Uploaded by Justin Javier


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
(b) the fact is of consequence in determining the action.
(a) Tendency to prove – more likely than without the evidence
• This is a low standard
o Any tendency to prove makes it relevant
o Examples:
▪ Armed Robbery: government wanting to show that D owned a handgun – that is relevant because it is a
little bit more likely that if D owned the gun, that he committed the alleged crime
▪ Distribution of Cocaine: D having a tool of the trade makes it more likely they did it than without it
▪ Drug Transactions: Government wants to present wallet that had business card with a notable criminal
defense attorney’s contact – Relevant: more likely you are involved given the evidence, than without it
o Question: does it advance the ball at all?
▪ Judges rely on experience
▪ Parties will argue about what the experience is and the likelihood of things
▪ Low standard
• Can be excluded if too remote
o Example: If P is in a car accident and W testifies that P was not wearing a seatbelt two minutes before, it’s
relevant. But if X is called to testify that P was not wearing a seatbelt two years prior, that’s likely to be
excluded as too remote.
• Distinguishing Relevance and Sufficiency of Evidence
o Sufficiency: legal standard
▪ Has the proponent of the evidence given enough evidence to find in the proponent’s favor? Have they
shown enough evidence?
o Evidence doesn’t need to prove the ultimate proposition for which it is offered, nor does it have to make that
ultimate proposition more probable than not
o It just has a tendency to make a consequential fact even the least bit more probably or less probable than it
would be without the evidence
o Relevance is different from sufficient to prove a point
▪ Example: D charged with an armed robbery committed by someone carrying a handgun
• D owned a handgun prior to robbery – claims is irrelevant
• Standing alone doesn’t make it more probable than not that D committed crime
• It is a fortiori not sufficient to prove beyond a reasonable doubt that the D committed the crim
• Evidence is insufficient on its own to prove the D’s guilt but it does make it somewhat more likely
that D committed the crime than if there were no such evidence
o Ppl with handguns are more likely to commit robbery
o Therefore evidence is relevant
o Relevancy is a threshold admissibility standard to be applied by the trial judge – up to the trier of fact to weigh
all relevant evidence and determine whether it is sufficient to prove a point
• Direct versus Circumstantial Evidence
o Direct: direct to the event in dispute – eyewitness testimony, visual testimony, presentation
▪ Presents a credibility issue – the evidence will depend on the credibility, which then may be in dispute,
even if the fact itself isn’t in dispute
▪ United States v. Foster– any tendency
• Impaired opportunity to view – if you couldn’t see person in the back, maybe couldn’t see person in
the front
• Something is either relevant or its not (degree of relevance comes up in 403)
o Circumstantial: what you draw inferences from
▪ Issue of putting things together
o No test to determine if circumstantial evidence is relevant – logic and experience together proffer the
circumstantial evidence relevant
▪ Must be determined in light of how the world works – US v. Amaya -Manzanares
▪ US v. Grier – probative of conspiracy between D and Harper
• More probable than it would be without the evidence
• H was participating in the conspiracy and aware of its magnitude
o Jury is instructed about the difference between the two
▪ Circumstantial evidence isn’t necessarily secondary evidence – Sometimes it is more powerful than direct
evidence which depends on credibility
• Negative inferences: wanting to present the government’s lack of evidence as wanting to be entered
o United States v. Tory -whether D had a gun
▪ Defense counsel – had the prosecution produced the photos at trial, could have cleared up the question
of whether the D was wearing sweatpants during the robbery
▪ Court of appeals – defense counsel should have been able to argue that the government’s failure to
produce relevant evidence within its control gives rise to an inference that the evidence would be
unfavorable to it
o Destruction of evidence – same kind of evidence but probably more strong
▪ But sometimes evidence is destroyed not for a particular purpose but part of routine record keeping –
(not spoliation)
o How do you prove a non-fact?
▪ Present the argument
▪ Bring it up as evidence – ask the person in charge of the records/investigator if there was a video or fact,
and draw results from that
▪ Judge can find it as spoliation – can instruct the jury to take it as an inference that it was evidence
favorable to the other side
• Nuclear instruction: when judge instructs the jury on that particular issue and its all over
(b) Issue of dispute – fact of consequence: the proposition has to matter to the case
• If something is not in dispute, it is not relevant
• Look to the substantive law re: crime charged, cause of action, affirmative defenses, damages
o If jurisdiction doesn’t provide for a particular defense, the facts supporting that defense are not relevant
• Facts related to credibility of witnesses
o Hypo: D hit someone in the road and fled the scene. It’s conceded that it was V’s fault so the only thing in
dispute is whether D fled. Thus, it is irrelevant what V’s BAC was or that V was sleeping in the middle of the
• Examples:
o D driving a car late at night in a national forest and goes around a curb and sees something lying on the road –
it’s a person
▪ Later, D is apprehended for tried to leave scene of an accident. But person was lying there because their
BAL was very high
▪ Government argues: irrelevant that person was drunk - irrelevant as to whether D left the scene/accident
o Scopes Money Trial
▪ Scientists saying it’s a valid evolutionary theory
▪ Judge says its irrelevant
• Whether or not it is a valid theory doesn’t matter – you cannot teach evolution even it is a
valid theory. Therefore, irrelevant.
▪ Seen as a substantive law issue that is controlling
RULE 402
General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal
statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.
Relevant evidence is admissible unless otherwise stated
• Excludes irrelevant evidence and makes relevant evidence admissible
• Even though something is relevant, it may be excluded based on:
o 1) Constitution – like 4th amendment defective search
o 2) Statutes
o 3) National Rules – evidence, civil procedure, criminal procedure
• United States v. Lowery (11th Cir.)
o Defendant argued that evidence of his former accomplice while relevant should be excluded given that it is in
violation of a FL Professional Responsibility rule (witness being paid aka bribed)
▪ State rules are an invalid way of excluding evidence
▪ But then argues – the state rule is actually federal law because the federal statute was enacted before the
case that a prosecutor is bound by state rules of professional responsibility (McDade Amendment)
• McDade Amendment: federal law making state ethics rule applicable. Federal lawyers shall be
subject to the state laws and rules in each state in which the lawyer practices. Has no consequence
on evidence rules because ethics rules only deal with professional responsibility sanctions and not
evidentiary rules.
o Court: Still invalid method of exclusion – although it is a federal rule, it is a federal rule of professional
responsibility – not an evidentiary exclusionary rule
▪ Not all federal law is an exclusionary law
o Holding: A state rule cannot be the basis for excluding evidence for relevancy. Federal law determines the
admissibility of evidence in federal court and the list in 402 is exhaustive.
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.
A relevant piece of evidence may be inadmissible because of the 403 balancing test – which is a balance of the probative
value and the prejudicial bias of the evidence. Experience informs determination of how probative evidence may be.
Can’t make objections re: (1), (2), and (3) in a bench trial
Evidence of consciousness of a weak case (i.e. destroying harmful doc)
o May be admissible. Typically the doc must be relevant to the case and the party who destroyed it must have
had notice both of the potential claim and the doc’s potential relevance. (shows deliberate attempt to hide)
If the balance is close, the judge should admit the evidence.
o Exclusion totally deprives a party from offering probative evidence but admission can be limited by redaction,
limiting instruction, etc.
Key to balancing: only exclude if these bad factors substantially outweigh the probative value – the scale is tipped in
favor of admissibility.
o Presumption in favor of admissibility
o This is because exclusion is considered a drastic remedy – and an alternative (albeit overly optimistic) is giving a
limiting instruction
Substantially outweighing
o If the evidence is strongly probative, then it is rarely excluded
o Example: Felon Gun Possession Case
▪ The case is about construction possession of the gun
▪ The government wanted to introduce evidence of a prior sexual assault
• Argue: it is probative because it establishes he is a felon
• Question though: how probative is it?
o Almost 100% - it is absolute proof of an element of the crime.
• But – it is also 100% prejudicial
▪ What can the defense do in this situation….(stipulate that defendant is a felon but don’t say what the
felony is)
o McQueeney – boating case and “fraudulent”/false deposition
▪ False statement as prejudicial
▪ Court of Appeals: unfair prejudice shouldn’t be confused with what is adverse to the other party. Here,
was extremely probative
o Stipulations
▪ Bilateral – only do it if there is mutual benefit
▪ With evidence, it is often not a good idea:
• 1) bloodless stipulation – fact gets instructed to the jury.
o Evidence on that point, thought, would be much more colorful and provide more
information. So you worry a stipulation will take away the fair weight of your evidence
▪ Example: D had shooting incident with police officer and then fled. The evidence of
the flight was probative. Defense will want to stipulate that he fled the situation. But,
the government won’t accept that because this was a FLIGHT, not just fleeing.
• 2) crafty stipulator agrees to one fact but the fact proves more than just that fact.
o Example: government calls a witness who saw the murder.
▪ Defense may stipulate that he shot the victim, but the government will want to show
how he shot them.
• 3) Juries expect proof and want to see witnesses
• Courts will generally uphold rejecting stipulations in child porn cases
Old Chief Case – can’t reject that stipulation
• All felonies have the same probative value – so accepting a stipulation does not lessen the value
because it is a sole fact sitting out there, therefore no deprivation
• Becomes a 403 problem
o In assessing probative value, you can’t assess that in a vacuum – need to consider
evidentiary alternative
o Here, stipulation is an evidentiary alternative – and it is exactly as probative, but a lot less
• Since Old Chief:
o Case where a defendant had several felonies – cannot introduce felonies for what they
were; instead, say felonies.
▪ Amount of felonies isn’t more probative than 1 – unless the statute says something
about it.
o Can I say person prohibited from possessing guns and not mention the felony conviction?
▪ Obscuring and less probative value
▪ This is trying to get too much out of old chief.
• 403 doesn’t say prejudicial evidence is excluded; rather, look at if you can do something that
would limit the prejudice
• Robs proponent of the ability to tell a full story
Unfair Prejudice
o Something that the jury uses not for its probative value.
o Can’t just harm you – but substantial harm
o Do we only worry about unfair prejudice in jury trials?
▪ In bench trial, judges hear the motion, and aren’t as confused as jurors
▪ So bench trials streamline the case.
o Example of evidentiary alternatives (failing): Torres Case
▪ D was charged at shooting border patrol officer
▪ The officer goes back to border patrol, pulls out a book and does an identification.
▪ It is the process of identification that is at dispute because of the prejudice involved. Defendant was
identified from a book of mug shots with priors written there.
▪ Defendant argues that don’t need book at all, because the evidentiary alternative is asking is the person
who shot you here today?
• Arguing unnecessary prejudice for no more probative value
▪ Two pieces of evidence as potential evidentiary alternatives to the book:
• 1) in court identification – could be made
o But:
▪ Process of elimination – you know its not anyone in the jury, judge or the prosecutor.
▪ Not a fair identification procedure at all
▪ not as good as if you made the identification an hour after the event
o Under Old Chief, it doesn’t go away – so in court is less powerful.
• 2) introduce the picture, instead of the book
o Ask: did you identify this picture?
o But:
▪ There is value in the context
▪ Not as much weight to just one picture, than if they picked from a batch
• So evidentiary alternative fails here
▪ Next alternative is controlling the prejudice of the book
• Put duct tape over the priors, then you won’t see the bad things he did
o Trial judge reversed this under 403 – this remedy put more prejudice
• Capra: there were ways to eliminate the prejudice
o Duct tape everyone, then you don’t see any priors, and the front page
o Some prejudice is okay!
Procedural Issues
o Result of a 403 Motion
▪ When you lose a 403 motion, evidence is either admitted or excludes, changes of winning on appeal are
limited – no de novo review
▪ Question on appeal: Did the judge err in such a way that a reasonable person wouldn’t have ruled that
• You look for if the evidence had been admitted, would it be the same result
▪ there can be error
• Torres Case: miscalculated how to limit prejudice
• If something is treated as either probative or prejudicial, but it is not – or saying something is
prejudicial when it is not unfairly so; or did the balance wrong.
o Example: P paid witnesses to testify and defendant wants to introduce that
▪ Judges says its prejudicial to P. But that is an error because it is not unfairly prejudicial
o Example: D calls alibi witness and judge excludes because doesn’t believe them – you look
like a liar
▪ The judge here is assessing value based on if the jury could believe – not on their
▪ Probative value being confused with credibility
o Abuse of discretion standard
▪ Very broad
▪ But, situations where this standard isn’t applied and get plain error
• Crisis of justice
• It is considered plain error if you don’t object
o Why require objection?
▪ Judge has an opportunity to rule and other party can respond
▪ If didn’t object, judge should have excluded it even though I didn’t say so – that’s not
• Something that isn’t common in trials that judge acts on their own
• emphasizing they must have done that
• Why doesn’t a judge exclude evidence when no one objects?
o Leave it to the parties because the parties have a strategic reason for
letting the evidence in
o No body makes an objectionable objection
▪ may think failure to object is a way to hide it for appeal
• Don’t want judge to rule and may go the “right” way and you just want to get
an appeal anyway
▪ Objecting in a timely and specific way is necessary
• Have to say something to draw to specific attention to it
o Address 403 issues through a Motion in Limine
▪ In front of the judge – often at a hearing
▪ Ruling and hearings value –
• 1) stall that evidence gets introduced and then get a motion to strike
• 2) Parties together want it to – helps settle
• 3) Might want to know if its admissible – strategic issues you may have
o Staircase: counsel – need to know if will admit. If will, will mention in opening argument but
if you don’t, I wont bring it up
▪ No right to in limine ruling
▪ Something can look iffy and keep it to decide at trial
• that is not an abuse of discretion
The application of 403 to particular areas
o 1) Day in the life films
Civil Case where P injured by D – want to introduce day in the life film to show plaintiff in their daily life
and how the loss of an arm impacts him – see pain and suffering
• D: wants to keep this out – so powerful and more than what can be presented by just stating the
impact – tugs on the jurors’ heart
• 403 excludes: super emotional and evidence can be presented/proved in other ways; this does not
increase the probative value.
o But P argues it Is necessary to prove damages and 403 isn’t a rule that says to use less
effective means of evidence – therefore, it is probative.
• D can also argue that it would need to be edited it is really is just a day in the life, make sure
snippets are not misleading, make sure the day that is picked is not misleading; effects of
filmmaking aren’t leading
• Bottom line: the plaintiff must preserve material they edit out for D to see on a concept of
completion – has to be a typical day cannot be an extra day
o And then it is admissible
• 403 is marginal protection – can use motion to bifurcate
o Liability phase of trial first and then damages. Only get to damages if liability is found.
▪ Not summarily excluded though – but grounds for objections are there
2) When plaintiff is deeply injured and may cause a disruption
▪ Plaintiff has occasional episodes
▪ Risk of disruption during expert testimony on behalf of Defendant
• So defense wants to exclude the plaintiff from the court room. Plaintiff argues 403.
o Prejudicial effect that it takes out probative value
▪ Is there even probative value? So is it 401?
▪ Is the plaintiff evidence? Plaintiff is not being presented as evidence – just there as
o So 403 is the wrong rule – plaintiff is not evidence
▪ Defendant can ask judge to use inherent authority to control her court room and make sure tribunal is
• But plaintiff has right too – due process to take part in your proceeding, 1st amendment to be
present in your proceeding; right to interact with your attorney
• Not an absolute right
3) Criminal Cases – Gruesomeness
▪ When the government wants to present gory victim photos or videos and defendant wants to use 403 to
regulate that
• Uses Old Chief argument – if trying to prove they are dead, will stipulate that they are dead
o But photo can be used for other purposes – corroborate the story, consistency with forensic
evidence, or lack of forensic evidence.
o So while it is certainly prejudicial, it is also probative.
▪ Example:
• 1) D didn’t want gruesome video
o Government theory was trying to prove the defendant staged a murder from a gang, so
wanted to bring in video to show similarity of what they wanted the murder to look like
• 2) if defendant shot the victim but claims it is an accident, the government will want to bring in the
picture of the victim with 3 bullets to show that really wasn’t an accident
▪ But there are limits to this: Unnecessarily prejudicial – concern with going overboard
• 1) Terry Case – over-doing it
o D claims its an accident, but photos show a more prolonged activity; government has
multiple pictures
o Government wants to enter the autopsy to show the extent of an injury – but doesn’t work
under 403.
▪ It is cumulative to show how the injury occurred – so not probative
• Shows how the body changed – so really just prejudicial
• Clearly government wanted to just make jury more made
o 2) Sarracino
o While the appellate court may find harmless error, they didn’t here.
4) Alternative Perpetrator
▪ The defendant was arguing that he didn’t commit the alleged action and someone else affirmatively did
it. Defendant wants to introduce proof on that point.
▪ 403 issues:
• Probativeness
o Just because there is evidence someone else did it doesn’t preclude your involvement
o Must determine the foundation of the allegation/the evidence at hand.
• inefficiency - trial within a trial
o Defendant can argue that this is proving I am not guilty
• No abuse of discretion on the grounds that it is distracting, confusing.
• Prejudicial effect: may be prejudicial and inflammed against the other group
o But issue of prejudice to a third party Is not correct under 403 – suppose to be a party.
▪ RULE: D just needs to lay some foundation
• And that is determined by the judge
▪ In McVeigh Case, another conspirator may have done the crime.
• To determine probativeness, look at how much evidence the defendant has
o What is the foundation for that conspiracy? What foundation do they have?
• here, the judge uses a harsh standard of foundation here – this isn’t enough.
▪ 10th circuit case – case regarding “how much”
• D lived with 4 people and wanted to point to one of the other people he lived with as an
alternative perp for child porn – wanted to introduce evidence that they lived in the same place.
o Trial court found it was not a sufficient foundation – even showing that one of them used
the computer a lot, at or near the time of the downloads, it is not enough
o 10th circuit: actually, it is enough. There is a strong nexus between the place and the crime
▪ Holmes v. South Carolina: Not a 403 case
• Relevant state rule: if you are pointing to an alternative perpetrator, you are barred from doing so
regardless of the foundation if the government has forensic evidence that you did the crime.
o Idea that forensic evidence is better… but there are several things wrong with this statute:
▪ 1) no grading of the strength of the foundation that the defendant has
▪ 2) no challenge that can be made to the forensic evidence
▪ 3) assumption that forensic evidence is reliable even though in large part may not be
▪ Statute is arbitrary and no flexibility, and on the false premise that forensic evidence is
• SC holds (Alito opinion) – constitutional right impacted of defendants right to effective defense
o Before this, Justice Marshall stated – right to fair trial and effective assistance of counsel
5) Reading Material
▪ Shymanovtiz Case
• D was charged with sexually abusing under-age boys
• Government wants to enter evidence of gay porn
• D argues 403 violation
o Government argues this is probative and the prejudice is outweighed
• Gets reversed – appellate court finds that the trial court erred in finding the material relevant
o it is a leap to go from adults to children
▪ Probative – minimal but yes.
▪ Prejudicial – super – unnecessarily giving up
o Capra – didn’t err in finding it was relevant
• super over-board
Cannot admit someone’s library against them because of the first amendment. Reading material isn’t
admissible against them.
• Does this apply to internet history?
• Writing?
▪ United States v. Curtis
• Government wants to introduce 144 stories each about sex between men and girls to show intent
• Probative value of reading material
o 144 stories is pretty probative
• 1 time, government tries to get all 144 stories read to the jury
o Judge: unduly delay – so no.
• 2 time, read them 5 stories – say proffer of the stories
o Trial court found error in not screening the library material for unduly prejudicial material
that had nothing to do with probative value
• Procedural rule of Curtis - 9th circuit: have to reach every word and can’t just look at a proffer
• Then, judge retried the case and wants to avoid a reversal so only does 1 story.
o Reads every word, cuts of prejudicial words. But over does it
▪ Story read to the jury was then PG related
▪ D on closing then says the government didn’t admit story that shows intent to have
sex with children
▪ Government: D takes advantage of the ruling and misrepresents and opens door to
what was inadmissible so now can show the existence of the other stories
• This was not error – because defendant opened the door and you cannot
complain if you open the door.
6) Rap Music & Videos
▪ When defendant was in one or has one – to show as an expression
▪ Depends on the connection between what happens in the video/song and the crime itself
• Examples:
o 1) D sends a video about murdering people and his favorite gun
▪ Was charged with breaking and entering into a store
▪ Not probative to state of mind because happened 5 years ago
o 2) When incarcerated, D did a rap video called rates and named 3 people and said “if you
talk, you will die”
▪ Shows bad intent
▪ Capra: that is a threat with music to it.
▪ Writing is more probative than having a video or song
▪ If it is close enough to the crime, can get it in under 403
• But if it is unrelated, it is likely to be excluded under 403
▪ Facebook post example
• Rap lyrics of someone else
• Admissible to show gun possession because shows state of mind toward guns and would have to
protect themselves
o relevant, under low standard of proof
o Not unduly prejudicial because it is about the crime that is charged
▪ Being afraid is not prejudicial
7) Internet searches about a crime charged and how close to the crime– go under 403 too
▪ If you poison someone, and had searched how to poison someone and how to make it untraceable:
▪ There are first amendment issues but if it is tied to what is being charged, it is more likely to be
▪ How tos – generally admitted, unless totally different
8) Showing an accomplice plead guilty
▪ Government cannot introduce another person’s guilty plea to show that the D is guilty under 403
9) Calling the guilt plea-er as a witness
▪ Introducing guilty plea of other co-D
• Every federal court: government cannot introduce 1 person’s guilty plea to show other person’s
guilt under 403
▪ Calling guilty pleader as witness
• Government can introduce plea agreement on direct to “take out the sting”
▪ Defense counsel may not wish to introduce plea agreement
• May lead to inference of guilt for own D
• But if witness testifies that present, jury may think prosecutor being selective
o Government has legit reasons for bringing evidence of plea in
o Because otherwise people deeply confused why person admitting to crimes but not in
10) Yankees case
▪ In RI, there was an eyewitness description for a defendant who robbed a bank. It included a description
of someone with a yankees jacket.
• Argued 403 – unfair prejudice to jury to say yankees.
o Question: is this a legit, non-probative reason?
▪ Here, the prejudice doesn’t outweigh the probative value because the eye-witness
testimony does stuff for the identification.
11) Similar Circumstances – proving causation from another event
▪ trying to prove how this disputed event occurs by proving another event that isn’t at issue in the case –
this other event happened in this way therefore this event happened that way too
• Issues:
o Trial within a trial
o juries can be confused with what they are trying
o becomes about determining how similar it really is
▪ D highlights each dissimilarity to diminish probative value
• So judge has to sort through what is really dissimilar
▪ Nachtsheim Case – Airplane Case
• One accident was a jet plane and another was a propeller – arguments about similarity and
• Key factor: there was some dissimilarity
• Biggest problem here: the other accident’s cause hadn’t been determined
o The cause of it being because of a frozen elevator was still disputed
o So if the evidence was allowed, really would be about trying THAT case
o If there had been a finding that the frozen elevator was the cause, the case would be easier
for the plaintiff to win on similar circumstances.
▪ Medical Injuries
• P is trying to show similar circumstances; D will show how they are dissimilar
• Voyox Case
o Question: the level of dissimilarity in these cases
▪ There were enough
• Also difficulty with causation
• judge will prevent in to show similarity
▪ P: not trying to show causation – but want the evidence to prove notice
• Notice to the company that folks can die; they continued to market drug
knowing its problematic - Reckless marketing of the drug
• Element of a different kind of claim
▪ D: may want prove with other evidence but will show they died
• So how probative is it of notice?
Jury not use for causation even though told not to
Not permissible for notice if the heart attacks occurred after “mine”
Don’t get notified in the future, only in the past – so P can only introduce those
that came before his and that would be true notice to the company
▪ Sometimes also bring up general notice – knowledge of other events, that D wasn’t involved in, that they
should have known about
• Usually, standard isn’t as high for these cases
▪ Admit evidence that there was no accident
• Pandit v. Honda
12) Demonstrative evidence
▪ Overview
• Conceptually a lot like similar circumstances cases: wanting to prove how something happen via a
demonstration. But, no two events are identical and it is difficult to recreate something
• Bottom line: to convince judge, have variables that favor other side
• Example: Defendant wanting to do a demonstration
o D is charged with being on a boat that was importing marijuana
▪ D was on the top of the boat and claimed he didn’t know the boat had marijuana
▪ When he signed on a deck hand said he hated it and wouldn’t go on it – thought it was
▪ But marijuana doesn’t smell like furniture
▪ So asked to have them sniff
• Problems – quantity is different – less and only one bail left
o Point: for demo there will be variables – the way to persuade to admit, have variables in
favor of the other side so they can’t complain
• Example: P in Brooklyn walking, alley where truck backs up and runs her over
o There was a backup beeper that P should have heard but there is a dispute: as to how it
▪ D records it in that alley to “demonstrate”
▪ When its played, beeper is pretty evident
• But, there are variables not accounted for: location of the sound, time of day,
ambient noise, filtering mechanisms
▪ Many courts would find this problematic, but others would say if all the other factors
are fair I can instruct jury – regarding difference of position
▪ Video Demonstrations
• Fusco Case: Ball disengages
o Issue of problematic variables
▪ Driver is a professional driver
• Variables you can change versus cannot change
• So question of what you can change - this is probably one you cannot change
▪ Variable that you have to have sympathy for
• Bolts disengage at random
o Excludes under 403 as demonstrative
▪ Probative value: these variables are so great to diminish the probative value as to why
it happened
▪ Prejudice: confusion to jury; unfair prejudice because jury will give the evidence more
weight than its entitled too and think it’s more probative – getting jury off
o Can try to get it in as another reason – expert
▪ will use as teaching aid to experts and help the jury understand what the expert is
talking about
▪ Illustrative Aids
• Examples: power-points, ledger, pie charts, ladder
Fusco Case: D argues that the demonstrative is needed to show the jury how it works
o But P: its not evidence: its an aid for argument and to make expert testimony more
o Illustrative aid – so not 403?
▪ It actually is being offered for jury consideration – so presents 403 issues in a different
kind of way
▪ The probative value – how far it helps the jury understand things – will depend on a
number of things
• 1) how fair it is
o Not very illustrative here – because the expert is saying this is how this
works – but all you see is the outside of the car and not the inside of it
▪ Important to remember – if presented to the jury in explaining testimony, jury cannot
take the aid into the deliberation room
▪ Because its not evidence – jury when deliberate can look at the admissible evidence
so cannot go to the jury
▪ If that video had been admitted as a demonstrative could go in but not as an aid
o Case where claimed ladder had defective design
▪ Judge let it back into the jury room
▪ 7th circuit found abuse of discretion and jury shouldn’t have gotten it
• Gilbert: good use of illustrative aids
o Showed a video about how a car seat works in an accident by showing the car seating with a
fake baby and lands on a brick wall
o No one will mistake that as prejudice
Criminal Cases
• 1) Case 1: late at night on Carribean – no moon, dark, midnight
o Coast guard boat comes by another boat and then two guys jumped into the water and
started swimming away
o Coast guard found the drugs and hunted and found the guys on the beach all wet
o D argue – the light used was too weak to get an accurate identification
o P – bring the light into the courtroom, black out everything, and shine the light at a 35 foot
distance and let the jury look at it and see how strong the light is
▪ but can’t shine the light on the D because would be prejudicial
▪ just shining light into the corner
• 2) Case 2: D charged with shooting wife
o D says I didn’t do it – idk what happened – 2 year old boy instead?
o So presents a demo – take boy and give him the gun (like the murder weapon) – try and pull
▪ But doesn’t have strength to do that
▪ But the murder weapon could be defective
o Big variable – kid is different – he is older now at trial and should be stronger now but still
didn’t work
▪ So judge allowed it
Special Relevance Rules
RULE 407
Subsequent Remedial Measures
Civil cases only
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: negligence; culpable conduct; a defect in a product or its design; or a need for a
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.
Grounded in social policy (arguably)
o Cannot offer evidence to show that defendant made subsequent fixes to prove that the defendant is admitting
fault or strict liability
▪ Why not?
• 1) will prevent people from taking those remedial measures – we don’t want a lack of an evidence
rule to effect a remedial context
o But: who thinks of an evidence rule when they act?
▪ So this is about protecting corporations, not the little guy
• 2) future accidents
• 3) probative value arguments
o Probative value may be diminished in some cases
• Capra: this policy is pretty weak. Evidence rules are not things that affect most people, though
perhaps corporations would consult attys and learn the rules and act accordingly. Whether there is
a rule or not, things are going to get fixed out of concern for subsequent liabilities. This is really a
windfall for corporations. [Alt rationale? Subsequent remedial measures might confused the jury.
Just bc you fixed the stairs bc someone fell through it doesn’t mean you didn’t know about it
o The admissibility of the evidence is determined based upon what purpose it is offered for
o It is inadmissible if offered for:
▪ 1) recognition of fault in negligence
▪ 2) recognition of defected product
▪ 3) design defect
▪ 4) failure to warn
o But if offered for another purpose, court may admit it.
▪ Defendant can still bring a 403 argument
o So the inquiry:
▪ 1) proper purpose?
• If proper purpose, must actually be in dispute
o Cameron v. Otto Bock (1st Cir) – π sought to introduce evidence of Dear Customer letters
sent after the accident as proof of feasibility and control. However, these were not in
dispute. Thus, excluded under 407.
▪ 2) how probative is it/how prejudicial is it (that jury will use it for bad purpose)
• Prejudicial effect might be that the jury might use it for an improper purpose.
• If proper purpose, the evidence is rarely excluded.
o Purposes are so narrow that it is unlikely that 403 will work
MEASURES – after an injury taken by the defendant to remedy the problem
o Does not apply to events prior to the damages give rise to the action
▪ No social policy concern b/c already fixed.
▪ Note: ∆ can argue 403 but it’s probable going to be admissible b/c it’s probative.
Change that would make the event less likely to occur
Broader than “repairs” – any act that before the event would have made it less likely
▪ Repairs to a defective design
▪ Design changes
▪ Change in rule/policies
▪ Any process that is changed
▪ Can include: staffing issues – like firing people- or reduction in speed of a train
o But – has to be an action
▪ Considering a change is not a change, thus not covered/excluded by 407
o Example: D sends engineers to investigate the product
▪ Write a report that says its defectively designed
• Defendant says this report is protected by 407 because it was prepared after the accident. But it is
not a measure or action taken – it is a piece of paper. Had the design change actually happen, that
would be a measure.
• so: reports and suggestions for changes are not protected, just actions themselves.
o Rule of thumb: recognizes probative evidence, social policy, do not want Ds exploiting the rules or acting
strange and then trying to hide behind this rule.
o 1) Showing ownership or control
▪ Example: D says that P is suing the wrong party. But P has evidence that D changed something to make it
better after. You wouldn’t fix something you didn’t own.
▪ Why ok? ∆’s defense is not fair – the rule is supposed to be protective. Social policy underlying FRE 407 is
also not present here b/c not protecting or discoursing anything.
o 2) Feasibility
▪ If π offers an alternative, rsbly safe design, π must show that such a design was feasible. One way to do
this is to introduce a subsequent change that ∆ made. But this is only permitted if feasibility is disputed,
which often ∆s don’t do / just stipulate.
▪ There was something known at the time that could have been done and was not prohibitively expensive
and wouldn’t have changed the character of the product
▪ The defendant may want to argue infeasibility – but they usually concede this on the outset, so it is not in
▪ Example: Cameron Case
• P is getting prosthetic limb, but D allegedly tightened it too much and then P was injured
o Blaming manufacturer because of lack of instructions on this
o After this incident, the manufacturer made the instructions more wholesome
• Thus, P wanted to show letter was feasible
o D at the outset stipulates that – so takes feasibility out of the case.
▪ Stipulating at the outset – are there any defenses left for the defendant?
• D can argue:
o Reasonableness – didn’t have to do it/doesn’t mean they are required to do it
• Classic Case: P suggests change and D says that was feasible but not required because the product
was fine.
o But 407 protects not having a duty while stipulating feasibility
▪ Example: Snowblower
• P is injured after trying to take the snow out of the snow blower. After the accident, the D changed
the model.
o Is it feasible? Yea sure. But was there a duty to do so?
o 3) Third party repairs
▪ Not covered by FRE 407. That said, may be FRE 403 issues.
• Cts say social policy is not at issue here. Third party changes don’t protect the ∆.
▪ Capra: should be covered bc the rule just says “measures taken.”
▪ Example: Suing for defective design implement
The road construction company that owned the grinder brought it into their shop
o The plaintiff wants to introduce this action of the road company.
▪ This is a third party repair – not at the heart of 407 – but most courts admit it
• The rule itself lends itself to third parties being excluded
o But “measures taken” doesn’t specify by whom
o So should we follow policy or the rule?
o 4) impeachment
▪ Only permitted to show subsequent changes to rebut really outrageous claims such as “this is the safest
product every made,” and not “this is a safe product.”
▪ Example: P says I am offering this evidence to impeach one of the defendant’s witnesses
• Trying to show the witness isn’t believable
• At issue here: impeachment by contradiction – witness makes factual statement that can show it is
not true and from that it impeaches their testimony (if they are wrong about this fact, they can be
wrong about other facts).
▪ But fear that defendants can go nuts… so Impeachment isn’t allowed with subsequent remedial measures
except when making extravegent claims
Disputes regarding the meaning of contracts
o Can 407 apply to contract changes?
▪ Social policy:
• Would policy of 407 apply to sharpen the contract versus design of the product
o This is about bargaining power – but also injury as a breach of K
o Fair to say when drafted had K in mind, but didn’t exclude Ks either
o Can qualify language wise
• Is the bad policy of 407 equally bad if applied to K?
o Yes it is
o If will be introduced against them,
o 3rd and 7th circuit held it applies to K
o Breach of K case where 407 was applied.
▪ Π employees brought claim under employment K, contending it was unclear. After suit, employer
modified the clause to make the unclear clear. Πs wanted to introduce change to show that employer
also believed the clause said what πs believed. Ct applied FRE 407 and held that the K change could not
be admitted.
▪ Breach of K is an “injury” → seems to be included under FRE 407
Rulemaking and Restyling as applied to 407
o The use of bullet points
▪ Caused controversy: practitioners were not in favor because you can’t cite to a bullet point. They
recommended subdivisions, but the rule doesn’t really lend itself to that because some of the bullet
points are just 1 word. Others thought it looked neater and set the issues out better.
o Use of “But”
o Passive voice “when measures are taken”
▪ Conflict in the courts regarding third party involvement
• Advisory committee, when restyling, cannot make changes that would substantively change the law
in any court. Changing to clarify third party repairs would so there was no change and language
remained passive.
o Brought the rules up to technological times – electronic versions are admissible
RULE 408
Compromise offers and negotiations
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:
• (a) 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
• (b) 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.
