he was so intoxicated that
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he couldn’t form the requisite intent / purpose / knowledge to be convicted for
“deliberate homicide.” Under Montana law, voluntary intox can’t be taken into
consideration in determining the mental state for criminal offense. So his evidence of
his intoxication isn’t material.
4. US v. James
a. Facts: woman claimed self defense and wanted to put in record that her BF had
stabbed someone in neck w/ a pen – trial court said irrelevant to her self-defense
b/c she never saw the record so doesn’t go to her state of mind
b. Result: Court allows the evidence because goes toward her credibility –
everything she said about him sounded so crazy that it was important to
corroborate her testimony. Here the evidence was important to add credibility to
her story – corroborated James’s testimony and was therefore material to her
defense
b. Conditional Relevance
Rule 104(b) – 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.
i. Cox v. State
1. Facts: Cox suspected of shooting James Leonard in the eye. Cox’s friend Hammer was
in jail for supposedly assaulting Leonard’s daughter – his bail was denied at a bail
hearing, and P wanted to bring evidence of that fact to prove that Cox had a motive to
shoot Leonard.
2. Issue: what happened at the bail hearing is only relevant if P can prove that Cox knew
what happened
3. Result: Cox spent almost every day at the Hammer house and was very close with
Hammer’s mother, so evidence was sufficient to support the inference that Cox knew
about it and had a motive
ii. 104(a) v. 104(b):
1. 104(b) is a lower standard than admissibility under 104(a): (a) requires a judge to find
by a PoE that the evidence is admissible, while the 104(b) Huddleston standard only
requires sufficient evidence from which a jury could find the conditional fact
2. Under 104(a), evidence used to prove facts under the rule need not be admissible,
whereas only admissible evidence can be used to prove contested preliminary facts
under 104(b)
3. The 104(b) standard will generally be used less than 104(a); all preliminary questions of
admissibility are decided by the judge under 104(a), except those questions where
relevance depends on a fact under 104(b).
c. Probativeness v. Risk of Unfair Prejudice
Rule 403 – 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: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
i. Discretionary w/ the judge, and can be reviewed on appeal for abuse of discretion
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ii.
iii.
iv.
v.
1. US v. James dissent (p. 50): the evidence of the boyfriend’s other crimes might be
relevant, but doesn’t mean trial judge’s decision to keep it out was an abuse of
discretion. Jury was asking the wrong questions – wanted to know if Ogden really did
the things he said – seems like they wanted to know if he deserved to be shot
Friendly toward admission of evidence – evidence is admitted unless one of the evils
SUBSTANTIALLY OUTWEIGHS the probative value
And prejudice needs to be UNFAIR – needs to be something that will lead the jury to either
think about improper things (be overcome by emotions / convict just because D seems like a
bad person) or make improper inferences
Photos and other inflammatory evidence
1. US v. Hitts (Problem 1.8 p. 43) – D supposedly altered a gun to make it fully automatic
and major issue at trial was whether the gun actually would rapid-fire. P wanted to
introduce photo of the gun, but the gun in the picture was very small and was pictured
among a ton of other weapons. Should be excluded b/c the probative value is low
(doesn’t actually show anything about the condition of the gun / the inside of it /
whether it’s dirty, etc) and the unfair prejudice is high (jury will see all of these other
weapons and assume D is a bad person)
2. State v. Bocharski (CB 39): State introduced photo evidence in criminal trial of alleged
murder, supposedly to show angles of stab wounds, but the photos didn’t actually show
what type of knife was used and didn’t establish anything that was disputed in the case.
On appeal court decided certain photos should have been excluded since they were used
only to inflame the jury’s passions.
3. Commonwealth v. Serge (CB 45)
a. Facts: D charged w/ murder and claimed self-defense. P wanted to use
computer-generated animation (CGA) at trial to show P’s theory about the
shooting. CGA didn’t include sounds, facial expressions, or even life-like
movements but just highlighted the trajectory of the bullets fired and ballistics
about the blood splatter.
b. Standard: needs to be a fair and accurate representation of the evidence, and
403 test
c. Result: admission proper– animation wasn’t so realistic that it was dramatic /
emotional, and there was a limiting instruction that made it clear that this
supports the expert’s view of what happened.
d. Concurrences: some think you should consider D’s ability to afford something
similar
Evidence of Flight
1. 2 steps:
a. Threshold standard under 104(b) to prove that the conduct is actually evidence
of flight
b. Then 403 balancing – may be unfair prejudice if it would force D to take the
stand to admit to some other crime in order to explain that he was running from
police b/c of that and not this charged crime
2. U.S. v. Myers
a. Facts: D charged w/ bank robbery in FL. About 3 weeks after the FL robbery,
detectives try to contact D at home and he wasn’t there, then they see him in a
mall and chase him (dressed in plain clothes) and D runs away. Then a few
months later, there’s a robbery in PA that D is convicted with. After the PA
robbery, D and best friend were on a motorcycle in CA and chased off the road
by an unmarked cop car.
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b. Inferences: D’s behavior seemed like flight  flight to consciousness of guilt
 consciousness of guilt to consciousness of guilt concerning the crime charged
 consciousness of guilt concerning the crime charged to actual guilt of the
crime charged
c. Standard: conditional relevance – evidence of the two “flights” can’t come in
unless there’s sufficient evidence from which a jury could find that it is flight
(e.g. D knew that detectives were looking for him and ran…)
d. Result: neither admissible – FL incident, can’t tell if he was actually running b/c
it might have just been instinct. CA incident, can’t tell if it was actually flight
AND can’t tell if it was flight b/c of this crime
e. Other problems: The jury instruction assumed the fact of flight but flight
hadn’t adequately been proven; in order for D to rebut the inferences about CA
incident, D would have to bring up the PA robbery; someone else admitted to
the FL robbery and everything said that it was a lone robber
3. Commonwealth v. Johnson (p. 60, problem 1.10): D charged with murder and was
running from police – as he was running, he threw a jar of MJ. Arguable that can’t meet
the third inference b/c he could have been running b/c of the MJ possession and not b/c
of the murder.
vi. Probability evidence
1. People v. Collins
a. Facts: D charged w/ second degree robbery of an old lady – she was walking
down an alley, pushed to the ground from behind by a blonde woman wearing
dark clothes. Another witness at the end of the street saw a blonde woman w/ a
ponytail get into a yellow car with a black man wearing a mustache and a beard.
P calls an expert in probability / statistics to figure out what the probability is
that people with these matching characteristics would drive a yellow car, etc.
Expert uses the product rule and P says there’s about a 1/12 million chance of
there being another couple
b. Result: probability evidence not backed up by evidence – no foundation for
each probability, assumed the reliability of the eyewitness testimony. This was
unfairly prejudicial – jury could be “blinded by science”
c. Note: had P just said “what are the chances that there is this exact combination
of characteristics; how often do you see…” it would have been ok b/c it appeals
to jury’s “common sense” but math in this case seemed to give a concrete
explanation
d. Note: math is ok as long as the math is sound, facts are proven, and it’s easy to
assess the flaws (e.g. DNA evidence)
vii. Effect of Stipulations
1. US v. Jackson
a. Facts: D accused of robbing a bank in NY and wants to leave out evidence of
the circumstances of his arrest, when he was using a fake name in GA. He also
was charged w/ assault but he stayed in NY after the indictment in that case, and
didn’t flee until just after the bank robbery.
b. Issue: some probative value of his fleeing, but also unfair prejudice b/c he might
have been fleeing from the assault indictment, or b/c he was found w/ tons of
guns in his car in an area where there had just been another armed robbery.
c. Result: D agrees to stipulate to being in GA after the robbery and using a fake
name while he was there. Doesn’t bring in prejudicial circumstances but brings
in the probative value of his flight
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2. The Specialized Relevance Rules
a. Subsequent remedial measures
Rule 407: 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: 1) negligence, 2) culpable conduct, 3) a defect in a product or its
design, or 4) a need for warning or instruction – but the court may admit this evidence for another purpose, such as
impeachment or – if disputed – proving ownership, control, or the feasibility of precautionary measures
i. Policy: don’t want to disincentive people from making remedial changes – if D knew that the
subsequent remedial action would later be used against her, then D won’t want to fix the
problems
ii. Note: only bars evidence of SUBSEQUENT remedial measures, so in the Mr. Poos case, when
Sophie was chained because the day before the beagle was attacked, the evidence of being
chained when Sophie normally wasn’t is probably admissible in suit by Daniel, but wouldn’t
have been admissible in suit by beagle owner (see problem 2.1 p. 94)
iii. Wood v. Morbank Industries (Problem 2.2, p. 104): husband killed by wood-chipper and in suit
by wife against maker of the wood chipper, husband’s co-worker testified that they still had the
same machine at work, but really it had been modified by the company. Evidence was initially
excluded, but might be admissible if used to correct misimpression given to the jury.
1. Revised facts: same as above, but the company testified “it’s the safest length chute
you could possibly put on the machine” – Ps counsel can use it to impeach
b. Compromise Offers and Payment of Medical Expenses
Rule 408 – 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:
(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;
(2) conduct or a 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.
i. Ramada Development Co v. Rauch (Problem 2.4 p. 110): Rauch dissatisfied with the motel
furnishings and refused to make payment on a contract; Ramada commissioned Goldsmith to
report on the alleged defects, which confirmed a lot of Rauch’s dissatisfaction – but the
Goldsmith report was created for the purpose of settlement negotiations. Report can’t be
admitted at trial b/c it was a “statement” made on their behalf for negotiations
ii. Policy of the rule: want to encourage settlement / negotiation between parties
iii. Note: compromise talks also not admissible in criminal proceedings b/c parties won’t want to
admit fault even if they could favorably settle the private matter, except for when the
compromise was made by a public office or agency
iv. Note: CAN’T be used to impeach by prior inconsistent statement, but CAN be used as evidence
of bias or prejudice
c. Liability Insurance
Rule 411: 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
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proving a witness’s bias or prejudice or proving agency, ownership, or control.
i. Williams v. McCoy
1. Facts: P suffered from back injury / whiplash in car accident. Pre-trial motion said P
was completely prohibited from mentioning liability insurance. At trial, D counsel
argued that P was just litigious and was out for money – she retained counsel before she
went to the doctor. P’s counsel on re-direct wants to show that P only went to get
counsel after she was essentially harassed by D’s claims adjuster – she wants to testify
about the order about having been visited by a claims adjuster in order to explain why
she then went to see a lawyer, but not allowed. P got very little recovery.
2. Result: Evidence of insurance not admissible to show liability, but is admissible for
some other purpose. Here, the purpose was to rebut D’s story about P’s motivations to
get counsel, so should come in. Under 403 balancing, probative value here is high b/c of
the story that D created; there’s some unfair prejudice b/c jury could theoretically find
for P under deep-pocket theory. But most jurors would assume that there’s insurance
involved anyway, so probably not a high risk.
d. Pleas in Criminal Cases
Rule 410: Pleas, plea discussions, and related statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant
who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure
11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions
did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(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
(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
i. US v. Biaggi
1. Facts: D wants to get in evidence that he was offered immunity and that he denied it b/c
he said he didn’t have the info that P was looking for. D thinks this is relevant b/c the
inference is that he had an innocent mind. Low court excluded.
2. Result: should have been admissible for 2 reasons: 1) Rule is clear that it says it’s not
admissible AGAINST THE DEFENDANT – D was trying to get the evidence in
against P, 2) Immunity negotiations operate differently than plea negotiations; refusal to
take immunity is more probative of innocence than refusal to take plea bargain. 403
analysis: Rejection of immunity has a high probative value but not a lot of unfair
prejudice b/c it simply fits in w/ D’s attempt to raise a reasonable doubt – won’t
predispose the jury to find against the prosecution for an impermissible reason
ii. Note: statements made during plea negotiations also not admissible to impeach – but this can
be waived if prosecutor tells D that any statement could be used at trial to impeach
iii. Policy: want to encourage plea bargaining – helps w/ case management, and helps w/ accused’s
cooperation in prosecuting cohorts
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3. Character Evidence
a. The Character-Propensity Rule
Rule 404: Character evidence; crimes or other acts
(b) Crimes, Wrongs, or 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
character.
(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 a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor
intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial
notice.
i. People v. Zackowitz
1. Facts: D’s wife walked by a group of men repairing a car, the men may have said
something to her or maybe just cursed, and she ran away crying. When D saw her
crying, he initiated an altercation, resulted in him shooting the victim. P was able to
introduce evidence of a bunch of other guns in D’s apartment and a tear-gas gun, which
was used to argue that having all these other weapons means D has a murderous
propensity, therefore he likely did it intentionally here. D convicted of 1st degree
murder.
2. Result: Cardozo gives the CL rule that gets codified into Rule 404 – propensity
evidence shouldn’t be admitted b/c 1) fact-finder will put too much weight on it, or 2)
that regardless of the rest of the evidence, jury would convict anyway b/c D is a bad
person
b. Routes Around the Box
i. Proof of Knowledge
1. Problem 3.1, p. 155: teenager hacked a computer company system to have a bunch of
computers shipped to a school that didn’t actually exist, bypassing sales department /
credit checks. Same system hack occurred again and there was a controlled delivery. D
charged in separate indictments and P wanted to give evidence of second offense (he
pled guilty) in the first trial. Could be admissible to show that he had the knowledge to
hack this complicated system. Would come down to a 403 weighing in the
circumstances of the case (e.g. if D tries to say he would have no idea how to do this)
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2. Baltimore & Ohio RR Co v. Henthorne (Problem 3.3, p. 156): P badly injured in a train
crash and wants to bring in evidence in trial against the RR company that the train
engineer had a very bad reputation as an alcoholic. Not offered to prove that the
engineer was drunk on this particular occasion, but that RR company should have
known about the problem b/c of the bad reputation so were negligent for not doing
something about it.
a. Note: the jury isn’t allowed to use propensity reasoning, but it’s ok for the jury
to expect other people to do it (e.g. the RR company knew he was drunk on one
occasion  he’ll likely do it again)
ii. Proof of Motive
1. US v. Peltier (Problem 3.4, p. 157): D on trial for murders of FBI agents; after he had
been released on bond for a separate crime, he failed to appear at court hearing and he
knew about a warrant issued for his arrest in that case. The circumstances of the other
offense / the fact that there was a warrant issued go toward motive – not toward
propensity to kill (though the prior crime was attempted murder, so may play into 403
prejudice)
2. Moss v. Wells (Problem 3.6, p. 159): woman testified that she was on a streetcar and it
didn’t stop for her twice when she requested it, and when it did stop, it started moving
again as she was trying to step off and she was injured. Court struck her testimony
about the 2 prior failures to stop for her, but the high court said it should have been
admissible – goes toward driver’s state of mind (busy / rushed) and not propensity for
negligence
iii. Proof of Identity
1. US v. Jones (Problem 3.7, p. 159): police executed a search warrant of a house and
found cocaine, as well as pieces of paper w/ lists of bets. Disputed at D’s trial on
narcotics charges whether D was the occupant of the apartment, and D had a prior
conviction of gambling. The prior conviction probably can’t be used as “proof of
identity” b/c goes through propensity box – he did it once, therefore he’s like to still be
gambling, therefore the papers are his.
2. Problem 3.8, p. 160: same facts as above except police found bike brochures in the
home and D was known to be an avid biker. Probably can bring this evidence in – even
though it’s seemingly propensity evidence, being an avid biker isn’t the type of
character evidence that leads jury to make improper inferences / lead them want to
convict unfairly.
a. But evidence that D gives big donations to charity if offered by D might raise
404 problems.
3. Proof of modus operandi (“manner of operating” – pattern of criminal behavior so
distinctive that investigators attribute it to the work of the same person)
a. US v. Trenkler
i. Facts: D on trial for creating a bomb that was put under the driver’s seat
of a car. D had previously admitted to creation of a prior, similar bomb.
Govt used an expert to testify about the use of a database that found that
it was very unlikely that another person built this bomb b/c this and the
Quincy bomb were so similar
ii. Result: Court allows the testimony – bombs didn’t have to be identical
for it to goes toward D’s identity
iii. Dissent: not enough similarity in the bombs for this to be an MO – one
used firecracker type explosion, the other used dynamite and the
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database system only compared some, and not all, of the characteristics
of the bombs.
b. Reverse 404(b): try to prove that this was someone else’s MO
i. US v. Stevens
1. Facts: two Air Force officers waiting at a bus shelter, black male
wearing a hat and jogging suit, had a gun and took the man’s gun
and sexually assaulted the female officer. They go to the air force
police, and identify D on the wall of wanted people. Evidence
that D wants to get in at trial is another very similar crime that he
wasn’t charged w/. The victim in the other robbery was also
black, and D wanted an expert to testify that that victim’s ID
would have been more accurate.
2. Result: Evidence should have been admitted – probative having
tendency to make D’s guilt less likely, and no danger of prejudice
to P (wouldn’t cause the jury to acquit for an improper reason)
ii. US v. Williams (Problem 3.9, p. 178): D convicted of possession of a
firearm by a felon after police found a gun in the bedroom where he was
apprehended. D claims that the guns were his cousin’s not his, and his
cousin had previously been convicted of possessing a firearm. D wants to
introduce his cousin’s prior conviction. Not admissible – making a
propensity argument about his cousin
iv. Narrative Integrity (res gestae)
1. US v. Hite (Problem 3.10, p. 178): D charged w/ possession of firearm w/ obliterated
serial number. P brings D’s ex-fiancé to testify that he once used the gun to play
Russian Roulette with her. Judge allowed the testimony that D possessed the revolver,
and describe what he did with it, but she couldn’t call it Russian Roulette or say that the
gun was pointed at her head. Trying to show ownership, instead of propensity / prove
that the gun was his and that she recognized it
a. Arguable that judge let too much in – should have stopped it at the point that she
could identify the gun
b. But also arguable that judge was too restrictive – if she let in even more details,
it gives the witness more of a reason why she would have remembered this gun /
probative of proving her credibility / reliability
2. US v. DeGeorge (CB 180): D being charged w/ insurance fraud after yacht sunk and he
collected on insurance; prosecutor introduced evidence at trial that he had mysteriously
lost 3 boats in the past. 9th Cir decided that evidence was “inextricably intertwined”
with the charged offense, and was necessary to show why D had to try to distance
himself from the boat’s ownership. The court didn’t let P show that D had collected
insurance proceeds on the previous losses, so evidence was properly limited.
v. Absence of Accident
1. Problem 3.11, p. 183: D charged with killing his wife and his defense is that it was an
accident – he was cleaning his rifle and it discharged. But P wants to bring in evidence
that he “accidentally” killed his first wife, also from supposedly cleaning his rifle.
Permissible purpose is to show that if someone shot their wife by accident once, they
would be really careful in the future, so this time it’s likely that he did it on purpose.
c. The Huddleston Standard
i. Huddleston v. US
1. Facts: Huddleston charged w/ possessing / selling Memorex tapes that he knew were
stolen. He defends that he didn’t know they were stolen – just got them from Leroy.
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Govt offered evidence that D sold TVs to another owner that had come from Leroy also
to show that D probably knew that the items coming from Leroy were stolen (issue of
knowledge) – but unclear that the TVs were actually stolen.
2. Standard: 104(b) – relevance of the sale of TVs depends on the fact of them being
stolen, so proof must be introduced sufficient to support a finding that the TVs were
stolen. (D had argued that need PoE standard for admissibility)
3. Result: Govt introduced evidence that there was a huge quantity / low price of TVs, D
was involved in other transactions of stolen goods that came from Leroy, there weren’t
any receipts for the TVs, etc. This was enough that jury could find that TVs were stolen
ii. Dowling v. US (Problem 3.13, p. 196): Man wearing a ski mask and armed w/ a small pistol
robbed a bank. Man also with a ski mask came into witness’s apt and she managed to get off
his mask, and recognized him as D. In the trial of the robbery of the woman, he was acquitted.
Govt wants to put into evidence the eyewitness ID to say that she was robbed by this D,
claiming this was an MO, but D objects b/c acquitted of the other crime. Witness’s testimony
can come in b/c even though D raised a reasonable doubt in the trial for the robbery of the
woman, here only need sufficient evidence from which a jury could find by a preponderance of
the evidence that the other robbery occurred / 104(b) standard.
d. Propensity Evidence in Sexual Assault Cases
Rule 413: Similar crimes 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 the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to
the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at
least 15 days before trial or at a later time that the court allows for good cause.
(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 (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s
genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another
person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Rule 414: Similar crimes in child molestation cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to
which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to
the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at
least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
(1) “child” means a person below the age of 14; and
(2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C.
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§ 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;
(D) contact between the defendant’s genitals or anus and any part of a child’s body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a
child; or
(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E)
Rule 415: Similar acts in civil cases
(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. The
evidence may be considered as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party
against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party
must do so at least 15 days before trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.
i. US v. Guardia
1. Facts: D accused to sexually abusing 2 women during gynecological exams. Govt
wants to have 4 other witnesses testify, other than the specific victims in this case, who
claim to have had similar experiences. Issue is whether Rule 403 should apply when
Rule 413 says you can admit this kind of evidence.
2. Result: Court says 403 still applies, but can’t consider whether the propensity aspect of
it is so prejudicial, but can consider other types of unfair prejudice (e.g. confusion of
issues, delay).
a. Probative: need to consider the similarity of the prior acts, closeness in time,
frequency of prior acts, presence of intervening events, need for testimony
beyond that of the alleged victim and defendant
b. Prejudicial: Here, too confusing for jurors to have 6 witnesses when only 2 are
involved in the case, and would cause serious delay because each witness would
need an expert witness to testify how much of D’s conduct was beyond what
was medically appropriate.
ii. Note about these rules: Rule 405’s requirement that proof be by reputation or opinion doesn’t
apply. Must testify about specific instances.
e. Proof of the Defendant’s and Victim’s Character
Rule 404: Character evidence; crimes or other acts
(a) 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 or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(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;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait,
and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(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.
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(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
i. General considerations:
1. Under (a)(2)(A), D’s evidence has to be of a PERTINENT trait – if charged with a
violent crime, can’t have someone testify that you’re trustworthy
2. Under (a)(2)(B), D can offer evidence of victim’s character trait – e.g. D claims selfdefense in an assault case, can introduce evidence of victim’s violent character to show
that victim was the aggressor. But then P can offer evidence to rebut it, and offer
evidence of D’s same trait.
3. Under (a)(2)(C), only P can offer evidence of victim’s trait of peacefulness to rebut
evidence that the victim was the first aggressor
4. Except for 2(C), it’s D who has to first put in character testimony. Give D the advantage
of being able to put in character evidence in defense, but once we allow for that, P has
to have the chance to rebut it
5. Character evidence is never admissible in a civil case (ACN to 2006 amendment to FRE
404(a))
ii. Methods of Proving Character
Rule 405: Methods of proving character
(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 instances of the person’s
conduct.
1. 405(b) specific instances of conduct will rarely occur, but most common is in three
cases:
a. Rebut an entrapment defense (P says that D is predisposed to commit this crime,
so P can prove that D has a thieveish or corrupt or drug-dealing disposition.)
b. Rebutting a defense of truth in a libel or slander case. P sues for libel, D says the
accusation was truthful, so the trial will focus on whether or not P actually is a
thief, bully, or liar
c. Resolving parental custody dispute – the litigant’s character as a good or bad
parent matters
iii. Michelson v. US
1. Facts: D charged w/ bribery of a federal agent and D claims entrapment. D calls 5
witnesses to attest to his good reputation – all had known him for about 30 years and
said he’s honest and trustworthy. On cross examination, P asked the witnesses if they
knew that D had been arrested 27 years earlier for receiving stolen goods. They said no.
D says P shouldn’t have been able to ask about that.
2. Result: Court says it was ok b/c it just tests witness’s knowledge about D’s actual
reputation. His arrest would’ve changed his reputation in the community.
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3. Standard: P needs to have a good faith belief that these instances actually occurred –
can’t just make stuff up but need to have information that reasonably leads someone to
believe it happened
iv. People v. Martinez (problem 3.15, p. 238): D charged with killing John Lentz, but she shot the
gun only when Cusick told her to. On direct exam, she says “I wouldn’t shoot anybody, but if I
had to, it would be Mr. Cusick.” On cross, P asked about the fact that D had shot at other
people in the past. If “I wouldn’t shoot anybody” is character testimony, P can ask about these
specific instances.
v. US v. Keiser (problem 3.16, p. 239): Ron Keiser charged w/ shooting and paralyzing Victor
Romero. Keiser claims self defense. During a break in trial, Romero encountered Keiser’s
brother in the hallway and shouts to his friends, “there’s his brother. I want you to remember
his face.” Keiser’s lawyer wants to offer testimony about the incident as evidence of Romero’s
violent nature. Can’t be brought in through specific instances; character / reputation only.
vi. US v. James (problem 3.17, p. 239): James able to testify about specific instances of Ogden’s
conduct for her self-defense claim. Not against the rule, because trying to prove that she was
afraid of him, not that he had a violent character.
f. Evidence of Habit
Rule 406: 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 eyewitness.
i. Halloran v. Virginia Chemicals
1. Facts: P uses cans of Freon to fix / replace AC units in cars. One didn’t flow well, so he
put it in hot water to fix it, can exploded, and he was injured. D wanted to bring witness
to testify that in the past, P used an immersion coil and that the witness had seen P do it
at least once and warned him against it. Trial didn’t let the witness testify, and P wins.
2. Result: Court says this isn’t propensity evidence but is evidence of habit – if you have a
consistent response under given circumstances, you’re more likely to follow that
conduct.
3. Note: different from propensity evidence b/c more instances of conduct, no moral
stigma, more predictive of conduct.