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. (e.g.
perjury, breach of settlement agreement)
o Promote settlements
o Relevance issue – fact that you settled for an amt doesn’t mean that’s what you think it’s worth.
Dealing with compromised evidence of 2 kinds:
o 1) offers to settle cases from the plaintiff or defendant
o 2) statements made during settlement negotiations (concessions made during the course of settlement.
o Why is it inadmissible?
▪ 1) P says they will settle to $5000. Settlement doesn’t happen and then later sues and asks for $3 million.
• Cannot introduce evidence to the jury because the jury will hear the discrepancy and think it
reflects actually what the plaintiff thinks about the value of the case.
▪ 2) fear of getting into settlements – or at least settlement conversations will be very guarded.
FRE 408 is inapplicable when evidence of the compromise is offered to prove notice
Always think of the policy
5 problem areas with applying 408:
o 1) Need active dispute between the parties to be protected – but doesn’t need to be formal litigation
▪ Example: Alpex Case
• Alpex thinks other party is infringing on their right (IP)
• Defendants wants to use that letter from Alpex against them on the grounds that they are asking for
like 3x as much
• 408 would apply here – but, can 408 apply to actions that are pre-litigation in terms of formal
litigation being brought?
o If only applies if litigation was around, that would only deal with settling litigation and so higher
social policy reason to extend to BEFORE formal litigation
o But creates issue – what is the line?
▪ there needs to be a triggering point – need active dispute.
▪ Difficult to find if they are in dispute but not here
o Here, the question is of whether there is a dispute
▪ Might be that D doesn’t dispute that but what is known before lawyer sends letter like
that – conversation
▪ So clear that at letter P says yes infringing and D says no infringing – so, here there is a
▪ Example: I’m sorry I ran you over, how much do I owe you?
• Lawsuit happens, and plaintiff wants to enter the statement
• 408 doesn’t protect the defendant because no dispute. There was no issue since D said I am sorry
how much do I owe
o 2) Applies to not only the litigation at hand, but in all related litigation
▪ Policy: if can only bring evidence from relevant case, then they would have only sent 1 letter.
Example: Alpex
• The letter from Alpex is inadmissible under 408 – but then D wants to show letter from Alpex to other
parties, to show attempts to settle other litigation – so wants to introduce same letter just to
different parties.
• Allowed.
▪ Example: window manufacturer screws up windows
• All the same window - wants to use evidence of settlement from other cases
▪ Third party
3) Defendant cannot use own statement or offer
▪ 408 cannot be waived unilaterally – applies to both parties
▪ Question: A says I will settle for x amount, doesn’t settle, and then tries to use statement in trial – D makes
statements and offers to settle – so what if its their own statement? What if you want to use them in your
▪ Advisory committee decided to rectify dispute – amend rule to try to rectify conflicts.
• The defendant cannot use offer or statement
o Concern: D will make offers not to be accepted to just to show evidence of good faith. Would
just be bad policy to allow parties to use rule strategically to confuse juries.
▪ Example: Pearce Case
• Age discrimination – Pearce let go with promise that may come back
• D offers to settle giving job but won’t give back unless settle case
• P doesn’t want to introduce that – but D wants to – why though? What is goal?
o Show they are trying to settle – they are in good faith
o But also offer to settle is consistent with defense
o Mitigates P’s damages and alternative forms of employment mitigate damages and that is what
this is
o So, lots of value for d
• But question: should 408 apply?
o No – defendant cannot use own statement or offer
4) Does 408 protect against criminal cases?
▪ Rule got amended in 2006 - unclear if it should cover criminal cases
▪ Situation: A (client) sues B (securities trader) for securities fraud and wrongful conduct with lose of
significant money.
• B settles private civil matter, and in that has to confess he did the P wrong because the P won’t
accept settlement until that.
• D is indicted for that same conduct and government in its case in chief wants to admit both pieces of
evidence – that they say I’m sorry I violated and the settlement itself that they are at fault (or at least
probative of it)
▪ Why should it cover criminal cases?
• Policy: encourage settlements and on top of that – no way to have agreement out of criminal
o Why would it deter settlements if it could be used? Because you know it could count against you
in criminal trial – wouldn’t make statements necessary to settle
▪ Lots of overlap in tort context in criminal and civil context – not as much K law
• Consequence – detriment of Ps in civil cases
o Want recovery and don’t want to be in litigation forever – but won’t be able to get it if can’t
protect criminal case – so they wanna wait until SOL on criminal case run out
o So deferring justified recovery of Ps in civil case
▪ DOJ needs to be consulted about the change on this – and in terms for rulemaking they are on the
committee and influence on the Hill and Congress – and rule effects them dramatically
• Advisory committee told DOJ official – what rule do you want? Yes admissible or not?
o They said: will get back to you – every DOJ official says EVER – none are free actors at all
Took a year and half to get an answer – turns out department was divided because department
has a civil and criminal division
▪ Civil wanted it not admissible – so they can settle
▪ Criminal – wanted it to be admissible
• Attorney general decided in favor of criminal division
o Public comment was very negative
• then DOJ knew had to step back
o so settlement itself won’t be entered
o what about statements tho?
▪ Lawyers said its too hard to divide those up – other side won’t settle unless D says they
are wrong
▪ So department gave that up – so statements are out too
• So what is left: an internal revenue agent talking to a guy re taxes – only regulatory matter and not
criminal matter – little guy says im sorry im a tax cheat – then tried criminally and says I haven’t
cheated on my taxes – so should be worth something – so a different thing
o So don’t say stuff to government official and then saying stuff at trial
o If trying to settle regulatory matter, a statement said is admissible in a criminal matter
o This one little exception
o Compromise
• Civil lawyers concerned about this exception though?
o Turns out lawyers were mostly white collar and not considered
▪ Why?
• Smart enough to tell clients not to say anything
• And smart enough to tell government not to talk to client
▪ Rule is pitfall for folks without representation
5) Inconsistent statement impeachment is not allowed
▪ Policy: not lying under oath
• But, its often like puffery - just throwing things out there.
• It is very hard in 2 separate circumstance in the same matter to make absolutely consistent
statement. Details will differ and may be explicable and if impeachable inconsistency is allowed can
make someone look like a liar
• If they are boldface lying, there are other remedies
▪ Example: Car accident case
• Question of whether D was speeding thru intersection
• During settlement and discussion, D says: I don’t remember looking at speedometer but I had a
feeling I wasn’t going that fast, so claim is unjustified.
• Then, the case doesn’t settle, and goes to trial and says I looked at speedometer.
• So at one time says I don’t remember and then says I do remember – wants to enter evidence not as
validity but for inconsistent statement.
RULE 409
Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury
is not admissible to prove liability for the injury.
Offer to pay medical expenses or payment – cannot be used as evidence of liability
o Example: D tells P I will pay medical expenses
▪ P wants to enter as evidence of guilty
▪ Policy: if we allowed this to be introduced, people wouldn’t pay but we want people to offer to do this.
Very narrow rule
o Doesn’t protect anything else
o Example: D runs over P, runs P over.
▪ D says I am sorry I ran you over, I will pay your medical expenses
▪ So what is admissible?
• Technically 2 statements
o I am sorry I ran you over is admissible
o But the second isn’t
• First statement: not protected by 409, or 408 because no dispute yet.
Rationale: we want to encourage good Samaritans.
Rarely comes up under federal law.
RULE 411
Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted
negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice or proving agency, ownership, or control.
o Probative value is not high – not going to decide to run people over bc you have insurance.
o Also prejudicial bc jury can cost spread if they know about your insurance coverage
o Could deter people from getting insurance
o 1) Defendant is driving a car and runs down P (negligence) and P wants to introduce that D is insured
▪ NOT proper purpose: Wanting to permissibly show D’s deep pocket is not allowed
• While a weak inference, P wants to show that this shows that D was then more likely they negligent
• Prejudicial effect – jury will know about deep pockets
• Policy – don’t want to discourage getting insurance
▪ Therefore, cannot be used to prove fault
o 2) D is on trial for murdering his wife and government wants to introduce that he took insurance policy on her
for 1 million dollars – insurance to show fault?
▪ Doesn’t apply – not insured against liability – its life insurance but not liability insurance
RULE 410
Pleas, Plea Discussions, and Related Statements
(Criminal Cases)
(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; o3
• 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.
What does 410 protect against?
o When a plea agreement does not come to fruition, either because the parties do not agree to it or they agree,
and then D vacates the guilty plea and the trial judge allows, and the government tries to use what the
defendant said during plea negotiations.
Policy of 410
o If everything a defendant says is potentially usable at trial, then defendants won’t enter into plea negotiations,
would make negotiations a crapshoot, and would diminish their value
o promote candor and produce effective guilty pleas and discussions; please are not probative of guilt
1) 410 only covers conversations with prosecutors dealing with negotiating a plea – it does not cover statements
made while cooperating with law enforcement unless law enforcement is acting under prosecutor authority
o Policy:
▪ Police statements aren’t held – prosecutor doesn’t have to listen
▪ Any effort to cooperate being covered – would be too broad
o Hypothetical: D arrested for a crime – comes to Police station – police says it is good for you if you confess,
cooperation is good and will tell prosecutor. D says okay I will in the spirit of cooperation. But then seeks to
exclude it under 410. However, 410 does not apply.
o Example: Case where the government wants to admit a letter that the defendant wrote to the judge where he is
requesting substitute counsel, in which says like “I have always conceded and guilty.”
▪ 410 doesn’t apply because talking to the judge not the prosecutor
▪ The judge cannot take part in plea negotiations legally – so clearly wrong person here.
o Merrill
▪ Whether accused subjective expectations of the plea
▪ And whether those expectations were reasonable
2) Prior inconsistent statements from prior negotiations (protecting lying)
o Hypo: D makes proffer of involvement in drug case – doesn’t go anywhere – then says I haven’t seen drugs, I
hate drugs, not involved. Government tries to impeach with prior inconsistent statement in prior negotiation
o Udeagu case – 410 applies to trials, but not sentencing
▪ This isn’t lock-stepping of 2 statements. Rather, they are total lies
▪ Solution: try them separately for perjury
• Can use in a subsequent action for perjury
o Instead of now, use later
• But it’s a pain to bring a perjury prosecution – not a good result or answer
▪ There are consequences in this action because the judge will be made aware of statements made in the
proffer and judge in sentencing can take into account if they lied – preponderance of evidence on that
▪ Holding: 410 applies to trials, not sentencing where defendant has already been found to be guilty
• Government not happy with result…
Mezzanato Case – government seeks workaround to the holding in Udeagu
▪ Government gave defendant a waiver that said anything you say here can be used at trial if you speak
inconsistency – will waive 410 protections insofaras impeachment concerns
• The defendant signs voluntarily and there is no dispute
▪ But is this enforceable – in that can a defendant waive their 410 protections?
• D argument #1 – shouldn’t be a waivable right – too important to be waived and protected from
o Tough argument to make though because the Supreme Court said you can waive most
constitutional trials
• D argument #2: Policy of the rule is to keep wheels running in guilty plea negotiations
o So the defendant says if you give me this right to waive, makes it difficult and less free
▪ Interesting argument but doesn’t work in theory
▪ Supreme Court: we give you valuable right that will help you – giving something valuable up
at the offset and it’s a sign of good faith
• Here, by signing, the defendant gets their foot in the door to bargain so actually is a
favor and is a bargaining chip
• Supreme court: It is enforceable.
▪ But now we know it is like a contract of adhesion
• Before a word is spoken, a defendant has to sign this form before you start talking in a formal
negotiation- so not a bargaining chip but something to give up
• Not an agreement- just contract of adhesion which is unfortunate
▪ Mezzanatto -- ∆ can waive this protection if he knowingly and voluntarily signs an agreement with the
prosecutor that statements may be used against him at trial for impeachment purposes.
• Mezzanatto-Plus Agreement → anything ∆ says during a proffer can be used in case in chief or in
rebuttal; can be used as substantive evidence even if ∆ doesn’t testify
▪ Capra: if knowing and voluntary, can waive 410 protection for more than just for impeachment
▪ FRE 410 protects against the use of these statements for impeachment purposes
▪ Exception: can be used in a subsequent perjury prosecution and at sentencing b/c sentence may be
increased if ct finds by a preponderance that ∆ lied on the stand (can make this determination with
statements from plea discussions)
Argument that defendants never intend to testify
▪ Criminal past afraid of impeachment
• Many reasons why they don’t testify
• Can sign without consequence and that upsets the government
o Has sought to have D exceed the Mezzanatto requirements
• So anything they say can be used as evidence of a confession at trial
o That will set you back a bit as a D – total waiver – most Ds wouldn’t exceed this and really
believe it will settle but it is for unusual circumstances and at the last leg – have to sign before I
talk to you – rare
o But is it enforceable? Yes – parties can freely waive into plea agreements and can leave it up to
• Narrower agreement -used with some frequency in the SDNY
o If you sign it, case in chief goes on – and nothing you say can be used – but you make an
argument or call a witness and in doing so can be rebutted by what you are saying, for proof of a
fact and not impeachment
o That witness can be rebutted with D’s statements at plea agreement
o Can also be – d counsel says in opening or closing that D is just a user – counsel can also be
rebutted by client’s own statement – can still say government hasn’t proven its case, to called
witness who are bad. But when you get into facts – criminal defense counsel needs to be aware
of the pitfalls here
o These us attorney’s go beyond Mezzanatto
3) 410 is a one-way protection that applies to only defendants
o Hypo: enter into negotiations and US attorney says – we know you aren’t a high level operative but also have
knowledge of where bodies are buried and we think you have info – goes to trial still, and prosecutor says – D is
the head of the drug conspiracy and no body sold without him knowing. D wants to admit and government
wants 410 protection – but they cannot because it is a one way protection.
o Capra: strikes him as wrong because you want both sides to speak freely – sees it as a hole in the rule.
o DOJ: asked for hole to be plugged.
▪ Capra looked at case law to see what was happening when prosecutors made inconsistent statements.
• Each court allowed for it saying it is within “the spirit of the rule”
▪ But with restyling couldn’t change a rule that wouldn’t affect courts substantive law.
o Better approach: 403 protects admitting government statement
▪ Probative value is greater than prejudicial value
o FRE 403 balancing may (and has) precluded admission. Some cts have said that the spirit of the rule protects
both parties.
o Ex: In plea negotiation, π says I know you’re not high up in the conspiracy but you have to give us the info
anyway. Then at trial, π claims ∆ is high up in the conspiracy.
Not a discovery rule
Character Evidence
RULE 404(a)
Character Evidence
(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:
o (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
o (B) subject to 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
o (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut
evidence that the victim was the first aggressor.
• (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
o Drawing inferences about how a person acted based on how they are as a person
▪ Parties try to then prove who a person is and then allow inferences on how they acted
▪ Application of circumstantial evidence – because D is a certain kind of person, they acted in a certain kind
of way
o 1) This is not relevant: parties need to prove conduct, not character.
o 2) Balance of probative versus prejudicial indicates it is not admissible
▪ Probative value: diminished
• Subjective evaluation
• Not credible/reliable because people don’t act in character all the time
• Incorrect presumption that you act predicatively based on your character
▪ Prejudice: increased – tips the balance against admitting
• Prosecution is just proving character and not action, which is the basis of the crime
• Prosecution may be proving they committed other crimes, rather than the crime at hand
• Bad inferences are very likely by the jury based on their hatred for what they did and finding this as a
chance to punish the defendant
▪ Study: 100 mock trials where evidence about P’s previous bad act was introduced in some and not in
others – verdict completely changed, indicating it is a big factor to the jury
Character versus habit
o Character: a person’s basic makeup
▪ More broad
▪ Rarely allowed
o Habit: how you act on a specific occasion
▪ More narrow
▪ Allowed to show conduct
o Example: habit is that you had a seatbelt on and character is that you are a careful person
o Can’t prove habit from character
Using character to prove action versus impeachment as a witness
o ALLOWED: One form of impeachment is showing the person has a character of lying in their nature. Idea is that
jury will infer they are lying now
o NOT ALLOWED: Character suggesting how they acted
When the defendant’s character is at issue/an element of the alleged crime
Very rare – used not to prove actions, but prove who they are.
Examples: Slander/libel is a character-based issue
▪ Schaffer: D is charged with defaming P’s character. D said P was a violent pervert and P says that is a lie.
Will need evidence to prove that
o CIVIL CASES - NEVER ALLOWED: Proving how someone is to show how they acted (therefore, all comments
below deal only with criminal cases)
▪ Ginter - Want evidence that he was honest person and therefore wouldn’t defraud
o CRIMINAL CASES – the government is never allowed to enter character evidence to prove the defendant’s
conduct BUT the defendant can enter character evidence.
▪ In a criminal case, character evidence of a pertinent trait of the VICTIM is admissible if first OFFERED BY
THE D, after which the state may offer rebuttal evidence as to the VICTIM as well as on the same trait of
the D. proof may be made only by reputation and opinion
▪ Michelson Case – Justice Jackson sets out the questions below
Character witnesses are not allowed – and the government’s fact witnesses cannot refer to the defendant’s character
o Nicknames – use of them by fact witnesses may be considered as a reference to the defendant’s character and
thus, may be excluded.
▪ Examples
• Farmer, whose nickname was “murder,” gets charged with murder
o Government brought up this nickname many times in trial
o Court: not allowed – violation of 404
• Williams Case - Government fact witness CANNOT refer to the defendant’s character even in an
indirect way
o The officer testifies about the circumstances of the arrest (the facts). In the course of doing so,
he says the defendant is known around town as “Fast Eddie”
o The defendant says this is an assault on his character but the government says no it is just a
o The defendant is charged with theft and speeding
o Appellate court: it was a reference to his character
▪ The government didn’t need to bring this up.
• Delpit Case
o Defendant’s nickname was “monster”
o There was a tape that would refer to that name.
o Government: if the jury didn’t the this nickname, the tape would be useless so they must tell the
jury the nickname – necessary piece of the background
o Defendant: the word “monster” is so persuasive
o Court: permitted because it was not to prove character – rather, was used for proper purpose to
allow jury to understand the tape
o The government may introduce a bad act for another purpose beyond proving their character
o Defendants can introduce character evidence – but it has to be a pertinent character trait.
▪ Must be tied to the character traits of the crime
o Example:
▪ Cannot enter evidence about the defendant’s honesty in a murder trial
▪ Cannot enter evidence about peaceable character traits
▪ Child Molestation
• D wants to enter evidence about how he acts well with children, etc.
• Q: Is this pertinent?
o A: No, because how one interacts with children in front of others versus alone can be very
▪ Gupta Case
D is a “big guy” at Goldman Sachs and wants to call character witnesses saying he is an honest
person, a man of integrity.
• Q1: is this a character trait?
o Court: No
o Capra: Wrong - Michelson case allowed “law abiding citizen” as a trait.
• Q2: is this pertinent to the crime?
o Court: No
o Capra: Wrong
Defendants can introduce pertinent character traits of the victim
o Seen in the context of self-defense and violence cases
o Rape shield laws prohibit this with sexual assault.
Defendants may introduce a pertinent character trait – but if they do, they are opening the door to rebuttal by the
government, giving them a chance to discuss the defendant’s character in a way that differs from before
o 1) Defendant controls how open the door is
▪ Example:
• D is charged with engaging in fraud and violence - he violently kills people who try to report him
• The defendant Introduces character witness showing he is a truthful person
o So the government wants to introduce that he is violent person
o Pertinent
• Not allowed: D didn’t open door to violence just to truth telling – door is just open to truth and lying
▪ Defendants should be as narrow as possible with character trait
• Do not do what the defendant did in Michelson – law abiding person
• So narrow – not the kind of person to violate a specific law
o 2) When Defendant brings up something about the victim’s character, they have opened the door to their
▪ Defendant introduces violence aspect – government also wants to
▪ Defendant argues they only opened the door to victim’s character trait, not there own
▪ Court: no – it is open to the defendant’s character too
o 3) Defendant may open the door in an indirect way
▪ Defendant may call a fact witness who also says something about the defendant’s character and opens the
• Example: D is on trial for robbing a warehouse at 2pm.
o Presents an alibi verified by sister – took care of sister’s baby because sister had work
emergency. So the sister is called as a fact witness.
o On cross-examination of the sister, the government says “you weren’t there between 8 and 6?”
She responds, “no I wasn’t.” Government: “so its possible D just left baby there and robbed and
you wouldn’t have known and as far as you know took baby too?”
▪ I do know that – very devoted person and wouldn’t have done something like that –
▪ So he is a family person – stabbed dad in the heart……
o question- is that fair?
▪ D isn’t opening the door himself and that too on cross
▪ Answer if D – prepare witness
▪ Wouldn’t have and couldn’t have – reference to character – so don’t say
RULE 404(b)
Crimes or Other Acts
(most cited rule in criminal cases)
(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:
o (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at
trial; and
o (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice
RULE: cannot introduce bad acts that are not at issue in the case to prove that any person has a character trait and is
acting in accordance with that
o Part b allows the proponent to such evidence to be considered if it is presented for a proper purpose
o The purpose determines whether it is admissible or not
o Must satisfy proper purpose under 404(b) and 403 balance – then can enter evidence of another act at trial
which the jury may then draw inferences from
o Can be any “bad” act: can be uncharged misconduct/is not limited to a conviction
• PROBATIVE – proving a fact
o Must prove the fact that there is something probative from the prior bad act
o 1975 – 2011: not much going on in 404(b) – not much protection to be found
▪ The government would just need to read 404(b) purposes – the laundry list - and judge would agree and
read to jury the purposes that weren’t even relevant
▪ Was known as a rule of inclusion
▪ But this has stopped – several circuits are changing – Miller, Gomez, Caldwell
o 1) determine if there is a permissible purpose
o 2) if there is, balance with 403
o Hard to distinguish from character – work has to be done to know when it is appropriate to differentiate
o 1) Character reference
▪ Hearst case
• The defendant robbed bank and claims under duress
o Government wants to show another act where not duress – captors being arrested and
shoots out
▪ Not to show violent person and actually explain how evidence leads to purpose other
than propensity
o Argue that you carry mental state for a while
▪ Under Duress usually for a while – two situations where exhibited two different
mental states
▪ Not saying they have proven case- just saying they tend to prove
▪ Relevant to duress as the mental state
▪ Government isn’t trying to admit that for the bad effect – but when D starts bringing
in saying they are duress and government then trying to show against that –
responding to D’s argument
▪ Didn’t go crazy with the open door – one incident, 2 weeks later – looks better
D is bringing in the discussion about mental state – different than slamming with a bunch of
bad acts
2) Doctrine of Chance
▪ Evaluating the probability of an event based on past events/acts
▪ Heanthorn
• H was hiking with wife in the Rockies and then she falls off 60 feet below. H takes out life insurance.
H has 2 passed uncharged acts where his wives dead under tragic and “sudden” circumstances.
Government wants to admit those two events
• Doctrine of chance – what is the probability of all three wives dying of improbable events
o This argument has a little propensity in it but also probability
o Here, chance of all 3 being accidents?
▪ Example: D had taken care of 10 babies – 4 died and 6 had to go to the hospital
3) Knowledge
▪ If you had an experience that is pertinent, we should be able to prove it up to show your knowledge that
it as a violation of the law/learned it was criminal activity
▪ Examples:
• 1) D is charged with murdering a police officer by placing him in a choke-hold
o D claims he didn’t know how strong he was and that doing so he could kill someone
o Government wants to introduce past events to show that actually the defendant did know
his own strength
• 2) Huddleston (Supreme Court Case)
o D claimed he didn’t know the items were stolen
o But he had a learning experience before hand – saw others stealing stuff from the back of
the truck
• 3) Martinez Case
o Defendant says he didn’t know it was drugs
o Government wants to show prior experience to show he did know
o But here, the defendant was just carrying a backpack and wasn’t involved in the pickup
▪ So knowledge would have to mean that whenever you see a backpack you think it has
drugs in it
▪ Capra: knowledge doesn’t quite work
• 4) Good knowledge case – D charged with driving a car into the U.S.
o Goes through border patrol and pings gas tank. They dismantle it and find cocaine
o Defendant claims he didn’t know it was there – says a doctor in Mexico who she was friends
with asked her to drive the car over to family in Texas
o But the defendant had done this three times before and had the same excuse each time
o So knowledge is pretty strong
• 5) Beechum (5th circuit case)
o Defendant is a mail postal inspector accused with stealing from main on his route
o Government: did a sting operation and gave fake mail – no one got the mail
o Defendant: gets stopped and they find all silver dollars in his bag
▪ The defendant says he was attacked – never had the intention to keep them and
would return
o Government: evidence of other acts such as when they searched his wallet and he had 4
credit cards with name’s of people on his route
▪ Probative of intent?
• Opportunity to return items but doesn’t do so
• Willingness to keep the items
▪ In each of these cases, the defendant ends up arguing the mental state by discussing either knowledge or
intent, and then the government brings up evidence
4) Propensity – not enough
▪ Gomez: Needs to be more than propensity
▪ Lyle case
5) Intent: Must be actively disputed in some jurisdictions
▪ Smith case -total rule of inclusion
• Drug distribution case where the government wants to introduce prior drug use and distribution to
show intent (but this looks like propensity)
• The defendant isn’t saying he didn’t intent to the crime; he is saying he has been misidentified
• He is contesting the actus reus while the government is trying to prove the mens rea – different
• But Government wants to show another act to show intent, even if the defendant isn’t disputing
o Argument for allowing it: D has plead not guilty and that makes all elements of the crime
disputable – common intent
• This case makes intent admissible – total rule of inclusion
o Doesn’t matter if the defendant isn’t actively contesting it
▪ Miller – comes out differently
• Court: unless actively disputing mental element, cannot dispute it
o 1) if there is no real dispute about intent and the government is offering evidence for intent,
that is just an excuse – we know it is for propensity (404(b))
o 2) if it isn’t actively in dispute and government is offering to prove nonetheless, it is not
probative – proving something not disputed is cumulative and not as probative as if its
dispute. But it is prejudicial (403)
▪ Caldwell
• D denies having the gun in a charge of actual possession
• Government wants to enter prior gun activity to show intent and knowledge. However, those two
mental states are not in dispute here
o Can’t offer to show propensity to have guns
• But if this were constructive possession, may be able to use evidence to show knowledge
▪ In active dispute jurisdictions, you may not know what is actively in dispute or not until trial
• It’s a timing question and timing is in control of the defendant (fair and good rule)
▪ Advisory committee tried to add this in the rule – wasn’t adopted because DOJ was against it and issues
about the administration (what does active mean)
o 6) Limits on government proving mental state – prior bad act mental state must be similar to the one at issue
▪ Issues come up regarding how similar these mental states must be
• Martinez
o D argued because a different drug was involved therefore the mental state of knowledge
wasn’t transferable
o Court: no it is pretty close because you get knowledge the same way
• D charged with carjacking - federal crime
o Mental state required: force and violence and threat
o D says it was all a misunderstanding
o Government wants to show that the defendant returned car with turned odometer
▪ Admissible under 404(b)
▪ State of mind relating to cars – want to show how he wrecked a car
o High standard
o Example: other act is offered to show D planned the charged act
▪ Planned – not actively disputed and not element to the crime
▪ Defendant is charged with bank robbery – wants to show priors to show a plan
• But all different acts – and no commonality
• Cannot just be a way to dump a bunch of bad acts
• Pretty narrow doctrine that is applied
o Carroll – reasonable juror
o When the government has a hole in its case – jury cannot figure out or will wonder about and government says –
lets plug hole and let’s do it through a bad act
▪ Introducing monster – need to do bad acts – doing it to explain something to the jury
o Example: People v. Steinberg
▪ Beats wife – laying on the bathroom floor – goes to dinner – comes back – still alive and tries to revive her
– then dies
• Evidence shows – when beat her, the other person was there the entire time
• Hole in the case – the jury will wonder what the other person was doing – wants to explain
• Evidence – victim of DV – not too much – but gruesome about her beatings and testified – don’t do
it a lot
• very prejudicial – buts it probative because it fills big hole in the case – and now its explained to
o Bad act may be shown to show motive
▪ Not always element - In hate crime, yes it is
• But mostly it isn’t
▪ Shows explanatory things to the jury
▪ A lot of motive evidence is bad act evidence
o U.S. v. Potter – doctor getting oral sex for drugs – properly admitted for motive
▪ Distributing drugs without a medical purpose
▪ Why?
• Gets sex in exchange
▪ Bad acts offered to show why they did this crime
o One motive case that sticks: acts of abuse of the minor sister
▪ Admissible to show motive
• Prior incidents of sexual conduct with minor – shows interest with children and may show motive
with the exploitation of children
o Cannot just say motive and let it go – have to show HOW probative of motive
▪ Gives motive because he has propensity to abuse children – its wrong
▪ Courts allow and even say it – shows how bad courts are with respect to 404(b)
o A signature: because the defendant did a prior crime in a unique way, it is likely he did the same thing in that
▪ Something that makes the defendant distinguishable from others
▪ Classic cases: D was murdering people by injecting a unique mixture of draino and urine
▪ Not a signature: classic bank robbery with common markers like a mask, jumping over the counter, and
running away
• Similarly, dropping drugs to the ground when the police walks in is not unique
▪ Courts are applying this idea of a signature just based on their reactions to the facts
• Example: d charged with robbing someone in the park and would pull a gun, rob, make the V strip,
would then throw their clothes away, and run away – unique?
o Looking for unlikelihood and relative uniqueness
▪ Example: D pulls a gun and the gun was unique – black with silver on it
• Question: how rare is the gun?
o An expert said it was rare in the United States – so while the motif wasn’t unique, the
apparatus was
▪ If the defendant said they cannot do the crime without that special gun, courts would consider that part
of their identity
o Can also be obsessed with a place – robbing the same 7/11, etc.
Courts are not careful with applying this though
▪ Example: MN case – charged with bank robbery. The government wanted to show prior incidents to show
the defendant usually wears a flannel shirt and twins hat turned around
• But that is everyone in MN!
o Gomez Case
▪ Question of who Guero is – government believes it is D and D says it is not him, Guero is his brother-inlaw
• Government wanted to show D’s prior drug activity to show identity
• But you cannot just say IDENTITY – the only reason for saying that is to show the propensity to deal
drugs, but that is the exact premise of the rule
▪ Court provided a limiting instruction around 404(b)
• Courts do not provide limiting instructions unless asked for by D
• If use it, must say what the specific purpose is and tell them why we have this rule ( we try cases,
not people)
o Example: D charged with murdering GF at the kitchen table
▪ D says it was an accident because he was cleaning his gun
▪ The government wants to enter a prior bad act
• At a party, D had gone to a housewarming and got then a ferbie. But then got a gun and shot it
dead in small quarters
▪ D says it is not proper purpose – just showing propensity to commit the crime
• Government: to show D is capable of controlling his gun
o So not admissible for intent but says something about facility of a gun
o Applied 403 – not prejudicial
o When contested element, it is probative
o Voodoo ceremony – U.S. v. Reme
Bad acts that tend to be probative
o Prior sex w/ minor
▪ D charged w/ transporting minor in interstate commerce w/ intent to engage in sex; Prior sex w/ same
minor showed intent to transport for purpose of having sex (US v. Reid)
o Creation of similarly fraudulent documents
▪ D charged w/ unlawful procurement of naturalization; Court properly admitted evidence that D created
several fraudulent licenses w/ same name as current fraudulent document; Shows deliberate intent to
create second fraudulent identity (Mensah)
o Prior involvement in alien smuggling
▪ No abuse of discretion in admitting D’s prior involvement w/ alien smuggling; Sufficiently similar to
prove knowledge of smuggling scheme + intent to participate (US v. Flores-Blanco)
o Examples:
▪ D charged w/ car-jacking
• D must act w/ force, violence, threat, to get person out of car + take car
• D: all misunderstanding, person in car got scared for no reason, then stole car
• Gov. wants to introduce that defendant sold car w/ turned back odometer; mental state as to cars
• Court: no such thing as “car mental state”
▪ D on trial for distributing drugs
• Contests intent to distribute
• Gov. wants to introduce prior possession of cocaine for personal use
• Mental state as to possession vs. distribution
o Capra: “Buying from target vs. being target”
▪ Courts contrast w/ sale
▪ Disputable question
1) Not for character
▪ Have to explain to the judge why it is not adverse character
▪ Raymond Case
• Question of whether defendant is the pilot on the boat
• The government wants to introduce evidence that he threw people off of the boat and therefore
was more likely to be in control of the boat
• Next step is to apply 403
o 2) Bringing in good acts
▪ Fundamental principle – cannot enter good character by specific acts
▪ Not very common
▪ Reverse 404(b) – where D wants to admit good acts (uncharged of course) – first argument D makes –
don’t need to go through 404(b) because what I am introducing is not a bad act but a good act and 404(b)
doesn’t apply to good acts
• Not true – courts don’t see it that way
• “other crimes, wrongs, or acts..”
• Even on 403 grounds would be excluded
▪ Example: Defendant is a legislator and charged with corruption – government calls witnesses
• Wants to show good legislative acts – no can’t because those aren’t charged
o Once the government has articulated a proper purpose, the defendant may argue that the probative value is
very low and there is substantial prejudice
o 2 different kinds of prejudicial effect
▪ 1) Jury will think that since the defendant did it before, this is just the kind of person they are aka they will
draw a propensity inference
▪ 2) Sometimes the act is so bad that a juror will think/feel so upset that the defendant did it once and now
they have the chance to punish them
• prejudice reaches its height when it is a bad act and not a conviction
o “Proving” a bad act
▪ Sometimes, when the government wants to introduce a bad act, D will contend they didn’t do the act. So,
they will need to “prove” the act happened in order to establish that it is probative of their proper
▪ The question becomes – what standard of proof must the satisfy?
▪ most admissibility questions are under 104(a) and those include reliability, hearsay, and the like. But
there are a few cases where the lower standard is applicable, and trial judge isn’t much of a gatekeeper
and goes to jury re whether reasonable juror could find it
• 104(a) – preponderance as the standard
o Judges are acting as gatekeepers – this is more common
o Applies to reliability of an expert
o Hearsay exceptions
o Risk that jury will misuse this kind of evidence is problematic
• 104(b) – judge has to find that a reasonable juror can find
o judges letting things pass to the jury (rare)
o Applies to Huddleston/404(b)
o Justification: question of whether of D did it is a lower standard of proof because we are not
so worried about misusing that fact. Because if it is that low, there will be reasonable jurors
who don’t find it – and if they find he didn’t do it – it just drops out of the case and no
▪ judge is only screening that it is not super crazy and that no one would belief
• 1) Huddleston case
o The defendant is charged with selling stolen merchandise. He was found on a back of a truck
selling stuff and claimed he didn’t know the merchandise was stolen
o The government wants to introduce a prior act where he was in a similar circumstance
Proper purpose: knowledge
Defendant says he didn’t do the prior act and was in Europe at the time
▪ Therefore, for this act to be probative the government needs to prove it happened
o Question: What is the standard of proof that the government must satisfy to the judge to
show that the prior bad act occurred?
▪ Only comes up with prior bad acts, not with convictions
▪ This comes before determining the relevance and probative-ness
▪ If the standard was beyond a reasonable doubt, it would become a trial within a trial
• Beyond a reasonable doubt is applied to an entire case, not to a specific fact
▪ Standard: more likely than not that D was involved in the act
• There would be a hearing pre-trial where government must introduce evidence
at the hearing (D can as well) and then the judge decides
• Lower than preponderance – prosecution has to convince the judge that the jury
could find this (sufficient to support a finding)
o Steps of Analysis for 403
▪ 1) Is the evidence probative?
▪ 2) Are there evidentiary alternatives?
• Piloting of boat example – is there a hat you can admit over the uncharged act of killing people off
the boat?
• When the bad act is 20x worse than what is being tried – prejudice increases
▪ 3) Some acts are harder to prove, some are easier to prove
• Longer you talk about it, the more confusion
▪ 4) Age of the bad act
• Example: Knowledge as the proper purpose is more probative it is it more recent; diminished if
▪ 5) Active dispute
• If you are in a jurisdiction where the proper purpose has to be actively disputed, that brings down
the probative value if it is not actively disputed
o Government must prove notice of its intent to introduce bad acts in advance of trial
o Why is a notice requirement important?
▪ Want the government to make sophisticated arguments that are not just off the cuff
▪ Requires government to prepare before making the argument
▪ The defendant is at a disadvantage if this is sprung on them
o Notice requirement applies only to criminal cases
o Civil cases and 404(b)
▪ No notice required:
• Because different between civil versus criminal discovery – in civil has to give relevant info
• Criminal cases – do not have discovery in that way
• Nothing in rule 16 of federal rules of evidence Crim Pro that require giving up bad acts
• Can give up convictions – but not bad acts
o Notice requirement under current law
▪ Must give notice of the general nature of the act
• El Chapo Case – “a bunch of murders”
▪ D must ask for notice under 404(b) otherwise they do not get it
• Has become a boiler-plate request in discovery
o Major Change to the rule
▪ Don’t have to just give notice of an act, but government has to articulate in the notice what the good
purpose is and have to explain in the notice how it is probative of the notice other than through a
character inference
• Taken from Gomez Case – cannot just argue proper purpose – in the notice requirement
• Violation of 404(b) – not about admissibility but about notice – judge could exclude it
• Brings issue up before the parties – articulation requirement
▪ Also different: D doesn’t have to ask for notice and general nature language is out
▪ Rule becomes effective on December 2020
404(b) in Civil Cases
o Examples:
▪ Title VII - denied benefit and wants to prove that others were similarly disadvantaged – additional intent
▪ P is arrested and alleges he was beaten by an officer who used a flashlight. Now, P cannot sleep, has
difficulty seeing, brain-related injuries, etc.
• D wants to introduce that P did LSD in large amounts every day to show alternative cause (not for
• Balance under 403
Restyling and amending of 404(b)
o Proposals:
▪ 1) add an active dispute requirement
• Rejected on the grounds that courts are dealing with it
• DOJ sees no conflict on the case law on 404(b)
• Issue getting administered – what does active mean?
▪ 2) Change the 403 balancing for 404(b) purpose
• Admissible if probative value outweighs the prejudicial effect
• DOJ – would overrule Huddleston and you cannot overrule the Supreme Court through rulemaking
o Restyling
▪ 1) The rule mentions other crimes, wrongs, or acts
• Restyling wants to take out excessive verbiage
• Took out wrongs – superflulous
• But: that was not correct – because that can cover something
o Failure to act – negligence
▪ 2) The Rule says – may be admissible – said when adapted by congress
• Restyling in 2011 – restylist changed these kinds of rules to – a court may admit
o Active voice
o 404(b) – a court may admit
▪ Department said: no you cannot change that
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.
• If you are allowed to prove character, then allowed to present:
o Opinion
o Reputation
o Example: charged with fraud – 3 forms of possible proof
▪ 1) opinion – known the guy and I can assess his character
▪ 2) have a witness testify about what other people think about the defendant – reputation in the
▪ 3) things they do – may want to testify that they can show honest acts the defendant did
• Not allowed
• Character evidence to an issue/element of the crime
o Narrow band of case – but can introduce specific acts because the substance of law allows it
• Keiser Case – highlights presentation of character evidence for issues versus conduct
o The defendant was allowed to bring in evidence of V’s violent character but question of form of evidence
▪ Can do opinion or reputation, but wants to submit evidence of conduct (can’t do that unless character is
an issue)
o The defendant argues character is an issue in this case
▪ Is the victim’s character an issue in a self-defense case?
• Stand your ground – but most don’t have that law
• So loses the argument – loses juicy bad acts
o Variation: D comes into a new town and goes into a bar and sits at the bar and bartender says get off the stool
don’t sit there, that is the victim stool – guy who is about to t be the victim – turns around to get off the stool,
victim comes in, and then shoots him
▪ Wants to enter evidence of bartender saying violent acts
▪ Is it allowed?
• May show the perp’s state of mind – not offered to prove character – but the state of mind of the D
• In that situation there is no character evidence being provided and that is a violent character
▪ BUT in Keiser –didn’t know anything about the V beforehand and just had to prove violent character and
thus only has opinion and reputation
• Example: D was taking care of the little kid instead of robbing the warehouse
o Sister says the defendant is family man who wouldn’t do this
o Prosecutor asks– did you know he stabbed his dad at thanksgiving?
▪ This is a specific act and also shows not to be a family oriented person
• So it’s a specific act offered to show character
▪ One is an opinion witness and one is a reputation witness – basis of their info is import
▪ Did you know….two answers:
• 1) no I didn’t know that – impeaches the witness – pretty big to know
o Quality of opinion diminished
• 2) yes I do know that –
• So either answer is impeaching of the opinion and then reputation is similar
Have you heard….
▪ 2 answers again – thing that would get around in the community
o Another reason to not go down the character road
▪ Lame observations, heard in community
▪ Rebuttal – character getting attacked by specific acts – but you cannot come back with other acts
• So it just ends there
▪ Usually no character defense – UNLESS person is without blemish
Can the government prove up an act if it is somewhat disputed? Can you prove up a fact with extrinsic evidence? (NO)
o Example: Prosecutor asks the witness about whether they knew about the defendant’s bad acts
▪ The witness says he did not
▪ The prosecutor has video evidence and maybe even witness – disputed
▪ No – those facts will be murky, disputable, not even trying to prove facts but trying to test the character
witness – very far off
o Silver lining: don’t have to prove it either
▪ Of course there is some limitation…
▪ Brueger – to ask the witness something about the defendant
• Has to relevant to the character trait
• Have to, upon objection, show the judge you have good faith proof and indication that D did it
o Not admissible, preponderance or beyond reasonable doubt
▪ Standard – good faith indication
• Defendant is bringing up by presenting a non-violent character witness
o Did you know D committed armed robbery?
o Government submitted proof – D was friends who was convicted with armed robbery
▪ Friend wrote him letter from prison, and at the end in closing, the letter said – “your
partner in crime”
o Yes, okay to pass good faith indication - standard is pretty low
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.
Breaking Rule Down
o Evidence of habitual conduct Is probative and therefore admissible
o Advisory committee created a separate rule about habit to emphasize the difference between character and
▪ Used to have limitations though
• 1) Couldn’t introduce unless corroborated evidence
o But committee thought corroboration didn’t make sense so now it is admissible even if there
is no other evidence
• 2) Eyewitness testimony makes habit inadmissible
o But the committee thought that was categorizing and prioritizing evidence
STEP 1: Define habit
o Different from character
▪ Sometimes hard to define what a habit is
▪ Example: D wants to submit alibi that he was at church at 9 am when the building got robbed
• Had habit of going to every Sunday 9 am service
• Question: Is routine a habit?
o Seems more involved than a habit
o Court: cannot have habit of going somewhere
▪ Not reactive
o Automatic, reactive and pretty simple
o If something is not a habit, then would be a character thing
▪ Probative value is much much less
o Not habit
▪ Writing a document
▪ Violence in every social situation will not be a habit – but can narrow it
• Perrin
o Is violence a habit?
▪ No – cannot be violent to all stimuli
o You can narrow it down
▪ Violence with respect to police officers
▪ Reaction/reactive
▪ Then court may find it to be a habit
▪ Angwin
• Defendant had a “habit” of taking least confrontational approach to every situation
• Court: not a habit
▪ D charged with putting a pipe bomb under the car of the ambassador’s car
• Government wants to introduce habit of doing so – because done it 3x previously
o Not a habit
• Prior purpose – identity – thing with the ambassador – so admissible under 404(b) – other acts
being admitted
STEP 2: Show habit
o Could see to offer specific acts are in accordance with habit
▪ Judge determines this based on the preponderenace of evidence
o Inference of habit
▪ Does person have habit of putting blinker on?
Establish the foundation of habit – testimony that drove to work with someone for 30 years –
always did it
o Perrin Case – brought in a number of events of when addressed by police officers
o Example: – D is police officer charged with excessive force
▪ When puts cuffs on arrestee, pulled so hard that dislocated Ps shoulder
▪ P wants to introduce habit of doing so
• Could be a habit- simple, reactive
o Question of whether Police officer had the habit
o P shows 5 other instances
▪ Depends on opportunity of times they arrested someone aka had
o Plaintiff didn’t show sufficient foundation of habit because only should 5
• Different from Perrin case – Perrin doesn’t encounter police officers everyday
▪ Can P introduce otherwise? Notice
Organizational habits
o They have policies, standards, etc.
o It is probative, but not determinative
o Routine practice of an organization can be offered to show that the practice happened a particular time in
o Example: Doctor didn’t ask the patient about their allergies and then prescribed wrong drugs
▪ Question: Was there a warning given?
• Hospital will show that require each doctor to ask about allergies
• But we know some people don’t follow these. Therefore this is probative but not dispositive
RULE 412
Sex-Offense Cases: The Victim
The Rape Shield Rule
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual
o (1) evidence offered to prove that a victim engaged in other sexual behavior; or
o (2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
o (1) . 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.
o (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 unfair
prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in
(c) Procedure to Determine Admissibility.
o (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
▪ (A) file a motion that specifically describes the evidence and states the purpose for which it is to be
▪ (B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
▪ (C) serve the motion on all parties; and
▪ (D) notify the victim or, when appropriate, the victim’s guardian or representative.
o (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give
the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related
materials, and the record of the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim
Why do we need the rule?
o If only had 404, then D would be able to enter Vs character traits
o Avoid putting the victim on trial
▪ protect the victim from having their past brought up in a public venue in cross examination in such a way
that if V was aware going into the case, they wouldn’t prosecute the case at all
▪ In order to prosecute cases, want to protect
o Protecting victim as interest – peculiar because difficult case to prove
o Also a prejudice interest – when jury hears something sexually inflammatory about the V – may balance out the
actions of D – that are antiquated like they were asking for it – and would allow for incorrect verdict
▪ Moral and prejudicial inferences
▪ So also protecting the government’s case from unfair inferences from inflammatory sexual statements
Basics of 412
o Substantial limitations on the victim’s past of a sexual nature – includes feelings about sex, etc.
o Very protective rule
o Application in criminal cases is narrow because sexual assault is usually not a federal crime
o For 412 to be applicable, sexual assault does not have to be THE crime
o Application in civil cases is usually with sex discrimination, quid pro quo, hostile work environment
Criminal Cases -Not Admissible Unless Exception
o The evidence of a victim’s sexual past is not admissible unless it fits into the narrow categories of:
▪ 1) To prove an alternative source of the injury/perpetrator
D is trying to prove someone else did it so is bringing up sexual behavior of the victim but the
defendant should be able to show it is someone else
2) To prove something about the relation about the victim and defendant where there is a consent thing
• Consent offenses may require bringing up prior activities
• Example: where V has written in advance I would like to have sex with guy x – her mind set going in
– probative of consent?
o Not about Vs activities with others – but about with D
o Never applies if its mis-identity - only for consent
3) It is required by the constitution
• D has a constitutional right in the conflict with the rape shield law
• Holmes v. South Carolina
o Where D had strong evidence of innocence – excluded under South Carolina statute
o Defendant’s right to effective defense
o Coalition of a bunch of rights
o See what happens in holmes and transplant to rape shield
o Notable facts
▪ 1) D had really strong evidence it wasn’t him
• Strong case of innocence
▪ 2) state’s interest in excluding was fairly arbitrary and not very strong
• Very weak
• Because relying on forensic evidence – no matter how reliable it is
• Preclude other evidence
o So balance of strong case of innocence and weak interest
▪ What is government’s interest is in rape shield
• 1) protect Vs from being traumatized – as in cross exam – and protect from court
room experience
• 2) protect government case from inflammatory responses – she deserved it, she
had sexual identity to have it
• Bear Stops Case
o D has evidence he wants to enter, it is barred by the rape shield rule, and then claims
constitutional right to enter.
o D is charged with sexually assaulting a young boy
▪ Defense: claims didn’t happen
o Government – wants to show that V has signs of child sex abuse syndrome – psychological
▪ Government has expert testimony
▪ D’s problem with it:
• Doesn’t take the jury enough to connect child sex abuse syndrome with being a
victim and must be BS who did it
▪ So pretty important evidence
▪ And most defense counsel would say unless you can explain it away looks like it him
o BS wants to enter alternative perpetrator evidence and that V was sexually abused by others
– so there are others who could have led to the syndrome
▪ Doesn’t end up getting in
▪ Balancing things based on constitutionality
• 1) is it important to D’s evidence?
o Yes
• 2) what is the government interest in excluding?
o Protecting the government’s case from a prejudicial jury inference – is that
at stake in this circumstance?
No it is not – because no one will infer prejudicially that a young boy
was sexually assaulted by someone else
▪ Victim has perversion – not going happen here
So what is left for government interest?
▪ Harm to victim when relived at trial – that is a strong interest
▪ But BS has a suggestion about that – BS won’t call the child to the
stand and ask how he was abused – but will prove it by calling his mom
or someone else who can testify to it so V won’t be embarrassed by it
▪ has other witnesses to call
so government interest is low to zero and D’s strong case of innocence
▪ this is a rare event – D rarely convinces court that interest of them
outweighs government interest
Another Example
o wants to introduce V had sex a lot and more than others – 35 times in the last month
o Would this be probative?
▪ To show V is more likely to consent generally – because she is so consensual she was
more likely to consent with me
▪ This is weak
o Government interest – is classic
▪ Prejudice of the case and bringing up while on the stand is traumatizing
o Thus, evidence was excluded
• Olsen
o Two folks lived together and were having sex
o D wanted to admit that
o Trial judge excluded that on the ground of sexual activity
o D argues right to effective defense
▪ Strong evidence?
• Arguably yes – credibility of witnesses is critical
• Motive is easily understandable by the jury
▪ State interest?
• Case will be prejudiced because jury will draw inferences about V
• But harm to V is diminished because D just wants to enter that they have a
relationship- not how much they have sex, etc.
▪ So balance toward D
• Example of unsuccessful defense: D charged with running a sex ring that was maintained through
threats, violence, cohersion, and force – so women were forced to have sex for money
o D wants to introduce the fact that the victims were prostitutes before coming into this ring
o Does this trigger a right to an effective defense?
▪ Not probative – their background doesn’t matter
▪ Government interest is very high because the jury can infer that they didn’t mind it –
“asking for it”
Civil Cases – Broad Balancing Test
o Evidence is admissible if probative value substantially outweighs prejudicial value
▪ Reverse of 403
▪ Much more exclusionary – harder to get evidence in
o Judd v. Rodman
▪ R had unprotected sex with the P, who got herpes. Alleged sexual assault.
▪ There is an in limine hearing about 3 pieces of evidence that the plaintiff wants to exclude:
• 1) Sexual history of unprotected sex with others at that time
o Causal issue – if show alternative causes, under the balancing test, it is hard to exclude
o If this was a criminal case, it would be in because of the alternative perpetrator exception
o Appellate court finds no error
2) Sexual activity that when they met, she worked in a strip club
o Probative because of damages
▪ Relevant to damages about body image
▪ Diminished by this being the only job she can do
o Prejudice
▪ Inference that strippers are less worthy of attention – prejudicial
▪ Harm to victim –
• trauma of having sexual act rendered in act is low
• she isn’t hiding her profession – public act
o trial judge admitted it because the victim brought up how she was damaged so you allowed
body image stuff to brought in
▪ appellate court agreed
▪ Capra: not right
3) She got breast augmentation surgery
o Admitted because the plaintiff’s counsel said it was relevant
▪ Thus, became a 401 question
▪ Can’t make it a 412 issue now because wasn’t one at trial
▪ Hostile work environment of sexual nature
▪ Defendant wants to bring up that she was at a party where she watched two people having sex
▪ Is that sexual behavior?
• Yes. Not only the victim’s behavior but also the activities of the mind – about fantasies and
▪ The evidence is probative because it shows one’s attitude toward sex
• Argument that it isn’t probative – personal versus private
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:
o (1) any conduct prohibited by 18 U.S.C. chapter 109A;
o (2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s
genitals or anus;
o (3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
o (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another
person; or
o (5) an attempt or conspiracy to engage in conduct described in 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:
o (1) “child” means a person below the age of 14; and
o (2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. §
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;
▪ (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E).
RULE 415
Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(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
Basis of the rule
o Government wants to enter Ds prior sexual assault (413), child molestation (414), or civil cases involving those
wrongs (415)
o These laws take out the traditional 404(b) step analysis usually done to determine whether to admit Ds prior
“bad” acts
o Congress saw 404(b) as a hurdle that the government shouldn’t overcome in sexual assault cases
o 413-415 rules were enacted directly by Congress, unlike the 3 year long rulemaking process – this took only 85
▪ William Kennedy Smith (nephew of Ted Kennedy) triggered this – he had a party and he had sex with
someone and V says it was nonconsensual
• Government had a prior act of D that he had done this before
• The trial judge excluded that bad act under 404(b) because they didn’t feel there was a proper
purpose. Therefore, the jury didn’t hear it and he was acquitted
▪ Senator Biden took the floor – objected to the rule of course
• Even if just acts – not just convictions – all acts of sexual assault
• Biden: this rule is contrary to the jurisprudence – why punish for acts that he did that he wasn’t
convicted of?
o But 404(b) – also about that
o Saying that it doesn’t just cover conviction but also bad acts is the same standard – enough for a
reasonable juror to find
o (part As of the rules) - Under these rules, other acts are admissible for whatever purpose they are relevant for –
any means to the extent they are relevant
▪ Usual barred purposes under 404(b) are now good
Issues of applicability
o Are there still 403 protections?
▪ The rule says no 404(b) protection but congressional intent from the legislative history shows there is some
403 balancing
▪ The rule also says “may” be admitted
▪ Circuit courts have applied 403
o Limae Case
▪ If 403 wasn’t applicable, we would have constitutionally based concerns about the rule
▪ It is very unlikely, though, that a sexual assault will be excluded
o Time Barred?
▪ D asks to exclude an incident from 40 years ago
• Doesn’t show propensity and there is other evidence of propensity
• Also was an act, not a conviction
• Excluded
o Protection under 403 Example
▪ D is an OBGYN – sexually assaulting patient on the table
• Government has prior sexual assault when in college – 35 years ago – date rape situation
• So now – not sure of a non-propensity purpose – didn’t articulate any
• Propensity inference – 1) old and 2) different factual situation
o The more similar, the stronger it is for propensity
o Propensity is low and punishment is pretty high in this circumstance
• Lots of courts would have admitted – but a case where could get 403 balancing
Native Americans Weighing in: Violation of EP?
o 1) Defendants argued that it violated EP rights
▪ In criminal cases, sexual assaults are limited in geographic applicability (federal law – federal land)
• Arise a lot in Indian reservations
• Native Americans getting the majority of allegations
• Ds are being subject to rule of evidence that people in the rest of US aren’t
So is that EP – protected class?
o Federal law is applied equally
o Nothing in the rule which says we are going after Native Americans
▪ Going after sexual assault on federal property
o 2) D charged under federal system – stated it was an EP violation because they were treated like a different class
▪ More serious crimes
▪ Argument that a murderer gets a 404(b) protection so they get evidentiary advantage and I don’t – violation
of EP
• Alleged sexual assaulters are not a protected class though
• Still an EP argument – all entitled to EP – rational basis
o Is there a rational basis?
• Well all Ds bad acts get in but not Vs – due process
o Government has higher burden
▪ So higher protection on one side washes out
▪ Every evidence rule doesn’t have to be completely equally – as long as reason for disparity – sound
protection to V makes sense and rationality
Request to Congress
o Law professors writing to congress applaud them for doing this, good for consent cases because important for
jury to know D has something in his past
▪ But asked them to consider not applying to identity cases –in cases where the D says it wasn’t me – should
be traditional protection
• Argument: given way cases are proven up – needs protection at trial from their past
• Identity – looks like person I think I saw – endless cycle of injustice
▪ No evidence that anyone in Congress looked at letter
▪ Maybe rule has validity but can be problematic in identity issues
o Enacted by congress
o Take 413 – evidence another offense or offenses of sexual assault
▪ That is bad
▪ Restyling convention – singular and plural
o Fix: any other (includes singular and plural)
 Character evidence is admissible if (1) offered for a not-for-character purpose, and (2) satisfies FRE 403. In a criminal
case, the gov’t must provide notice.
 FRE 404(a)(1)-(2): Gov’t cannot introduce evidence of ∆’s bad character or V’s good character during the case-inchief.
 FRE 404(a)(2)(A): In a criminal case, ∆ can introduce circumstantial evidence of character. Proof must be reputation
and opinion only, not specific acts, per FRE 405. Must be a pertinent trait.
o If ∆ does this, he opens the door – gov’t can offer rebuttal evidence of the pertinent trait. Per 405(a), on crossexamination of a character witness, the court may permit the gov’t to ask about specific instances to impeach
the witness. If witness denies, π cannot offer extrinsic evidence and can only ask the questions.
 FRE 404(a)(2)(B): In a criminal case, ∆ can offer evidence of victim’s pertinent trait (subject to FRE 412 if sex offense).
Proof must be reputation and opinion only. Must be a pertinent trait.
o If ∆ does this, he opens the door – gov’t can offer rebuttal evidence of the victim’s good character AND may
offer evidence of ∆ having the same bad character trait. Proof limited to reputation and opinion only.
▪ EXCEPTIONS – door not open: (1) if ∆ introduces V’s character trait to prove something other than
propensity; (2) ∆ attacks V’s character as a witness per FRE 608 or 609.
o If homicide case, gov’t may offer evidence of victim’s trait of peacefulness to rebut evidence that victim was the
first aggressor. Proof limited to reputation and opinion.
▪ BUT ∆ can’t claim V was the first aggressor in situations where it is established that V could not have so
 In a criminal case, when character is an essential element of a charge, claim, or defense, proof may be made by
reputation, opinion, and specific instances of conduct.
 Any character witness may be cross-examined concerning that witness’s knowledge of specific instances of pertinent
bad acts committed by the person whose character that witness has endorsed. The cross-examiner must have good
faith proof that the acts occurred.
 Specific instances of conduct are admissible to prove any purpose other than character, unless the probative value is
substantially outweighed by the risk of prejudice, confusion, and undue delay.
Opinion Testimony
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.
o Opinions from lay witnesses were barred, they could only provide facts
o Concern?
▪ Could inflame the jury, bias the jury.
▪ Role of jury is to take the facts and forms opinions. If a lay witness is already doing that for them,
o Really then question of what is a fact versus opinion – and that gets very hard
RATIONALLY BASED PERCEPTION – witness must have first hand account
o Needs to be based on your personal knowledge; can’t just be a rumor or a belief or “a feeling”
▪ Example: Witness can’t testify that he thinks prenatal drug caused his birth defect bc no PK
Rule: As long as it is helpful to the fact finder
o To be helpful (also depends on the case), lay witness needs to be in a better position than the jury to figure it
out. Lay opinions are not helpful if they are just considering the same facts as the jurors and drawing an
inference based on it. The jury can draw that inference / make that opinion themselves
▪ U.S. v. Rea - Witnesses testified as to what ∆ should have known, but jury had more info about what ∆ knew
and was therefore better positioned to come to a conclusion.
▪ Example: video presented to the jury and the eyewitness. Witness is asked what they saw. That is not
helpful to the jury because the jury also saw the video and they are providing no assistance
▪ Example: witness asked if D’s voice was on the tap. They know D better so it is helpful. Jury may not hear D
▪ U.S. v. Yazzie - ∆ charged with statutory rape where reasonably believing that the minor is of age is a
defense. ∆ should have been permitted to call witnesses to testify that they thought the girl was not a
• Why: (1) minor was now 17 so jury needed help determining age at time of incident; (2) witnesses’
testimony was not a clear substitute for the conclusion; (3) difficult to put into words why someone
thinks someone is of age; (4) common to form opinions about age; and (5) the issue was whether the
∆ held an opinion and whether it was reasonable.
▪ Meises
• Case agent who ran the case who had the warrants summarized the entire prosecution, drug
distribution network, etc.
• 701 problem: wasn’t allowed because basically summarized all the evidence and said “jury, this is all
the evidence.” But, we don’t need their comment on the evidence because it just tells them what
they will know from the evidence.
o Can testify to the intent of another
▪ Example: inmate who witnessed shooting could say ∆ tried to kill guard.
o Cannot offer an opinion as to the ultimate issue/ come to legal conclusions
▪ “in my opinion, that was an act of malice”
▪ The word unreasonable – if meant as a normal person would may be okay
▪ The line is fuzzy
o NOT based on scientific, technical, or other specialized knowledge
▪ Example: lay witnesses could testify that the substance on victim’s clothing appeared to be blood, but could
not testify blood loss was the cause of death
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.
Why have experts testify?
o Significant experience, knowledge, etc.
o Sophisticated issues of science that jury cannot figure out on their own
Goal: guarantee reliability
o Only scientific evidence that was generally accepted could be admitted.
▪ Evaluating methodology that is generally accepted
▪ Frye Hearing
• Show what experts think about methodology on each side and then judge decides
o They don’t decide reliability – they just see both sides
o Question of how high you set the standard of admissibility is important
o Reliability determined by scientific community, not scientists
o Problem: lag time between actual reliability and when enters the field
o Not currently applicable in federal courts, but still used in states like NY, CA, IL
NEW RULE: Daubert v. Merrell Dow:
o Trial judge must act as the gatekeeper to exclude unreliable scientific testimony.
▪ Analysis done pre-trial – Daubert hearing
• Must be an objection, usually when ∆ receives expert report
• Upon objection, expert must show that they have sufficient facts or data
o Report req’d under FRCP discussing methods, conclusions
• Judge holds Daubert hearing (pre-trial), but doesn’t have to if record is full.
• If judge has hearing, ruling is required – must decide reliability
• If judge excludes expert, ∆ will make a motion for SJ.
• FRE 403 still applies – expert testimony may be exclude if probative value is substantially outweighed
by prejudice
• Adversarial process and hearings can last awhile
• Cases end up becoming Daubert heavy
▪ Standard of proof: 104(a) – judge must be convinced by a preponderance
▪ Appellate court standard: abuse of discretion
o Daubert factors
▪ They are not dispositive or exclusive but they are applied a lot
▪ 1) Has the expert’s methodology been tested? Is it falsifiable?
• Objective question, not subjective
▪ 2) Whether the methodology has been published in a peer review journal
• Only methodology needs to be vetted
• Emphasizing objectivity and respect
• Has become a watered down requirement because of the explosion of peer reviewed journals
• Examples:
o 1) Economic Case
▪ Expert testifying to damages applied multiple regression analysis
Got the question: have you published your methodology in a peer reviewed journal? Says
▪ The witness itself doesn’t need to have published it – but that it is a peer reviewed method
o 2) Chemical
▪ P has a well and claims chemicals from the dry cleaner are in the water
▪ Hydrologist concludes there was an underground pipe leading to the well
▪ Emphasizing it is about the method of figuring that out – not the case itself
o 3) Child Porn
▪ Government has new software to figure out if D downloaded the porn
▪ It has been vetted within but not in a peer-reviewed journal
▪ Court: Okay
▪ 3) Are there standards and controls?
• Need indication of rate of error using these methods
• Looking at testability and reproducibility
• Examples
o 1) polygraphs
▪ Frye killed them
▪ Daubert – tried to bring it up
▪ But there are no standards of control and no rate of error you can determine
o 2) Functional MRIs
▪ You don’t know the error rate
▪ Brains are funky
▪ Not admissible
▪ 4) Is it generally accepted in the scientific community?
• Very important factor but not necessary/dispositive like before
• US v. Ferri – woman murdered; gov’t wanted to show that shoes in ∆’s closet had the same wearing
patterns on the sole of the shoe that made footprint in mud outside V’s window using an expert.
New technology, hasn’t been peer-reviewed but article submitted, no one has vetted this except
prosecutorial authorities. Match to ∆. Expert says error rate is 20% but 95% of the 20% is false
negatives. → Judge admits.
o Person was a crock, everything was doctored, testified against many ∆s and committed suicide.
o May be some merit to the “wait and see” approach under Frye
• Stuff that hasn’t been vetted by the scientific community can be found reliable by a judge under
Daubert – also found not reliable even if vetted
• Example: D found guilty on the basis of evidence in capital murder case
o She had a goodbye note – falsified data – police officer came and said needed research –
doctored it
o if all the data was false – that should come out in the Daubert hearing – so why didn’t it?
▪ Method was structurally sound
▪ Adversary is criminal defendant – public defender lawyer
• Often uneven fights in Daubert hearings
In civil cases, will be fine because a lot will come out in a Daubert hearing and good test for it because will make
sue its reliable
▪ But criminal cases its different – criminal defendant – and uneven fight
• NJ – daubert in civil, Frye in criminal
o Daubert is more flexible than frye – maybe not good
Helping judges be gatekeepers
▪ 1) FRE 706
• Authorizes the trial ct judge to appoint an expert who will then testify at trial as a neutral expert;
• Judge can make parties in a civil case fund the expert and the trial court can allocate expenses
• in criminal case or civil case involving compensation under 5A, compensation by funds that are
provided by law
rarely occurs
Idea is that many judges will be in situation where they don't understand the science but neither of
the parties’ experts will be particularly helpful because biases.
• Technical Advisor – judge can also appoint and charge parties for a technical advisor who will sit with
judge and help him go through material and explain concepts, but rarely done
▪ 2) Federal Judicial Center (FJC)
• Educating arm for judges
• Getting them information about science
• 1 month baby judge school
▪ 3) The internet
• If a judge cannot figure out the scientific and doesn’t think they are getting a straight story
• Example: prison litigation
o Had stomach ailment and was suing for being mistreated for not being prescribed a medication
o Could have court appointed expert but may look like P is appoint because only D had an expert
o Posner: internet URL where he goes to manufacturer and source of info so in some places can
be useful
• Concerns with judges doing their own research?
o Worried about judges making arguments for one party or another
o Question of when and how often they do this
o Would happen at a Daubert hearing
o Philosophically, judges are umpires – if they rely on the internet you become an investigator
▪ 4) Technical judges
• But, American system of generalized judges is a hard system to shake
▪ 5) Caliber of judges
• Now, caliber of judges is much better than 1994 under Frye
o Daubert II - three types of experts discussed.
▪ Chemist – Analysis of effective molecule in bendectin and the molecule known to cause birth defects.
Because the molecules have the same structure, expert concludes both cause defects.
• Ct did not find any of the Daubert factors were substantiated in any way.
▪ Animal Studies – scientists who study rats noticed difference in limbs depending on drug given.
• Ct rejects this. Epidemiological studies show that limb reduction was not statistically significant in
babies. Animal studies might be useful if properly replicated and reliably done, but not in the face of
actual human studies that are contrary to the conclusions of the animal studies.
o Capra: Animal studies have been admitted when there aren’t epidemiological studies.
▪ Epidemiologist – Expert did not do own study but took six existing studies together in meta-analysis, exited
the research, and concluded that he thought the drug caused limb reduction.
• Ct rejected out of concern about experts doing studies for purpose of litigation. Expert was paid by π
and therefore incentivized to manipulate standards.
o Capra: pretty high standards; arguably could go to weight, not admissibility.
o GE v. Joiner – animal studies excluded due to methodological errors, namely focus on animals, greater
concentration of toxins, more direct exposure
Issues with Daubert
o 1) Expert has an analytical gap in their opinion
▪ Cannot leap to a conclusion without support. Up to the judge to determine by preponderance if there’s too
large of a gap. Steps are ok, leaps are not.
▪ Kennedy Example: expert relies on studies that show that a drug causes some autoimmune diseases to say
it causes lupus
• This is a theory – analytical gap
• But: Biological studies done on humans about how the drug causes autoimmune diseases by
attacking an enzyme in the body. You can get lupus if you have a decifiency in that encyme
• Doesn’t have the study that links that
• Scientist: if you had the study, then wouldn’t need me
• Court: analytical step, not gap
▪ Example: Baby born with huge head; parents think it’s a prenatal drug. Expert relies on study that causes
birth defect of limb direction, testifies that he thinks the drug caused this birth defect. Analytical gap – if it
caused one type of birth defect, how do we know it caused this one?