4. Impeachment and Character for Truthfulness
Rule 607: Who may impeach a witness. Any party, including the party that called the witness, may attack the
witness’s credibility.
a. Modes of Impeachment
i. Non-character impeachment
1. Contradiction by conflicting evidence
a. Mistakes of perception, memory, or narration
b. E.g. My Cousin Vinny witnesses who needed new glasses, or who had too many
bushes in the way / dirty window to be able to see what was happening
2. Contradiction by past inconsistent statement
a. Not asking the jury to believe the out of court statement, but just trying to show
that witness said something different before than what she’s saying now so she
shouldn’t be believed as to that point
3. Evidence of bias
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ii. Character impeachment – controlled by Rules 607, 608, 609
b. Impeachment by opinion, reputation and cross about past lies
Rule 608: A witness’s character for truthfulness or untruthfulness
(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 that 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:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified 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.
i. Note: policy of excluding extrinsic evidence is to prevent a mini-trial on the witness’s
testimony
ii. US v. Whitmore
1. Facts: Whitmore charged w/ possession of a gun and cocaine, officers say they saw him
throw a gun as he was running from police. D says that officer Soto planted the gun and
made up a story about seeing him throw it.
a. D seeks to call 3 character witnesses who are there to testify about Soto’s
character for untruthfulness, but trial excluded the testimony saying that the
witness’s didn’t know enough about Soto’s reputation in the community.
b. D also tried to cross-examine Soto on the fact that his license was suspended and
his failure to report that to his supervisor, and his failure to pay child support.
District court excluded the examination b/c D’s atty had no way of supporting it;
the record itself was inadmissible as hearsay. Court said that since you can’t
prove it, you can’t ask the questions
2. Result: not an abuse of discretion to not allow the character witnesses under 403 when
there were foundational defects. But it was an abuse to not allow cross into Soto’s
failure to report. D didn’t need to be able to admit the record (608 bars extrinsic
evidence), just need a reasonable basis for asking questions on cross-examination
(“good faith” standard)
c. Impeachment with past convictions
Rule 609: 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:
(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
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily
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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. This 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:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a
fair opportunity to contest its use.
i. Note: YOU CAN use extrinsic evidence to prove the conviction – easy to prove w/ rap sheet
ii. Rule 609 standards
1. 609(a)(2): any crime (felony or misdemeanor) that required proof of an act of
dishonesty or a false statement comes in automatically, subject to limits in 609(b)
2. 609(a)(1)(A): for a witness who isn’t the defendant in a criminal case, or any witness in
a civil case, a felony conviction only comes in under 403 standard – unless the danger
of unfair prejudice substantially outweighs probative value
a. Remember that only a party can be prejudiced
3. 609(a)(1)(B): for defendant as a witness in a criminal case, felony conviction only
comes in if the probative value of admitting the evidence outweighs its prejudicial
effect. (If probative value = prejudicial effect, doesn’t come in; if prejudice is even
slight greater than probative value, doesn’t come in)
a. See Brewer factors for determining when prejudice outweighs probative value
4. 609(b): If it’s more than 10 years since the date of conviction OR release of the witness
from confinement, whichever is later, it’s inadmissible unless the court determines that
the probative value substantially outweighs the prejudicial effect
iii. Policy / reasoning of 609: assume that someone who commits a crime isn’t trustworthy / stems
from CL rule that didn’t allow convicted felons to ever take the stand
iv. US v. Brewer
1. Facts: D charged w/ kidnapping and transporting stolen car, and has a number of past
convictions (kidnapping, rape, aggravated assault, assault w/ deadly weapon) that P
intends to use to impeach if D takes the stand. D claims that the 10-year limit applies.
2. Rape, Assault x2: relevant date is date of release, and earliest D could be release on
any of the charges was w/in 10 years
3. Kidnapping: D originally released longer than 10 years ago, but then D committed the
other crimes which was a violation of his parole, so he went back to federal prison.
Court uses later date of release, which is w/in last 10 years
4. Reasoning: Court considers 5 factors to determine if probative value outweighs
prejudicial effect.
a. Nature of crime: crimes that are premeditated / planned more likely to go toward
character for truthfulness.
b. Time of conviction and D’s later history: longer time from previous crime,
decrease in probativeness b/c D may have been rehabilitated.
c. Similarity between past crime / charged crime: more similar the previous crime,
the more likely it could be unfairly prejudicial
d. Importance of D’s testimony: more important the testimony, less likely the
conviction can come in
e. Centrality of credibility issue: more central the issue of credibility, more likely
the conviction can come in
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5. Result: all past convictions come in except for kidnapping, b/c it’s the same crime D
charged w/ here, and too likely to mislead the jury
v. Problem 3.5 (p. 286): Gary sued former employer, but when he was cross-examined, he
admitted to having been convicted for misdemeanor theft for tampering w/ electric meters,
which he did to help McDonalds franchisees alter their electric meters and reduce bills. He
stole by deception, so automatically comes in under (a)(2).
d. Rehabilitation
i. 608(a)(2) allows a party to rehabilitate their witness only after the other party has attacked the
witness’s character for truthfulness.
ii. Ad. Comm. Notes to Rule 608(a) say that evidence of bias or interest does not constitute an
attack on witness’s character for truthfulness
iii. Evidence of contradictory testimony may or may not call into character for truthfulness,
depending on the circumstances.
1. If contradicting testimony is b/c of a mistake of perception, memory or narration, it’s
probably not a lie at all so would be an attack on truthfulness. But if the contradicting
testimony suggests that witness lied intentionally, it could be.
e. Use of Extrinsic Evidence
i. Problem 4.8 (p. 299): D called an alibi witness.
1. On cross, P asks if it’s true that the witness lied on an application for a bank loan that
asked if she had outstanding loan debt. Witness said no, and P can’t bring in extrinsic
evidence to prove that she did lie. 608(b).
2. On cross, P asks “Aren’t you in business w/ D’s father?” If witness says no, P can bring
in extrinsic evidence to prove that they are in business together – not an issue of
character for truthfulness so not limited to rules in 608.
5. The Rape Shield Law
a. Historical Backdrop: used to be assumed that if you were a “loose” woman, it meant you had bad
morals and therefore reflected on your character / veracity, so evidence of victim’s predisposition was
allowed
Rule 412: Sex offense cases – the victim’s sexual behavior or predisposition
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged
sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other
than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of
the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or
sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of
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unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has
placed it in controversy.
b. The Law in Force
i. State v. Smith
1. Facts: 12 year-old victim claimed grandmother’s husband touched her inappropriately.
D cross-examined witnesses about the fact that the victim had made similar accusations
against her cousin but later recanted them, claiming this is impeachment evidence and
not evidence of past sexual behavior. Trial court held it was inadmissible.
2. Result: evidence is allowed; Rule 412 is concerned w/ sexual predisposition, not prior
false allegations. This went toward her reliability as a witness.
ii. Problem 5.3 (p. 324): State v. Smith on remand. D is trying to use this evidence to impeach her
by proving she has a character for untruthfulness, so admission is governed by Rule 608, which
says that specific instances of conduct can only be brought in on cross-examination, and can’t
use extrinsic evidence. And the standard for asking the questions is just a good faith / rational
basis standard (not Huddleston).
iii. Olden v. Kentucky
1. Facts: Olden and Harris convicted of raping the complainant, who says they raped her
but dropped her off at Bill Russell’s house at her request. When she got there, she
immediately said she was raped. D claims it was consensual, and wants to introduce
evidence of complainant and Bill Russell’s cohabitation. At the time of the incident,
complainant and Russell were both married to other people but were having an affair.
Trial court excluded all testimony about her living situation.
2. Result: evidence doesn’t go toward her sexual history / predisposition but only proof of
bias – it shows her motivation to lie; and also shows Russell’s impartiality as a witness.
Even if the evidence fits into the prohibition under 412(a), the Constitutional right to
confrontation trumps the rule.
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RELIABILITY
1. Competency of Witnesses
a. Used to be a big issue of determining who was competent to be a witness and who wasn’t (e.g. no
African Americans could be witnesses at trial), but now the rules are much more relaxed.
b. Main issue for competency is for children. Need to make sure they have all four testimonial capacities
to be considered competent
i. They are they able to see accurately,
ii. Remember accurately,
iii. Report accurately,
iv. And understand that they have to testify truthfully
Rule 601: Competency to testify in general – 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.
Rule 602: 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.
Standard: 104(b) – need sufficient evidence from which a jury could find that you have personal knowledge
Rule 603: 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.
Rule 610: Religious beliefs or opinions – Evidence of a witness’s religious beliefs or opinions is not admissible to
attack or support the witness’s credibility.
2. The Rule Against Hearsay
a. Defining Hearsay
Rule 801: Definitions that apply to Article 8; Exclusions from hearsay
(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:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Rule 805: 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.
i. Non-hearsay testimony has 4 sources of potential unreliability (“testimonial capacities”)
1. Perception: witness saw Tom pull the trigger, but mistook him for John
2. Memory: witness saw and recognized Tom, but now thinks it was John
3. Narration: the witness means to say Tom, but says John
4. Sincerity: witness means to deceive
ii. Three ways to test the capacities in court:
1. Oath: witness must swear or affirm that they will tell the truth, under penalty of perjury.
2. Demeanor evidence: jurors scrutinize faces & mannerisms to watch for signs of stress,
and judge intellect, precision, and trustworthiness
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3. Cross-examination: opposing lawyer probes for deficiencies in perception, memory,
narration, and sincerity.
iii. Bar hearsay b/c there’s no way of testing the testimonial capacities of the out of court
statements of a person not on the stand.
iv. Nonhearsay uses of out-of-court statements:
1. Words offered to prove their effect on the listener
a. Problem 7.5 (p. 372): US v. James, she testifies about all the crazy things that
Ogden told her he did. Not hearsay b/c not offered to prove that he actually did
them – just offered to show her state of mind.
b. State v. Getz (Problem 7.6): Getz charged w/ felony theft after selling horses that
belonged to Griffings. She offers testimony that Patton told her he bought 2
horses and asked for her help in selling them. Not being offered to prove that
they really were Patton’s horses; just trying to prove she didn’t have mental
intent to steal
2. Legally operative words (Verbal acts):
a. US v. White (Problem 7.8, p. 373): D allegedly lied on a customs declaration
form. White wants to testify to say that he had said “I have something else to
declare.” This is a “verbal act” b/c his saying it would had legal significance /
change the state of legal affairs b/c he tried to DO the thing he’s charged with
failing to do
b. Other examples: saying “I do” at the alter, or “I accept” to an offer that creates a
contract – the statements operate independently of the speaker’s belief or
intended meaning
3. Inconsistent statements offered to impeach: not trying to prove that the prior statement
is true, but just that the witness has said something different at a prior time, so the
witness shouldn’t be trusted as to that point.
v. Defining assertions
1. Defined: Actions intended to communicate something. Context does matter because
shows Sincerity.
a. Burden of proof is on the party claiming an assertion was intended.
b. Close cases should “be resolved . . . in favor of admissibility”—and against
deeming the evidence to be hearsay. ACN
2. Sometimes conduct is “non-assertive” – people just act, w/o any intent to assert
anything to other people
a. Failure to say something is NOT an assertion
b. Things taken for granted are not assertions
i. Call to a gambling ring to place bets, and police officer answered the
phone. Caller saying “put two bills on Freddy” is NOT an assertion that
it's a gambling ring; it’s just assumed
ii. Sending letters to testator about politics isn’t an assertion of his stable
mind
3. Non-verbal
a. Hypothetical from Wright v. Tatham (Problem 7.9, p. 377): ship captain goes
onto a ship and inspects it before departing w/ his family. Ship sank and
everyone on it died. Assuming ship’s owner now files a claim for insurance and
insurer refused payment alleging that the ship was unseaworthy and never
should have left port, can the ship captain’s act of inspecting it before getting on
and leaving come in as evidence of its seaworthiness? Yes – this wasn’t an
assertion to anyone. No audience.
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b. Nuclear scientist taking his family to test site after public concern of
contamination is an assertion of its safety b/c the public is the audience
4. Verbal: “watch out for the stop sign” or “close the door on the way out”
5. Direct assertions: “It is raining”
6. Implied assertions:
a. “You should bring an umbrella” – if being offered to prove it’s raining, it’s
hearsay because the implied assertion in saying “you should bring an umbrella”
is that it is raining. But if offered to explain why someone is carrying an
umbrella, not hearsay
b. “Does Sarah sell drugs?” If offered to prove she sells drugs, hearsay. If offered
to show why Anne asked Sarah about rehab, not hearsay.
c. “You should give the dog a bath.” If offered to prove the dog is dirty, hearsay. If
offered to show why Anne gave the dog a bath, not hearsay.