▪ Example: expert makes too much of what they have from a cell phone location
• Expert will look at tower beeping and say based on triangulation, D was at the apartment
• Analytical gap here because you can tell a region but not a precise location
o Current methods cannot lead you to a specific location, therefore this is an overstating
o 2) Must rule out obvious alternative causes
▪ Don't need to rule out every possible cause but must rule out all basic/reasonable causes
• Example: Issue of link between lung cancer and asbestos. Expert must rule out smoking.
• Example: Guy claimed he got brain damage from working near defoliant. Grade school report cards
indicate he is bad at adding and spelling. Before making a reliable conclusion about the defoliant,
expert needed to examine whether the guy was incapacitated to start with.
▪ Don’t need to conduct strenuous research to rule out all other causes
o 3) Differential Diagnosis
▪ Saying exposure to X caused injury to Y bc expert ruled out other ruble causes but doesn’t have proof that X
caused Y → permitted if the cause is a known scientific cause of the injury. If it’s a known cause and all
other causes are ruled out, then it’s reliable.
• Example: Can’t say head injury caused fibromyalgia bc no one knows what causes it.
▪ Westberry v. Gislaved Bummi AB – differential diagnosis = standard technique for identifying cause of
medical problem; expert must adequately consider alternative causes.
• Temporal proximity is a factor (but cannot be the sole factor)
o Ex: π breaks toe, goes to doc who says just take Tylenol. Nothing happens for 6 weeks but then
π hemorrhages and dies. Expert says Tylenol must have been the cause. Too remote / not
o Rare exception in finding causation based on temporal closeness: 50 people on plane. 25 eat
fish, 25 eat beef. All 25 who ate fish died.
▪ Best DD case: Oil spill and all oysters in the area die. Πs sued boat for loss of oysters. Expert does DD to
prove that the oil caused the death of the oysters.
• Step 1: Rule in oil. Expert looks at studies that clam, fish, starfish, etc. die in oil to conclude that
oysters must do the same. (This is a step, not a leap. So it’s ok.)
• Step 2: Rule out alternative causes. Expert rules out low salinity by doing a study that shows
causation. Then does study to show that oysters die of low salinity in a special way and none of the
oysters died that way.
o 4) Research Must Fit Facts of Case
▪ There must be a connection between study and reliable application to facts of this case.
▪ Example: P claims disease caused by jet fuel exposure. Offers study based on long-term, heavy exposure.
However, P only had occasional exposure. Study = inadmissible.
▪ Example: P said she made sure was in park, got out, it ran her over. Expert says false-park defect where P
would think it’s in park but it’s really not. However, this doesn’t matter b/c P said that she remembered
putting the car in park. Testimony = inadmissible.
Rule of thumb of Daubert: How did expert come to their conclusion? Make sure opinion is as rigorous as what you
would get in their real life – academic rigor was the same – same process and assumptions
o If you are changing what you would ordinarily do – ruling in causes that usually aren’t, ruling out causesd that
you wouldn’t – expert not good under Daubert
Non-Scientific Experts
Technical/Specialized Expert → Daubert applies to all experts but it’s a more flexible inquiry based on what you
would expect from a professional in that field.
▪ Kumho – mechanic expert testimony who did a visual and tactile inspection of tire to determine whether
the cause was consumer mistreatment or a design defect. Problem was that he made up the test and
would never employ it outside of the courtroom.
▪ Experts must show that they used the same methods that they would use and in the same way and with the
same rigor that they would if they were using their expertise outside of litigation and must explain their
methodology to the court.
• Methodology cannot be entirely subjective.
▪ Example of non-scientific experts: accountants, car mechanics, language experts, patterns of industry
o FRE 702 Amendment (2000) – Daubert + progeny (Kumho)
▪ Three main prongs:
• Sufficient foundation (facts or data)
• Reliable principles/methods
• Reliable application to facts of case
Factors to consider when determining whether the expert testimony is sufficiently reliable:
 Whether the expert’s technique or theory can or has been tested (whether it can be challenged)
 Whether the technique or theory has been subject to peer review and publication
 The known or potential rate of error of the technique or theory when applied
 The existence and maintenance of standards and controls
 Whether the technique or theory has been generally accepted in the scientific community
Add’l factors:
 Whether the experts are proposing to testify based on independently formed opinions or opinions formed
expressly for the purpose of testifying
 Whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion
 Whether the expert adequately accounted for obvious alternative explanations
 Whether the expert is being careful as he would be in his regular professional work outside his paid litigation
 Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion
the expert would give
Experienced-Based Testimony → generally NOT admissible
▪ Example: wine tasting, perfume expert
▪ If expert is relying solely on experience, he must explain how experience leads to the conclusions reached,
why the experience is a sufficient basis for the opinion, and how experience was reliably applied to the
• Advisory Committee notes for amended rule say can’t be conclusive but judge can request how
expert got to conclusion and investigate
• Ways to deal with these experts: test them; ask them to explain how he got to this conclusion and
make him prove it. In the end, not a scientific test and simply having experience is unlikely to be
Forensic Expert
▪ Traditionally, considered science but now 2 major reports from 2009 and 2016 showed that none is
scientific and each has a rate of error
▪ 1) DNA Identification
• Accepted that, when conducted according to proper standards, it is sufficiently reliable. Thus,
question is not about the methodology but whether it was reliably conducted.
• Application of an RFLP test when there is a blood sample and then D gives a DNA sample – test is
done the same way each time
• Difficulties arise when it isn’t just someone’s DNA alone but when something is swabbed that has a
lot of people’s DNA
Get a mixture of DNA – 20% rate of error
ND of CA – excluded DNA testimony in criminal case – extraction done – assumed they were 4
elements but there were 5 – you do different test for 5 versus 4 – therefore they are
No accepted way to do stuff
2) Ballistics
• Theory is that bullets have different striations after being shot from a particular gun. But this really
isn’t supported and the main premise hasn’t been proven. Probably used to be a science but less so
now because guns are mass-produced and are therefore less likely to have these variations. Too
• Thus, can’t make firm conclusions though courts allow alternative of “reasonable degree of ballistics
certainty” if expert has sufficient background and training. Unlikely to be excluded unless other
evidentiary problem(s).
• Rackoff Case: can still be admitted even if not scientific
o Experience based – just make sure they don’t say things they can’t support
o Control what they say
• Now: DOJ has list of things that their experts cannot say – cannot say practical impossibility or no rate
of error – cannot refer to a rate of error because we don’t know what it is
o Cannot say to a reasonable degree of ballistic certainty
▪ confuses jury
▪ National academy of sciences – don’t use term
▪ DOJ – don’t use it
o On the other hand, 9th circuit – expert says its definitely a match and judge says – no say
reasonable degree of ballistic certainty
o DOJ – says you can say – identified bullet as coming from the gun
▪ But identify versus match? Confusing…
• Confirmation bias
o Domain irrelevant information
o Big problem of confirmation bias and how tests are done
o Expert says: no not bias – I need to know that
▪ If you go to the doctor and say im sick – doctor will want to know context
o Lots of studies done to show confirmation bias
3) Fingerprint Identification
• Some scientific basis bc not contested that everyone has unique fingerprints. But fingerprint ID is not
science. Not automatically inadmissibility and not too dissimilar from ballistics. Opinion requires
sufficient technical knowledge to understand how the points of comparison work.
• US v. Baines – says fingerprint testimony is admissible bc it satisfies some of the Daubert factors, such
as general acceptance.
o 1) There was a validation process
o 2) it is generally accepted in the field
o 3) there is a low rate of error
o Capra: general acceptance is in biased communities, so this justification is pretty rate. However,
rate of error is so small that it’s convincing.’
• Another circuit court: feature comparison – compare to another form of eyewitness testimony
o Eyewitness is allowed but that is often erroneous
• One documented error: bombing in Madrid subway where one of the materials had a fingerprint
o DOJ examiner compared to fingerprint of a lawyer in Portland, OR who was Muslim
▪ This was wrong and reversed ruling happened
4) Gun Residue
• Reliable methods exist but these tests are excluded when not reliably done (ex: ∆’s hands not
Challenges to the weight of the evidence since there are other ways to get gun particles on one’s
▪ 5) Bite-mark evidence
• Comparing teeth
• Not even close to scientific
• Several problems
o Flesh is malleable, not like a dental impression
o Study couldn’t figure out if teeth were human or animal
o Bite marks degrade over time so ability to compar them degrades over time
▪ 6) Handwriting
• Premises for admissibility – none have been validated
o 1) everyone has unique handwriting
o 2) Nobody can replicate anyone’s handwriting perfectly
o 3) Nobody can disguise their signature
• Test done by 50 twins in the US and none had the same handwriting
o But it is a bit of a stretch to apply that to billions of people
o Even if methodology is completely reliability, the significance of it is another thing
▪ If DNA has been found on the crime victim, unless mixture issue, wouldn’t challenge validity – but the
significance – just because on the V, doesn’t mean they murdered that person
▪ DNA under finger nails
• Wasn’t at the scene
• With investigation – was passed out the night before the murder and EMS came to pick him up – 7
hrs later – EMS went to the murder scene and worked on victim – so DNA transfer
▪ Interesting thing of DNA transfer
• What does it mean to transfer or how likely it is
• Trial courts will allow Ds expert for transfer – won’t be because has to be validated
• But can argue it
Lay v. Expert / Expert Witness in Lay Clothing
o Concern about lay witnesses giving expert testimony → must give notice for experts; lay witnesses not subject to
▪ Lay testimony → derived from reasoning in every day life
▪ Expert testimony → results from process of reasoning that can be mastered only by specialists in the field
o US v. Figueroa-Lopez – drug bust case. Π called law enforcement officer to give opinion about ∆’s conduct and
how it conformed to methods/techniques of experienced drug dealers. ∆ objected – not proper lay opinion. Ct
agreed – gov’t should have offered as expert b/c specialized knowledge.
o Hypos:
▪ Old woman watches street corner regularly. Π wants her to testify that she saw ∆, who she knew from the
neighborhood, with X, who she also knew, and that she saw ∆ hand X a bag that looked like narcotics.
Expert or law? Lay – average person probably going to know this.
▪ Gov’t wants to show that there was a dead body in human shed and calls witness who walked by shed,
smelled and thought it was a dead body b/c he was in Vietnam War and had experience identifying the
smell. Expert or lay? Close call.
• Ct said witness could say “dead thing” b/c common understanding as a lay witness.
• Capra: if differentiating between a dead person and a dead cow, for example, that seems like expert
testimony and is probably not admissible under Daubert
▪ Gov’t calls witness to testify that he has studied terrorist orgs, knows they talk in code, and that they often
use culinary terms, and that his interpretation of ∆ talking in culinary terms is that he’s planning an attack.
Lay or expert? Expert – not personal knowledge at all.
o Advisory Committee Note to 2000 Amendment to FRE 701 provides that a lay witness cannot give testimony
based on scientific, technical, or specialized knowledge
▪ If witness is testify based on knowledge s/he has by virtue of business position → not an expert
Amended Rule 701 distinguishes between testimony, not witnesses
▪ A single witness can give expert and lay opinion testimony.
Proof of Probability & Statistics
o Theory: figure out what factors exist in a situation and then figure out likelihood of those factors coming
together at a particular time.
▪ Expert testimony in this category must account for all factors.
• Belmont Hypo: two people had same exact bets on horses at same day. Π wants to introduce
statistician to show how slim of a chance this is. Problem: statistician did not take into account all
relevant factors – made an assumption that doesn’t exist in real life, namely that all people bet blindly
on each horse.
• Workforce Hypo: Asians complained about not being promoted. Expert not allowed bc he relied on
the workforce, not the percentage that were eligible for promotion. Must exclude people who
should be excluded from sample.
• Sex discrimination: Drug store charged for discriminating against female employees by not promoting
o Plaintiff calls statistician to show that when you pick a resume 640 times it would be a man
o Proper use of stats
• People v. Collins – stats used as an indication
o Didn’t call an expert and prosecutor makes analysis
o Problem with the prosecutor using it is that variables have to be independent – cannot double
o Stats must be important to the case
o Statistical evidence is assessed under the same standards as all expert testimony under FRE 702.
o Smith v. Rapid Transit – famous blue bus case
▪ Π sideswiped by bus. ∆ didn’t dispute injury or negligence, only that it wasn’t their bus. Statistic showed
70% likelihood that it was ∆’s bus. ∆ did not challenge the reliability of the expert’s testimony so the
question was about significance and its weight, and whether it can ever be sufficient enough for π to win. Π
wants market share liability.
• Policy Arg Against: any company with low market share will never be liable. May incentivize other
companies that don’t have a market share to be reckless.
• Posner Article: must consider weight of the evidence and its probative value by what you would
expect the parties to introduce. Suggests that the jury can draw a negative inference from the fact
that π didn’t introduce any evidence whatsoever that it could be ∆’s bus. If you were ∆’s lawyer, you
would interview drivers, hire PIs, check the buses to see if there is a sideswipe, etc. Assuming diligent
lawyering, we can deduce that the lawyer did an investigation but didn’t find any evidence. Thus,
inference is that π chose to sue this particular ∆ bc ∆ has money. This brings 70% probability down
below 50%, indicating that π hasn’t shown to a rsbl juror was ∆.
RULE 703
Bases of an Expert
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.
With 702, the question was has an expert done their homework? Now, the question is what sources can they use to
do their homework
1) Lay witnesses need personal knowledge, but expert witnesses do not; they can add value even without personal
o An expert doesn’t need to know the issues of the case or personal knowledge of the facts
o Example: Mets
▪ Doctor expert testifying it was reasonably or unreasonably done.
▪ Lay witnesses would be able to talk about if they were in the OR
▪ Experts don’t need to be in the OR to know whether the operation was done reasonably
• Can testify to the cause of death of a person even without seeing someone die
o Experts do not have to rely on personal knowledge but can rely on other sources
▪ Rationale: trying to put experts in court and compare how they act in real life and in real life, they would
rely on reports from others etc. So personal knowledge isn’t require d
2) Proponent of the opinion may disclose the underlying facts/data if their probative value substantially outweighs
their prejudicial effect. [reverse 403]
o If admitted, judge can give limiting instruction not to use info substantively.
o Conduit problem: need to prevent against experts being called to get in inadmissible evidence
▪ Better way is to admit report via business records exception and satisfy Daubert
o Rule does not affect the admissibility of the expert opinion itself.
o FRE 703 balancing test applies ONLY to info that will never be admitted for its truth at trial.
o But, expert may be required to disclose facts/data on cross.
3) The info that experts rely on do not have to be admissible at trial
o Experts are not bound by admissibility in terms of what they can rely on
o Doctors can rely on hearsay in their ordinary life and if that is good for real life, then it is good enough for trial
o Examples: Have an accidentologist – will rely on info that would be admissible if at trial – but will also interview
bystanders, officers, etc.
▪ None of that will be admissible at trial – but kind of thing someone at trial would be rely on
▪ Psychiatrists coming to conclusion about mental illness – interview other folks – at trial would be hearsay
– but they routinely rely on that stuff
o Classic case: Expert on warnings
▪ Mechanic looked at instructions – argument were instructions weren’t that good
• Started taking out back of window and bad instructions – exploded on his face
▪ Expert testifies that warnings were not sufficient
• Relied on instructions in other manuals
• Saw a manual from the D that came 6 months after accident – 407 issue? But expert would rely on
4) While experts can rely on inadmissible info, there has to be some regulation on what they can rely on. Thus, they
can rely on what they would rely on as real life experts
o Turns on the kind of info that experts in the field would reasonably rely on
▪ Very rare for trial judge to find expert went away from that standard
o Cases
▪ 1) Wikipedia Case
• Expert is doing some testifying and uses Wikipedia
Counsel says Wikipedia is not what other experts would rely on
Court: it is just as reliable
o Can’t be an expert just reading Wikipedia (can’t be sole base of knowledge)
o But not the case here: expert in linguistics with background and experience, who also looked
at Wikipedia – doesn’t disqualify
▪ 2) Mass Tort Case – Agent Orange
• P has to show injury for claims suffered
• Doctor comes and articulates injuries suffering
• Expert is challenged on 703 grounds:
o Have you seen any of these patients or treated them?
▪ Doctor says no I haven’t – opponent says 703 violation – but no not true – doesn’t
need personal knowledge
o What info did you rely upon?
▪ Doctor says – wrote a checklist of all possible things that could happen if exposed to
agent orange and put them in a check box yes or no
▪ Patients filled it out – so I am reading from the questionnaire
▪ Women have testicular problems and men are barren? Doesn’t make sense
▪ Didn’t evaluate at all just read it all
o Experts in the field wouldn’t rely on these checklists in these circumstances to treat them
▪ 3) ALFA Corp. v. Alfa Bank – experts can rely on Wikipedia (consulted by experts; just as reliable, if not
more reliable, than Encyclopedia Britannica); just can’t only rely on Wikipedia.
▪ Material support to Hamas case. Expert testifies about where money goes based on witness statements
from former Hamas people as to how they operated. ∆ objected b/c the info is the product of torture.
• Is this the kind of info that other experts would reasonably rely on? Yes – other experts interview
people. Plus court said no evidence that the info came from torture.
o BUT problem here is that experts in the field wouldn’t reasonably rely on these particular reports b/c they were
made in anticipation of litigation and πs were incentivized to check everything.
5) If inadmissibility rules do not apply and you are prepping your expert, there are strategic things you can do
o 1) Get the evidence introduced via the expert
▪ 407 objection – but actually entered through expert reliance
o 2) Conduit expert
▪ Expert may be being called solely or at least partly to introduce evidence that wouldn’t be admissible
without them
• And then juries uses that evidence like hearsay or otherwise barred evidence
• Get around barred evidence and other rules
▪ Not trying to change what you rely on – but what you can disclose on the jury
• Can rely on it as a basis – but if its inadmissible, you cannot tell jury about it
• Distinguish reliance versus revealing it
▪ 703 balancing test - Probative value must substantially outweigh the prejudicial effect
• Probative value – degree to assist the jury to show the expert did their homework
• Prejudicial effect – jury will use evidence for impermissible purpose
• Reversed from 403 – telling you that we don’t want this to happen
o There is a high presumption of exclusion
o To disclose inadmissible report or hearsay statement is dangerous and advisory committee
thought conduit expert was a serious risk
▪ There is a cost to this – sometimes experts basis on direct may look a little thing
• Cannot bring up hearsay
• So can look like they aren’t doing much
• If it looks really bad then probative value goes up
▪ But then next thing that can happen – P expert comes up and cannot say what they relied on – what if D
says basis is really thin – then the answer to that is they open the door and expert can bring up everything
Is that a good result?
Advisory committee said yes – puts trigger for inadmissible info in the hands of the advisory –
getting her knowingly
• Before was conduit experts were just introducing reports for improper purposes and other side was
a victim
• To present a better adversarial balance
6) Must be qualified to testify
o Berry v. City of Detroit – to determine qualifications, you have to look to what the expert is being called to
testify to. Issue in Berry was that the expert did not have any qualifications to testify as an expert on the
specific topic at issue. Thus, the proper foundation was not laid for his expert opinion.
▪ Qualification will depend on the kind of opinion you are giving
▪ Standards of qualification are not high – minimal
• Why relatively low?
o If reliability – long Daubert hearing
o Patient doesn’t know anything on this – but they know the difference between Harvard
versus not – can just assess qualifications more easily – so don’t need as high a gatekeeper
o Also don’t want to limit the field of experts – may be hard on Plaintiffs – may not be able to
afford highly paid experts or get good ones because D has them
o 4 Circuit Case: Sophisticated economics cases
▪ Expert needs training and education on the topic
o Hypo: when P brings expert who is so qualified on one topic and tries to ride that out – judges let the expert
testify on one thing, but not others
▪ Example: π walking, police officers tase two darts to the heart. Π dies from cardiac arrest and sues taser
manufacturer, arguing that it should have warned about the dangers of hitting someone in the heart. Π
calls electrophysiologist to:
• testify about what happens to the heart → qualified
• testify about warnings and about police officers reading them → not qualified
6) Even if qualified, must testify to matters that are helpful to the jury
o Experts can testify to scientific matters and non-scientific matters. But testimony that relates to matters within
the common knowledge of jurors has been deemed inadmissible b/c it does not “assist” the jury within the
meaning of FRE 702.
▪ Examples:
• Expert who testifies about coded convo of food/terrorism → helpful
• ∆ found with can of methylamine in garage. Expert testifies that this is used to make method →
helpful to jury b/c tools of the trade (c.f. money counter, razor, etc.)
• Trade usage and banking customs
• Hmong refugees tradition
• Proper engineering techinques
• Wrongful death action brought by husband for loss of wife. Economist called to testify to value of
housewife’s services. ∆ says not helpful b/c everyone knows how much a housewife is worth. → Ct
says helpful b/c average juror would probably need/want assistance in calculating this.
• Code translated – admitted if helpful
• Scott v. Sears: expert in human factors. Helpful: how eye perceives certain colors (not common
knowledge). Not Helpful: that women who walk in heels don’t walk on grates (common knowledge,
though Capra questions whether this is really common knowledge). Also not helpful: testimony
about nature of the sidewalk when jury has pictures and also visited the site.
▪ Examples of not harmless:
• Incentive to lie – come thru with cross and don’t need expert
• Popular culture influence – what does watch your back mean? We all know…
• Heating toaster in bath tub – clearly not safe
Must assist the jury – shouldn’t speak to issues the jury already knows
▪ 1) safety expert testify that it is unsafe to be in a bath rub and heat it with a toaster
• People know this already
Expert testimony is not helpful when it is speculation
Credibility experts by nature are unhelpful and invade the role of the jury
▪ Nimely v. City of NY – π shot in police chase and brought excessive force suit. ∆’s expert called to testify
that π was facing him with a gun despite medical record indicating π was shot in the back. Expert testified
that he rejected the possibility that officers had lied and basically directed the jury to find the same.
• Note: When expert testimony comes in that the jury already knows, it’s usually a harmless error.
BUT the error is harmless where the expert invades the role of the jury.
▪ Most federal courts excluded expert testimony about witness identification because attacks the
credibility of the person making the ID
▪ Louis Libby Case - ∆ expert testified to the phenomenon of memory failure and how people forget things,
especially under stress. But people have a pretty good understanding that people forget things and don’t
need an expert to testify to this.
• Pretty similar to Nimely because expert is really saying that when ∆ gets up and says he doesn’t
remember what happened, you should believe him.
RULE 704
Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an
ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did
not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters
are for the trier of fact alone.
(a) Can be admitted if helpful
o Not helpful:
▪ Child porn case. Π called law enforcement agent who examined material and testified that it met the
statutory definition of pornography.
▪ Expert evaluated ∆’s conduct and said it was fraudulent and manipulative under a particular statute.
▪ Lay witnesses cannot testify to legal conclusions, but experts can
▪ When no explanation, will generally be excluded
o Helpful: When part of something bigger
▪ Complex case of med mal – many things at the same time
• Doctor goes through the operation
• And at the end of it – want to ask that doctor, after all that – did the doctor not act with the
standards of the medical community
▪ Advisory Committee has concluded that there might be situations where ultimate issue can be opined
upon in situations where expert needs to explain something very complicated and then explain how they
apply to a particular issue.
• Example: ∆ is a felon, found in garage with potato launcher with gunpowder in it. Case is about
whether this is a firearm. Expert deconstructs the potato launcher and points out how each of the
things correspond to parts of a firearm. Four hours of testimony. At the very end, prosecutor asks,
“In your opinion, is this a firearm?” ∆ objects.
o Capra: Imagine listening to four hours of testimony and not hearing the conclusion. Jury
wants to know what he thinks after sitting through it for all this time. Here, the ultimate
issue opinion is helpful and can be admitted.
(b) Criminal Cases
o Mirror Hypotheticals
▪ Expert can testify generally or hypothetically about a person’s mental state so long as they don’t say
anything about the ∆’s state of mind at the time of the alleged crime.
• US v. Thigpen: it’s ok for an expert to speak generally about the effect of a mental disease or defect
on one’s mental state, but not about one’s mental state with respect to the specific alleged crime.
• This rule applies to prosecution and defense experts (∆ experts cannot testify that it’s only that ∆
had the mental state to commit the specific crime)
• Problem: sometimes the hypos get too close to the actual facts.
o Hard line rule is referring to the D by name
o Capra says this FRE 704(b) is stupid b/c it’s not needed to exclude unhelpful testimony as other rules
accomplish this. Thus, the rule only excludes helpful testimony, which is dumb.
▪ Example: ∆ charged with bank robbery, claims insanity. Psychiatrist concludes ∆ has schizoaffective
disorder and that on the day in question, the disorder wasn’t affecting ∆’s conduct because ∆ was acting
rationally. Gov’t doesn’t call expert b/c can’t ask if ∆ was affected by the disorder on the day in question
and can therefore only testify that ∆ has the disorder (which is not helpful to the π’s case). So ∆ calls the
expert to admit the mental condition – but before he leaves the stand, the expert shouts out, unsolicited,
that he doesn’t think ∆ was affected that day. ∆ objects. Judge says ∆ can’t offer this testimony and not
admit this. 7th Cir. says it’s a dumb rule but a reversible error because this testimony is not allowed
under FRE 704(b).
Hearsay & The Right to Confrontation
o Step 1: Is it hearsay?
▪ Is it an out-of-court statement? Who is the declarant?
▪ What is the purpose for which the statement is being offered?
o Step 2: Does an exclusion (801(d)) or exception (803, 804, 807) apply?
▪ Exemption/Not Hearsay vs. Exception
• 803, 804, 807 → admissible because of reliability
• 801(d)(1) → can cross-examine speaker about their prior statements (not b/c of reliability)
• 801(d)(2) → admissible b/c party made them (not b/c of reliability)
o Step 3: If exception applies and it’s a criminal case, any Confrontation Clause issues?
o Goal is to promote truthfulness and regulate unreliable testimony, including: (1) insincerity/lying; (2) ambiguity;
(3) misperception; (4) memory issues
o In-court checks on hearsay infirmities: (1) oath; (2) demeanor; (3) cross-examination
▪ These checks cannot be applied when it’s hearsay because the declarant isn’t there to give oath, be
subject to cross, or present demeanor evidence.
o But no absolute rule against hearsay because there are situations where it is less likely that the declarant is
providing untruthful or otherwise unreliable testimony.
o Origins from the Raleigh Case
Applies at bench trials
RULE 801(a)-(c)
Definitions That Apply to This Article
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person
intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
o (1) the declarant does not make while testifying at the current trial or hearing; and
o (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Hearsay: an out-of-court statement offered for the truth of the matter asserted
o Oral or written assertion
o Non-verbal conduct, if the person intended it as an assertion
▪ Explicit Assertions: Nodding head, pointing, responding to question with action
▪ Implied Assertions (based on words/conduct)
• Sometimes parties want to introduce what’s implied by someone making the assertion, not the
assertion itself. Example: W says out of court, “It’s raining cats and dogs outside,” which party wants
to introduce to show that it’s raining, not to prove that cats and dogs are falling.
o Common Law: if offering something for the truth of what’s implied, it’s hearsay
o Intent-Based Approach: most federal courts hold that implied assertions are hearsay if they are
intentionally communicated by the speaker, and not hearsay if there is no intent to
communicate the implication; allows the hearsay rule to apply and exclude statements that are
exaggerations, metaphors, or sarcasm
▪ Focuses on objective intent of the speaker – proven by preponderance
▪ Problem: very difficult to determine whether a person has the intent
• US v. Zenni – π permitted to listen to ∆’s phone calls. What’s being asserted is a bet. What’s being
implied is that this is a betting parlor. Issue was whether implied assertions should be treated as
o CL: Hearsay. FRE: Not hearsay b/c dominant intent is to place bet, not to communicate that the
place is a betting parlor.
• Ship Captain – Question is if vessel was seaworthy. Testimony in question is the fact that the captain
went with family on the vessel, which is offered to show seaworthy.
o CL: Hearsay. FRE: Not hearsay b/c his dominant intent in engaging in this conduct was not to
show that the vessel was seaworthy.
• Jargon will generally be hearsay – “she’s sick dude”
• Hypo: Terrorist threat on subway. Next day, DeBlasio rides subway; offered to show that the
subways are safe. Hearsay? If he doesn’t normally take the subway, then the purpose is to show
that the subway is safe and he’s making a statement → hearsay.
• Hypo: Three people left movie, offered to show movie is bad → not hearsay b/c intending to leave,
not to communicate it’s a bad movie. But if at NY film festival and boo and make a scene, then it’s
hearsay b/c the point is to communicate that it’s a bad movie.
• Hypo: child sex prosecution. Gov’t calls shrink who saw her, wants shrink to testify that the child
played with dolls in a way to show that she and her dad had sex. Hearsay? Yes, b/c she is showing
what kid did with her dad. Cf. to if the child was not asked about this issue and then was observed
playing with anatomically correct dolls in a sexual way. Not hearsay bc child is just playing with the
• Hypo: “There’s many ways to bury a body.” Hearsay → trying to communicate the underlying
implication that they buried a body.
• Intentional exaggerations are hearsay b/c speaker intends to communicate the underlying
o Example: ∆ charged with murder. Murderer lifted 250lb weight, struck victim. ∆ claims he’s
too weak. Offered: statement from ∆’s friend to wife, “∆ is as strong an ox. I bet he could lift
50,000lbs.” π: not offering for truth of explicit statement, just for implication that ∆ is really
strong. Hearsay.
• Hypo: Eric takes care of 4yo and 6mo. 6mo dies, 4 years later the girl says to mom, “Is Eric going to
get me too?” Offered by π to show Eric killed little brother. Not hearsay b/c the obvious implication
is that Eric hurt the boy but that’s not the girl’s dominant intent – dominant intent is to get security
from mother, not to accuse Eric of hurting the boy.
• Hearsay: this is bilbo. Not hearsay: bilbo meet jenny
• Gato Hypo: π has to tie ∆ to name “Gato.” Police officer observed ∆’s yard, saw 10 people walk up
and say stuff to ∆ like “Hi, Gato.” And “Gato, how’s everything.” Hearsay to prove that ∆ is Gato?
No – dominant is not to prove that ∆ is Gato, just trying to say hi.
o Last exchange, man and woman walk up to ∆ and man says, “Sylvia, this is Gato. Gato, this is
Sylvia.” Hearsay? Yes, because intent is to show name.
• Instructions and recommendations are generally not hearsay (b/c there’s not a dominant intent to
advertise the belief, just trying to get someone to do something)
o Unless intent of the order is to express a fact
• Letter to show competence of the listener – not hearsay
Add’l points on statements/assertions
▪ Machine-generated evidence is not a statement
• Example: video surveillance footage; machine that says white powder is 99.7% cocaine
▪ Pictures are not statements
• Example: officer identifying where on Google Earth he arrested ∆ in case where there was a debate
about whether ∆ was arrested in US or Mexico.
Alt: Officer testified that he dropped a pin on Google Maps and it said he was in the U.S. when
he made the arrest. Just an electronic thing → not an assertion, not hearsay.
o Alt: Officer testified that he arrested ∆ at Starbucks. Gov’t wants to introduce image of
Starbucks on Google Maps to show that Starbucks is in the U.S. Capra says this IS hearsay →
when Google Maps has Starbucks, then Google is saying that you can get a Frapp there.
Human input is what’s getting Starbucks on Google Maps.
If the statement is not offered for truth but for some other purpose, it is not hearsay.
o Process:
▪ Obj 1: hearsay
▪ Obj 2: 403 – exclude if probative value is substantially outweighed by unfair prejudice
▪ Request limiting instruction be given informing the jury cannot use for truth
o Words of Independent Legal Significance (ex: Contract Formation) → not hearsay
▪ Creaghe: out of court, person said “I am terminating my insurance K.” Not hearsay because it’s a “verbal
act” or “verbal act of independent legal significance” or “magic words.” Might be hearsay in another
context but when you say certain words, legal responsibilities are created.
• Issue is whether statements were made, not whether the statements are truthful/accurate
▪ Example: Oral contract, defamation, bribery, cancellation, permission, threat, slander
• Intent behind statements doesn’t matter, only that they were said.
o Ex: Threat to kill judge → crime unto itself
o Ex: Statements made to form a contract
o Statements offered to prove someone is alive / could speak → not hearsay
▪ Example: He said, “X.” We don’t care if X is true, just that he was able to speak.
o Statement to prove it was false
▪ U.S. v Young: statement made to Police to show they made a false statement
o Proof of State of Mind → not hearsay
▪ McClure v. State: ∆ killed wife, claimed provocation. ∆ to call witness to testify that witness told him right
before the murder that his wife was sleeping with other people. Admissible to prove the ∆’s state of mind,
but not truth of the affair(s). Also to prove effect on the listener.
▪ Example: D permitted to testify that it was his friends card to show he didn’t think it was stolen.
o Effect on the Listener / Proof of Notice → not hearsay
▪ Vinyard: Slip and fall case. Testimony offered that other people said the “floor was slick.” Inadmissible to
prove the floor was stick but admissible to prove that ∆s had knowledge of the slickness. Upon being told,
∆s had a duty of inquiry.
• To be probative of notice and thus admissible as nonhearsay, the statement must be one that the
party whose state of mind is in question knew or should have known about.
▪ Police Investigations – π generally cannot introduce background of police investigation if the investigation
is not challenged by ∆. Exception: where context is needed (subject to FRE 403 balancing – excluded if too
• If ∆ challenges, then you can introduce for effect on listener b/c ∆ opened door. BUT evidence
might be excluded under FRE 403 if too prejudicial.
o Example: ∆ charged with dealing drugs after officers searched house and found drugs. Witness
asked how did you focus on D as the drug dealer. W said recorded a number or reports form
addicts in the neighborhood. Offered for effect on listener but too general / too far under FRE
403 as there is too much prejudicial information to tell basic details of arrest.
• Freeman - ∆ charged with buying counterfeit $. Police officer says informant told him that Gray
started printing money and that someone was going to buy money on Sunday at particular location.
Police officer, that day, at that location, saw ∆ give Gray money in exchange for a bag. Admissible?
∆ isn’t challenging the police investigation. But if you don’t have the informant’s testimony, all you
have is the police officer testifying that he performed a stake out and saw cash exchanged for a bag.