7. Indirect assertions: “I spent all morning with my architect to plan my retirement home.”
Inferences are that she made a statement about planning retirement home  she was
actually planning it  she was making long term plans. But would have to prove that
she was actually planning the home / met with the architect, which she could have lied
about. It’s being offered to prove that she made the long-term plans so it is hearsay.
b. Hearsay exception basics
i. Three types:
1. Exceptions under 801(d)
2. Exceptions that apply when declarant is unavailable under 804
3. Exceptions that apply regardless of whether the declarant is available under 803
ii. Standard: standard for admitting evidence under a hearsay exception is always under Rule
104(a), which the court must determine by a preponderance of the evidence that the proposed
evidence meets the rules for admissibility.
c. Statements of Party-Opponents
Rule 801(d): Statements that are not hearsay
(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 or participation in it under (E).
i. Party’s Own Words - 801(d)(2)(A)
1. Problem 7.11 (p. 396): Louise sues an airline after suffering injuries during an
unusually rough landing. She claims the injuries prevented her from working at her full
capacity. D can introduce records that she billed clients at a normal rate 6 weeks after
the flight; it’s her own statement being offered against her so not hearsay.
ii. Adoptive Admissions – 801(d)(2)(B)
1. US v. Beckham (Problem 7.13, p. 397): undercover cop walks up to people he suspects
are selling drugs in a backyard. Monroe asks if cop would “like 50” and cop said yes,
then he asks for another 50 and Monroe says “I don’t have another but you can get one
from my buddy” and then D walked over to a bag w/ a lot more drugs in it. Comes in as
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an adoptive admission b/c his physical action is consistent w/ the statement and he
adopts it as his own.
2. Silence or failure to deny can become an adoptive admission when (p. 433) (also see
Miranda and silence, p. 23):
a. The statement is heard and understood
b. The party was at liberty to respond
c. The circumstances called for a response
d. Failed to respond (or responded and didn’t deny)
iii. Statements of Agents – 801(d)(2)(D)
1. Mahlandt v. Wild Canid Survival & Research Center, Inc.
a. Facts: Sophie bit a child. 3 pieces of evidence as issue: 1) Poos went to his
employer and left a note saying that Sophie bit a child, 2) Poos told his boss that
Sophie bit a child, 3) minutes from the board of directors assume that Sophie did
it. Trial court excluded the statements b/c Poos didn’t have personal knowledge
that Sophie did bite Daniel.
b. Result: the note and Poos’s statement can come in b/c he is an agent of the
company. Didn’t need personal knowledge; he had all the background info
needed to jump from belief to truth. As to the entry in the records of a corporate
meeting, the directors as primary officers of the corporation had the authority to
include their conclusions in the record of the meeting. So the evidence would
fall with 801(d)(2)(c). Although there wouldn’t have been a servant or agency,
relationship which justified admitting the evidence of the board minutes as
against Mr. Poos.
c. Note: had Poos said “Charlie told me that Sophie bit a child” it wouldn’t be
admissible b/c it would be asserting the truthfulness of Charlie’s out of court
statement, and his wouldn’t be admissible under any of the rules; hearsay w/in
hearsay
2. Pappas v. Middle Earth Condo Ass’n (Problem 7.15, p. 405): Pants damages from
condo management for negligence of icy walkway. P’s friend phoned the management
company and complained about the walkway. A man w/ a shovel and bucket eventually
shows up and said “the guys on the day shift were supposed to shovel and salt, but they
went home early.” Standard: preponderance of the evidence that the guy w/ the shovel
and bucket was an employee / agent of the condo ass’n. Probably sufficient evidence of
it here b/c of the circumstances of first calling the number and someone showing up
with the bucket, his statements suggest that he has knowledge of the employment
relations.
3. Note: statements of agents for party admissions DO NOT need personal knowledge
under Rule 602, which is an exception to the general rule. Ad. Comm. Notes say that
party admissions have “enjoyed [freedom] from … the restrictive influences of the
opinion rule and the rule requiring firsthand knowledge.”
iv. Coconspirator’s Statements – 801(d)(2)(E)
1. Preconditions on admissibility of coconspirator statements:
a. Factual determinations
i. A conspiracy existed at the time the statement was made
ii. The conspiracy included both the declarant and the party against whom
the statement is offered
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iii. The declarant spoke during the course of and in furtherance of the
conspiracy
b. Standard: trial judge must decide the preliminary questions under Rule 104(a) /
a preponderance of the evidence standard. This is NOT a conditional relevance
issue; statements made by a coconspirator are usually relevant to D’s guilt
regardless of whether the statements met the technical requirements of the
coconspirator exception
2. Note: P doesn’t have to charge conspiracy in order for this to come in; not required for
jury to find the inferences of conspiracy in considering the statement. Court just has to
find it as the precondition of admissibility
3. Bourjaily v. US
a. Facts: FBI informant was to make a controlled sale of cocaine to Angelo
Lonardo, who was to resell it to others. Lonardo made statements, that were
recorded by FBI agents, about his “gentleman friend” who had some questions
about the drugs; Lonardo said his “friend” would be waiting in the parking lot at
the time of the transfer. Officers arrest both when sale is made.
b. D’s argument: to determine if there’s a conspiracy, can’t look at the statement
itself; need to rely on outside evidence to avoid bootstrapping – don’t want
hearsay to “lift itself by its own bootstraps to the level of competent evidence”
c. Result: Court says you can consider the statement itself as proof of the existence
of a conspiracy under the plain language of Rule 104; not bound by rules of
evidence, except the rules of privilege.
4. US v. Aboumoussallem (Problem 7.16, p. 415): undercover agent, posing as a crime
figure, bought heroin from N., the cousin of defendant Y. N goes w/ agent to the airport
to meet Y to pick up the drugs, and the agreement was that Y would hand over the case
of heroin to whoever handed him a passport-sized photo of Y, which happens. All of
them board a plane together and Y (who spoke no English) told the agent, with N
translating, about how strong the heroin was (made his nose bleed). Agent tries to arrest,
and a fight ensues which results in N getting killed. Govt wants to introduce statements
about the quality of the heroin. N’s translating statements are admissible as part of the
conspiracy (but could be argued that once drugs were transferred, the conspiracy ended)
d. Past statements of WITNESS and past testimony
Rule
Topic
613
Past inconsistent
statements offered to
impeach
Past inconsistent
Declarant must testify at trial or
statements offered
hearing and be subject to crosssubstantively
examination “concerning the
statement”
Past consistent
Same
statements
801(d)(1)(
A)
801(d)(1)(
B)
801(d)(1)(
C)
804(b)(1)
Conditions Regarding
Declarant’s Availability or
Memory
Declarant must have testified
Statement of ID
Same
Past testimony
Declarant must be unavailable as
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Conditions Regarding Past Statement
Questioning lawyer must have good-faith
belief that witness made past statement
Past statement is inconsistent and was 1.
Given under oath and 2. At a “proceeding”
or deposition
Past statement is consistent, is offered to
rebut charge of recent fabrication or
improper motive and meets Tome rule
Past statement identifies a person and was
made after declarant perceived the person
Past statement was 1. “testimony” (i.e.
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defined by 804(a)
612
Refreshing
Witness’s Memory
Witness must be on stand; memory
must be exhausted
803(5)
Past recorded
recollection
Witness must be on stand; must
have “insufficient recollection”
given under oath), 2. At a “proceeding” or
deposition, and 3. Subject to examination
by party against whom now offered who
then had a “similar motive”
None (memory can be refreshed with
many things and if a writing is used, 612
imposes conditions)
Record 1. Was made or adopted when
witness’s memory was fresh and 2.
Reflected witness’s knowledge correctly
i. Inconsistent statements offered to impeach
Rule 613(b): Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an
adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b)
does not apply to an opposing party’s statement under Rule 801(d)(2).
1. US v. Barrett, 1st Cir., 1976 (CB 421)
a. Facts: Bucky Barrett charged w/ stamp theft from a museum. P’s witness Bass
identified D as Bucky; Bass says Bucky was there when Bass examined the
stamps, and that Bucky explained how he got around the museum alarm. P’s
witness Adams says he was introduced to Bucky to talk about alarms, and says
Bucky knew a lot about them, and that Bucky admitted his involvement in the
stamp theft.
b. D’s response: wants to put on impeachment witnesses; Delaney, who met w/
Adams in a restaurant where Adams said it was a shame that Barrett got caught
b/c he knew that Barrett didn’t do it and the waitress who waited on them at the
restaurant, who overheard the conversation between Adams & Delaney. Trial
court didn’t allow the witnesses, saying the testimony would be hearsay
c. Result: The testimony is just to impeach for prior inconsistent statements under
613. Statements don’t have to be completely contradictory. “It is enough if the
proffered testimony, taken as a whole, either by what it says or by what it omits
to say, affords some indication that the fact was different from the testimony of
the witness whom it is sought to contradict.”
2. Problem 7.17, p. 424: In a murder investigation, Angela Raymond told a police
detective that she saw D fire the fatal shot. At trial, Raymond said she was nowhere
near the crime scene and had no idea who shot the victim. Raymond’s statement was the
only evidence that implicated D. If D moved for directed verdict of acquittal, the judge
should grant it; though the detective can testify about her prior statement, it’s just to
prove a prior inconsistent statement - shows that Raymond lied about having said
anything before. But it can’t come in as substantive evidence to establish that it was D
who did the shooting
3. US v. Ince, 4th Cir., 1994 (CB 424)
a. Facts: someone at a rap concert wearing an orange jacket shot a 9 mm pistol
twice at some trucks. Angela Neumann identified D as the shooter in a signed,
unsworn statement given to the police, and she said he told her he shot the gun.
At trial, even after refreshing her recollection, Neumann denied making the
statement that Ince told her he shot the gun. P calls the officer who heard her
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statement to testify about what she told him. First trial ends in mistrial; same
thing happens at the second trial, but jury convicts.
b. Result: Statements not admissible under 801(d)(1)(A) because not given under
oath at a prior proceeding. Court says the testimony from the officer should have
been excluded under Rule 403: “courts must not permit the government, in the
name of impeachment, to present testimony to the jury by indirection which
would not otherwise be admissible.” Probative value of impeaching her wasn’t
very helpful to P, and unfair prejudice was very high b/c jury might consider the
statements improperly. Jury instructions wouldn’t fix this problem.
4. Miranda and silence:
Substantive
Impeachment
Pre-Arrest
Pre-Miranda
Yes: Salinas v. Texas, US, 2013
YES: Jenkins v. Anderson, US, 1980
Post-Arrest
Pre-Miranda
Possibly (divided courts)
YES: Fletcher v. Weir
Post-Arrest
Post-Miranda
No
No: Doyle v. OH, US, 1976
a. Silence for impeachment
i. Pre-Miranda silence: Fletcher v. Weir, US, 1982 (CB 430)
1. Facts: D charged w/ murder for stabbing someone. He didn’t
deny it right away when he was arrested. On the stand at trial, he
says for the first time that the stabbing was self- defense.
Prosecutor asks why this was the first time he brought this up,
trying to show that a reasonable person would have protested
under the circumstances of arrest; want to use the post-arrest
silence as impeachment.
2. Result: the silence can be used for impeachment purposes; this is
different than Doyle b/c D hasn’t been given the expectation that
he CAN stay silent.
ii. Post-Miranda silence: Doyle v. Ohio, US, 1976 - silence following
Miranda can’t be used b/c once you tell someone anything you say will
be used against you, shouldn’t punish someone for not saying anything
b. Silence for substantive purposes
i. Silence as adoption under 801(d)(2)(B) – circuits split on whether silence
can be used as an admission even if D not in custody; circuits also split
about whether it can be used post-arrest, pre-Miranda. But it CANNOT
be used post-arrest, post-Miranda
ii. Would need to meet preconditions: (p. 433)
1. The statement is heard and understood
2. The party was at liberty to respond
3. The circumstances called for a response
4. Failed to respond (or responded and didn’t deny)
Rule 801(d)(1): A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination
about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition.
(B) is consistent with the declarant’s testimony and is offered 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
(C) identifies a person as someone the declarant perceived earlier.
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ii. Inconsistent statements offered substantively – 801(d)(1)(A)
1. Problem 7.19, p. 438: Robinson brought to trial for supposed domestic violence; FT
had testified at grand jury hearing that he hit her in the eye w/ an open hand. At trial, FT
changes her story and says that injury wasn’t b/c he hit her but b/c he pushed the door
open during their fight. P has a problem of proving intent to abuse her; but her prior
grand jury testimony can come in substantively under 801(d)(1)(A) b/c it was given
under oath
2. Problem 7.20, p. 438: same facts as above, but when FT took the stand, she says she
doesn’t remember how she fractured her eye b/c the injury damaged her memory.