This sounds weird. → Judges in this situation have the discretion to provide out-of-court statements
to provide context for the police investigations
o Other Not For Truth Purposes
Wicks: ∆ argued that the following should not have been admitted b/c hearsay: paper containing formula
for making meth, list of precursor chemicals, and a recipe to make crack. Held: not hearsay b/c not
admitted to prove truth (aka how to make meth).
• Capra: called evidence offered for the “character of the premises” but Capra isn’t sure this works. If
it’s not really a meth recipe, then it’s not really evidence of meth production. Thinks there really is
an argument that it’s hearsay b/c the truth of the statements matter.
STEP 2: Does an exclusion/exception apply?
Not hearsay / Exemptions
Prior Statements of Witnesses
Party Opponent
Unavailability Irrelevant -- 23 exceptions
Declarant Unavailable
Residual Hearsay Rule
RULE 801(d)(1)
Prior Statements
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
o (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:
• (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying; or
• (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
▪ (C) identifies a person as someone the declarant perceived earlier.
FRE 801(d)(1)(A): Prior Inconsistent Statement Made Under Oath
o Requirements:
▪ the declarant testifies,
▪ the declarant is subject to cross-examination,
▪ the statement is inconsistent with the declarant’s testimony, AND
▪ the statement was made under oath at a trial, hearing, or other proceeding or deposition.
o Can be admissible for its truth AND for impeachment, or just for impeachment
▪ If not made at a formal proceeding, that statement can come in but only for impeachment with a limiting
instruction that it will not be for its truth.
▪ But can’t call witness solely to use prior inconsistent statement to impeach them.
o “Inconsistent” → evasive answer, feigned inability to recall, silence, or change in position
o Statements to investigating officers doesn’t qualify unless under circumstances person would believe the duty to
tell the truth was the same (ex: border patrol-ex parte, sworn)
o Congress sought to protect the gov’t against turncoat witnesses
o When there are prior inconsistent statements, the witness can always explain away the inconsistency.
FRE 801(d)(1)(B): Certain Prior Consistent Statements
o Prior consistent statements are usually inadmissible. Fact that you repeated it doesn’t assist your credibility.
Also, bolstering is not permitted.
o Requirements:
▪ the declarant testifies,
▪ the declarant is subject to cross-examination,
▪ the statement is consistent with the declarant’s testimony, AND
▪ is offered for one of the following:
to rebut an express or implied charge that the declarant recently fabricated it or active from a recent
improper influence or motive in so testifying; OR
• to rehabilitate the declarant’s credibility as a witness when attacked on another ground.
o (including memory – if closer to event more rehabilitating)
o (implied attack)
o Tome v. US – for a prior consistent statement to be admissible, the statement must have been made before the
motive to fabricate arose.
▪ Example: ∆’c car in hit and run. ∆ wants to prove it was stolen so he wasn’t the driver. ∆ testified that he
reported car as stolen. To rebut charge that he lied about reporting the car as stolen, ∆ must show that he
reported the car as stolen before he had a motive to lie (aka before he knew that he was being charged
with the hit and run)
o Things found admissible
▪ Fired chief – P can introduce statement before being fired saying it is gross
o Prior statement does not need to be under oath
o Who can bring it in?
▪ Majority: can be brought in by third parties so long as witness is present at trial and subject to cross
▪ 7th Cir: prior consistent statements can only be brought in by the declarant
FRE 801(d)(1)(C): Prior Statement of Identification
o Requirements:
▪ the declarant testifies,
▪ the declarant is subject to cross-examination, and
▪ the prior statement identifies a person as someone the declarant perceived earlier.
o US v. Owens (SCOTUS 1988) – does not matter if the cross is meaningless (i.e. b/c identifier has no memory of
making the prior identification) so long as the witness is subject to cross.
▪ No hearsay problem b/c satisfies the requirements of FRE 801(d)(1)(C).
▪ No Confrontation Clause issue because the witness is subject to cross and the CC does not guarantee a
successful cross-examination.
▪ Problem: typically can cross on lack of memory to show witness is a liar; here, however, W had no memory
b/c someone (∆?) hit him in the head. So crossing on lack of memory is not helpful to this ∆.
o Rationale: prior ID is typically more reliable than in-court ID b/c closer in time, lineup; also probably more useful
for cross b/c can ask lots of questions about the lineup.
o Capra: Can be a problem if the witness first makes an in-court ID and is wrong. But there should not be a
requirement that in-court IDs take place before out-of-court IDs b/c people can change their appearance.
RULE 801(d)(2)
Party-Opponent Statements
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
o (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
▪ (A) was made by the party in an individual or representative capacity;
▪ (B) is one the party manifested that it adopted or believed to be true;
▪ (C) was made by a person whom the party authorized to make a statement on the subject;
▪ (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while
it existed; or
▪ (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence
or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
o Exemption based on adversary theory, not reliability
▪ Thus, no requirement that the party-opponent have personal knowledge of the truthfulness of the
statement made – only hearsay thing which no PK requirement
▪ Only opponent can use; can’t introduce own statement
o Statement need not be incriminatory
o Possible grounds for exclusion under FRE 403 or 404(b)
o Completeness Examples
▪ "I shot V but I regret it"
• Prosecution can admit "I shot V"; D cannot admit "but I regret it"
▪ Felon gun possession case
• D said "the drugs are mine but the gun isn't mine"; gov attempted to introduce "the drugs are mine"
for motive to allow jury to infer that gun also was D's; D permitted to introduce remainder of
statement to correct misleading statement
▪ Wako incident (Branch)
• D said "I picked up my gun and hid behind the bed"
• If D charged w/ picking up gun, then gov can offer "I picked up my gun" w/out allowing D to
complete statement
• If D charged w/ shooting agents, would have been allowed to complete
• Because gov clearing trying to use "I picked up by gun" to cause jury to infer he also then shot the
▪ SDNY Emojis
• "Do this or I'll have to kill you "
• Gov wants to admit w/out smiley face - misleading
FRE 801(d)(2)(A): Personal Statement by Party
o Personal statement about fault, liability, etc. made by opponent
o Poos: wolf owner said, “Sophie bit the kid.” Later said he didn’t know exactly what happened because he wasn’t
there and the circumstances were ambiguous. Admissible.
▪ Personal Knowledge not required; no need to know truth of statement
FRE 801(d)(2)(B): Adoptive Admissions
o Idea: Party doesn’t make the statement but adopts one.
o Express Adoption
▪ Example: X says, “Did you kill him” and D says “You bet I did.”
o Implicit Adoption (by conduct/silence)
▪ RULE: When a statement is offered as an adoptive admission, the primary inquiry is whether the
statement was such that, under the circumstances, an innocent ∆ would normally be induced to respond,
and whether there are sufficient foundational facts from which the jury could infer that the defendant
heard, understood, and acquiesced in the statement.
Exception – when police is present tend not to find implied adoption
Carr v. Deeds – π sued cop. In hospital, π pointed at ∆ and said he hurt me. ∆ said nothing, which π
argues is an adoptive admission. Held: insufficient foundational facts that ∆ heard/understood
statement, as well as that ∆ would be induced to respond.
• US v. Hoosier – Gf made statements to W implicating ∆ and her in a robbery. ∆ heard but remained
silent. Admissible b/c normal behavior would have prompted an innocent ∆ to deny his gf’s
statement (particularly true here b/c ∆ had previously told W that he was going to rob a bank).
o Capra thinks this is odd rule to say that you acquiesce bc you’re silent.
• Hypo: ∆ in boat full of coke with 5 others when CG arrives. Π wants to admit statement of
accomplice to ∆ “we’re really in trouble now,” after which ∆ was silent. Adoption? Obvious
statement – they’re chained to a deck. Can’t adopt something obvious. Would be different if “we’re
in trouble b/c you messed up.”
o Mere possession of a document or failure to respond to a letter is insufficient to satisfy rule.
▪ But drug ledger was admitted where π introduce sufficient foundation, including the discovery on ∆’s
coffee table, entries corresponded with separate ledger prepared by ∆, and transactions corresponded
with ∆’s activities as observed by police.
o Applies to corporations
o Social Media
▪ “Liking” on Facebook → probably not an adoption
• Example: great time climbing a mountain with x. liked it. Capra: likes mean more than they used to
▪ “Retweeting”?
o Texts
▪ Silence to texts implicating a person in bad things – if it didn’t happen, probably want to respond. But
people don’t respond to texts all the time.
▪ ∆ with two girls. Text from girl 1: “I liked your other girl. Thanks for all the clothes.” ∆ says “Yeah she’s
really nice.” And ignores the first assertion. By responding to one, is there a stronger inference that
silence to the other is assent? Weird rule to say that you have to respond to everything. Plus texts are
sloppy communications. Not evidence of adoption either.
FRE 801(d)(2)(C)-(D): Agent Admissions
o Rule: statement is not hearsay if it is offered against an opposing party and the statement (c) was made by a
person whom the party authorized to make a statement on the subject, or (d) was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed.
▪ Applies to corporations and individuals
▪ Plaintiff friendly rule
o (C) Authorized Admissions (speaking agent rule)
▪ Must be hired to speak for principal → very limited rule
▪ Foundation must be established that ∆ authorized the person to speak on his/its behalf
• Judge (104(a)) determines this by a preponderance of the evidence
▪ Muse be evidence independent of the alleged hearsay that the declarant was an agent of the party with
authority to speak on the subject, but the statements themselves may be considered.
▪ Example: Corporate minutes – directors have authority to include conclusions in the record of the
meeting, so it falls within the rule. But can only be used against the corporation, not an individual
employee who did not attend or participate in the board meeting if there is no agency relationship
between the board and the employee.
o (D) Agent/Employee (matters within scope of their authority)
▪ Judge,104(a), determines the following by a preponderance (not 104(b) reasonable jury standard):
• Person is actually an agent of the party
o Must be established with independent evidence but no authorization to speak required
o Proof of agency can be difficult
▪ Bonds – friend took Bonds’s urine sample and made statements. Π argued employment
relationship b/c friend does stuff for Bonds when Bonds says so and gets paid, albeit not
regularly. Ct held not an agency relationship – more like an independent contractor, so
the statements are not admissible.
▪ But, Petrogras case – independent contractors can be treated as agents if they have a
speaking job and ∆ authorizes them to speak / that was the reason they were hired.
[Capra says this is more of an agency statement than Bonds case]
• Statement was made about a matter within scope of agent’s authority
o Look to declarant’s employment responsibilities
▪ Example: Person falls in building and janitor says “sorry we should have cleaned that
up.” Can be used against the building under this rule
▪ Hill: Age discrimination case where employee made statement about how π had been
fired for age and income. Hearsay b/c employee had no firing/hiring responsibilities and
thus was not speaking w/in scope of their authority.
o Doesn’t require agent’s personal knowledge (can talk about rumors)
• Statement was made during the course of the relationship
o Doesn’t mean while on the job, just still employed
▪ Example: Current employee went on TV to talk about how his employer was doing a
really bad thing and that he was part of the bad thing through his role. Ct said it didn’t
matter that he wasn’t authorized to go on TV or that going on TV wasn’t part of his job.
He was employed and statements were about matters within the scope of his
employment so they’re admissible against employer.
o Statement can be made any place, any time
▪ Example: Waste Disposal employee makes statement about feeling bad about waste but
wasn’t at work. Still okay because an agent and within scope of authority
• Independent contractors versus employees – depends on the nature of the relationship
FRE 801(d)(2)(E): Co-Conspirator’s Statements
o Rule: Statements are not hearsay if they are offered against an opposing party and the statements were made by
the party’s co-conspirator during and in furtherance of the conspiracy.
▪ Independent evidence of the conspiracy and participation in is required, though the statements themselves
can be considered.
o Theory: co-conspirators’ actions are attributable to the rest of the conspiracy
▪ Evidence rules track substantive law so the same should be said for words.
o No need for ∆ to be charged with conspiracy for statements to be admitted under this rule.
o Judge (104(a)) decides if a preponderance establishes the 3 questions
o 1) Existence of a conspiracy - ∆ and declarant must be members of same conspiracy
▪ Bourjaily v. US (US 1987) / Bootstrapping – Ct can consider the statements themselves to determine
whether a conspiracy existed. However, can’t only rely on the statement.
• Capra: After Bourjaily, in thin cases, statements generally get admitted and usually that’s the
statement that makes the conviction substantially easier.
• Preponderance
▪ Typically must be something suspicious to support the conspiracy.
• Silverman: Alleged co-conspirators were brother and sister but the evidence π alleged was just one
sibling picking up and dropping off the other at the airport. Unlike Bourjaily, the conduct was not
suspicious – statements inadmissible.
▪ Declarant does not need to be talking to ∆ for the rule to apply.
▪ If co-∆ is acquitted of conspiracy, this is not dispositive on ∆2’s conspiracy for hearsay purposes b/c
preponderance of the evidence is much less than beyond a rsbl doubt.
▪ If conspiracy evidence is particularly complex/extensive, the judge can admit the statements subject to
connection. If the burden is not established to prove the existence of the conspiracy, a mistrial should be
declared unless it is clear that a limiting instruction will prevent undue prejudice.
o 2) Statement was made during the course of the conspiracy
▪ Temporal Requirement
• made before agreement/conspiracy → NOT ADMISSIBLE
made before ∆ joins but when conspiracy already ongoing → ADMISSIBLE
o (treatment is as if ∆ was part of conspiracy the whole time)
• made after ∆ leaves conspiracy or withdraws → NOT ADMISSIBLE
▪ When is a conspiracy over?
• General rule is that a conspiracy is not over until the objectives of the conspiracy are achieved or
o Cover up efforts are NOT part of a conspiracy (new conspiracy)
o Money crime conspiracy ends when money is divided up
o Example: proceeds getting split
▪ How to leave conspiracy?Burden is on ∆ to prove withdrawal
• Notify the co-conspirators and don’t take any benefits (informal)
• Confess (more than just cooperation with authorities)
• Die
• Posner: would be a good rule to allow for withdrawal with cooperation, but that’s not the rule (no
withdrawal if in jail or if cooperating with authorities)
• Not withdrawal: being in jail, retiring, cooperating with police
3) Statement was made in furtherance of the conspiracy
▪ “In furtherance” means words that are necessary to do the deal or words that are used to instruct what to
do. Intent-based test: statements needn’t actually further conspiracy.
• Not “in furtherance” (but no clear rule):
o Declarant speaking about acts that have already happened (i.e. “idle chatter cases”) b/c talking
about the conspiracy isn’t necessarily in furtherance
o Declarant identifies other co-conspirators
o Confessions – clearly not intended to further the conspiracy
o Hypo: Co-conspirator in charge of warehouse w/ drugs, had date, brought her for a tour. She
was impressed but this doesn’t further the conspiracy.
• In furtherance:
o Boosting morale (tell story of how it’s going to go well to inspire and shore up co-conspirators
acting within the conspiracy)
o Plans for the future (ex: guy tells about past to make plans for future)
o Resume (narrative of past acts to assure new buyer that he’s dealing w/ a pro)
o Status report
o Watergate – what had everyone done?
o Threats – remember Mickey who talked to the government? We buried him!
o Ianello: Co-conspirators get dinner every day and CC-1 recounts his day, including
killing/injuring people. ∆ says this doesn’t further conspiracy. Looking backward can
potentially be in furtherance b/c it can help you figure out what you have to do or don’t have
to do in the future.
Joint ventures are subject to this rule (doesn’t have to be a conspiracy)
▪ Example: Material support to Hamas case before statute made it illegal. Court said gov’t could use the
statements made before the conduct was illegal if π could prove the existence of a joint venture to
support Hamas.
o Is the declarant unavailable as defined in FRE 804(a)? (usually pretty clear)
o If yes, does one of the exceptions in FRE 804(b) apply?
Rationale: There are guarantees of trustworthiness of certain statements
o Party seeking to admit evidence bears the burden; Judge standard (104(a)) – preponderance
A party who acts wrongfully (and willfully) to create unavailability cannot use the statement
Not admissible just because someone is unavailable
FRE 104(a) preponderance standard by judge
o Note – NY COA uses clear and convincing evidence standard instead
▪ 2d Cir. expressed concern that harder BOP on π provides greater incentive for ∆s to do it but Capra doesn’t
think this is really compelling bc ∆ isn’t likely to think about this
o Applies to criminal and civil cases. Operates as a waiver of Confrontation Clause
o Capra: not a reliability-based exception; rule should be placed elsewhere
We treat this testimony as though it were them on the stand – as such, it can be impeached.
RULE 804(a)
Grounds for Unavailability
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
o (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules
that a privilege applies;
o (2) refuses to testify about the subject matter despite a court order to do so;
o (3) testifies to not remembering the subject matter;
o (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical
illness, or mental illness; or
o (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other
reasonable means, to procure:
▪ (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
▪ (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3),
or (4).
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.
FRE 804(a)(1): Privilege
o W must take stand and assert privilege. Judge then makes judicial ruling.
FRE 804(a)(2): Refusal despite court order
FRE 804(a)(3): Lack of Memory
o Owens Case: Scalia not troubled by this rule – term unavailability is a term of art
FRE 804(a)(4): Death, Illness, Infirmity
o Trial court (AOD review) can decide to postpone / not postpone. Considerations: importance of the witness,
value of cross in earlier testimony (if applicable), nature of illness, expected recovery time, reliability of expected
recovery time.
o Ex: no AOD where unavailable b/c surgery would leave witness out for 1-2 weeks but AOD where unavailable bc
uncorroborated claim that witness’s kid was sick
FRE 804(a)(5): Absence
o Ex: can’t find them, beyond subpoena power
o Due diligence requirement – have to look as hard for the person as you would if you didn’t have the statement
o Subpoena Power
▪ Criminal: nation
▪ Civil: 100 miles of the court
RULE 804(b)(1)
Prior Testimony
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a
o (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.
o Declarant is unavailable
o Former testimony given as a witness in a hearing or deposition
o Testimony now offered against a party who had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect.
▪ If civil case, this requirement is satisfied if the opponent’s predecessor in interest had an opportunity and
similar motive to develop the testimony.
• Predecessor in interest includes one in privity relationship with party
• Test: does the party have a similar motive?
o 1) what was the goal at the first instance?
o 2) what is the goal of the party now?
• Both of the parties need not be the same in the prior hearing/deposition/trial
o Example: Bus accident. P1 v. Bus Company, W testifies that driver was texting and doing coke,
W dies. Case gets settled. P2 v. Bus Company, P2 wants to use testimony. This is allowed.
• Different party can be bound but need like motive and some judicial relationship with a party to the
prior litigation
o Example: Bus accident. P1 v. Bus Company. ∆ calls witness who said bus hit pothole and driver
tried heroically to save everyone. Becomes unavailable. P2 v. Bus Company. ∆ wants to admit
prior testimony. P1 = P2’s predecessor in interest, P1 had opportunity and motive to question.
P2 would argue that it’s unfair bc he didn’t hire P1’s lawyer and P2’s is better – could be a fair
arg if factually correct but could also be flipped. Issue is whether the prior party did as good of
a job as the second party could have done.
o Example: asbestos company cases – product liability law; if one company knows of various
dangerous material, entire industry knows.
▪ If criminal case, must be the same party against whom testimony is now offered.
Similar Motive
o US v. Salerno - ∆ must show π had similar motive to develop testimony
o Exculpatory GJ Testimony
▪ US v. DiNapoli (2d) – rarely admit b/c rarely similar motive – not admissible
▪ US v. McFall (9th) – usually admit b/c often similar motive – admissible
▪ 3 factors: If issuing the indictment is in doubt, If appears GJ could believe the W, If W is in fact attacked in a
way similar to what they would be a trial
o Dissimilar motive
▪ Bailey – in criminal case for robbery, alibi witness said ∆ was at hotel all day with him. Then in civil case,
wife sues for divorce and wants alibi witness’s testimony from civil motive. Motive here is to know what
happened in hotel between the two, not just that he was there.
▪ Duenas – (1) Miranda hearing: officer summarizes he said during ∆’s interrogation. ∆ crosses. (2) trial:
officer unavailable; π wants to introduce prior testimony. Different motive – at (1) might not care what
officer exactly said b/c just want to get entire convo suppressed, unlike at trial when you want to see if the
officer got all of the details right and want to scrutinize everything that the officer says he said.
o Could be different issues at trial but if you try to get the same thing out of the witness at both times, then there
exists a similar motive.
RULE 804(b)(2)
Dying Declarations
(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.
Capra questions whether saying “I don’t want to die” is an indication that someone hasn’t given up hope of recovery.
Who’s really going to say that they want to die?
Posner: Rejects reliability of dying declarations – no empirical data
Idea that you won’t lie when you are about to die
o But argument that you might because you won’t have to face the consequences
Judge doesn’t decide if reliable under the circumstances; rather, whether the person is dying (104(a)) question
Burden is on the proponent of the evidence
o Declarant is unavailable
o In a prosecution for homicide or in a civil case, and made a
o Statement made under belief that the declarant’s death was imminent
▪ Must be aware of swift and certain death; must have given up all hope of recovery (Cardozo)
• Example: sister arsenic pills – dying sister says “my sister gave me these pills and I will feel better
soon. Then died 30 mins later. This is not a dying declaration because not imminent
• Nieves Case: D charged with killing girlfriend, who told EMT “D stabbed me and I don’t want to die”
o Not under swift and certain doom – there is still hope of recovery
▪ FRE 104(a) judicial determination – preponderance standard
▪ Does not have to be told that they are dying (can be obvious from circumstances)
▪ Suicide typically not considered imminent
o Statement about his/her death’s cause or circumstances
▪ Ex: can’t use it to clear conscience
▪ Nieves: “angel stabbed be here and here – like he did last year”
• Not causally connected
o Declarant must have personal knowledge of the facts asserted (701 & 602)
▪ Shepard v. US (US 1993) Must be some showing of personal knowledge by the declarant. Declarant’s
statements cannot be mere conjecture.
▪ Example (Owens): V shot in back, about to die and knows it, says “X shot me.” If there’s no foundation for
how V was able to see X, not admissible.
• But can be proved by circumstantial evidence, i.e. if defensive wounds on wrist, fair inference of
seeing perpetrator.
▪ Judicial determination, 104(a), preponderance
o Factors to consider
▪ Wounds
▪ Knowledge of own condition
▪ Time since the statement
RULE 804(b)(3)
Statements against Interest
(3) Statement Against Interest. A statement that:
o (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true
because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal
liability; and
o (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.
o Declarant is unavailable
o Proponent must show that the statement, when made, disserved the declarant’s interest (proprietary,
pecuniary, legal) by a preponderance of the evidence
▪ Reasonable person standard – only would make it if believed to be true
o Context of the statement supports admissibility
▪ If confessing to law enforcement and blaming others, the statement blaming others is not admissible.
Implicating others is not disserving at all.
▪ If in gang, willing to take the fall → weighs against admissibility.
o In a criminal case where the statement opens the declarant up to criminal liability, the proponent must show
corroborating circumstances clearly indicating trustworthiness.
Statement by a NON-party (otherwise 801(d)(2))
Two major interests: cost them jail time or cost them money
Types of Statements
o Inculpatory Statements – Statements offered by π against ∆ that inculpate ∆
▪ Example: W said, “∆ and I robbed the bank,” offered against ∆.
• If made to law enforcement → NOT admissible.
o Williamson v. US (US 1994) – bright-line rule that statements made to police officers while
declarant is under arrest that implicate the ∆ are not admissible b/c not considered disserving.
• If made to friends / third parties → admissible
o Katsougrakis – arsonist hired by ∆, gets trapped. In hospital, arsonist tells friend that ∆ paid him
to burn down diner. Against interest therefore, Admissible against ∆. [Note: admitting to
conspiracy is worse than committing arson]
o Possible arg against admission: you don’t think your best friend will rat you out. Problem is that
you never know; better to keep quiet.
• Gov’t must introduce corroborating circumstances, not just crim ∆s.
o Exculpatory Statements – Statements offered by ∆
▪ Example: W said, “I did it alone.” “∆ refused to come to the robbery.”
• If made to law enforcement → admissible.
o Saying who didn't do it when you were arrested is disserving. It shows inside knowledge, which
implicates you in the crime.
o Accepting complete responsibility is disserving
o But if in prison for life / making statement at sentencing, not disserving.
o 2 sources to show reliability:
▪ 1) Look for corroborating evidence – usually is physical evidence
• Paguio – father/son fraud but father said that his son had nothing to do with it. Son wants to admit
these statements. Admissible b/c there was a lot of corroborating evidence of truthfulness to suggest
that the father was solely responsible and this was not an attempt to shift blame or curry favor.
• ∆’s own statement that he didn’t do it is insufficient to be a corroborating circumstance per
Legislative History.
Dead Prison Guard Case: Head of prison gang charged said “I killed him, not mills.” Argues it is
disserving because only in on 7 year term. Court: Have to show more.
▪ Could think of corroborating evidence as more – seen in the same court, fight night
before, seen throwing weapon away, etc.
▪ Mills didn’t have supporting evidence except for – I did not do it. And he says I didn’t do
that – need independent corroborating evidence
• Examples:
o Video evidence, forensic evidence, declarant’s history
o If declarant knows something about the crime that you had to be there to know, then that’s
pretty good corroborating evidence. (McDonald – problem if details of crime have been
published in newspaper)
• To whom the statement is made is relevant.
o ∆’s own investigator → suspect
o Declarant’s mother with whom he had trusted relationship → more reliable
• Plausibility of story is also relevant to corroborating circumstances.
2) Something in the statement itself shows reliability
• Timing and circumstances, motive and if there was reason to lie, whether D repeated statement and
did so consistently, parties, and relationship
• Arab Bank: Hamas takes credit for the bombing – could serve their interests. But that is not
dispositive because if would have an interest that could be hurt serves the rule. Hamas then says
could suffer a detriment – they could die. But, Williamson says you don’t need detriment
o Proper evidence analysis: Not a declaration against interest because not liberty or monetary
▪ Couldn’t it be a dying declaration - Not imminent enough – bomb may not go off
o So possibly admissible under 807, residual exception
RULE 804(b)(6)
Forfeiture by Wrongdoing
(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.
o Declarant is unavailable and
o Opponent wrongfully caused declarant’s unavailability
▪ Intent of making the declarant unavailable must be to keep the witness from testifying.
• Killing or otherwise making them unavailable is insufficient
o Rationale: otherwise every murder victim’s hearsay statements would be automatically
• Doesn't matter if you had other reasons to make them unavailable so long as there is any intent to
keep them off the stand.
▪ Must be a direct / affirmative act that causes unavailability.
• Example: DV victim fearful of testifying b/c she has been beaten up in the past. This is insufficient to
constitute a forfeiture b/c the threat must be more direct.
▪ If conspiracy where the declarant is unavailable, the declarant’s statements can be used against other
members of the conspiracy if:
• the evidence shows by a preponderance that other members participated directly in the planning or
procurement of declarant’s unavailability, OR
• the wrongful procurement was in furtherance, within the scope, or rsbly foreseeable as a
nec’y/natural consequence of an ongoing conspiracy.
• FRE 403 balancing test as well.
• Example: running away for the purpose of testifying? ADD
▪ Government can be found to have forfeited as well.
• Example: 5 illegal aliens – 4 inculpatory, 1 exculpatory. Π deports only the 1 with exculpatory
testimony. 9th Cir. found this was wrongful bc all equally deportable.
• Cf. Salerno – different bc no affirmative act by π, just didn’t grant immunity
Standard of proof
o Federal courts adopted preponderance – justified on policy grounds
RULE 803
o Considered more reliable than 804
o Different than in-court testimony – may be more reliable – thus, we don’t care where the declarant is
o Structure: The following are not excluded even though they would violate the rule of hearsay - lists 1-23
▪ Example of bad rulemaking – should have an A
o When first drafted, 803 had an A and B. A said “if the trial judge finds its particularly trustworthy, they have the
discretion to admit.” And B said “here are some illustrations of statements that might work.”
▪ But too much judge discretion, not enough predictability; so A was cut and B just became the exceptions
RULE 803(1)
Present Sense Impression
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Introduced as a result of a 1930s Columbia Law Review article based on a study done on excited utterances
Reliability: based on immediacy – don’t have time to lie.
o Posner: no data and people can lie automatically
o But concern is with lies prepared for trial – crafting a lie like that takes time
Houston Oxygen - Influenced advisory committee
o Prosecution calls driver of a different car and asks “did car B pass you that night.” Driver says “yes.” P asks “was
anyone with you in the car? Did anyone say something?.” Driver: Yes – car is speeding past us and statement by
▪ Reliable: made at the time – no time to lie and no memory issues. But not excited.
• Can be verified because driver was there too and can testify
Rationale: proximity of event and statement negate likelihood of deliberate and conscious misrepresentation; reliable
because of immediacy
Four Requirements (prove by preponderance)
o Timing – immediacy: must be during or very shortly after
▪ Determined on case by case basis to see if time for reflection
▪ Line-ups are not present sense impressions – comparisons with past recollection
▪ Case-by-case determination
▪ Polidore Case: Witness calls 911 (not excited utterance) – says there are drug dealers and gives play-by-play
o Statement must describe the event – can be opinion; what happened, how perceived
▪ David: Woman in supermarket sees another woman slip and fall, says she told clerk about the spill an hour
ago. NOT admissible b/c statement must describe the event the statement is immediate to, which here is
the fall, not notice.
o Independent corroboration that the event happened the way declarant said it did
▪ Watson: Woman found murdered in apt; gov’t wants to offer testimony of phone call witness got from
victim just before she died were V said “gotta go, the super’s here.” Not admissible – nobody to
corroborate/verify that super was at door; relying completely on witness’s statement and can’t use
statement to prove its own event and W wasn’t there to see, so she couldn’t see if ∆ was at the door.
▪ Blakely: 2 off-duty cops came to restaurant and extorted money in back room; victim came out of the room
and said, “stuff like tonight cost me $1000.” Witness testified that the officers acted extortion-like (i.e.
intimidating) – what witness saw was enough to verify that the declarant was accurately describing the
event, so it was admissible.
• Circumstantial evidence is enough to verify the truth of declarant’s statement.
o Declarant must have personal knowledge
▪ Example: W on phone w/ friend who says super is at door, then she is murdered. W can’t verify for sure
that the super was the person at the door. Not admissible.
RULE 803(2)
Excited Utterances
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it
Rationale: excitement temporarily prevents the capacity to reflect/lie
o Note: some skepticism on this (e.g. Posner wants to scrap rule) – some social science data indicates people are
more likely to lie when startled. Capra: Keep rule. Main concern is 911 calls, which are “the real deal” and it’s
hard to say that they aren’t reliable.
Requirements (prove by preponderance – burden on the proponent)
o 1) Startling event
▪ Event must be unexpected
• Example: fight, accident, adultery, blood, 911 call, planned event that goes awry, bomb
o Anything that would upset or startle an average person in those circumstances
▪ Idea that if a person is upset/startled, they don’t have the ability to lie therefore what they say is reliable
• Posner: not empirically proven
• Capra: we know that children lie when they are startle
• Studies: while a lie is possible, it is a lie for litigation that is harder – and that is what we are
concerned with
▪ Example: Declarant is taking to accountant and gives this person unanticipated bad news that 3x liability
• Need specific “excitement” toward the event
▪ Napier: ∆ charged with severely assaulting woman in park. Several months later, V reading paper turns page
and see’s ∆’s picture in paper. V jumps and says, “he killed me!” Admissible – hearsay lies in implied
assertion that ∆ hurt her (not in the literal truth of the statement as she is not dead) and court says that
reading paper and seeing the person who assaulted you / that he is out in public is a startling event.
o 2) Under the influence of startling event at time of statement (temporal req.)
▪ Excitement must be continuous from time of event to time of declaration
• Circumstantial factors to consider: time, nature/severity of event (rape v. robbery), type of event,
type of declarant (physical/mental condition), when startling event was actually over, if self serving
o Example: Children more likely to be effected for longer than adults – sexual assault more likely
to be admitted hours later if is a child
• Marrowbone: direct evidence in record that declarant wasn’t startled for a particular period of time
→ statement is inadmissible
• Pau: okay if statement made after 8 month coma
▪ What an event is and when an event ends can be argued
• Example: Washington Case where woman goes on a date with a guy and he says “let’s go have a drink
on my boat”
o She hides under a tarp for hours after a sexual assault
o The event here wasn’t just the sexual assault – but also the waiting under the tarp
▪ The declarant must be really upset but can’t be upset about recounting/reliving the trauma as they must
still be experiencing it.
• Example: 911 operator says “calm down, then tell me.” → Not going to be an excited utterance if
they do actually calm down.
• Example: Police officer tells person to calm down and write it down → same as above.
▪ Immediacy is not always necessary
• Jennings: minor sexually abused on plane, ∆ moved. 3 hrs later, tells mom when she sees her at the
gate right when she got off the plane. Admissible bc startling event continued bc trapped on plane
with ∆, just ended when she got off the plane.
Hypo: text/tweet “my boyfriend just beat me up.” Admissible? Question is whether they remain startled
while they’re typing.
• Args no: hard to know inflection, deliberation during typing gives time to think
• Args yes: for young generations, typing may be more instinctual than speaking; can get sense of
excitement from misspellings, exclamations, etc.
• Example: woman held hostage, texted “he’s holding me, can’t get away, at place X.” Ct found excited
utterance bc only way she could communicate, there were OMGs.
• When on the 8th tweet in a series, it’s probably not an excited utterance.
• Circumstantial evidence: typos, repeated text, caps, repeated texts, time stamps
• Just because it is written doesn’t make it an excited utterance
• FB live has been admitted as an excited utterance
• But email probably wouldn’t be
3) Statement must related to the event (has to be the first thing the declarant thinks of)
▪ David: Woman slips on ketchup in store. Witness runs over and says, “I told them about the ketchup an
hour ago!” Admissible b/c violent fall & statement about notice relating to the event.
▪ Boyce: 911 call from Gf who says Bf beat her up – not a DV case, but a felon gun possession. She then says
he has a gun in the bed room
• Is this related? Yes, it is the kind of thing a person would think about during the startling event
o natural progression to consider the gun
4) Declarant must have personal knowledge
▪ OJ Simpson: police called V’s sister and told her V was murdered. Sister said OJ did it. Inadmissible as an
excited utterance b/c she doesn’t actually know that he did it.
▪ Most courts do not require that the declarant be identifiable
• In court problem not hearsay problem
RULE 803(3)
State of Mind
(Capra’s Favorite Exception)
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.
Why Reliable?
o Discussing the inner thoughts and feelings of a person
▪ They are in a unique position of perceiving their own state of mind
o Requires THEN existing state of mind – immediacy – no time to lie
o Laual Case (Friendly): suitcase was opened and checked at customs. Found diamonds. “I feel so innocent right
▪ Statement of then existing state of mind – admissible
Personal knowledge of the declarant required
o Must be perceived by the declarant
403 Balancing Test Required
o Limiting instruction if admitted not for its truth
o Prejudice: jury will consider statements as to what he did – may be cumulative
o Probative value: adding coloring
Statements of existing physical condition, bodily health, or mental feeling are admissible
o Statements of physical states are more sold than mental states
o Example: “I have shooting pains in my leg,” “my neck hurts,” “I hate my spouse”
o Example: “I am innocent” – admissible
o Hypo: “My ankle hurts. It must be broken.” – first part satisfies 803(3) but part about being broken is not
admissible b/c not a doctor and don’t know that it is in fact broken.
Looking at where declarant’s state of mind is something that needs to be proven in that case
o Example: D charged with extortion – fear is required under law
▪ V says “I fear D” – hard to reject this statement
Context of the statement matters – might be able to admit statements that give context to the state of mind even if
they are not about the state of mind themselves
o Atkins v. Brett: A sues B for alienating the affections of his wife. On the stand, A said his wife told him she hates
him and doesn’t love him anymore because B is better.
▪ The alienation of affection claim requires proof that there is no affection and that ∆ is the one who
alienated BUT the factual assertions added to “I hate you” are not covered by the exception because they
aren’t about state of mind. The problem is that if you cut off at “I hate you,” that doesn’t prove much as
wives say this all the time.
▪ Thus, the context of the statement is critical for an element of proof and other statements provide context
to show that statement is a permanent wound and therefore admissible.
• Judge provides limiting instruction to use statement for its context only and not for its truth.
However, in closing arg, ∆’s lawyer tried to use it for truth – mistrial.
o BUT look for less prejudicial alternatives
▪ If you have actions as context, then you don’t need the statements to provide context. (ex she keeps trying
to kill him in different ways and when he asks why, she responds that she hates him and loves Brett. There,
you don’t need others statements about B.)
Hillmon Doctrine: To admit state-of-mind statements to prove declarant acted in accordance with the state of mind,
need to pass 403 analysis (must be probative of declarant’s future conduct and show that they had a certain stated of
mind that they acted in accordance with or contrary to).
*declarant’s conduct must be in dispute*
o Hillmon: Insurance claim brought by π saying her husband died in Colorado creek but insurance company says it
was actually Walters’ body that was found. ∆ introduce letter that Walters wrote saying that he was going to
Colorado, under the theory that he went because he said that he intend to go there.
SCOTUS: Letter must be admitted and is admissible to prove state of mind and as proof of Walters’
subsequent action in accordance with that state of mind.
o Brown: ∆ show victim and claimed accident b/c they were cleaning guns. Π wants to introduce statement of
victim three days earlier, “I think ∆ is going to kill me because I botched a drug deal.” Court admits this b/c of
context – not admissible to prove drug transactions occurred but to show that someone who was in fear of ∆
wouldn’t act the way V did and wouldn’t go help clean guns for fun.
▪ Court found statement very probative to how the victim would not have acted – he wouldn’t have invited
the D over. The prejudice doesn’t substantially outweigh probative value
▪ Example of Hillmon being very powerful for the government in admitting evidence
o Stager: Wife accused of killing her husband and says husband was paranoid ever since robbery so he kept gun
under pillow every night and she accidently fired it while moving it. In husband’s office is a tape that says “play
this if I die” and it’s a long account of his fears of his wife and the she will kill him. Π wants to introduce V’s
statement to show that if he was scared of his wife, he wouldn’t sleep with a loaded gun (he’d be in a hotel or
awake in chair), so his state of mind is inconsistent with his wife’s version of his conduct. Trial court admitted
b/c prejudice didn’t substantially outweigh the probative value.
▪ Here, it is unclear how you act when you are afraid of your spouse
▪ Probative value may be less
o To be admissible under Hillmon, the declarant’s/victim’s conduct must be in dispute.
▪ Hypo: ∆ on trial for murdering brother but ∆ says he was in Palm Springs at the time. Police find tape in V’s
desk saying if I die, my brother is threatening to kill me.
• Hillmon does NOT work here bc there’s no dispute about the victim’s conduct. Everyone agrees he
was home at the time of the murder so statements are not admissible since they can’t help explain
how the victim would or would not act because the victim’s conduct is not in dispute.
o STATEMENTS OF FEAR BY V OF ∆ offered to show that the declarant would not have acted a certain way are
often admissible under Hillmon in a homicide case where ∆ claims (1) self-defense, (2) suicide, or (3) accident
because they are relevant to rebut the defense. Exception if highly prejudicial.
Hillmon II Statement: Statement about state of mind used to prove a third party’s conduct (someone other than the
declarant). Ex: “I’m going to Colorado with Hillmon,” offered to prove that Hillmon went to Colorado.
o Hillmon dicta: makes it more probable that the declarant and Hillmon went to CO
▪ You can use statement about how a non-declarant acted but that is problematic.
▪ Congress, however, said it is “a bridge too far” to predict how someone else would act -lose reliability
o Different approaches to admissibility
▪ Most courts admit with limiting instruction that it may be used only as evidence as the declarant’s own
intention and conduct.
• Pheaster (9th) – V leaves friends in restaurant, saying he is going to meet Angelo in the parking lot to
get a pound of free marijuana. V disappears and ∆ is tried with kidnapping. Π seeks to introduce
evidence that ∆ is who V thought was Angelo and introduce V’s statement to his friends as evidence
that ∆ met V in the parking lot. Held admissible to prove V’s intent to do something with ∆.
▪ Compromise approach of the Second Circuit: Admits Hillmon II statements to prove third party conduct but
only if the proponent provides corroborating circumstances that clearly indicate the trustworthiness of the
• Delvecchio (2d) – informant’s statement that he was going to meet ∆ to complete a drug transaction
was inadmissible where there was no independent evidence of ∆’s presence at the meeting
o If you can show corroborating circumstances, then will be let in.
• Capra doesn’t like this – see James (below)
o CAPRA THINKS THIS IS WRONG – Courts should not be permitted to use these statements to prove the conduct
of someone who is NOT the declarant.
▪ Problem is that it allows the declarant to prove not just his or her own state of mind but also the state of a
mind of another that is not his own.
▪ This rule is messy.
• James: ∆ aces exam that would get him promoted but investigators think answers were leaked bc too
many people got 100 and when ∆ took exam again, he got a 72. Π thinks X leaked the answers bc he
had access and he held a party the night before the test where he allegedly gave out answers. Π
must prove that ∆ was at the party and wants to introduce X’s statement to a female employer telling
her to come to the party because ∆ (female employee’s best friend) would be there.
o Hillmon II: “I’m gonna have a party and James is going to be there.”
o Court says inadmissible on its own but satisfied with corroborating circumstances concerning
trustworthiness, namely: (1) ∆ got a 72 on the second exam, and (2) because X wanted to get
involved with the female employee, which means he had an incentive to start a romantic
o Capra thinks this is bad: (1) isn’t per se reliable because it could just be the product of a
different test, the pressure to do well, etc. and (2) this is exactly what makes the statement
unreliable – X could like to get the female employee there. This is a really flimsy analysis.
o The statement cannot be used solely to predict the conduct of the third party (must embrace the declarant’s
own conduct as well).
o NOTE: Merely referencing a third party is not sufficient to trigger a Hillmon II problem.
▪ Example: ∆ is a poor man who marries a rich lady and is charged with her murder. Π wants to admit V’s
statement: “I’m really tired of my husband. I don’t want to be married and I’m going to start divorce
• V references a third party, her husband, but this is NOT a Hillmon II statement because it doesn’t
require cooperative behavior and she’s not predicting his actions. This is a Hillmon statement just
about the declarant’s state of mind.
▪ Example: Larry says I am going to Angelo’s house and then goes missing. This is Hillmon I – not saying
anything about Angelo
Shepard Rule: Statements must be forward-looking and cannot be used to prove past conduct by another. Cannot be
used to demonstrate a fact believed or remembered.
o Shepard: ∆ charged with murdering wife but claims she drank herself to death and committed suicide. Π wants
to admit statement from wife to maid, “Dr. Shepard has poisoned me.” Held: inadmissible as a dying declaration
(no evidence of swift and certain doom) and inadmissible as a state-of-mind exception because it’s just a
statement of something she believed.
▪ It is not enough to be something that the declarant believed/remembered → this would be an end-run
around the rule against hearsay.
▪ Also, cannot be admitted under Hillmon to counter ∆’s account that she killed herself because the probative
value is in dispute and the prejudicial effect is high → Jury might take it to mean that ∆ actually poisoned
her rather than just that her state of mind was inconsistent with suicide.
o Forward-looking versus backward-looking
▪ “I’m going to the store tomorrow” → admissible to show that you went to the store
▪ “I went to the store yesterday” → inadmissible under 803(3)
RULE 803(4)
Statement Made for Medical Diagnosis or Treatment.
A statement that:
o (a) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
o (b) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Rationale: allows statements made to doctors to be admissible for their truth when about symptoms/ailments that
the declarant actually has b/c more likely to be truthful when seeking medical treatment.
Types of Statements
o Statements of medical history – usually fine. Issue becomes when goes to cause of symptom
o Statements relating to causation of pain – admissible if pertinent to diagnosis
▪ Example: “I’m in pain because a car hit me” – “car hit me” is admissible if it affects the doctor’s treatment
of the victim.
▪ Huffco – “I sprained my ankle when I stepped through a rusty great.” Inadmissible b/c doctor said
treatment depended only on the sprain itself, not on how it was sprained.
o Statements attributing fault/determining causation – generally not admissible
▪ Example: “Dr., I got hurt b/c I got hit by a car whose driver was texting and I flew into a tree.” Driver texting
is not admissible b/c injury is the same regardless of what the driver was doing so it’s not important to
▪ Example: Victim says to Dr., “I’m on crack and Ortega forced me to smoke it.” Is forced to smoke crack
admissible? Maybe – maybe it influences treatment. Does it matter it’s from Ortego? No, so inadmissible.
▪ Exceptions: domestic violence/child sex or physical abuse – part of treatment is to prevent future harm
(cannot send child back to abusive home); rape – need to know who perpetrator is to know if you need
treatment for STDs.
o Statements to psychiatrists/therapists
▪ Statements made to therapists are sometimes admissible if the doctor focused treatment on an assumption
that the statement was true (if the therapist treats the patient’s statement as delusional, it cannot be
admitted for tis truth)
• Example: Patient says DiBlasio is trying to kill her. Doctor treats as delusional – can’t be admitted for
its truth.
▪ Moan → ∆ tells therapist she is depressed b/c her son is threatening to kill her; therapist gives her medicine
and says get out of house but she doesn’t. Son is charged with murder. Here, attributing fault is pertinent
to diagnosis b/c therapist takes it into account in helping patient.
o Statements to “litigation doctor” for purposes of litigation – admissible
▪ Jurors can properly discount the testimony
▪ Matter of weight, not admissibility
▪ Example: Cab stops short, passenger feels twinge in back, goes to a lawyer. Lawyer sends them to a doctor,
who testifies to all statements P made during consultation about pain.
▪ Proposed amendment: should apply if patient going to Dr. solely for diagnostic/litigation purpose. But,
committee says not worth because everyone would say it wasn’t for litigation
o Statement by a non-patient → can be admissible
▪ Must have sincere motive to get treatment for a loved one (e.g. parent for child)
▪ Must have personal knowledge
▪ Cook – gf tells EMS that bf was horsing around, friend threw him over railing. Non-patient can satisfy rule
but real question is would the treatment change if EMS heard how it happened? Possibly – maybe different
positioning would result in different injury and therefore different treatment, and proof of not intending to
hurt oneself could impact treatment.
o Statements on WebMD
▪ Example: π wants to prove that they went on WebMD and clicked a bunch of symptoms.
• Capra: thinks there’s room that if you can really show that it was there for treatment/diagnosis, then
it’s possible this could be admissible
RULE 803(5)
Past Recollection Recorded
(5) Recorded Recollection. A record that:
o (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
o (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
o (C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse
Odd rule for 803, because it means it is so reliable that you don’t need the declarant but here, you do need them.
If admissible, the record may be read into evidence.
o Can only be admitted as an exhibit if offered by an adverse party.
Personal knowledge of the declarant required.
Declarant must be present to testify (unlike 803(6))
o If they are dead, it doesn’t work
o If in a business and a record, doesn’t work
o Need to bring someone who prepared it
Typical Process
o Example: Antitrust allegations involving WebMD. Meeting of ~50 people when “bad stuff” went down and
there’s a question of whether 3 ∆s were at meeting. Secretary took notes about what was happening and was
called to testify. Testified that she was at the meeting but didn’t recall whether ∆s were there. Π: “Are these
your notes about the meeting?” W: “Yes.” Π: “Look them over. . . . Do they refresh your recollection about who
was at the meeting?”
▪ IF YES → no hearsay / 803(5) problem. Notes aren’t admitted, just refresh memory.
• But concern that the witness is just testifying from document or that the doc is being used selectively.
o Solution/Protection: FRE 612 – Revived Recollections, which gives the adversary the ability to
look at notes and use them to show that the witness’s statements are tailored to a portion of
the notes or that pertinent info is omitted.
▪ IF NO → hearsay / past recollection recorded
• To admit, offeror must ask/establish that it’s an accurate account
o Ability to cross-examine the record keeper makes this reliable
May be read into evidence, but cannot be received as an exhibit
o Exhibit: Piece of evidence used to prove a fact and can be sent to the jury to make a decision
o Rule is trying to distinguish between exhibits as what can be brought into jury room for deliberation versus trial
▪ Testimony cannot go in
o If jurors want to know what witness said, they ask for a read back - Within judge’s decision to do so
o Past recollection is witness testimony –but testimony when person cannot remember them – looks like a doc but
actually witness testimony
▪ 803(18) – if brought back to the jury room, importance goes up but should be treated like all other witness
▪ Which means they get read in and into the transcript but jury doesn’t consider them during deliberations
and must ask for them
o Why don’t they have trial testimony in the jury deliberation room?
▪ 1) couldn’t be done in time and 2) not all jurors could read
▪ But both concerns – physical production and literacy – less important these days. But, don’t want jurors to
go through hours of pages of testimony and don’t want them doing that so need judicial regulation on that
RULE 803(6)
Business Records Exception
Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
o (A) the record was made at or near the time by — or from information transmitted by — someone with
o (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
o (C) making the record was a regular practice of that activity;
o (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
o (E) the opponent does not show that the source of information or the method or circumstances of preparation
indicate a lack of trustworthiness.
o One federal statutory exception that was codified
o Underlying idea of reliability
▪ The business sells stuff and makes stuff: regular practice of keeping records – routine
▪ Regularly conducted and regulated – internal checking mechanisms and quality control b/c there is
incentive to keep accurate records
o Untrustworthiness clause: opponent of evidence can tell judge its untrustworthiness because of this clause
o The set up
▪ Proponent – show its business record- presumptively trustworthy
▪ Opponent – show untrustworthiness
o Just means profit-making
▪ Can be a criminal enterprise
• Spreadsheet of drug sales
• Towns Case: Sudeofederan
o These are recorded – but say it cannot be a business record bc pharmacy doesn’t keep it for a
business reason but because government makes them – so its not a business record
▪ Not correct argument – not whether kept for business purpose – but that it is regularly
conducted activity and when it happens, you record it for any purpose of any kind
▪ So clearly a business record
▪ Doesn’t matter if req’d by gov’t
• Example: π wants to show that ∆ went all over Texas to buy pseudoephedrine by admitting
pharmacist records. Pharmacists req’d by law to maintain records on pseudoephedrine purchases.
Satisfies 803(6) if made/kept properly.
o Can be regularly conduced activity that records are kept routinely – look for internal checks
o Can an individual person maintain a business record?
▪ The emphasis is on regularly conducted activity – if maintained just by a person, like a phone record, it is
▪ Need to show to show internal checks
▪ Life is not a regularly conducted activity
“Qualified Witness” – someone to authenticate the record and show it is not fake
o Foundation witness/testimony required b/c business records do not testify for themselves
o Doesn’t have to be the one who prepared the record
o Person must have familiarity with the record keeping process
▪ Does not need to have knowledge of the record’s contents or accuracy
▪ Must know record is regularly kept
• Keogh: black jack dealer’s wife saw him keep records of tips every night in spreadsheet for 20 years
but never saw what he put in. Qualified witness.
Example: drug distribution network – police officer was sufficient because he knew how records
were kept.
o Can use affidavit / certification in lieu of qualified witness
“Record” / “Regularly Recorded Activity”
o To be a regularly conducted activity
▪ Must occur a lot / with frequency
▪ When it occurs, it must usually be recorded
o Emails generally not included because they cover tons of subject matter and are not always about some
regularly conducted purpose; very informal.
▪ But if email is regularly conducted and if stored in folder specific to this purpose, it is more likely to be
admissible under 803(6).
o Diary Example: ∆ charged with murder, claims alibi is girlfriend, who kept diary that said that he was with her
until 11:30pm, which is after the crime was committed. She’s unavailable to testify and ∆ wants to show that
this was a regularly recorded activity b/c she wrote every day before bed. → This is regularly recorded but it’s
not a regularly conducted activity b/c she’s writing about life / various things.
▪ But if this was a diary just dedicated to her boyfriend, Capra said this probably could be admissible.
o Example: Case involving narcotics with beautiful spreadsheet
▪ There were 4 astricks at the end of some transactions
▪ Just because whole thing looks like a drug ledger doesn’t mean all things recorded are regularly conducted
▪ Simply because something is written where they would be a business record doesn’t mean that each and
every entry that can be entered
o Example: Government wanted to show withdrawal from a partnership account via a ledger
▪ Trial judge admitted but reversed – no showing that was regularly conducted
▪ Government: seems reliable
▪ Court: wrong exception. not that reliable and therefore business record. It’s a business record and gets
excludes if its unreliable. Gotta show it’s a business record and every first entry cannot establish that
regularly conducted
Informants (issues: knowledge, duty to report accurately)
o Advisory Committee Note indicates requirement that the informant have knowledge and be acting under a duty
to report accurately when he reports the information.
▪ Example: If informant who told record-making officer was another officer in reporting structure who has a
duty to report accurately, the record is admissible.
▪ But where the person has no duty / is an outsider, there is a double hearsay problem – see below.
Problems with Business Records Exception
o 1) Double Hearsay (information from outsider)
▪ Lutz Problem (NY Court of Appeals): Accident report prepared by private security guard based on info from
bystander where officer has no personal knowledge and bases report on bystander info and bystander has
no duty to report.
• Concern if offered for truth: inaccurate info can be recorded in accurate way
▪ Ways Around Double Hearsay Issue
• Admissible as business record if verification is required (majority view)
o Bland – gov’t wants to prove purchase of handgun by introducing receipt. Cashier did not have
personal knowledge of buyer but was required to verify name with three points of ID. Thus
had independent knowledge. Admissible.
o Towns Case: when someone comes in asking for sudeofederan, need to prove ID with license –
guarantees accuracy
o Example: Stalking case where government shows that he accessed the filings but the identity
of the accessor is outside information. Government argues that it is verified by his username
and password. Maybe – but could be a lame and obvious password and username
o Problem: fake IDs, record keeper might not notice issues
• Independent ground for admissibility (e.g. satisfies other hearsay exception)
Example: Driver runs over pedestrian. To prove driver’s fault, a record from security guard is
offered. Regular practice to write these up if accident.
▪ R1: “I didn’t see the accident b/c I was inside, but I heard a squeal and shriek, went
outside and saw pedestrian laying there plus a ~45 ft skid mark.” Admissible – no
business duty problem b/c just wrote what he saw and had duty to report accurately.
▪ R2: “I arrived about 5 min after. It was chaotic. I came upon bystander who was flailing
her arms and said ‘I can’t believe that driver sped around corner while texting and hit
that man. I’m so upset, I can’t believe it.’” BD problem b/c outsider and guard has no
knowledge. Admissible: excited utterance w/in business record.
▪ R3: “I arrived about 5 minutes later. I talked to driver and asked him what happened.
He said he was texting while driving and didn’t know what happened.” Admissible:
Statement by party opponent w/in business record.
▪ R4: Record contains statements from other security. No business duty problem b/c both
have a duty to report accurately.
o Example: Someone says I am really sick now and I was forced to smoke crack by Ortega.
Strategy: find a hearsay exception for the transmission of the insider to the business record.
▪ Statement 1: I smoked crack – admissible: 803(4) satisfied this
▪ Statement 2: I was forced – admissible: Information a doctor would want to know
▪ Statement 3: Ortega forced me
• This is hearsay and no way to verify it – coming from an outsider with no duty to
report accurately – not admissible
• Not offered for its truth
o Vigneau – Western Union form inadmissible to show person on form was actual sender (bc no
verification required), but if gov’t wants to prove that they said they were a particular name bc
it’s code for a receiver to put funds in a certain account, then it’s admissible as circumstantial
evidence for a not-for-truth purpose, namely linking an alias to the money transfer.
2) Suspect Motivation (in anticipation of litigation)
▪ Palmer v. Hoffman (US 1948) – precludes reports prepared in anticipation of litigation, where the records
are favorable to the party who prepared them b/c there is suspect motivation in the preparation that
renders the record untrustworthy.
• Suspect motivation means untrustworthiness
▪ Scheerer – π slips on floor in Hardys, breaks leg and hurts spine. Assistant manager responsible for keeping
a log of all accidents/incidents, writes “I was there. I saw her fall. I asked her what happened. She said she
was working on breaking in her shoes and slipped.” Π claims she never said that. Admissible?
• π/majority says doc is favorable to the preparer and is in anticipation of litigation.
• ∆/minority says the preparer has no money and no stake in any litigation.
• Court says preparer could get fired; thus, the record is not reliable b/c he’s incentivized to advanced
Hardys’ interests.
• If the kid also reported that there was grease all over the floor, would be admissible because no
suspect motivation.
• Its about timing
3) Opinions in Business Records (e.g. doctor reports)
▪ Rule says opinions in business records are admissible
• Why? Because fact versus opinion is a vague distinction
▪ If declarant is an expert, judge must determine if the opinion satisfies Daubert
▪ If opinion is deemed untrustworthy, can still enter rest of business record if it satisfies all of the
▪ Most common example: medical records
• Example: P has respiratory disease and specialist sees him, files record – business record
o Under one meeting, doctor says patient has mesothelioma. This was struck because testimony
at the hearing showed that a doctor cannot diagnose mesothelioma in 1 viewing
o Considered speculative
Example: Doctor looked at an x-ray 2 days after the patient’s accident where a car ran him over and
broke his leg. The doctor said there was permanent limitation in motion in the leg and he won’t walk
correctly. But, the leg can heal even though it is completely broken.
Computerized Business Records
o Same requirements as hard copies
o Courts have almost uniformly found that you don’t need IT person to say no manipulation.
o If record is printout, there’s no problem that the printout was made in anticipation of litigation so long as the
data compiled in the printout was entered at a time when there was no suspect motivation.
o Internet information can qualify as a business record if the reqs are all satisfied
▪ Courts have held that website postings cannot be admitted as business record of Internet service providers
b/c they are just conduits, not record keepers, even though they are able to retrieve information that its
customers posted or emails that customers sent.
o Electronic issues are for the jury – don’t need to establish specific electronics issues to the judge
▪ Would have to establish: you say something, goes to the databases, etc. – basic custodian process again
RULE 803(7)
Absence of Business Records
Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in
paragraph (6) if:
o (A) the evidence is admitted to prove that the matter did not occur or exist;
o (B) a record was regularly kept for a matter of that kind; and
o (C) the opponent does not show that the possible source of the information or other circumstances indicate a
lack of trustworthiness.
Idea: prove that an event did not occur because there’s no record, and the event would have been recorded had it
actually occurred.
Must satisfy all of the foundational requirements of 803(6):
o regularly conducted/recorded activity,
o qualified witness (or certification) must testify that the event is of the type that would have been recorded and
o the recordkeeping is accurate.
Example: D is charged with stealing a car from a rental car company
o Arrested in the car and says I rented the car. Says dog ate the contract. Need to prove negative.
RULE 803(8)
Public Records
A record or statement of a public office if:
o (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
o (B) the opponent does not show that the source of information or other circumstances indicate a lack of
Records maintained by public officials – government officials
o Why are they reliable?
▪ It’s the government – its their job! Public duty
▪ Most public records are not controversial
o How are these different from business records?
▪ 1) Public records may be one-offs - but still reliable
▪ 2) Business records need to be recorded at or near the time of the event – but many public records
aren’t that. May be well after the event because of public duty
▪ 3) Public records do not require witness to show foundation
• Don’t have to say its regularly conducted – it’s not a part of the rule
• Requirement of the rule – public official – evident from the record itself
• Just show it’s a government record – shown on the face of the document
• There are ways to authenticate that outside of a witness – like a seal, government website
o If inadmissible under 803(8) bc not trustworthy, then it’s not going to come in under 803(6), which has the
same trustworthiness clause. Bad motive will prevent admissibility under both exceptions [Gov’t tried this in
Self-authenticated document – admissible for its truth w/o witness/affidavit verification
Circumstances Indicative of Untrustworthiness (must be shown by opponent)
o Biased Report or Reporting Body – Concerned with Political Motivation
▪ Example: excessive force civil claim; panel investigates complaint. To determine admissibility, must look at
the conclusions of the report and to the makeup of the review board (bc incentive is for police to cover the
All police officers
Pro police officer
All police officers
Pro complainant
Police + Citizens
Any conclusion b/c likely
▪ Bias arises where the report is consistent with biased panel
▪ Wilson v. Beebe – excessive force case where officer didn’t call for backup, does some odd stuff, and π’s
private parts end up being accidently shot. Police log said that ∆ police officer should have called for
backup. Thus, no suspect motivation b/c police officer is not exonerating his own. Π can admit pursuant to
o Opinions in an Investigative Report
▪ Some opinions will be excluded as untrustworthy.
▪ Expert opinions must satisfy 702, Daubert
▪ Was an argument that opinions were excluded from 803(6) but courts got around this by interpreting fact
that “reports containing factual findings” are admissible to mean that a report containing factual findings
and opinions must also be admissible given the presence of factual findings.
▪ Beech Aircraft: Justice Brennan – if a report is ONLY opinions, then problematic but this is pretty rare
Lack of Personal Knowledge or Qualifications – Outsider Reporting to Record Keepers
▪ Example: Explosion. Volunteer fire dep’t chief (barber mostly) is first on scene and writes report saying that
sparking water cooler caused accident. But he never set foot inside. Inadmissible report b/c shockingly
unqualified and did not sufficiently investigate.
▪ Typically, however, agency is presumed to be relying on reliable information and filtering out unreliable
o Bystander Information – not admissible for its truth but conclusions based on it are ok
▪ Beech Aircraft – fatal accident; investigator relies at least in part on bystander information (no duty to
report accurately). BUT if the statements are just part of a report, then the report will likely be admissible
b/c report is treated like an expert conclusion → just like an expert, can rely on whatever is reasonable to
rely upon as long as those things aren’t offered for their truth.
Criminal Case – Law Enforcement Reports Offered Against ∆
o Oates Report (inadmissible): made in anticipation of litigation of a particular ∆
▪ Oates – DEA drug test of powder is inadmissible as a public record b/c concerned about bias and ∆ losing
confrontation rights b/c can’t cross-examine a report.
▪ To admit, π needs a witness to testify
o Grady Report (admissible): crime hasn’t occurred yet OR particular ∆ not yet targeted
▪ Routine tabulation of non-adversary matters ARE admissible even though 803 wording seems otherwise
▪ Grady – law enforcement report containing a list of serial numbers of guns was admissible against ∆
because it was taken before law enforcement was aware of who ∆ was (so no bias, couldn’t manipulate to
frame him), unambiguous factual matter made the information really hard to manipulate.
▪ Orozco: ∆ charged with murdering someone in San Diego on a particular day. Alibi was that he was taking a
car trip through Washington. Π offered record kept by border control with print out of all license plates
that crossed the border near where the murder was committed, indicating ∆’s plate was in area before
murder occurred. Admissible b/c like Grady – no crime yet, so no law enforcement bias.
o Oates/Grady Applications
▪ Drug tests (e.g. breathalyzer) → usually barred b/c like Oates (person is arrested)
▪ Machines that tell you what the substance is → not hearsay so no issue
• But if a law enforcement agent prepared report to interpret it, there’s an Oates problem if it is
prepared for litigation with a particular defendant in mind.
▪ Notice of suspended license or deportation certificate → admissible
• Administrative purpose, not a criminal justice purpose
• At creation, no crime has occurred.
• Example: Certificate of deportation stating, “I, deporting officer, took person X across the border and
saw him go across the border,” is admissible to prove that the person got deported.
▪ Law enforcement reports that are routine tabulations of non-adversarial data that cannot be massaged or
manipulated in any way → admissible
▪ Certificates that things are working → admissible Grady reports
• Example: Certificate of working breathalyzer: Not geared toward a criminal litigation (though only
reason to keep working is for litigation), but aren’t going so far as to manipulate.
▪ Violation of order of protection – no crime has occurred
▪ Forensic reports (Ballistics) – barred under Oates
• If made under adversarial circumstances, cannot be admitted
▪ Print out of gas chromotagraphy machine evaluating substances – not hearsay because not a statement
• Will then need to qualify a foundation – chain of custody and proper operating order
Public Records can be admitted as a past recollection recorded per 803(5)
o Oates retired years later and chemist who made the record didn’t remember doing the report and when
memory was attempted to be refreshed, chemist said no recollection. Gov’t was permitted to admit this as a
past recollection recorded even though the introduction of the record was previously not permitted under
803(8) because witness was there to be cross-examined.
RULE 803(10)
Absence of a Public Record
(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:
o (A) the testimony or certification is admitted to prove that
▪ (i) the record or statement does not exist; or
▪ (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that
kind; and
o (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at
least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice —
unless the court sets a different time for the notice or the objection.
To prove up that an event didn’t occur, the proponent can:
o 1) Produce all records and have factfinder draw inference from absence of info, OR
o 2) Per 803(10) - Have gov’t agent perform a diligent search for the record and testify to the absence of the
record but that it is of the kind that is regularly kept, OR
o 3) Per 803(10) – Have gov’t agent provide a certification/affidavit under FRE 902 to the same effect and
explaining why the search was diligent, but if it's a criminal case a prosecutor who intends to offer a certification
must provide written notice of that intent at least 14 days before trial and the ∆ has 7 days to object in writing.
[court may set other notice dates]
▪ Some courts don’t require much to show the search was diligent
• Ex: “I did a diligent search” has been found to suffice
• Capra says the minimum should be higher
▪ Rationale for notice: Confrontation Clause issue
• Two forms of hearsay – hearsay of the record, hearsay about the checking
• Certificates/affidavits of the absence of public records ARE testimonial if prepared for litigation. (see
hearsay/CC table) Remedy for this is notice + demand provision.
▪ If timely objection, π must have qualified witness testify, cannot rely on certification
RULE 803(16)
Ancient Document Exception
Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose
authenticity is established.
Old Rule: A statement in a document that is at least 20 years old and whose authenticity is established may be
admitted for its truth.
o AKA if it’s authenticated and old, then everything within it is true.
o Only like 75 cases
o But then advisory committee saw it as a big problem with electronic stuff – tweets, ads, etc. would be admissible
in 20 years
▪ Thought that the info would be hard to find – but that’s not true anymore
▪ And now litigation crosses more than 20 years
▪ Also not geared toward a particular litigation – but some litigation
Applied to tort cases with latent injuries, priests abusing little kids, etc.
New rule: before 1998 – so now if after 1998 cannot be admitted as an ancient document – should be provable by ESI
about things that are happening now
Capra: this is a stupid rule – it doesn’t follow that because something is genuine that the assertions within it are
Problem: Application to Electronically Stored Info
o Ancient documents might be stored as ESI, not getting thrown out, being preserved. Concern is that people will
start admitting unreliable ESI for its truth as an end-run around hearsay.
o Advisory Committee has submitted for public comment the elimination of this Rule.
▪ Cigarette/insurance/environmental cases – have commented that they’re going to have trouble
authenticating old records. But Capra said this is not a good argument b/c authentication rules are the
same and the difficulty lies in establishing that the assertions are reliable. Any argument to admit
unreliable evidence is not going to fly.
Problem: Double Hearsay
o Example: Steve Winwood
▪ Spencer davis group – wrote song
• A month earlier came out – copyright issue
• Plaintiff wants to introduce interview from 35 years ago – saying they heard a song and decided to
copy it
• In ancient document because interview 35 years old
▪ Court: double hearsay
• Statement in the record about a statement
• So not allowed
o But interesting other point – where is that interview?
▪ Couldn’t find it in any form
▪ It was posted on steve winwood.com
▪ So argument there from plaintiff
• He adopted it as a party opponent statement
o That interview was wide ranging and 1000 assertions and then buried in that is the song
o So with this would come all the other assertions
• So no adoption here
RULE 803(18)
Learned Treatises
Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or
pamphlet if:
o (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert
on direct examination; and
o (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another
expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
Rule: statement contained in a treatise, periodical, or pamphlet may be admitted for its truth if:
o The statement is called to the attention of an expert witness on cross-examination or relied by the expert on
direct; AND
o The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s
testimony, or by judicial notice.
▪ Capra: other party can also concede
Can be introduced as proof for its truth to show it is the way to do the operation
o Judge’s question – prove it up at hearing: is it cited a lot, would expert say so, etc.
o Expert must be on the stand
▪ Rationale: must be available to explain to the jury
o If admitted, it may be read into evidence but not received as an exhibit
▪ Rationale: don't want juries having access without context; might give too much weight; don’t want them
flipping through the text without guidance
Videos and ESI included
o Constantino – party wanted to introduce video although not explicitly allowed per rule
o Restyling – 101(b)(6) says any reference to a “writing” covers “electronic forms”
Testimony – read into evidence but not admitted
RULE 807
Residual Exception (Narrow Exception)
December 1, 2019 Amendment
(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if
the statement is not admissible under a hearsay exception in Rule 803 or 804:
o (1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of
circumstances under which it was made and evidence, if any, corroborating the statement; and
o (2) it is more probative on the point for which it is offered than any other evidence that the proponent can
obtain through reasonable efforts;
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent
to offer the statement—including its substance and the declarant’s name—so that the party has a fair opportunity to
meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if
the court, for good cause, excuses a lack of earlier notice.