Result depends on if one considers the inability to remember an “inconsistent statement”
under 801(d)(1)(A); a court could go either way on whether or not the statement is
inconsistent and it may depend on whether it seems like she’s lying or if she genuinely
doesn’t remember. If she really doesn’t remember, it can’t come in substantively under
801(d)(1)(A) because she wouldn’t be “subject to cross-examination” regarding the
statement, but probably can only be used to impeach
iii. Past consistent statements – 801(d)(1)(B)
1. Rule 801(d)(1)(B): The declarant testifies and is subject to cross-examination about a
prior statement, and the statement (B) is consistent with the declarant’s testimony and is
offered 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
2. Tome v. US, US, 1995 (CB 439)
a. Facts: Mrs. Tome got divorced. Father had joint custody of AT. AT was 4 at the
time, and D allegedly sexually abused her; AT talked about it when she was
back with her mom. D says that the mom made it up b/c she didn’t want the
child to go back to the father. At trial, AT was a terrible witness; couldn’t get the
whole story out and what she said wasn’t clear. P brings in 6 other witnesses
under 801(d)(1)(B) who talked about what AT told them, to bolster AT’s
testimony.
b. D’s argument: D prior consistent statement had to have been made BEFORE the
bias / motive to fabricate arose.
c. Result: Court agrees w/ D; “the prior consistent statement has no relevancy to
refute the charge [of fabrication] unless the consistent statement was made
before the source of the bias, interest, influence or incapacity originated.” The
probative value of the previous consistent statement only matters t if that prior
statement wasn’t effected by the bias. All of these witnesses heard the
statements after the motive arose, so must be excluded.
iv. Statements of Identification – 801(d)(1)(C)
1. Rule 801(d)(1)(C): The declarant testifies and is subject to cross-examination about a
prior statement, and the statement (C) identifies a person as someone the declarant
perceived earlier.
2. Problem 7.21, p. 456: same facts as DV problems above. FT arrived at the hospital
with the blowout fracture on her eye, and at trial testified that the “assault” was just an
accident. Treating nurse says that FT said “my kids’ dad came over drunk, got to argue
with me, hit me with an open hand.” The testimony can’t come in under 801(d)(1)(C),
because there’s no issue of identity; not a question of who caused the injury, just need
to know his intent.
3. Commonwealth v. Weichell, MA Supreme Court, 1984 (CB 448)
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a. Facts: 3 people heard some gunshots and then saw someone run away. Foley
says he had a full face view of the suspect for 1 second in the light. He testified
that he saw the man running, and gave a detailed description of him, and also
IDed D while testifying in court. P also offers the composite sketch of the
suspect that was made based on Foley’s description. D claims the sketch is
inadmissible hearsay.
b. Result: Court says it can in under 801(d)(1)(C); the drawing is just the “sum” of
the witness’s testimony.
c. Note: it should be considered hearsay w/in hearsay, but Rostain says that the
witness probably not only IDed the defendant, but also IDed the composite; after
it was drawn, he was shown the picture and asked, “is this the person you saw?”
4. US v. Owens, US, 1988 (CB 451): Rule 802 doesn’t require exclusion of witness ID
when memory loss caused the witness to be unable to remember the basis of the ID; it’s
enough to point out the fact of memory loss which will destroy the credibility of the ID
e. Hearsay Exceptions under Rule 804: “Declarant Unavailable”
Rule 804: Hearsay Exceptions; Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court
rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(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
(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).
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.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a
witness:
(1) 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-, or redirect examination.
(2) Statement Under the 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
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it
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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 liability.
(4) Statement of Personal or Family History
(5) [Other Exceptions .] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. 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.
i. Past testimony – 804(b)(1)
1. Problem 7.22, p. 457: same DV problem above; FT takes the stand but refuses to testify
and persists in her refusal even when the judge threatened to hold her in contempt. P
wants to offer a transcript of her grand jury testimony. She’s unavailable under
804(a)(2), but it’s not admissible under any of the exceptions; the party against whom
it’s being offered had to have had an opportunity at which the statement was given and
similar motive to develop it by direct, cross, or redirect. Defense counsel can’t attend at
grand jury testimony, so they couldn’t develop the testimony so not admissible here
2. United States v. Duenas (9th)
a. Facts: The officer who obtained a confession from the defendant died before he
could testify at trial. He had testified about the case at a suppression hearing
previously.
b. Result: The district court abused its discretion by admitting the former
testimony of Officer Smith under Rule 804(b)(1) of the FRE, because it
incorrectly concluded that defense counsel had a similar motive to crossexamine Officer Smith when it questioned him at the suppression hearing as it
would have had at the trial.
c. Rules: The court is required to compare the “fundamental objectives” of the
predecessor in interest and the current party. Former testimony may not be
introduced under Rule 804(b)(1) without a showing of ‘similar motive.’
i. “’[S]imilar motive’ does not mean ‘identical motive,’ and that the
‘similar motive’ analysis is ‘inherently a factual inquiry’ based on ‘the
similarity of the underlying issues and on the context of the . . .
questioning.’ (citing Blackmun’s concurrence from Salerno (US))
3. Lloyd v. American Export Lines, Inc. (3rd)
a. Facts: Two men got into a fight out at sea. One of the men is trying to sue the
shipping company for negligently putting him in a dangerous position by
allowing the other man to be around him. The defendant ship company wants to
admit a statement from a Coast Guard hearing by the other man who is
unavailable out at sea.
b. Result: Analysis of the concept of interests satisfies us that there was a
sufficient community of interest shared by the Coast Guard in its hearing and
Alvarez in the subsequent civil trial to satisfy Rule 804(b)(1). Alvarez sought to
vindicate his individual interest in recovering for his injuries; the Coast Guard
sought to vindicate the public interest in safe and unimpeded merchant marine
service.
ii. Dying Declarations – 804(b)(2)
1. Shepard v. US, US, 1933 (CB 479)
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a. Facts: D convicted of murdering wife; before she died, she thought he had
poisoned her and said so to her nurse
b. Rule: to be a dying declaration, the declarant must have spoken without hope of
recovery and in the shadow of impending death AND the declarant must have
personal knowledge, required under Rule 602.
c. Result: here, when she made the statements death wasn’t impending and she
didn’t actually have personal knowledge; her suspicion was just conjecture
iii. Statements against interest – 804(b)(3)
1. Rationale for the rule: probably no motive to make a statement against your personal
interest so it’s unlikely you would say it unless it was true.
a. Admitting to some kind of criminal liability doesn’t have to have anything to do
with the charge in the instant trial
2. Video hypo: Fatal Attraction: Michael Douglas admitted he had an affair w/ the girl w/
the blonde hair.
a. The other woman is found dead, the wife is charged with murder
i. P wants to get his out of court admission of the affair in: effect on the
listener going to motive. NOT hearsay. Not trying to prove that they had
an affair, just that she heard that he said it
b. The other woman is found dead, the husband is charged with murder
i. Statement by party-opponent, admissible hearsay exception
c. The husband is found dead, the other woman is charged with murder
i. P argues that it was a statement against interest which he wouldn’t have
said unless it was true. But it doesn’t actually fit into the rule; the
statement has to be against some kind of legal interest – proprietary, or
pecuniary interest
3. Williamson v. US, US, 1994 (CB 469)
a. Facts: Harris was weaving and got stopped and he consented to a search of the
trunk, where police found lots of cocaine. After his arrest, he made 2 statements
to the DEA agents: 1) he says that he was transporting it to give to someone else,
so agents suggest doing a controlled delivery; so he changes his story and 2)
tells the agents that Williamson knew about him being pulled over. At trial,
Harris refused to testify so he was unavailable; P wanted to get the past
statements into evidence
b. Result: Court holds that only statements that are truly inculpatory can come in.
Statements that aren’t completely against one’s interests don’t fall in the rule;
the statements that basically pin it on Williamson as the drug king are mostly
exculpatory so admitting them wouldn’t follow the rationale for the rule. A court
has to actually parse the entire statement and figure out which are truly selfinculpatory and can come in.
c. Note: but court says that not all statements that implicate someone else must be
excluded; need to look at the circumstances of each case. Another person’s
statement saying “I was robbing the bank on Friday morning” coupled with
someone’s testimony that the declarant and the defendant drove off together
Friday morning, is evidence that the defendant also participated
4. Problem 7.24, p. 469: P charges Magnolia Sharpe with robbing an armored truck, go to
speak to Robert Barton who supposedly participated; mom answers the door. Bobby
says “ask Magnolia, it was her idea” Some part of it is exculpatory of Barton because
it’s saying that it was her idea, but it’s also self-inculpatory b/c it suggests he was part
of it. Would need to parse the statement to make sure the inculpatory aspects are not
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admitted; all you can do is ask the officer that was standing there whether Barton
admitted it, who would then say yes.
iv. Forfeiture by Wrongdoing – 804(b)(6)
1. US v. Gray, 4th Cir., 2005 (CB 484)
a. Facts: Black widow; Gray is on trial for mail fraud and wire fraud, after each of
her husbands / boyfriends die / are killed and she collects on the life insurance. P
seeks to introduce statements made by her first husband that she was trying to
kill him / had been threatening him that he made in a criminal complaint against
her. Declarant winds up dead a week before trial against her.
b. D’s argument: she didn’t intend to make him unavailable for this trial
c. Result: Court allows the statements; doesn’t matter which hearing she intended
him to be unavailable for – she made him unavailable for some anticipated
proceeding.
f. Hearsay Exceptions under Rule 803: “Availability of Declarant Immaterial”
Rule 803: Hearsay Exceptions; regardless of whether the declarant is available as a witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a
witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. 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 the validity or terms of the declarant’s will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general
cause.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and
accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an
adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or 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) neither the source of information nor the method or circumstances of preparation indicate a lack of
trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record
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described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of
trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a
matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally
authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed
to disclose a public record or statement if the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of
that kind.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose
authenticity is established.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community
concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment
was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
i. Present Sense Impressions – 803(1)
1. Theory: what you say as something is happening is likely to be accurate b/c you don’t
have time to fabricate it.
2. Video – The Graduate. Mrs. Robinson calls 911 and says they have a burglar. Can’t be
excited utterance b/c she was so calm, but does describe an event that she perceived
while it was happening
3. Problem 7.30, p. 492: dog-mauling case, elderly woman across the hall called 911 b/c
she was hearing the mauling. Woman described what she was hearing happening
outside. Probably admissible under 803(1), but need to prove personal knowledge that
she knew what was happening and could identify the owner.
ii. Excited Utterances – 803(2)
1. Theory: you’re so excited / flustered when you make the statement, that you would be
unlikely to be able to fabricate the statement; it’s a “condition of excitement which
temporarily stills the capacity of reflection and produces utterances free of conscious
fabrication”
2. Problem 7.29, p. 492: dog mauling; Smith & Whipple are partners, and Whipple had
called Sharon on a previous occasion and shouted “that dog just bit me!” Can’t be a
present-sense impression b/c statement was made afterward, but fits under 803(2).
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a. She also told Smith that she yelled to the dog’s owner, “you need to control your
dog!” Double hearsay; her statement to Smith is excited utterance, and her
statement to the owner probably can come in as a non-hearsay statement to
prove effect on the listener.
iii. Statements of then-existed condition – 803(3)
1. Theory: We need not worry about 2/4 of the sources of unreliability:
a. Faulty memory poses no concern bec. the declarant is speaking of her present
intention to do some future act.
b. Faulty perception is not a risk because the person is not relating an external even
but merely the contents of their mind.
c. Note: Narration and Sincerity are still concerns.
2. What Can be Shown: What someone believed at the time. Prove 1 of two things:
a. Prove someone had a certain belief; or
b. Prove someone did what they believed they would do.
3. What Can’t be Shown:
a. Someone’s beliefs about the past; or
b. An act of someone else.
4. Mutual Life Ins. v. Hillmon, US, 1892 (CB 495)
a. Facts: Mrs. Hillmon was suing for insurance proceeds, claiming that Mr.
Hillmon was killed. Insurance companies refused to pay the proceeds claiming
that Hillmon committed insurance fraud - he wasn’t really dead but had killed
Fred Walters and made it seem like it was him. Walters had left his home and
had been writing to his fiancé and family saying that he was going off to be a
sheep farmer w/ “one Hillmon.” Ins. Company wanted to admit the letters in
evidence to show Fred’s intent to go with Hillmon
b. Result: Court allowed the letters in, claiming it showed Walters future intention.
c. Result under FRE 803(3): this case was an interpretation of the CL rule before
FRE were promulgated, and these statements probably wouldn’t come in under
the rule today b/c the statements don’t necessarily talk about his personal intent,
but also reflect a past conversation w/ Hillmon where they decided to go
together, and Hillmon’s intent is “a statement of memory or belief to prove the
fact remembered or believed”; only way he could know Hillmon’s intent is if
Hillmon said something to him and Walter was recounting what he said
d. Ad. Comm notes re: Hillmon doctrine: “committee intends that the Rule be
construed to limit the doctrine of Hillmon, so as to render statements of intent by
a declarant admissible only to prove his future conduct, not the future conduct of
another person.”
5. Shepard v. US, US, 1933 (CB 499): Wife who says “he poisoned me.” Not a dying
declaration, so P says it was a present-sense impression, as evidence that she had a state
of mind “inconsistent with the presence of suicidal intent.” Wasn’t allowed because it
faced backwards rather than a belief about the future and spoke to an act of someone
other than the speaker.
6. Problem 7.33, p. 498: Larry Adell disappeared; had testimony from friends saying that
Larry was about to go meet with Angelo to get a pound of marijuana. Probably can
admit evidence that he was going to meet someone, but can’t say it was to meet Angelo;
you can offer evidence to show that someone had a plan to show what they intended to
do, but can’t rely on the memory of conversation w/ Angelo of planning to meet
iv. Statements made for medical diagnosis – 803(4)
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1. Theory: someone won’t lie to their doctor for the purpose of diagnosis – they want to
get good treatment. And because a doctor in giving treatment will be trying to elicit
truthfulness to be able to diagnose correctly
2. Statements of fault: Advisory notes: statements as to fault would not ordinarily qualify
under this language. A patient’s statement that he was struck by an automobile would
be ok, but statement about who was driving it wouldn’t
3. US v. Iron Shell, 8th Cir., 1981 (CB 511)
a. Facts: At D’s trial for molesting a young girl, P called a doctor as a witness. Dr.
asked the girl after the assault questions about if someone touched her
inappropriately. Lucy told the doctor that she was dragged into the bushes, she
tried to scream but couldn’t b/c the man but his hand over her mouth and neck
b. D’s objections: He says that the questions weren’t necessary to the diagnosis
c. Result: Court allows the statements; even though it wasn’t necessary it made the
exam more efficient and was for the purpose of diagnosis; goes toward the
“general cause” of her injuries under 803(4)(B).
4. Problem 7.35, p. 516: Doctor testifies at trial about his conversation w/ a child who
came in with a broken arm. Child said that he had been playing w/ his father’s records
and his father twisted his arm. Statement of fault about his father might not be
admissible b/c Dr. doesn’t need to know who caused it for purposes of diagnosis. BUT
it’s arguable that the doctor wasn’t just trying to deal with the twisted arm, but the
doctor could diagnose “victim of child abuse” so in this case, the fault might actually go
toward the diagnosis
5. Note: statements made to family members or caretakers can come in for purposes of
diagnosis if the caretaker then took the declarant to the doctor / hospital, etc. (e.g.
husband dies of arsenic poisoning and told wife he ate at the Downtown Deli)
6. Note: statements made by DOCTORS probably are not admissible under this rule; has
to be made by the patient for the purpose of their being diagnosed (e.g. food poisoning
from Downtown Deli and doctor says “this has all the signs of arsenic poisoning” –
inadmissible)
v. Refreshing memory & Recorded recollections – 803(5) & 612
Rule 612: (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh
memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
Rule 803(5): not excluded by rule against hearsay - (5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and
accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse
party.
1. The difference:
a. Rule 612: once the recollection is refreshed, they testify from their memory so
there’s no hearsay problem. What was used to refresh their recollection isn’t
admitted into evidence
b. Rule 803(5): mechanism to allow an out of court statement that meets certain
requirements and records your recollection to come into evidence to prove the
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truth of the matter in the record. The document itself can’t come into evidence,
but it is read to the jury
2. 803(5) mechanics: doesn’t work if there isn’t a witness physically available – but more
than one person might have been involved in the creation of the document.
a. Can break down the rule into 5 requirements –
i. Witness once knew
ii. Now cannot recall well enough
iii. Made or adopted
iv. When it was fresh in the witness’s memory
v. Accurately reflects
3. Johnson v. State, Ct. of Criminal Appeals of TX, 1998 (CB 523)
a. Facts: Johnson convicted for murder, and Reginald Taylor is the witness who
was sitting in the backseat of the car; Frank (the victim) was in the passenger
seat. Taylor says that Little Arnold, the driver, told the guy w/ the Tech 9 to
shoot Frank. Taylor gave a statement to the police and read it and said it was
true, but at trial Taylor says he doesn’t remember anything, so P tries to get in
his statement as a recorded recollection; asked Taylor to read over the statement,
and Taylor still refused to say anything, but did say that the facts were more
fresh in his mind when he made the statement.
b. Result: Court says that P never laid the proper foundation for the statement to be
admitted as evidence b/c the witness has to acknowledge the accuracy of the
statement at trial.
i. Ways it could have come in:
1. If the witness recognized his signature, and said that he would
never sign anything if he believed it was true and accurate
2. If witness had a certain pattern of writing things accurately
4. Problem 7.38, p. 521: Hit and run; P brings witnesses to prove the license plate number
of the car. Menandier shouted to a woman across the street the number of the license
plate, Sullivan goes into the house to write it on the envelope.
a. Sullivan didn’t remember the number at trial, but shows her the envelope. She
says she still couldn’t remember it then. It’s hearsay w/in hearsay, but his
statement to her is admissible as present-sense impression or excited utterance,
and the writing on the envelope is admissible as her recorded recollection.
b. Menandier says he memorized the number by repeating it over and over. When
P asks the number, he said he didn’t remember it but the counsel asked him to
look at the envelope, and he recalled it and said it without having to look at the
envelop again – this is a refreshed memory, not a hearsay problem
vi. Business Records – 803(6) & (7)
1. 803(6) – 5 requirements to admissibility
a. Record was made at or near the time by someone with knowledge;
i. Time has to be relatively near the time it happened, but it doesn’t have to
be as soon as the “present sense impression”
b. Record was kept in the course of regularly conducted activity of a business,
organization, occupation, or calling
c. Record was a regular practice of that activity
i. If the guard never wrote in the log book but on the night in question
decided to take notes, that wouldn’t work
d. All conditions are shown by testimony of the custodian / another qualified
witness / or certification under 902(11) or (12) (authentication issues)
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e. Neither the source / method / circumstances indicate lack of trustworthiness
2. Rationale: The regularity of the procedure, coupled with business incentives to keep
accurate records, provide reasonable assurance that the record thus made reflects the
clerk’s original entry. Will reflect better than the employee’s memory bec. they do this
stuff over and over again.
3. Palmer v. Hoffman, US, 1943 (CB 532)
a. Facts: Couple drive over a RR track and Hoffman survives after they got struck
by a train. He said he looked both ways and didn’t see a train and didn’t hear
any rings. RR company says there were lights on, bells ringing, etc. Record at
issue is this statement by the RR conductor when he was asked about the
incident in a meeting w/ lawyer and supervisor. The conductor passes away
before trial and RR company wants his statement in evidence to prove they
followed all the standard precautions.
b. Result: inadmissible; not made in the systematic conduct of the business. This
isn’t routine and doesn’t reflect the business of “railroading.” An accident report
prepared in anticipation of litigation not made in ‘regular course of business’
c. Note: case occurs before FRE, but the skepticism of documents made in
preparation for litigation survives and appears in 803(6)(E) – fear of lack of
trustworthiness
4. US v. Vigneau, 1st Cir., 2000 (CB 536)
a. Facts: D convicted of conspiracy to distribute marijuana and 21 counts of money
laundering. He would buy drugs from somewhere in TX and would sell them in
the NE and then he would send money via Western Union to pay for it. Issue is
the admissibility of the western union transfer records
b. Result: Western Union receipts can’t come in under business record b/c the
purpose is to prove D’s name and D is the one that filled out the form (no way of
verifying whether he was who he said he was). Under the rule, the “someone
with knowledge” requirement in (A) means that someone in the business / an
employee must be the one who made the record
i. Rule: If someone within the business didn’t record, it can still come in if
the business itself used a procedure for verifying identity or there is other
evidence to verify.
5. 803(7): 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
a. Video – A Few Good Men: the meaning of “code red” doesn’t appear in any of
the operation manuals. Not actually a hearsay problem b/c there’s no statement.
b. Advisory committee notes to 803(7) say that this “exception” actually probably
isn’t hearsay as defined in Rule 801.
vii. Public Records – 803(8) & (10)
1. Theory: assumption that a public official will perform her duty properly and the
unlikelihood that she will remember details independently of the record
2. Beech Aircraft v. Rainey, US, 1988 (CB 540)
a. Facts: Navy training plane goes down and issue is whether there was a defect in
the plane or if it was pilot error. Plane completely destroyed and there’s no
survivors, so no hard evidence of the cause. Lieutenant Morgan wrote a report
about what probably occurred and the report had “findings of fact”, “opinions”,
“conclusions.” Whole report came in at trial under public records or report
exception
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b. Rule: Falls under 803(8)(A)(iii): “Factual findings from a legally authorized
investigation”
c. Result: Court says that it can be near impossible to actually distinguish facts
from conclusions so the entire report can come in; not limited to just the
“findings of fact.” Admission is limited by the requirement for trustworthiness
under 803(8)(B).
d. Non-exhaustive list of factors to consider in deciding if a report indicates lack of
trustworthiness (n.11):
i. Timeliness of the investigation
ii. Investigator’s skill & experience
iii. Whether a hearing was held – if there was a hearing and then some
report came out, it seems more trustworthy
iv. Possible bias when reports are prepared w/ a view to litigation (citing
Palmer v. Hoffman – records created for purpose of litigation)
3. 803(8)(A)(ii): a matter observed while under a legal duty to report, but NOT including,
in a criminal case, a matter observed by law-enforcement personnel
a. Excludes police reports as evidence of what occurred. If a police officer sees
someone commit a robbery, and then wrote up their report about it, that report
can’t be admitted at trial.
4. What if the report satisfies criteria of 806(6) for business records? SPLIT:
a. US v. Oates, 2d Cir., 1977 (CB 547):
i. Rule: Can’t admit public record evaluative reports or reports of law
enforcement personnel even if they are admissible under business record
exception.
1. Chemist report in a drug case inadmissible as a public record so
can’t come in as a business record b/c would be fundamentally
unfair; legislative history made it clear that law enforcement
reports are absolutely inadmissible; and admitting it would
violate Confron. Clause
b. U.S. v. Hayes, 10th Cir., 1988 (CB 550):
i. Rule: 803(8)(A)(iii) does not compel the exclusion of documents
properly admitted under Rule 803(6) where the authoring officer or
investigator testifies.
1. Tax examiner reported that D failed to file a return in 1981 tax
year; examiner says records are kept in ordinary course of
business. Court says the report is admissible under 803(6), even
though inadmissible under 803(8)(A)(ii). There are obligations of
disclosure: this is just a form of record-keeping. Even if it is
eventually used in adversarial process, it is not there yet. And the
custodian was able to be cross-examined, so no confrontation
clause concerns.
c. U.S. v. Weiland, 9th Cir., 2005 (CB 551):
i. Rule: This isn’t a business record under 803(6), but it can come in under
803(8)(A)(ii) as a matter observed w/ legal duty to report; even though
it’s a law enforcement person doing the observing, the contents were
non-adversarial and were collected as routine part of public record.
1. Seek admission of D’s “penitentiary packet” which included his
booking ID photo and fingerprint card, and record of his criminal
convictions – used at trial to prove D’s status as a convicted felon.
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This isn’t a business record under 803(6), but it can come in
under 803(8)(A)(ii) as a matter observed w/ legal duty to report;
even though it’s a law enforcement person doing the observing,
the contents were non-adversarial and were collected as routine
part of public record.
viii. Character testimony – 803(21)
1. Even though character evidence is hearsay, it falls under the exception in 803(21).
g. Residual Exception - Rule 807
Rule 807: (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 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(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
(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.
i. Dallas County v. Commercial Union Assurance Co., 5th Cir., 1961 (CB 553)
1. Facts: Courthouse dome collapsed and the insurance covered for lightening strike, and
county says the dome fell b/c of lightening strike but insurance company says it was
from faulty construction b/c built on the building after the fire that occurred 50 years
ago. Only way to prove the previous fire is from a newspaper article
2. Result: Court allows the newspaper in under the residual exception for hearsay;
basically makes an exception for newspapers and refuses to classify it as a business
record or ancient document.
a. Considerations:
i. Necessity – everyone who might have witnessed it might have been dead
or unavailable and this might be the only evidence of the prior fire
ii. Trustworthiness – ways to test it
1. Circumstances imply trustworthiness
2. Danger of detection if someone lied ensures trustworthiness
3. Publicity
ii. US v. Laster, 6th Cir., 2002 (CB 560)
1. Facts: Detective got info from a corporation that one of its employees ordered a
component of meth. Officer stopped a car and Laster was caught with a lot of pure meth.
D complains about the admission of the four purchase invoices from the company;
invoices were admitted under the business records exception, with the detective
testifying about them (the only person involved in the company to testify died before
trial).
2. Result: Court says this wasn’t proper under business records b/c the detective wasn’t
familiar with the record-keeping system of the company. Instead, they’re admissibe
under the residual exception: there’s high necessity and there’s no reason to think
they’re unreliable.
3. Judge Moore dissent: The majority allows parties to circumvent the other rules, here
803(6). The requirements under 803(6) have been deemed necessary to show that the
evidence is actually trustworthy, and if you miss one of those requirements, you
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shouldn’t fall back on the residual exception; the residual exception should only cover
novel situations that capture situations that are not.