While many state courts don’t have this exception, without an exception like this, you see other hearsay exceptions
getting stretched
Rationale: Costly to be underinclusive b/c reliable testimony might be excluded; better to have a catch-all provision
than to allow things to be admitted under other rules that really don’t fit.
Concerns: Unpredictability has costs
104(a) / judge / preponderance of the evidence standard
Trustworthiness - Typical Examples
o Old rule had language “guarantees of trustworthiness” – required judges to look to compare to other exceptions
for reliability. But that was unnecessary and useless task.
o 1) Case-by-case approach
▪ Circumstances provide circumstantial guarantees of trustworthiness, such as who said what, why, when,
and under what circumstances
▪ Hypo: When 2nd graders are at school and discussing what they like to do (e.g. bball, video games) with
teachers, one student says playing with dad and describes a sexual assault. School is a friendly environment
where children can speak freely and have relationships of trust/confidence with teachers. Teacher asked
open-ended question so there was no suggestiveness that would lead to an untrustworthy statement.
Likely admissible absent factors that suggest untrustworthiness (e.g. inconsistent statements in the past,
implausible b/c no father, etc.)
▪ Triplett – Mrs. Triplett murdered in home and son living with her is ∆. Hearsay statement of Mrs. Triplett to
her best friend/neighbor of 30yrs. Neighbor asked what was wrong, Triplett said her son strangled her last
night and that she thought he was going to kill her. Statement is reliable given relationship of trust and
confidence (not to stranger but to best friend), and the statement is sort of against interest b/c one is
unlikely to put down their kid unless it’s true. (No unreliable puffering)
▪ Example: ∆ charged with having child porn on memory stick. To prove jurisdiction, gov’t wanted to admit
stamp on memory stick saying, “Made in China.” This is hearsay because, although it was output by a
machine, someone programmed the machine to say this so it’s an assertion. Ct found this to be reliable bc
the stamp is put on pursuant to regulations (not in anticipation of litigation) and it doesn’t make any sense
that anyone marketing the product in American would lie about it being from China.
o 2) Near miss of satisfying other hearsay exception
▪ Judge has to consider how close it is and what is missing
▪ Statement is close to satisfying another exception.
• Example: Declarant badly injured, had come down off excitement and was going to die pretty soon
but he hadn’t quite gotten up to dying declaration yet. Π argued that it’s in the penumbra of 803(2)
and 804(2). Ct agreed.
▪ Problem: can be pretty flimsy b/c Congress crafted the exceptions for a reason.
• Dumb example: declarant wrote account of explosion but died and proponent says near miss of pass
recollection recorded b/c have the doc, just don’t have the person. Admitted.
US v. Valdez-Soto: declarant implicated ∆s in drug conspiracy in police interrogation but changed his tune at
trial. Ct admitted under residual hearsay bc it was a near miss from 803(6) (business record exception) b/c
had substantial indicia of reliability (statements were made close after arrest, translator recorded convo,
agent took notes and relied on them under penalty of perjury to obtain search warrant and prepared
interview summary, plus agents thought declarant was a cooperator and had no idea he would change
story, plus the notes were detailed and consistent with the physical evidence, plus the declarant admitted
to making at least some of the statements, which adds to their reliability, plus defense counsel had an
opportunity to cross and gave jury opportunity to decide)
o 3) Corroborating evidence
▪ Evidence independent of the statement supports the truthfulness of the account
• Example: Child sex abuse case. Child brought to doctor, who found signs of sexual abuse
o ∆ response of caution to judge: corroboration of physical act, not who did it
▪ Larez – πs want to show that police chief made a derogatory statement and want to introduce newspaper
account with statement under FRE 807.
• Arg: it’s the LA Times and therefore truthful.
o Problem: newspapers make corrections all the time.
• But corroboration that a newspaper reporter said that he said it to someone else, and that 5
independent bylines (aka not repeating the first report) include exact same thing.
o Cross-corroboration → a bunch of statements corroborate each other → admit
More Probative
o rarely brought up but there can be an arg that the declarant should be called instead of introducing the
testimony as hearsay through another witness.
▪ Situations in which prior statements are more reliable than live testimony, e.g. child sex abuse cases where
child provides statement to teacher (more likely to be detailed, voluntary, and informal than in-court
testimony where child is likely to be scared being in court talking to lawyers), case where declarant has
since become senile. Still, live testimony is preferred.
o Example: injured in jail fight and argues was kicked by a guard and there is a written account by prisoner –
assume reliable – court said its not admissible under residual – not probative enough
▪ Court says – there must have been other witness and get them to testify and then don’t need residual
• But who knows what they say – that is a theory to think that
▪ Judges who don’t want to expand residual hearsay can just proffer this
o Larez Case: strong case not to use
▪ Declarants were the very newspaper reports who were in the court room – easy to get/call them
Notice requirement
o Have to provide notice in advance because of the case-by-case trustworthiness issue
o Amendment: add good cause exception.
▪ Sometimes you have a good excuse to not notify
▪ Without this exception, example: prosecutor had witness that was going to testify but the day before trial
W died. Now, it is offered as residual hearsay
Residual exception in criminal cases is cut back substantially by confrontation cause issue
STEP #3: Should the evidence be excluded under the Confrontation Clause?
• 1) Background of Confrontation Clause
o Criminal defendants have the 6A right to confront accusers
▪ Intended as a right to cross-examination
• Owens: only need an adequate cross-examination, not the best one
▪ if something is not hearsay, it is not a confrontation problem
▪ Summary of Applicability of the Confrontation Clause in hearsay context under current law:
• Testimonial hearsay → CC applicable (Crawford v. Washington)
• Non-testimonial hearsay → CC not applicable (Wharton v. Blockting)
• Non-hearsay statements → CC not applicable (Tennessee v. Street)
o Street – Peele confessed to police and implicated himself and ∆, who also confessed but at trial
said that he didn’t actually confess but that he was coerced by the officers and that he was forced
to copy Peele’s confession word for word. Π offered Peele’s confession to show differences. ∆
argued testimonial / violates CC. Ct held there was no CC violation because not hearsay – not
offered for truth but for legitimate other purpose, so this was not subterfuge / end-run around
hearsay rule. If it’s not for its truth, you don’t care about cross-examination so there’s no CC
o Old Rule: no confrontation problem if not hearsay, get cross-examination, or reliable
▪ Ohio v. Roberts – if the admitted hearsay is reliable, then that satisfies the CC
• Problem: unregulated under the federal rules and was flimsy
• 2) Because of the Confrontation Clause, testimonial hearsay cannot be admitted unless the criminal defendant has
had an adequate opportunity to cross-examine the declarant.
o Crawford v. Washington (US 2004) – Rejection of Roberts’s reliability question. The right to confrontation is not
ability reliability, it’s about the right to cross-examination, a procedural right for which reliability is no substitute.
▪ About history and practices that gave rise to confrontation – hearsay and confrontation came from Raleigh
case and Marian statutes – where government introduces affidavit of a statement and considering it
adequate testimony
▪ Scalia: if a hearsay statement is testimonial, cannot be admitted unless cross-examined
o Crawford failed to define “testimonial” but said these are clearly testimonial b/c ∆s would reasonably expect
these statements to be used prosecutorily:
▪ Testimony from a prior trial
• Example: ∆1 convicted. Testimony from ∆1’s trial used against CC/∆2.
▪ Grand jury testimony
• Gov’t engaged in prosecutorial objective.
▪ Plea allocution
• Example: ∆1 pleads guilty and allocates to crime by stating that he and ∆2 committed the crime
together. Statement offered against ∆2.
▪ Statements made to police officers in custodial interrogation
• Police engaged in prosecutorial objective; statements are designed for trial.
• 3) Hearsay is “testimonial” only when a reasonable person in both the declarant and listener’s positions would have
the “primary purpose” of using the statements in a criminal investigation or prosecution. (objective test based on the
statements and circumstances)
o 2 proposed definitions
▪ 1) By defendant: when person can reasonably anticipate that it would be used in a criminal trial (broader)
▪ 2) by government: statement is testimonial when primarily motivated to be used in a criminal trial
o Michigan v. Bryant (US 2011) – Ct adopted the primary motivation test and held that because the police officers’
prior motivation in obtaining victim’s statements identifying ∆ as the shooter and ∆’s location was to respond to
an ongoing emergency (potential threat to police and public safety), the statements were not testimonial and
admission did not violate the CC.
1) primary motivation – not subjective, but objective: what would a reasonable person in the
declarant’s position do?
• 2) If there is an emergency, probably not testimonial
• 3) most likely to be testimonial if there is formality involved – like docs, suits, offices, etc.
• 4) if a conversation, look at both sides. Both sides need to be testimonial
▪ Court notes lack of bullets flying did not signify end of emergency. Incident involved a gun and victim with
severe injuries, possible that shooter was still nearby or going after other targets – nothing to indicate to
the contrary. ∆ was arrested 1 yr after shooting – Ct declined to determine when emergency was over but
definitely not for a full year.
• Note: court also discusses how the conversation was informal
▪ Discussed two SCOTUS post-Crawford DV cases:
• Davis: 911 call by V describing ∆ hurting her, ID-ing him and providing location.
o Not testimonial because (1) V was speaking about events that were happening rather than
describing past events, (2) there was an ongoing emergency and the elicited statements that
were needed to resolve present emergency, and (3) statements were not formal.
• Hammon: police responded to domestic disturbance and found V alone on porch and spoke to her.
o Testimonial because it was clear from circumstances that the interrogation was part of an
investigation into possible past criminal conduct and there was no emergency in progress. Also
“formal enough” bc separated from husband, after the event, and she deliberately recounted
what happened.
▪ Both sides must have the motivation to use the statements in investigation/prosecution.
• Example: Drug conspiracy where one of the co-conspirators says to a buyer, “I have to go get the drugs
from Jim for $X,” and the buyer is an undercover cop. Cop/buyer is trying to get the statements for a
criminal prosecution but the co-conspirator/declarant is not as he is just trying to get the drug deal
done. Therefore it is not testimonial.
4) Statements by Children / Statements to Non-Law Enforcement -- Ohio v. Clark (US 2015): Three-year-old boy was
abused and makes statement to teacher that his mother’s boyfriend did it. Deemed admissible under FRE 807
because there were circumstantial degrees of trustworthiness.
o A child is unlikely to have the primary motivation to make a statement for purpose of prosecution (but there’s no
bright-line rule)
▪ Here, a three year old is definitely not trying to make a statement to further a criminal prosecution.
However, there might be an age where a child might go from “child mode” to “law-and-order mode” but
it’s not three. Therefore, not testimonial.
o Any person’s statement to people other than law enforcement are very unlikely to be testimonial (but there’s no
bright-line rule)
▪ If someone is primarily motivated to have their statement used in a criminal prosecution, then one is going
to make the statement to a law enforcement officer.
o If the non-law enforcement individual has an obligation to report the information to law enforcement but the
person would have responded the same way with or without the reporting requirement, then the reporting
requirement does not elevate the person to law-enforcement status.
▪ Here, the teacher was obligated by law to report child abuse allegations to law enforcement. However, the
teacher would have acted the same way even without the requirement because wanted to ensure that the
school would not release the child at the end of the school day into the custody of his abuser.
▪ Hypo: what if it’s something that individuals would only do because of the reporting requirement, such as
pharmacists reporting pseudoephedrine purchases. Absent the requirement, this stuff would not get
• Capra: Although the reporting requirement has some effect, ∆ would still need to prove that the whole
system is primarily used to facilitate criminal prosecution.
o Args against this are that it’s regulatory (to see where sold) and for a deterrent effect to prevent
consumption → neither purpose is prosecutorial.
5) Forensic reports that certify incriminating test results are testimonial because they are made in anticipation of
Melendez-Diaz (US 2009): Lab analyst filled out a certification that stated that the substance was cocaine. The
certification is testimonial b/c it is a hearsay statement and its primary purpose is for trial. Thus, CC rights
violated because there is no opportunity to cross-examine
▪ Implication for introducing records:
• ∆s have a right to demand the production of witness if a test/lab report is going to be used against him
in a criminal trial.
o Drug tests and breathalyzer tests are definitely testimonial bc the only reason they are prepared
is for trial. But not really useful to demand that the person who did the test should come in
because there’s nothing really to ask besides “did you do the test?”
• Four Melendez-Diaz dissenters argue that this rule imposes a big imposition on gov’t having to call
these lab analysts and there’s no benefit to ∆s bc nothing to cross on. Over the course of the system,
burdens will outweigh any benefit of cross.
o Kennedy: cross examination isn’t useful here
o Scalia (majority) on burdens: not going to be a big deal because ∆s will stipulate if nothing is going
to come out on cross. Thus, no witness will need to be produced.
▪ Capra: Is ∆ really going to stipulate? In-person analyst might be more believable, but if they
don’t stipulate, there’s a hope the analyst won’t show.
▪ Note: the report that was certified was admissible under MA equivalent of 803(8) but it’s an Oates report
and there is inadmissible under federal law.
▪ Kennedy also argued that analyst was available on both sides and either could have called them
• Looks add though – argument is flawed by saying why do you need confrontation when you get
compulsory process – constitutional isn’t just granting one right over others
o Post-Melendez-Diaz: when multiple analysts were involved where each did a different thing, do you need to call
everyone who worked on the report?
▪ Lower courts: it’s the last analyst who is signing the certificate who made the conclusion
6) The admission of expert testimony about the results of DNA testing performed by non-testifying analysts does not
violate the Confrontation Clause.
o Williams v. Illinois (US 2012) – π called expert witness on DNA testing who evaluated the DNA report to make
sure the analysis was properly conducted to match the substance tested from the crime scene to the ∆. Expert
had to assume that the substance from the crime scene was properly swabbed, never mislabeled, etc. The
expert used the report as a basis for testimony without π introducing the report itself.
▪ Fractured case in which the only thing that 5 Justices agreed on was that the government won / there was
no Confrontation Clause violation.
▪ Solution proposed in Williams: call an expert who does their own analysis and make own conclusion
• Two reasons for no Confrontation Clause violation per plurality (Alito):
o Reason (1): the report wasn’t entered or offered for its truth. Rather, the report was used for
reliance purposes as underlying facts formulating the basis of the expert opinion, which is
permitted pursuant to FRE 703. Just Street (see above).
▪ Counter Arg. -- Thomas (CC) + Kagan et al. (D) contended that Street doesn’t apply because
there’s subterfuge here. Thomas further state that the idea that it’s not used for its truth
means that the truth is not important. But here the truthfulness of the analyst’s report is
important because the expert will not rely on it if it’s not true. Thus, it’s offered for its
truth and there’s no plausible non-hearsay purpose. [Capra took personal offense to this
bc Thomas is basically saying that FRE 703, which Capra wrote, is a bad idea. Capra
disagrees – expert can rely on it, just don’t testify to it.]
▪ Re: assumptions – Capra says that he doesn’t think the expert was saying that it was the
same, rather that he was assuming that it was the same (goes to weight). It’s very unlikely
that the swabs would get switched yet still match ∆.
o Reason (2): even if the report had been admitted and offered for its truth, it would not have been
testimonial because the primary purpose was not to prosecute this particular defendant, thereby
indicated there was no motive to fabricate.
Alito effectively proposes a narrowing of the primarily prosecutorial motivation test to
apply only when the declarant was targeting a particular individual. Here, the analyst
didn’t know this ∆ was the suspect.
▪ Counter Args. – Kagan (D) “You just made that up.”; Thomas (CC) Takes a historical
perspective and recounts the book Prosecution and the Renaissance and states that there
were cases during the Renaissance where prosecutors had a general interest in prosecuting
and this was considered testimonial.
• Thomas’s (CC) reason for no Confrontation Clause violation is that the lab report was not formal
enough to be testimonial. Specifically, nothing was sworn, no notary, no authorization, etc. to make it
o Thomas is the deciding vote for the government but all 8 justices disagree with his reasoning.
Kagan (D) says that Thomas’s rationale would turn the Confrontation Clause into a mere formality
because all you have to do is make sure that the report/information is not sworn of formal (e.g.
on the back of a napkin) to make it non-testimonial.
o Capra: this approach does take care of the multiple analyst problem b/c only the analyst that
makes the formal declaration would have to testify.
Two areas percolating after Williams:
▪ What about experts relying on hearsay?
• Lots of courts rely on Alito in Williams where experts rely on testimonial hearsay (not admitted for its
truth so not testimonial) – seems to be carrying the day even though 5 justices disagreed with this
reasoning. Cts don’t refer to whether the hearsay is formalized (cf. Thomas) but prosecutors make
sure it’s not formalized.
• Hypo: ∆ is charged with having gun illegally from foreign commerce. Expert to testify that the gun
came from foreign commerce who concludes that the gun came from Austria based on looking at gun
and seeing a stamp that says “Made in Austria.”
o Williams problem? No, b/c it’s not testimonial because relying on hearsay “Made in Austria” to
conclude the gun is made in Austria is not problematic because the hearsay statement was not
made for the purposes of criminal prosecution.
▪ What is the definition of the primary motivation test?
• Some courts apply “targeted individual test” per Alito.
o Example: Gov’t investigating meth lab trailers. ∆ caught through pseudoephedrine reporting and
is on trial for manufacturing meth. Π calls expert police officer to testify to the conversion ratio
from the drug to meth; testifies that a lot of drug dealers said the ratio is 2:1 during
interrogations when they were confessing to drug manufacturing. → Ct held it was not
testimonial because the targeted individual test was not satisfied (police were pursuing those
drug dealers, not ∆).
• Some courts have disagreed with Alito and looked to whether there is a general primary purpose in
o Duran-Caldera (5th Cir.): ∆ charged with illegal re-entry but claims he was an American citizen
based on law about citizenship based on time spent in the U.S. by mother prior to your birth. Π
introduces affidavit from ∆’s grandmother made before ∆’s birth that was used in an
immigration/fraud prosecution of a group of people, including ∆’s mother, which indicates ∆’s
mother didn’t satisfy the residential requirements. → Under Alito’s test, this would not be
testimonial b/c not made for the purpose of ∆’s prosecution. However, the 5th Circuit rejects this
test and says that the affidavit is testimonial bc it was made for a criminal prosecution (general
▪ Rational for rejecting targeted individual test: (1) rejected by 5 Justices in Williams, and (2)
Crawford says “a criminal prosecution.” [Capra re: (2) – there’s no way Scalia was thinking
about a vs. the when he wrote Crawford]
In many cases there is no concern about the general primary motive test versus the targeted individual test
because there’s no preparation for any criminal prosecution.
Ex: π charges ∆ with driving with a suspended license. Π wants to introduce the order suspending ∆’s
license that was sent to ∆ but doesn’t want to introduce as a witness the person prepared it (just want to
introduce the report and that it was sent to ∆). Not testimonial b/c it was written before any crime was
committed. It does not matter if it was done toward a targeted individual. These reports are about
deterring crime, not prosecuting crime.
o Capra: the Court has denied cert on ~25 Williams issues. Capra thinks the justices are probably embarrassed
about this case and are waiting for a new Court.
• 7) Testimonial vs. Non-Testimonial Summary from Capra’s Hornbook (pre-Williams)
Hearsay Found Testimonial:
Hearsay Found Not Testimonial:
1. Confession of an accomplice made to
1. Statements admissible under the state of mind exception, made to
police officer
2. Grand jury testimony
2. Autopsy reports—though some courts have found such reports are
3. Plea allocutions of accomplices, even if
testimonial when prepared with participation from law
specific references to ∆ are redacted
4. Statement of incarcerated person, made
3. Declaration against penal interest implicating both the declarant
to a police officer, ID-ing the ∆ as taking
and the ∆, made under informal circumstances to a friend or loved
part in a crime.
5. Report by confidential informant to a
4. Letter written to a friend admitting criminal activity by the writer
police officer, ID-ing ∆ as involved in
and the ∆.
criminal activity
5. Statements by co-conspirators during the course and in furtherance
6. Accusations made to officers responding
of the conspiracy, when not made to the police or during a
to 911 call, after an emergency or public
risk has subsided
6. Warrants of deportation and other immigration documents.
7. Statements by child-victim to a forensic
7. Entries into a regulatory database.
investigator, when the statements are
8. Statements made for purposes of medical treatment.
referred as a matter of course by
9. 911 calls reporting crimes or emergencies
investigator to law enforcement
Statements to law enforcement officers responding to the
8. Statements made by an accomplice while
declarant’s 911 call reporting a crime.
placed under arrest, but before formal
Accusatory statements in a private diary.
Odometer statements prepared before any crime of
9. False alibi statements made by
odometer-tampering occurred.
accomplices to the police (though while
A present sense impression describing an event that took
testimonial, they do not violate the ∆’s
place months before a crime occurred.
right to confrontation because they are
Business records—including certificates of authenticity of
not offered for their truth)
business records prepared for trial, even after Melendez-Diaz.
A police officer’s count of the # of
Statements made by an accomplice to his lawyer, implicating
marijuana plants found during the search
the accomplice and the ∆.
of the ∆’s premises
Judicial findings and orders entered in one case and offered in
Certificates of nonexistence of a
a different case.
record, prepared solely for litigation (post- 17.
Informal statements made with no law enforcement officers
• 8) Forfeiture of the Right to Confrontation
o A criminal ∆ may forfeit his constitutional right to confront testimonial hearsay by making the declarant
unavailable for trial, but only if the government shows that the ∆ engaged in wrongdoing designed to keep the
witness from testifying at trial.
▪ Giles v. California (US 2008) – ∆ charged with murdering gf. A short time before the murder, ∆ had
assaulted her and she made statements to police implicating ∆. At murder trial, π introduced those
statements on grounds that ∆ had forfeited his right to confrontation by killing her. Π made no showing
that his intent in killing her was to prevent her from testifying. SCOTUS reversed, holding that Crawford
requires an intent to prevent the testimony to forfeit CC rights. [804(b)(6)]
Application of the Confrontation Clause to Hearsay
1) 801A-C: Hearsay Definition
o Is the statement offered for its truth?
▪ Must balance potent for truth uses and not for truth
▪ Example: Police testifies that undercover investigator says that D is selling drugs at X street
• 1) hearsay objection: need to say this to make specific objection, otherwise it is waived
• 2) violates confrontation: need to say this to make specific objection, otherwise it is waived
▪ Example: D charged with drug distribution
• Government wants to introduce exchange. D objects on both hearsay and CC
o D’s statement: I can do something about it
▪ Hearsay: party-opponent – admissible
▪ CC: declarant is yourself – you don’t have right to cross-examine yourself – so admissible
o Informant’s statement: I really need drugs and I hear you have them
▪ Not hearsay: offered for context
▪ Example: UC: “You did a great job killing that dude.” ∆: “ehh.” UC: “Let’s look at child porn, you seem
down.” ∆: “ehh.”
• ∆’s “ehhs” are statements by party opponent but introducing UC’s statements here = subterfuge bc
you can’t tell what “ehh” means so the other statements should not be introduce for context.
2) 801(d)(1): Prior Statements of Testifying Witnesses
o Under oath at formal proceeding and prior identification are all testimonial.
o If it fits under this rule, the CC is satisfied because the person who made the statement is now subject to cross.
3) 801(d)(2): Party-Opponent
o (A) Personal & (B) Adoptive → cannot violate CC because you cannot cross-examine yourself
o (C)/(D) Agent → could violate CC but not a huge problem
▪ Example: Person in charge of waste disposal at plan walks to police station and says “I can’t take it
anymore. I want this statement used against my employer. We’ve been doing illegal dumping, killing fish.”
→ Testimonial if still agent.
▪ Could change language to add in furtherance – may have issues in civil cases though
o (E) Co-Conspirator → if it fits this rule, it cannot violate CC b/c purpose is to further the conspiracy, not to
advance a criminal prosecution
▪ Won’t be testimonial
▪ Crawford Case: Goal of a testimonial statement is for a criminal trial, but here goal is to further conspiracy
4) 803(1): Present Sense Impressions
o Unlikely to be testimonial b/c only testimonial if police officer is involved and it’s pretty rare that (1) police will
be there and (2) primary purpose is crim prosecution
5) 803(2): Excited Utterances
o If it is really an excited utterance, won’t be testimonial because you are startled/primary motivation is not trial
o If calm down, then testimonial, but also not excited utterance.
6) 803(3): State of Mind
o Unlikely to be testimonial b/c unlikely to be for purpose of criminal prosecution, and even if it is (ex: “If I die, play
this” – video about thinking his wife is trying to kill him), law enforcement is unlikely to be involved, so not
o Kimes Case (NY): Police officer asks where lady is – said she wanted to travel and gave me the house
▪ Woman said before going missing– 1) to friends, I don’t like Kimes anymore and I want him out of my
house; 2) I never want to leave my house
▪ Hearsay? Statements are admissible under Hillman
▪ Confrontation violation? Nope – state of mind, predict conduct
o Stayer Case
▪ Government finds tape – if I die please play this
▪ Testimonial? No, no crime hasn’t occurred at time of statement and not actually made to anyone
• Under Marion statute, it’s like writing in your diary and leaving police to find it – wouldn’t happen to
be a problem
7) 803(4) – statements for purposes of medical diagnosis or treatment
o Not testimonial because it is not for trial. Even in sexual assault case, the primary motivation of the doctor is to
treat the patient
o Exception: π has older kid familiar with cops/robbers meet with psychologist b/c π thinks he saw his father (∆) kill
someone and kid says he saw it. Court held admissible under 803(4) but testimonial b/c π is just trying to pump
information out of kid under guise of psychology to get statements for trial.
▪ Capra – possible that kid thought it would be used for trial; also probably not 803(4) b/c not trying to
treat/diagnose him – it’s essentially an interrogation in doctor’s clothing.
8) 803(5) – past recollection recorded
o Yes testimonial, but cannot violate CC because person who made the recording must testify and be subject to
9) 803(6) – business record
o Rarely, if ever, testimonial b/c very unlikely that a regularly conducted activity has a litigation motive.
▪ Example: United flight manifest with Ds name is not testimonial because was not prepared for purposes of
criminal trial, even if turned over for trial
▪ Example: Suedofederan Records. Prepared for law enforcement purposes aka because government has
statutory requirement to prepare them
• Not testimonial though – this is regulatory purpose, not trial purpose
o Note: after Melendez-Diaz, LE told to stay out of these tests so that they can be admitted in trial without right to
o If it’s regularly conducted for litigation purposes, can argue unreliable (Palmer)
o Hospital Lab Tox Screen → business record, not testimonial b/c treatment purpose, but if police officer brings ∆
in and asks for tox screen, likely testimonial.
o Affidavit – really just authenticating a record – doesn’t violate right to confrontation
10) 803(7) – absence of business records
o Prepared for litigation – but solved with notice & demand requirement
11) 803(8) – public records
o Testimonial question tracks admissibility question:
▪ Non-litigation purpose → admissible/non-testimonial
▪ Done in anticipation of litigation → inadmissible/testimonial
o Examples:
▪ Oates report (substance found on ∆ = coke) → testimonial
▪ Breathalyzer → testimonial, Authentication → not testimonial ???
▪ Report of cars passing border → not testimonia
▪ Grady report (logbook with list of serial numbers, ∆ unknown
• Alito (4) – not testimonial: arguably for trial but no ∆ in mind
• Kagan (4) – if primary purpose is for a criminal prosecution, it’s testimonial
• Thomas – not testimonial b/c not formal (not affidavit/certification)
▪ Autopsy reports → not testimonial (Capra: courts have worked hard to hold this)
• Exception: if excessive law enforcement involvement, might be testimonial
12) 803(10) – absence of public records
o Three ways to prove up:
▪ produce all records, let factfinder infer → not testimonial b/c not made for trial
▪ witness: “I looked, couldn’t find” → not testimonial b/c subject to cross
▪ certification stating “I tried diligently but couldn’t find it” → possible problem
• if targeting a particular individual → Alito: testimonial
• formal writing → Thomas: testimonial
o But, per rule, if there’s a notice & demand/waiver, this addresses the CC problem
13) 803(16) – ancient document
o Can be testimonial
o Example: case where ancient document (e.g. formal affidavit) is geared toward a prior litigation (still must
consider general vs. targeted individual test)
14) 803(18) – learned treatises
o Not testimonial b/c not made in preparation for trial
15) 804(b)(1) – prior testimony of unavailable witness
o Can’t violate CC b/c admissibility hinges on having an opportunity and similar motive to develop the testimony.
o So even if it is testimonial, ∆ had to have had been able to cross for the prior testimony to be admissible. (cross
doesn’t have to be at the current proceeding – CC just entails right to cross at some point)
16) 804(b)(2) – dying declaration of unavailable witness
o Usually non-testimonial
o Exception: when made to law enforcement
o Crawford says dying declarations may present a CC issue b/c might be testimonial but might just say no CC
violation b/c of history → sui generis (“of its own kind”)
▪ Scalia: because of history, hasn’t been held to be testimonial – lower courts haven’t followed that
17) 804(b)(3) – declarations against penal interest by unavailable witness
o If it fits under 804(b)(3), it is by definition not testimonial.
▪ If talking to law enforcement → testimonial but probably currying favor so not admissible anyway.
(Williamson v. US)
▪ If talking to non-law enforcement, probably not furthering favor → admissible and not testimonial b/c no
law enforcement involvement
18) 804(b)(6) – forfeiture (making declarant unavailable)
o (see forfeiture of the right to confrontation above)
o If testimonial, (1) ∆ argues hearsay, no exception applies, and (2) CC violation.
▪ 804(6): forfeits if π shows by preponderance intent to keep off stand
▪ Giles v. CA: forfeits if π shows by preponderance the same intent
19) 807 – residual hearsay
o Crawford reduces the applicability of the hearsay rule. Pre-Crawford (reliability rule), for example, grand jury
transcripts could be admitted but now they cannot because ∆ did not have the opportunity to cross examine.
o Ohio v. Clarke - Not much impact on child molestation cases (statements of student to teacher probably
admissible under FRE 807) but might raise red flag about statements to older student.
9) Confrontation Issues in Multiple-Defendant Cases / The Bruton Problem
o The Bruton Problem: Joint trial in which one co-∆ confesses to committing the crime with the other ∆ but the
other ∆ doesn’t confess.
▪ Conditions: (1) joint trial, (2) one ∆ made statement confessing to his and other ∆’s crime, (3) statement is
offered at the joint trial and the confessing ∆ does not testify, (4) statement is testimonial hearsay.
▪ Example: Bruton and Evans tried in the same case. Evans says to law enforcement, “Bruton and I
committed the crime.”
• Against Evans – ADMISSIBLE → Not hearsay, 801(d)(2); own statement so no CC problem
• Against Bruton – INADMISSIBLE → Hearsay and CC violation
▪ Possible Solutions
• 1) Limiting Instruction → “use it against E but not B” (ineffective, CC violation b/c no cross)
o But still so powerfully incriminating
• 2) Separate Trials → costly, annoying for government, possible inconsistent verdicts, duplicative
• 3) Two Juries → E jury in room for confession, B jury excused. Really inconvenient
o Problems: 2 jury boxes are rare, remove a jury whenever it is brought up, defendants may appeal
on due process grounds – “Circus”
• 4) Bench Trial → can’t do this if ∆ doesn’t want it; no Bruton problem in bench trial
• 5) Redaction – if you can redact the statement such that no inference can be made about the D, then
its sufficient
o Insert Blank: “Blank and I did it” → doesn’t solve Bruton problem, Gray v. Maryland (insufficient
as a matter of law)
▪ Scalia → would if there was a jury instruction to prevent jury from inferring
o Remove third party reference, Richardson v. March
▪ “I did the crime” → good redaction but hurts govt – would rather sever than redact
o Neutral Pronouns
▪ “Another guy and I did it” → most courts say this is sufficient / best option
▪ Example: DC Circuit Case with 11 defendants – perfect for neutral pronouns
o March: where C, in a case with 3 defendants, put herself back in the car thus creating the issue
▪ Court: if you can redact such that there is no reference to the D at all, then it is fine – even
if the D places themselves back in
o Also consider the part against who it can be used against as well (Evans)
▪ Must be testimonial - Ex: E says, “Bruton and I did the crime” to his mother. Not testimonial so admitting
the statement in E & B’s joint trial cannot violate Bruton’s confrontation rights even if he cannot cross E.
Right to Face-to-Face Confrontation – Qualified Right Now
o Idea that ∆ has the right to see a witness testifying against him – assumption that the witness cannot lie when
looking ∆ in the and that it’s important for the jury and ∆ to see witness’s face.
o Old Rule – Absolute Right
▪ Coy v. Iowa: Coy charged with sexually abusing young girl. Iowa statute said it was ok to put up a black
screen around ∆ so that they can’t see each other but ∆ could still confer with counsel. SCOTUS invalidated
this procedure b/c historical right to face-to-face confrontation and problematic b/c screen seems like a
badge of guilt, which implicates Due Process.
o Modern Rule – Qualified Right
▪ To deny ∆ of right to face-to-face confrontation, government must prove by clear and convincing evidence
that the witness will be traumatized by testifying in front of ∆
▪ Craig v. Maryland: SCOTUS upheld procedure whereby the gov’t can require ∆ in a sex abuse case to be put
in a room where he can see what’s going on but witness can’t see him. Π had to prove via medical
testimony that the child would be traumatized by testifying in ∆’s presence.
▪ Fields: ∆ charged with child sex abuse and wanted to represent himself, meaning he would cross-examine
even where Craig findings were made. Held – right to self-representation is a qualified right so the judge
can impose standby counsel to cross-examine the victim and still require that ∆ leave the room.
o Due Process Cases – Badge of Guilt is okay if reasonable
▪ Flynn: Pre-trial motion – gets pencil from D counsel, leaps, and stabs judge. Next day, there are 6 state
troopers behind the D. D says this looks like a badge of guilt – but this is a permissible state interest
▪ Foretta v. CA: D is tried with child sex abuse and psychologist shows that testifying in front of D is traumatic.