AUTHENTICATION / BEST EVIDENCE RULE
1. Authentication & Identification
Rule 901: Authenticating or Identifying Evidence
(a) 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.
(b) 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) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a
familiarity 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:
(A) a particular person, if circumstances, including self-identification, show that the person answering
was the one called; or
(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:
(A) a document was recorded or filed in a public office as authorized by law; or
(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:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(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 a
federal statute or a rule prescribed by the Supreme Court.
a. Basics
i. With any item of real evidence, need evidence that the item is what the proponent of the
evidence purports it to be (e.g. if D is stopped with a bag of powder, can it be proven that it is
cocaine?)
ii. Separate issue than hearsay; documents need to be authenticated, but may still present hearsay
issues if it’s being offered for the truth of the matter asserted
iii. Two issues:
1. Could a jury reasonably find by a preponderance of the evidence that the item is what
the proponent says it is? 104(b) standard, AND
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2. Is the item in substantially the same condition, also 104(b) standard
a. Physical evidence that is authenticated through proof of chain of custody doesn’t
have to have a perfect chain of custody; just need enough so it’s sufficient to
support a finding that it’s the same thing that was found on D
b. Documents
i. US v. Vigneau (Problem 10.1, p. 808): D’s signature on the Western Union “To Send Money”
forms - Could have someone who knows him well to testify that they’re familiar w/ his
handwriting and that this is it; could have an expert authenticate it and compare the signatures;
could allow jury to compare the distinctive characteristics of his signature if you have another
copy of his it; could have teller testify and say he saw this person fill out the form; camera in
the store maybe matches the time on the form; or if Western Union actually had the policy of
checking ID when someone fills out the form
ii. US v. Stelmokas, 3rd Cir., 1997 (CB 810)
1. Facts: D came to US under the “Displaced Persons Act” and was a naturalized citizen.
This case was to revoke his citizenship b/c he was a Nazi collaborator and never
disclosed this to the DPC.
2. The documents at issue: docs kept during WWII and turned up in the hands of Russian
govts and said who was enlisted in this Nazi organization and where D was assigned
and what his rank was, and another document about his being hospitalized at some point
during the war
3. Authentication: expert witnesses said that these documents were consistent w/ the time
period and that they never found any forged docs from WWII so no evidence to suggest
they were forged or faked
4. Result: testimony was sufficient to authenticate them as ancient documents under
901(b)(8); they were in a condition that creates no suspicion about its authenticity; was
in a place where it would likely be; and is at least 20 years old when offered
5. Hearsay: 803(16) – a statement in a document that is at least 20 years old and whose
authenticity is established. This has to be proved under 104(a), preponderance of the
evidence, so it’s up to the court to decide 1) that it’s 20 years old and 2) that it’s
authenticity is established
iii. US v. Mitchell, 3rd Cir., 1998 (CB 814): Assailants attacked a check cashing store. Anonymous
note from car seat that gave a license plate number and described the other car, saying that they
changed cars. P wants to bring in the anonymous note, under the theory that a bystander saw Ds
flee and left the note. Probably can just be authenticated by the officer’s testimony b/c that
would give sufficient evidence from which a jury could find that it was written by a bystander
c. Phone Calls
i. State v. Small, Ct. of Appeals of OH, 2007 (CB 816)
1. Facts: Small charged w/ murder; wife testifies that victim owed D money. One of the
victim’s friends, Ellos, also testified; didn’t know to whom the victim owed money, but
the victim had used the witness’s phone to call someone about the money, so after Ellos
learned of victim’s death, he called the number and someone named Dominique w/ a
Jamaican accent answered. Wife testifies that sometimes people call D Dominique
2. Standard: need evidence that reasonably identifies D as the party on the phone
3. Result: Court said the testimony of the witness & D’s wife is enough to identify D as
Dominique under 901(b)(4), for distinctive characteristics. And the statements are
admissible hearsay as statements by a party-opponent
d. Photographs
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i. Simms v. Dixon, DC Ct of Appeals, 1972 (CB 818)
1. Facts: conflict in stories about a car accident. Court didn’t admit a photo of the car b/c
said you need the person who took it to be a witness.
2. Result: don’t need the photographer to authenticate a photo; it’s ok to have someone
who was there to say that the photo fairly & accurately depicts the scene. 901(b)(9) –
can just have evidence describing a process used to produce a result
e. Self-authenticating Evidence
Rule 902: 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:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular
possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands;
a political subdivision of any of these entities; or a department, agency, or officer of any entity named
above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no
seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal —
or its equivalent — that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized
by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the
genuineness of the signature and official position of the signer or attester — or of any foreign official whose
certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness
relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or
legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular
official of the foreign country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause,
either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded
or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the
Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the
course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully
executed by a notary public or another officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to
the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute
declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record
that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another
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qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or
hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and
must make the record and certification available for inspection — so that the party has a fair opportunity to
challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a
foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than
complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would
subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also
meet the notice requirements of Rule 902(11).
2. The Best Evidence (Original Document) Rule
Rule 1001: Definitions
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have
the same effect by the person who executed or issued it. For electronically stored information, “original” means any
printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph
includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces the original.
Rule 1002: Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal
statute provides otherwise.
Rule 1003: 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.
Rule 1004: Admissibility of other evidence of content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom 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
(d) the writing, recording, or photograph is not closely related to a controlling issue.
a. Main purposes / concerns: peoples’ memories aren’t infallible; concern about fraud
b. Seiler v. Lucasfilm, 9th Cir., 1987 (CB 833)
i. Facts: Seiler wrote to Lucasfilm and said that they stole his idea for a “Garthian Sprinter” for
the Scoutwalker in the Empire Strikes Back. Seiler can’t actually produce any drawings he did
before the movie came out – he only has reconstructions, which he claims is exactly what he
had in mind from before the movie came out
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ii. Result: the rule applies to “writings” and “their equivalent”; have to have the rule apply here
otherwise it would frustrate the intent of the rule. He’s trying to prove the content of the
“writing” which is the content of his drawing so his memory of the drawing won’t work.
c. Problem 10.7, p. 828: D is on trial for perjury and instead of putting in a transcript of what he said,
they called a witness to relate his testimony. Doesn’t violate the rule b/c not trying to prove what the
transcript said, but just what he said at the hearing so someone can testify as to what he said.
d. US v. Jackson, D. Neb., 2007 (CB 837)
i. Facts: FBI agent was impersonating a 14 year old in a chat room to catch sexual predators; –
didn’t copy the chats the best way – not able to establish that those were the whole chats.
ii. Result: Court says the cut-and-paste version of the chats can’t come in; it was at the very least
reckless to not keep the entire chat record, so not acceptable under Rule 1004 (if all the
originals were lost or destroyed and not by the proponent acting in bad faith, then other
evidence can come in)
LAY OPINIONS & EXPERT TESTIMONY
1. Lay Opinions
Rule 701: Opinion testimony by lay witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
a. Requirements of the rule:
i. Rationally based on witness’s perception
ii. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue
iii. Not based on scientific, technical, or other specialized knowledge
b. Common areas of lay opinion: age, weight, how fast a car is going, how someone sounded / acted (e.g.
“he sounded depressed”)
c. Why does it matter? If someone is going to use an expert witness, there are procedural requirements
that must be met (notice to the other part); experts can use evidence that isn’t otherwise admissible in
drawing their opinion; and concern that jury would put too much weight in expert opinion
d. US v. Paiva (Problem 9.3, p. 684): stepdaughter found a bag of white powder in D’s shoe and tasted it;
she had used and tasted cocaine on many occasions since she had developed a cocaine problem at 14.
She testifies that she knew the powder in his shoe was cocaine. She has particularized knowledge but
not specialized knowledge to fit into the expert testimony rule.
i. Ad. Comm note to Rule 701: “courts have permitted lay witnesses to testify that a substance
appeared to be a narcotic, so long as a foundation of familiarity with the substance is
established… not based on specialized knowledge, but on that person’s personal knowledge …
But if the witness could describe how it was manufactured, or describe intricate workings of a
distribution network, the witness would need to qualify as an expert”
e. US v. Ganier, 6th Cir., 2006 (CB 684)
i. Facts: D charged w/ obstructing justice for supposedly deleting files. FBI agent used a special
search method to find the documents that D had deleted; Govt tries to introduce his testimony
as that of a layperson (they hadn’t followed the procedural requirements for calling an expert)
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ii. Result: Court says this is expert testimony; the testimony required the witness to apply
knowledge & familiarity w/ computers this particular forensic program well beyond the
average layperson.
iii. Note: maybe sort of a “moving target” – back in the day, being able to make a video and
upload it to youtube might have involved “expertise.” Eventually something that used to be
expertise can enter the realm of common knowledge
f. US v. Cano (Problem 9.4, p. 691): Govt wants to use evidence found in a “stash” house, described as
hieroglyphics. Witness testified that he recognized some of the names and knew phone numbers of
some people and put up all the symbols and found out that symbols corresponded w/ certain numbers
and could then decipher them. This probably isn’t expertise; it’s basic problem-solving
2. Expert Testimony
a. Requirements:
i. Proper qualifications – Rule 702
ii. Proper topic; that which is beyond the knowledge of jurors – Rules 702 & 704
iii. Sufficient factual basis – Rules 702 / Daubert
iv. Rule 403 balancing
b. Who Qualifies as an Expert?
Rule 702: 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:
(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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
c.
i. US v. Johnson, 5th Cir., 1979 (CB 694)
1. Facts: Charge D’s with drug trafficking, importing from outside the customs territory of
the US. P calls as an expert someone was in D’s business, Mr. DePianelli, who would
taste, smell, and smoke the product to make sure that when they labeled the drugs
Columbia Gold, that it was legit
2. Result: Court says that this can be expert testimony b/c it’s related to a business and the
field of “botany” and that he does have specialized knowledge b/c of his experience
ii. US v. Plunk (Problem 9.6, p. 699): expert to testify about code words used by drug traffickers
(“How hungry is Panchito? Would he like to have breakfast?”). He has many years of
experience & training on this kind of code analysis. But may want to know more about if he
has experience in a specific region or of a specific gang; spoken codes use a lot of innocuous
terms, and probably vary a lot depending on the region
(Im)proper Topics of Expert Testimony
i. Matters of common knowledge
1. US v. Libby, D.D.C. 2006 (Problem 9.7, CB 700): Scooter Libby charged w/ perjury
and claims that any false statements were b/c of faulty memory and not w/ intent to
deceive; brings an expert witness to testify about the science of memory (content
borrowing, source misattribution, and divided attention) Under 702(a) this testimony
may not actually help the trier of fact b/c jury probably pretty well understands that
memory can fade.
2. Chesebrough-Pond’s v. Faberge (Problem 9.8, CB 701): Chesebrough-pond filed
application to register a trademark; “match” too similar to “macho.” Want an expert that
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says that the words “match” and “macho” have “sounds and spellings” that make the
words confusingly similar. Not proper expertise – it doesn’t add anything that the jury
doesn’t already know.
ii. Opinions on law and opinions on ultimate issues
Rule 704: Opinion on an ultimate issues
(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 matters
are for the trier of fact alone
1. Two ways that an opinion could go beyond the proper scope:
a. Infringe jury’s prerogative of deciding the ultimate issue / result
b. Infringe on the judge’s proper role of defining the law
2. Hygh v. Jacobs, 2d Cir., 1992 (CB 704)
a. Facts: Civil case claiming that Jacobs used excessive force in restraining him;
case against the officer who responded to domestic dispute. There’s a shoving
match, and then Jacobs hits Hygh in the cheek, probably with his baton, and
Hygh has lots of fractures.
b. Testimony: P called an expert concerning law enforcement; he trained ppl in
law enforcement, etc and gives testimony of using a flashlight or baton to hit
people. Expert said that striking someone in the head w/ a baton would
constitute “deadly physical force” which was not justified under the
circumstances
c. Result: Under 704(a), the testimony isn’t automatically inadmissible just b/c it
embraces an ultimate issue to be decided by the trier of fact. But court says that
expert testimony expressing a legal conclusion has to be excluded. Can give
opinions that EMBRACE ultimate issues, but can’t tell the jury what conclusion
to reach. Expert stepped on judge’s role and defined “deadly force” which is
defined by law.
i. Advisory committee notes in reference to Rules 701, 702, and 403:
“ample assurances against the admission of opinions which would
merely tell the jury what result to reach”
3. Problem 9.10, p. 703: Expert witness, knowing that certain purchases of chemicals
were made together, gave an opinion that D intended to make meth. The ultimate issue
was whether these purchases been made innocently or if they were bought w/ the intent
to make meth so when expert says “I look at these facts and find that they intended to
make meth” the expert went too far and told the jury what result to reach
4. Note: 704(b): in a criminal case, expert can’t state an opinion about whether D did or
did not have a mental state or condition that constitutes an element of the crime charged
or of a defense – added to the rules after John Hinkley got off on an insanity defense for
his attempt to assassinate President Reagan.
iii. Opinions on Credibility
1. State v. Batangan, SC of Hawaii, 1990 (CB 709)
a. Facts: young girl (6 or 7 years old) claiming that D had sexual contact w/ her; D
denies it. P brings an expert on sexually abused children and this person, who is
a clinical psychologist, explains how he determines whether victims are telling
the truth and explains how victims often behave (how they might behave in
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ways that are different from what you would expect) and then he also says that
he examined her, and that he believes her
b. Result: testimony about the common conduct is ok b/c helps the jury and gives
them greater knowledge to dispel misconceptions about victims of abuse, but
saying that he believed her is telling the jury what result to reach, which is
impermissible.
c. Note: character testimony of lay witnesses can give this kind of opinion
testimony (“I think he’s a truthful guy and I believe him”)
iv. Opinions on eyewitness IDs
1. US v. Hines, D. Mass., 1999 (CB 714)
a. Facts: D charged w/ bank robbery, and principal evidence was an eyewitness ID.
D called an expert to testify that eyewitness ID of cross-races are less reliable
than same-race IDs.
b. Result: testimony admissible b/c it didn’t tell the jury what to decide but just
gave them more info so they could make a more informed decision and to help
them scrutinize the witness’s testimony
2. State v. Guilbert
a. Rule: Expert testimony on the reliability of eywitness identifications doesn’t
“invade the province of the jury to determine what weight or effect it wishes to
give to eyewitness testimony.”
3. Another common area on expert testimony: false confessions; need to explain to a jury,
through an expert, why a person might confess falsely – helpful b/c it pushes against
certain presumptions that may be wrong (unlike in Scooter Libby case)
d. Proper Bases of Opinion Testimony
Rule 703: 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.
i. In re Melton (CB 722): Expert testifies in a civil commitment proceeding that Melton is a
danger to himself and others. One of the facts that the expert took into account is that Melton’s
mother said that Melton had punched her. Even though the statement is assumed to be
inadmissible hearsay, it’s ok that the expert relied on it if all experts in the field reasonably rely
on statements of family members.
1. Disclose the statement to the jury? ONLY IF the probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial effect; the probative value
can’t go toward determining whether Melton IS dangerous, just for assessing the
accuracy of the expert’s opinion. If they are disclosed, then there needs to be a jury
instruction to limit what the statement is used for.
e. Assessing the Reliability of Scientific Testimony
i. Frye v. US, DC Cir., 1923: stood for the “general acceptance” test, which said that scientific
evidence had to be “sufficiently established to have gained general acceptance in the particular
field in which it belongs.” The old-school polygraph test wasn’t able to be used.
ii. Daubert v. Merrell Dow Pharmaceuticals, US, 1993 (CB 727)
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1. Facts: Benedectin alleged to have caused birth defects. Ps had experts come to say that
there were a lot of analysis done to say that it did cause birth defects; but the expert
testimony was left out under the “general acceptance” test
2. Rule: At the time, only 702(a) was in effect, which said that the scientific specialized
knowledge (is it reliable?) must help the trier of fact to understand the evidence or to
determine a fact in issue (is it relevant?)
3. Result: scientific testimony doesn’t HAVE to be generally accepted, but that can be a
consideration. Also look at scientific method, whether the theory has been tested, peer
review, rate of error, etc.
4. Daubert afterward: the bar for getting in expert testimony has gotten higher, b/c low
courts have taken the role as “gatekeeper” very seriously
iii. Kumho Tire v. Carmichael, US, 1999: extends Daubert principle to other kinds of expert
testimony (“technical and other specialized knowledge”)
CONFRONTATION CLAUSE
1. The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right … to be confronted
with the witnesses against him
2. Application:
a. Dealing w/ out of court statements
b. Only benefits defendant in a criminal case
c. Confrontation isn’t just the right to have witnesses in court, but the right to cross-examine them
3. Ohio v. Roberts, US, 1980: the old rule; confrontation doctrine depended on hearsay principles of necessity
and reliability.
4. Crawford v. Washington, US, 2004 (CB 573)
a. Facts: D was charged w/ stabbing someone who supposedly raped his wife. They sought out the victim
and there was a confrontation that led to the victim getting stabbed by D. Wife gives a statement to the
police in interrogation and they give somewhat differing statements about what occurred and major
issue was whether D stabbed in self-defense. Wife / D invoke marital exception so she doesn’t testify
at trial.
b. Hearsay exception: statement against interest under 804(b)(3); she led her husband to the victim and
that implicated herself as an accessory
c. Confrontation Clause: concerned w/ “testimonial” hearsay; testimonial statements of witnesses
absent from trial are only admissible where 1) declarant is unavailable and 2) D had a prior opportunity
to cross-examine. “Where testimonial statements are at issue, the only indicium of reliability sufficient
to satisfy constitutional demands is the one the Constitution prescribes: confrontation.”
i. “Testimony” = a solemn declaration or affirmation made for the purpose of establishing or
proving some fact (and / or statements that the declarant would reasonably expect to be used
prosecutorially)
d. Result: Mrs. Crawford’s statements were testimonial & their purpose was to be used at trial; she made
the statements while in police custody.
e. Statements that are NON-testimonial after Crawford:
i. Casual conversation w/ friends
ii. Business record – regularly created in course of business w/ no intent to use for litigation
iii. Statements of co-conspirators – statements made during a conspiracy are made w/ the intent to
further the conspiracy, so obviously no intent to use it for prosecutorial purposes
5. Davis v. Washington (2006)
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6.
7.
8.
9.
a. Facts: woman made a frantic 911 call saying that her boyfriend was beating on her and using his fists
– called while he was there and it was happening, but as the conversation went on, he had left and she
was giving the 911 operator his name and other identifying information.
b. Hearsay: admissible as excited utterances
c. D’s argument: The statement was made to a law-enforcement type officer b/c it was formal
questioning about him and about the incident. 911 calls are to be used at trial, and have a fundamental
purpose to be preserved for trial; they’re recorded, formal collecting evidence.
d. Result: the statements made while he was still there and posed a threat to her weren’t testimonial; she
wasn’t concerned about a trial or prosecution but wanted to end the on-going emergency. When he had
left and she started giving more information about him, the statements became testimonial b/c it was
recalling past events. The entire call shouldn’t have come in, but should have been cut off at the point
it became testimonial.
e. “Primary purpose” test: Statements are non-testimonial when made in the course of a police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police in an ongoing emergency. They are testimonial when there is no
emergency and the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
Hammon v. Indiana (2006 – decided at the same time as Davis)
a. Facts: police respond to a call from a home and separate husband and wife in different rooms and wife
explains that her husband had been abusing her.
b. Result: Court said it was testimonial from the beginning b/c she clearly wasn’t in danger anymore.
There was never an ongoing emergency when the statements were collected, as distinguished from
Davis
Whorton v. Bockting (2007): Crawford isn’t retroactive. Confrontation Clause does not apply to nontestimonial statements; reiterate that Crawford overruled the Roberts reliability analysis. Reliability isn’t an
issue under Confrontation Clause: just because a statement is reliable doesn’t mean that its admission doesn’t
violate Confrontation Clause; and just b/c it’s unreliable doesn’t mean that it’s forbidden. Unreliability only
goes to Due Process concerns
Giles v. CA (2008):
a. Facts: Giles killed his former GF, and CA Supreme Court said that he forfeited his right to cross
examine her about a claim she made to the police that he had beaten her, and that P doesn’t have to
establish that he killed her in order to make her unavailable.
b. Result: P does have to show that D’s purpose was to prevent the declarant from testifying: even if
you’ve made the witness unavailable, it’s only if you did it for purposes of testifying that you lose your
right to confront at trial. But all justices seemed to suggest that they would be willing to find the
element of intention on the part of a domestic abuser “in the classic abusive relationship.”
Michigan v. Bryant (2011)
a. Facts: Covington was shot and is laying in a parking lot next to his car; tons of police show up and ask
him who did it
b. Hearsay: excited utterance (requirements not met for dying declaration)
c. Test: “to determine whether the ‘primary purpose’ of an interrogation is to enable police assistance to
meet an ongoing emergency, which would render the resulting statements nontestimonial, we
objectively evaluate the circumstances in which the encounter occurs and the statements and actions of
the parties.
d. Result (Sotomayor + Roberts, Kennedy, Breyer, Alito): this was non-testimonial b/c it was made
during an ongoing emergency; distinguished the domestic abuse cases that came before b/c in those
cases, they were only concerned w/ the threat to that individual victim, but here the issue of ongoing
emergency constituted a threat to the public. To determine primary purpose, need to look at intent of
the declarant AND the interrogator, and you need to look at it objectively.
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i. Factors to consider if it’s an ongoing emergency:
1. Known or unknown assailant
2. Gun v. fists
3. Medical condition of victim
4. Informality v. formality
e. Thomas concurrence: they’re not testimonial b/c the statements weren’t formal.
f. Scalia’s dissent: Primary purpose test only matters for declarant’s perspective. Here, declarant knew
that the emergency was over; this was structured questioning. But even if you look at officer’s purpose,
it’s clear they were in investigatory mode.
10. The forensic analysis cases
a. Melendez-Diaz v. Massachusetts (2009):
i. Facts: a chemist that tested that the powder was cocaine and “certified” that it was, but the
actual chemist that did the test couldn’t appear at trial
ii. Hearsay: came in as a public record, and you don’t need a live witness to authenticate a public
record
iii. Result: you have to have the chemist that actually did the test testify at trial b/c the statement
was being made for trial, so it did violate the confrontation clause
1. Problem: chain of custody of the drugs; does this mean D could call every single
person that handled it from the time it was taken from her?
iv. Thomas concurrence: a statement is testimonial only if it’s formalized, like affidavits,
depositions, prior testimony, confessions. Crawford included formalized testimony, and this is
formalized here b/c had the seal of the state
v. Dissents (4 justices): Kennedy said that “testimonial” isn’t the deciding factor; the word
“testimonial” doesn’t appear in 6th Amendment. The real issue is whether there is a
conventional “witness against” the defendant, and a chemist running tests doesn’t really care
about who did it
b. Bullcoming v. New Mexico (2011)
i. Facts: D was driving drunk and he refused to take a breathalyzer so they drew his blood which
was sent to a lab and his blood-alcohol was way above the legal limit so he gets charged with
DWI. The analyst (Caylor) who actually did the test on his sample didn’t testify at trial b/c he
was on unpaid leave. They instead had a lab supervisor (Razatos) testify about how the samples
are done. Razatos could only talk about the general procedures, but he had no supervision over
this particular test.
ii. Hearsay: public record exception
iii. Result: blood test can’t come in unless Caylor was able to testify. Caylor had made statements
in the certification about the integrity / validity of the sample; it wasn’t just reading a computer
printout. Can’t give special status just b/c their scientists: this report was specifically created to
establish evidence for trial; it is testimonial under the definition, and there’s really no
difference under this case under Melendez-Diaz.
iv. Sotomayor concurrence: “primary purpose is creating an out of court substitute for trial
testimony.” She also underscores the factual circumstances that aren’t presented here
1. State didn’t point to there being an alternate purpose for the test (e.g. medical treatment)
2. This wasn’t a case where the person testifying was a supervisor, reviewer, or someone
else w/ a personal connection to the test here
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3. Not a case where it’s JUST a machine-generated result; it did require some human
analysis. It included Caylor’s statements, including transcription of his blood alcohol
level, along w/ other statements about the procedures used in handling it
v. Kennedy (+ Roberts, Breyer, Alito) dissent: Confrontation clause should not bar “impartial
lab reports”; really worried about reliability and lab reports of this type have a heightened
certainty of reliability
c. Williams v. Illinois (2012)
i. Facts: DNA sample from rape victim was sent to an off-site lab, which was returned to the
police department. Sandy Williams used a computer database to compare the sample to what
was in the database; Sandy testifies at trial as an expert, but don’t have the person who
processed the sample as a witness
ii. Issue: Under Rule 703, an expert can base her opinions on otherwise inadmissible evidence so
long as that’s the kind of evidence that is customarily relied on by experts in the field.
iii. Plurality (Kennedy, Alito, Breyer, Roberts): this is allowed for 1 of 2 reasons: 1) either the
report isn’t offered for its truth, b/c just used to help jury assess Sandy’s expert testimony or 2)
it’s non-testimonial (there was an ongoing emergency / no prosecutorial purpose – people who
are doing this testing have no idea what the outcome would be out trial; different than the blood
test or cocaine test, b/c there you know what result the prosecutor is looking for.)
iv. Thomas concurrence: Here there wasn’t the formal testimonial statement; he made a
distinction between the other cases where the forensic statements were sealed / certified.
v. Kagan dissent: this is the exact same case as Bullcoming; there’s a lab report so bring in the
person who did the analysis.
1. She mentions another sexual assault cause, where the tech was on the stand and was
cross-examined and realized on the stand that she had mixed up the samples.
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