D elects the right to self-representation. Right to self-representation is also qualified. Judge has an absolute
right and power to appoint standby counsel to help if you want, take over, etc. – cannot object to that
o SCOTUS has rejected rule that would allow people with serious health issues to testify via Skype
▪ BUT approved narrow rule for Skyping in witnesses in terrorism trials where person is far away in a secret
place and can’t be brought to US and can’t bring ∆ to witness (rationale: necessity, security).
Treatment of Witnesses
o Two sets of rules
▪ General rules about how witnesses get called, types of questions, etc.
▪ Impeachment/rehabilitation of witnesses
o Foundation Requirements for Witness to Testify
▪ Oath or appropriate substitute
▪ Witness must have perceived something important to the case
▪ Witness must recollect what was perceived
▪ Witness must be able to communicate the testimony to the fact finder
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: All witnesses are presumed to be competent
o Exception: When they don’t know where they are or cannot comprehend idea of taking an oath
o State competency rules apply in diversity cases.
Common Law meaning
o There were a bunch of rules that rendered witnesses incompetent aka they couldn’t testify
▪ Example: person who a felony conviction couldn’t testify (lacking moral fiber to testify), criminal
defendants, accomplices could testify against but not for another, wife couldn’t testify for her husband,
drug addicts and drunks couldn’t testify, etc.
▪ Advisory committee: these are about credibility, not incompetency
o Created 601 to get rid of these rules.
o Jury question – figure out credibility
▪ Being a liar – credibility, not incompetency
▪ Example: Prosecution witness started testifying and was fuzzy, nervous, etc.
• Did meth
• Defense: incompetent
• Court: no, jury can figure out credibility
▪ Example: Having conversations with a fake person
• Defense: incompetence
• Court: Credibility
RULE 606(b)
(b) During an Inquiry into the Validity of a Verdict or Indictment.
o (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect
of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
o (2) Exceptions. A juror may testify about whether:
▪ (A) extraneous prejudicial information was improperly brought to the jury’s attention;
▪ (B) an outside influence was improperly brought to bear on any juror; or
▪ (C) a mistake was made in entering the verdict on the verdict form.
Rule re: deliberations: When attacking the validity of a verdict, you CANNOT bring up testimony by jurors about things
that happened during their deliberations.
o Cannot testify about say doing drugs during the deliberation or misconduct in the jury room in order to get a
new trial.
▪ Internal jury stuff cannot be brought up
o Rationale: public policy – want communications to be secret and not subject to public disclosure to encourage
free flow of discussion in deliberations; don’t want jurors to be sucked into subsequent litigation about the
validity of the verdict.
▪ Worried about chilling jury deliberations
▪ Preserves jury secrecy, etc. and endless litigation would be troublesome
o Cannot testify to:
▪ Bad deliberations (e.g. jurors in civil case picking numbers from hat)
▪ Going along with verdict b/c of threats from other jurors
▪ Misunderstanding clear jury instructions (e.g. juror went along with death penalty b/c he didn’t
understand he had veto power)
▪ Voting one way for racist reasons (e.g. b/c ∆ is black – most courts don't permit b/c slipper slope)
▪ Inattentiveness, drug/alcohol use of juror
o Pre-deliberation conduct can be ok (rule doesn’t apply)
▪ Ex: one juror writing notes to himself throughout trial that ∆ is guilty
▪ Judge must determine whether the influence likely had a material effect on verdict
o Bias – Only some race based statements are covered – ones that show bias toward the D specifically
▪ Example: Juror doesn’t say let’s do a bad verdict, but says “this is how Hispanics act, act like they can take
anything they want”
▪ Colorado barred proof of this
▪ Rodriguez - SC: forbidding proving this violates the 6th amendment
• Court didn’t go to EPC because didn’t want to get all the cases in
• Kennedy: Under the 6th amendment, we have specific issues with racial prejudice.
▪ What about if juror says the D didn’t testify, so I will use that against him?
• Unclear if Rodriguez applies, even if 5th amendment is implicated
▪ Not all race-based statements: white juror says to black jurors holding out – only because you are black
and that is brought to the judge. Not all
• Doesn’t show bias to the D
o Some courts do not allow counsel to interview jurors after the trial unless they get their permission
▪ Example: D counsel interviews jurors and finds out one was physically intimidated. Counsel brings that to
the judge and judge says “you were not allowed to interview the jurors unless you asked for permission.”
Judge sanctioned the lawyer.
▪ Violation of local court rules may bar
Rule re: voir dire: Rule bars evidence of deliberations that would prove that the juror lied during voir dire.
o Rationale: not trying to prosecute juror, just trying to challenge validity of the verdict
o Waurger: cannot use voir dire to attack validity
o Jurors may testify about whether:
▪ The jury received any outside influence or extraneous prejudicial information
• Examples: jurors being bribed, threatened, getting info from the internet, etc.
• Example: Death penalty case
o Defense counsel says you will go to hell if you find my client guilty. Then, juror contacts their
pastor who says no you won’t go to hell. Then, juror voted for D’s death.
o Can this be proven up?
▪ Yes because there was outside influence of the pastor. It’s not proving the jury
▪ Distinction of inside and outside influence.
▪ A mistake was made on the verdict form in entering the verdict
• Can ask what they decided, not how they decided it.
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: Before testifying, witnesses must give an oath or affirmation to testify trustfully in a from designed to impress
that duty on the witness’s conscience.
No standard oath, but it must be sufficient to awaken witness’ consciousness to the importance of being accurate
o Can’t swear be of religion, but can affirm -- ok
o Don’t know what truth is b/c of philosophy, but will be accurate/complete -- ok
o Would never lie b/c I want to stay out of jail -- not ok, could lie for other reasons
What does “the truth” mean?
o Fully integrated honesty
o As accurate as you can humanly be
RULE 615
Excluding Witnesses
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or
the court may do so on its own. But this rule does not authorize excluding:
o (a) a party who is a natural person;
o (b) an officer or employee of a party that is not a natural person, after being designated as the party’s
representative by its attorney;
o (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
o (d) a person authorized by statute to be present.
Rule: Every party has the right to have trial witnesses excluded before those witnesses testify
o Not discretionary; judge can also order it sua sponte
o Rationale: prevents witnesses from tailoring testimony to what other witnesses say
▪ Capra: exclusion isn’t really effective. One can still taint future testimony out of court by looking at a trial
transcript, listening to the internet, etc.
o Can the rule be extended outside the court room?
▪ Most circuits imply that not only are witnesses excluded, but they cannot get trial testimony – extending
outside the courtroom
▪ The rule itself really only says exclusion of the witnesses
o Rule is being worked on now to say “if you want to exclude from the court room, fine. If you want to go further,
you have to say it – you can’t just say the rule and it obviously imply that.”
o A named party to the action (e.g. plaintiff, ∆)
▪ Defendants, especially criminal defendants
o A designated officer/employee of a corporation who is a party to the action
▪ Right to designate a rep who cannot be excluded
o A person whose presence is shown to be essential to the presentation of the party’s cause (e.g. expert who
needs to know what other experts say in order to testify)
▪ Case agent in criminal case
o A person authorized by statute to be present (e.g. victims)
▪ Example: McFade Trial about Oklahoma City bombing
• Added victims
Note: rule doesn’t prevent witnesses from talking amongst themselves (e.g. in hallway)
o Court can issue gag order to prohibit all parties from disclosing what went on during testimony
RULE 611
Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to:
o (1) make those procedures effective for determining the truth;
o (2) avoid wasting time; and
o (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination
and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop
the witness’s testimony. Ordinarily, the court should allow leading questions:
o (1) on cross-examination; and
o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
FRE 611(a): Control by Court
o Rule: Broad grant of authority to trial judge to control witness testimony to make effective procedures for
determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
▪ Discretion to judges as to how evidence gets presented and witnesses get treated
▪ Harassing the witness, argumentative, asked and answered, etc.
▪ Also extended to charts and graphs
▪ Judges can restructure the trial
▪ Example: Judge said I don’t like how experts will testify – did a hot-tub/dialogue set up (no abuse of
▪ Example: allowing jurors to ask questions
• Issues of management
• If you allow it, have to be submitted to the judge – don’t want lawyers to object
• Idea that everyone is invested in their own question and then don’t listen to other
questions/answers, and not paying attention
• Lawyers think they are getting a window into the jury’s mind – but could be a one-off question
▪ Example: allowing lawyers to do voir dire or not
FRE 611(b): Scope of Cross-Examination
o Rule: Limited to subject matter brought up on direct examination and matters affecting the witness’s credibility
▪ Example: wrongful death case where H survived and W was run over by a car
• Liability and damages issues
• Neighbor on direct said what happened, etc. on cross, D wants to ask if the P to your knowledge had
an affair with the deceased?
o Relevant?
▪ Yes, to damages – bringing loss of consortium. If there was an affair, it is diminished
▪ Rationale: parties should have autonomy in their cases and structure the proof in the way they think is best.
▪ Ways around this:
• ∆ can re-call witness and ask questions outside the scope of direct (thus, it’s a sequencing rule)
o But then burden on the witness to appear twice
• Judge has discretion to allow for questions beyond the scope (e.g. for convenience of witness, move
things along more quickly)
o English rule – can ask anything relevant to the case – no scope limitation
FRE 611(c): Leading Questions
o Rule: If witness is favorable, you should not use leading questions except as necessary to develop the witness’s
testimony. Leading questions or ordinarily only allowed (1) on cross-examination, and (2) when a party calls a
hostile witness, an adverse party, or witness identified with an adverse party
▪ Rationale: credibility problem – if witness isn’t adverse, can be easily led.
What is a leading question?
▪ A question that suggests an answer or leads to an answer
▪ Did ∆ ever tell you what P-I-M-P stands for? → not leading
• Did ∆ tell you that P-I-M-P stands for “power in manipulating prostitutes”? → leading
• Judge Eriksen: circumstance specific
▪ Did you ever how phone conversation where someone was listening in? → Posner says not leading but
Capra thinks this is probably leading because they seem to be hunting for a yes.
• Isn’t it true that you had phone conversations where someone was listening in? → leading
▪ Did one of your calls take place in Illinois? → leading (question asked to establish jdx)
• Where did your phone calls take place? → not leading
▪ You mentioned he had a cord, was he whipping her with it? → leading
• What was he doing with the cord? → not leading
Very specific questions are more likely to imply an answer and thus be leading
Solution: judge will ask you to rephrase
▪ Problem: the originally asked leading question has already suggested the answer to rephrasing doesn’t
really do anything
5 Ways to Impeach
(1) Attack Character for Truthfulness
a. Opinion/Reputation evidence from another witness, FRE 608(a)
b. Prior Bad Acts, FRE 608(b)
c. Prior Convictions, FRE 609
(2) Prior Inconsistent Statements, FRE 613
(3) Contradiction
(4) Bias
(5) Incapacity (sensory defect i.e. lack of memory/perception, mental incapacity)
RULE 607
Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.
Rule: Any party, including the party that called the witness, may attack the witness’s credibility
o BUT, a party cannot call a witness solely to impeach him with otherwise inadmissible evidence → cannot use as
an end-run around rule against hearsay, for example.
▪ BUT if party has a good faith reason for calling W, the party can impeach with admissible or inadmissible
The Voucher Rule
o Chambers
▪ D charged with crime and strong evidence that a third party did it – McDonald – wants to call him to the
stand and attack and accuse him and bring up evidence against him – but cannot against voucher rule – but
government would never call them
• Defendant lost defense
Now have, 607 – call any witness you know – whether hostile or not – that’s what it is! Open rule
o Repeals voucher rule
o Can call adverse witness on direct examination – a bit odd – but sometimes a tactic you need
o Bring up bad stuff about witnesses that are favorable to you
▪ Perjury, bad acts, prior inconsistent statement
• Bring it up on direct because you know it’ll come up on cross
o What it means is – a witness you know will be hostile, direct will look like cross, cross will look like direct
1. Impeaching a Witness by Attacking Character For Truthfulness
• No 404 issue because we are evaluating witnesses right here, right now for reliability and credibility
RULE 608
A Witness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an
opinion about 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:
o (1) the witness; or
o (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.
(A) Allowed to call another witness
o Rule: A witness’s credibility may be attacked/supported by testimony about witness’s reputation for having a
truthful/untruthful character, or by testimony in the form of an opinion. Evidence of truthful character is
admissibly ONLY AFTER the witness’s character for untruthfulness has been attacked.
o Example: W1 testifying; W2 testifying to W1’s character for truthfulness
o Capra: this is very ineffective because jury could just think this second witness is a liar.
o Uncommon
▪ Hard to figure out that second witness’s credibility and continuance train
▪ Also issue of sequencing – when do you call them?
• Call them in your case
• Counter-productive
(B) Asking about a witness’s bad act.
o Example: W testifies in criminal trial for government.
▪ D: Isn’t it true you murdered 12 people?
▪ P: Will object – nothing to do with whether he is being truthful
▪ D: But if you can break one part of the moral code, you can break other parts of it. Shows you are willing to
put your own interests on top of society’s interest. So you can do it again here with the oath
▪ Solution: 403 balancing
o Rule: Extrinsic evidence is not admissible to prove a witness’s truthfulness/untruthfulness, except for criminal
convictions per FRE 609. The court may permit cross-examiner to inquire into specific instances of conduct if
they are probative of truthfulness/untruthfulness of the witness or another witness who the witness testified
▪ Because opponent cannot offer extrinsic evidence, you are stuck if the person denies the bad acts.
▪ To ask questions about specific instances of conduct, the questioner must have a good faith indication that
these facts/events occurred before asking the question
• Does not have to be based on admissible evidence
o 403 Balancing (admit unless probative value is substantially outweighed by prejudicial effect)
▪ Cannot admit all bad acts / law-breaking on grounds that they’re worse than lying, etc.(mostly allows lying
stuff in)
• Probative: all bad acts give some evidence of truthfulness. The ones that involve lying/deceit are most
o also consider how important the witness is and whether the witness is impeachable on other
grounds like a prior inconsistent statement
• Prejudice: some things might be so bad that jury won’t believe anything else they say
o lying in some contexts is more hurtful than in others
o who is the witness? If the party itself, will be more prejudicial than a family member
o nuclear prejudice: when against the party and about an act in dispute
o During the balancing, we are looking at prejudice to the party
IMPORTANT: Extrinsic evidence is only barred for impeachment of character for truthfulness. Extrinsic evidence
may be used to show bias, motive to lie, prior inconsistent statements, etc.
▪ Cannot bring any evidence other than their own statement
▪ Pinkerton Case: When it comes to proving, cannot bring evidence – idea of trial within a trial
• Rough compromise: examiner can ask about the prior act, but cannot bring evidence in to disprove it.
▪ While a party cannot prove a bad act, they also do not need to.
• Limitations then
o 1) Cross-examiner needs good faith indication (low standard)
▪ Example: Isn’t true you committed an armed bank robbery? I didn’t and what evidence
do you have it – govt says they have letter to defendant which closes saying “your
partner in crime” – judge allowed it.
• Capra doesn’t see it.
o 2) Cannot use trickery
▪ Example: Prosecutor put cassette tapes and implied to the witness – when you were on
the phone did you not say blah blah blah?
• Witness freaked and thought the tape was there
• Tape was nothing though – that conviction was overturned because cannot use
that trickery
▪ Abel: prisoner charged with murdering guard and calls fellow prisoner to testify in his favor. Both are
members of the Aryan Brotherhood. Gov’t asks witness whether he is a member, but the witness denies.
Judges permitted extrinsic proof, namely his tattoos, testimony of some of his friends, etc.
• Extrinsic evidence was admitted to show bias – Because he is a member of the Aryan Brotherhood,
and so is ∆, there is a motive to testify on ∆’s behalf. [It’s also an attack on truthfulness, because in
their constitution they have to say that they are willing to lie for other members.]
• Two forms of impeachment here: 1) he is a liar (character) and 2) has motive to lie aka bias
• 608(b) limitation on extrinsic evidence only if the only attack is on the truthfulness of the witness –
that means not absolutely barred from proving the act
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
o (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than
one year, the evidence:
▪ (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a
defendant; and
▪ (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that defendant; and
o (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine
that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or
false statement.
(b) Limit on Using the Evidence After 10 Years. 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:
o (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial
effect; and
o (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a
fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
o (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a
later crime punishable by death or by imprisonment for more than one year; or
o (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
o (1) it is offered in a criminal case;
o (2) the adjudication was of a witness other than the defendant;
o (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
o (4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of
the pendency is also admissible.
o Is the conviction more than 10 years old?
▪ If yes, does the probative value substantially outweigh the prejudicial effect?
• If yes, admit.
• If no, don’t admit.
▪ If no, it is a recent conviction.
o Does the recent conviction involve a crime of dishonesty?
▪ If yes, automatically admissible.
▪ If no, is it a felony?
• If no, out of impeachment.
• If yes, is the witness the criminal defendant?
o If yes, does the probative value outweigh the prejudicial effect?
o If no, apply 403 (does the prejudicial effect substantially outweigh the probative value?)
Differences from 608
o Extrinsic evidence is less problematic - If it is a conviction, it is either there or it isn’t
(b) Old Convictions
Rule: 10 years – from when you got out until the date of the trial
▪ Lifers are always 609(a)
▪ Idea that older convictions are less probative as to whether a witness would lie on the stand
o Prosecutors running the clock by asking for a continuance
▪ If there is a good faith basis, court may allow it
o Admissible if: probative value substantially outweighs the prejudicial value
▪ Example: D being tried on drug crime. No convictions but had a 15 year old misdemeanor for lying to a
police officer. Government wants to admit it
• Judge allowed it – said prejudicial effect doesn’t outweigh the probative value
• Appellate court: Reversed because judge flipped the test
(a) Recent Convictions
o Dishonesty: (a)(2) – Automatic Admissibility
▪ No matter seriousness of the crime
• Practically, this is a rare situation.
• Some people don’t like this – think it impinges on a criminal defendant’s right to testify. Thus, some
want to add a balancing test.
▪ Extrinsic evidence allowed because so easy to prove – but only conviction itself comes in
▪ Examples of crimes that require proving a dishonest act or false statement: perjury, turning back odometer,
embezzlement, passing counterfeit money, lying on gov’t form, consumer fraud, meter tampering, mail
fraud, knowingly transporting forged securities, knowingly passing worthless check, lying on income taxes,
false pretense.
o No dishonesty: (a)(1) – Balancing Test.
▪ Balancing tests:
• 1) If criminal defendant: Probative value must outweigh the prejudicial effect
o Beneficial to criminal defendant’s because burden is on the other side – mild presumption
o Caldwell: Where conviction is like the one being charged, the prejudice is highest so argument
that probative value doesn’t outweigh it
o Brackeem → criminal ∆ on trial for bank robbery and π wants to introduce prior bank robbery
conviction. This is EXTRA prejudicial bc jury is more likely to use this for propensity.
▪ Excluded under 609 balancing test for criminal ∆s
▪ Probably would be admitted under 403
o If you are defending a witness, you want 609(a)(1) to argue balancing; if you are attacking, you
want 609(a)(2)
• 2) if not criminal defendant: apply 403
▪ Examples of crimes that do NOT require proof of a dishonest act or false statement: murder, rape, assault,
battery, drug offenses, prostitution, DUI, theft crimes other than embezzlement and false pretenses (i.e.
shoplifting, robbery, receiving stolen goods, burglary)
o Determining whether something is a lying crime
▪ Crimes where you don’t need to lie to be convicted but are “shady”
• Drug and theft crimes
• Because on its elements a conviction doesn’t require lying, apply (a)(1)
▪ Example: 2nd circuit case – D charged with carrying a switch blade that looks like a swiss army knife but was
a hidden instrument
• Applied (a)(1) because D wasn’t lying to commit the crime. While underhanded, he did not lie
▪ 2006 rule amended to stop counsel from going behind the crime to see how it was committed and to not
argue that certain crimes that do not look like lying, but they really are
• 1) Committing a crime in a lying fashion
o Example: convicted of murdering his wife – government says he committed in in a lying way –
wanted to kill his wife who was blind and rich, arranged a picnic and it was a lie – murder by
Not an element of the crime though – if you allow this, everything will become 609(a)(2)
crime – becomes the rule not the exception.
▪ Apply: (a)(1)
• 2) wrinkle: DOJ wanted obstruction of justice to be under (a)(2)
o Now, can look at underling crime and see if they were lying or not
o This is a broad crime though
▪ Even if you win on which balancing test to get, you can still lose under that balancing test
• Hayes → on trial for violent crime and has drug smuggling conviction. Court finds drug smuggling is a
609(a)(1) crime b/c drug smuggling doesn’t require lying and nothing in indictment says anything
about lying. Admissible because prejudice is small (no direct prejudice bc prior conviction is very
different from the current charge) and it’s probative on character for truthfulness because drug
smuggling does bespeak of deception/underhandedness.
o Does the jury have to be told what the conviction is if it is admitted under FRE 609?
▪ 2d Cir.: Yes.
▪ NY State: No. Sandoval Compromise.
• Capra: this is a terrible idea – minimizes prejudice but also minimizes probative value
o Timing
▪ The older the crime, the less probative it is of a witness’s propensity to lie on the stand.
▪ Cannot in bad faith work to prevent admission of 609 evidence by running the 609(b) clock
▪ Recent case where testifying ∆ has a misdemeanor conviction that is 15 years old for lying to a police
officer. Judge admitted, finding this was probative of his character for truthfulness, just a misdemeanor, so
the prejudice doesn’t substantially outweigh the probative value. ERROR – used 403 test but it’s a reverse
403 test for old crimes.
Procedural Issues
o Motion in Limine
▪ Move to admit/exclude in limine
▪ If you know the judge is wrong, you cannot appeal right away (exception: interlocutory order, whereby
decision is important enough hat harm will occur before final judgment if not ruled on immediately) –
because not a final order.
▪ Luce → If you want to appeal negative in limine ruling on impeachment, the witness must take the stand
anyway and have the impeachment evidence introduced at trial. If witness is the ∆ and s/he declines to
testify, s/he waives the right to appeal the in limine ruling bc there can be no showing of cause and effect.
▪ Ohler → Party that lost the in limine motion CANNOT bring up impeachment evidence on direct and still
retain the right to appeal because this deprives the other party of the decision not to bring it up to avoid
appeal, which would mean there was no prejudicial error from the in limine ruling. Here, the opposing
party created the error and therefore loses the right to appeal it.
▪ When the other party brings up the “bad stuff” on cross-examination, opposing party can ask for a limiting
instruction explaining the procedural issue so that the jury does not draw a negative inference from the fact
that the opposing party didn’t bring it up on direct (i.e. that they are trying to hide something).
▪ Rules
• Opposing party used to have to renew the objection at trial to preserve for appeal
• Amended Rule 103 → opponent does NOT have to renew the objection at trial if the in limine ruling is
definitive, which is enough to preserve the right to appeal. (Ex: This is how I’m going to rule and I
don’t want to hear about it.)
o When conviction is introduced you have to object it – contemporaneous objection
2. Impeachment by Prior Inconsistent Statements
RULE 613
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior
statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or
disclose its contents to an adverse party’s attorney.
(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.
o This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Prior inconsistent statements can be admitted to prove that there is something wrong with the witness’s testimony.
o If prior statements were made under oath and W is on the stand, the statements are admissible for their truth
per 801(d)(1)(A)
o If prior statements were NOT made under oath, they are admissible only for impeachment purposes per FRE
Must be the witness’s statement – it cannot be someone else’s statement
o Example: Civil case where expert has written a report
▪ Later, the witness wants to add or change things to their testimony
▪ Can you impeach the witness because of this?
• The report was from the prosecutor, made by their office. It was not the expert’s statement
• If the expert had filed and signed the report, then there would be more room to impeach them.
Determining whether statements are inconsistent
o Inconsistency is dependent on the circumstances
o Failure to include something that ordinarily would be concluded is inconsistent with the later statement and
thus can be used for impeachment.
▪ Example: ∆ on trial for drug transaction and brandishing gun. W statement 1: “I went to ∆’s house and
bought drugs from him. I tested it before paying, it seemed hood, paid money, and walked away.” W incourt statement: “I went to ∆’s house to do a drug transaction. He was brandishing a gun. I tested the
drugs, seemed good, paid, and left.”
• Could argue this is consistent bc in statement 1 W didn’t say that he did not see a gun. However,
this is the kind of thing that you would ordinarily say but didn’t, which is suggestive of an
inconsistency. Brandishing a gun is pretty important.
o Prior silence can be inconsistent
▪ Example: D was silent for 25 days
• Argues Dayle (below) – but this didn’t have to do with Miranda warnings
▪ EXCEPTION: if silence comes after receiving Miranda rights, then silence cannot be used against you
(cannot use prior inconsistent silence)
• Example: D is arrested and gets his Miranda warnings. He says nothing. At trial, he testifies and the
government wants to impeach him for his prior inconsistent silence
o Dayle v. Ohio: SC said you cannot be impeached with Mirandized silence.
▪ You get warnings that say “right to remain silent and anything you say can be used
against you.” Therefore, anything you don’t say should not be used against you.
▪ Impeaching would break the contract of warnings
▪ Due process question
o Lack of memory is generally NOT inconsistent.
▪ If W claims they cannot remember on the stand, prior statement cannot be introduced to impeach
credibility unless the judge finds the witness is faking lack of memory.
• Rogers Case: Judge found that W said they didn’t remember anything but that actually was just false
– using path to get out of perjury or whatever they may want to get out of it
o So if lack of memory is fake, it is an inconsistent statement because you are still repudiating
the statement
▪ Owens Case: lack of memory was real so not inconsistent
Cannot use prior inconsistent statements from civil negotiations for impeachment (FRE 408)
Witness must have a chance to explain or deny the prior inconsistent statement
o Note: explanation can sometimes outweigh the inconsistency so impeachment might not be worth it
If witness denies the prior statement, extrinsic evidence may be admissible.
o Does 608(b) apply? [are specific instances being used to attack character for truthfulness?]
▪ If YES, Extrinsic evidence is not admissible
▪ If NO, 403 Balancing / Considerations:
• How hard will proof be? (usually pretty easy)
• How important is witness’s credibility?
• How important is the inconsistency?
3. Impeachment by Contradiction
• Rule: You can contradict a witness’s testimony with extrinsic evidence that goes against what they’re saying if it’s an
important part of the witness’s credibility (403 balancing)
o Involves demonstrating that something asserted by the witness is untrue.
o Inference is that if the witness is not accurate in one respect, it’s inaccurate in others as well
o Out-of-court statements offered to impeach cannot be hearsay b/c not offered to prove the truth of the
contradicted point.
o Prior inconsistent statement = self-contradiction; statements from another source = contradiction
• Contradiction can be accomplished through introduction of extrinsic contradictory evidence in the form of another
witness, documents, or other evidence (subject to 403)
o James: ∆ tried for being head of gang, various witnesses identified him at line-ups but ∆ says he has a different
hairstyle and color; his defense is that he never changed his hair. ∆ won’t testify because he’ll be impeached
with prior inconsistent statement (he was arrested under a hair dryer and said he was there bc he was changing
his hair), so ∆ calls mom to testify that he never changed his hair. Π then permitted to impeach her account with
evidence of what ∆ said when arrested.
o Example: π sued cigarette company for asbestosis from smoking their cigarettes with blue filters in the 50s. π
has to prove he smoked these cigarettes and said he did bc his dad had piercing blue eyes and for that reason he
chose to smoke them after his dad died. Court said OK to bring in extrinsic evidence that his dad did NOT have
blue eyes because this goes to his credibility and makes his story seem less believable; also not hard to prove
(bring in driver’s license)
• Can use inadmissible hearsay evidence (subject to 403) to impeach
• BOTTOM LINE: Can ask about any contradictory fact but whether you can prove it up with extrinsic evidence depends
on 403
o Concerned with contradiction of facts that are not dispute
o Considerations: how much time would it take and how important is the contradiction?
4. Impeachment by Bias (Motive to Falsify)
• Bias: mental state that may incline W to give misleading/false testimony; interest in trial outcome
• Forms of bias are broad
o 1) financial stake
o 2) Familial situation
o 3) members of the same group (Abel)
• Extrinsic evidence allowed (subject to 403)
o 608(b) bars extrinsic evidence only when attacking W’s character for veracity. But extrinsic evidence can be used
for other forms of impeachment, such as motive/bias (never a collateral issue) subject to 403
▪ Often allowed when the bias is denied
• Examples
o Abel → can admit evidence to show W is a member of Aryan Brotherhood bc have interest in lying to protect ∆,
a fellow member
o Olden → ∆’s evidence that W has a sexual relationship with V is admissible to show motive to lie
Note: there’s nothing in FRE about bias. It’s all in FRE 403.
5. Impeachment by Capacity
• General Rule: A witness’s credibility may be attacked by showing that the witness suffers from some incapacity that
makes it difficult/impossible for them to tell the truth or give an accurate account. (This is not about showing that W
is trying to lie or is a bad person)
o Examples: poor eyesight/hearing, memory deficit, mental incapacity, psychosis, severe drug addict
• FRE 610 – Cannot attack witness’s credibility based on their religious beliefs
o Sometimes it’s arguably whether it’s impeachment based on religious beliefs.
▪ Example: “Isn’t it true that you are a member of a group that God is going to come down and pick you up
on an asteroid and fly you to heaven in 18 days?” Questionable if this is religious beliefs but even if it is
one could also argue that this isn’t impeaching b/c of religious beliefs but arguing that it’s impeaching on
credibility and willingness to lie b/c W believes they are going to heaven in 18 days.
6. Impeaching a Hearsay Declarant
RULE 806
Attacking and Supporting Credibility of the Declarant
When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence,
the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those
purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent
statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If
the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant
on the statement as if on cross-examination.
Rule permits party to impeach a hearsay declarant or a declarant whose statement is admitted under 801(d)(2)(C),
(D), or (E) in the same way that they could be impeached if they were there to testify.
o Rationale: promote truthfulness; don’t want to encourage people not to call hearsay declarants – live testimony
is always better
o Grant Case: Co-Conspirator Statement
▪ Inconsistent statement
▪ D could admit as if they testified
o McLeaure Case
▪ Friend comes up to him – your wife is sleeping with others, well then will need to kill my wife
▪ Friend had been convicted with perjury because of exchange
▪ Not admissible because not hearsay declarant – not offered for truth but effect on the listener
▪ What if defendant knew about perjury conviction? Could it be admissible?
• Yea – government could argue that would impact the effect on the listener if you know who is
speaking to you is a liar – source you know to be possibly inaccurate
• Not about 806 – just about probative value
Example: Alleged victim of an assault – their hearsay statement to 911 is “my bf just beat me up and hit me in the
head with a frying pan.” ∆ has the following: (1) declarant has been convicted of perjury 1 year before the event, (2)
victim two days after the alleged crime said to her mom, “I called 911 and blamed it on my bf but that didn’t happen, I
slipped and fell.” ∆ wants to admit – can admit because the evidence would have come in if the witness testified bc
(1) perjury conviction = admissible; (2) important inconsistency.
Does not deal with reliability or prejudice.
These rules were considered a priority by Congress
o 1) couldn’t get over that these privileges would apply to all cases in federal court,
o 2) politics and lobbying from lawyers,
o 3) these rules impact how people actually act in the world – they rely on these rules and principles
GENERAL RULE: Privileges shouldn’t be extravagantly applied; have burden of showing criteria are met if you seek to
invoke it and apply only where necessary to protect rationale for privilege
Policy-based rather than reliability-based → utilitarian analysis where benefit outweighs cost
o If the world would be the same with or without the privilege, DON’T apply
Advisory committee had made a list of privileges, Congress didn’t pass or adopt that list. Instead, they created FRE
501 which said if it is federal common law, it would be recognized. Thus, beyond attorney-client privilege, all other
privileges are recognized on the basis of common law, or state law.
Jaffee: 501 language: federal common law and those that have developed in the light of recent impression
o How is 501 interpreted/can we find new privileges outside of federal common law?
o Court: Yes, can create/recognize new privileges
o First step: Utilitarian analysis of the costs of nondisclosure and loss of reliable, probative evidence and the
benefits of encouraging free flow of communication - What is the cost-benefit analysis of having said privilege?
▪ Consider what life would be like without privilege → would people still make that type of
communication/take that type of action regardless?
▪ Cost: loss of reliable evidence; benefit: promotion of a relationship
▪ Benefits must outweigh the cost
o Second step: is it in the advisory committee’s list? Is it recognized in state law?
RULE 501
Privilege in General
The common law - as interpreted by United States courts in the light of reason and experience - governs a claim of
privilege unless any of the following provides otherwise:
o the United States Constitution;
o a federal statute; or
o rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of
RULE 502
Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by
the attorney-client privilege or work-product protection.
• (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure
is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or workproduct protection, the waiver extends to an undisclosed communication or information in a federal or state
proceeding only if:
o (1) the waiver is intentional;
o (2) the disclosed and undisclosed communications or information concern the same subject matter; and
o (3) they ought in fairness to be considered together.
• (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does
not operate as a waiver in a federal or state proceeding if:
o (1) the disclosure is inadvertent;
o (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule
of Civil Procedure 26 (b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of
a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the
o (1) would not be a waiver under this rule if it had been made in a federal proceeding; or
o (2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by
disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver
in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is
binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to
federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule.
And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:
o (1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client
communications; and
o (2) “work-product protection” means the protection that applicable law provides for tangible material (or its
intangible equivalent) prepared in anticipation of litigation or for trial.
o Federal common law privilege
o Costs are real – but benefits outweigh the costs.
▪ Need a free flow of info between client and lawyer, which is actually good for the lawyer – makes them
practice better.
▪ Based, however, on the presumption that clients tell their lawyer everything and everything is true
RULE: Confidential communications between lawyers and clients will be protected from admission at trial
o Costs: Loss of reliable probative evidence; really just raises price of lawyer services because value to keeping
information secret
o Benefits: Guarantees free flow of communication between client and attorney which makes the lawyer able to
do their job better (lawyer-centric privilege); don’t want lawyers to be witness for clients in every case
o Criteria:
▪ 1) Client must be seeking legal advice
▪ 2) Communication between a client and a lawyer
▪ 3) Reasonable expectation of confidentiality
o Standard/Rule: Cannot pay a lawyer to do something that a non-lawyer could do and hope the communications
are privileged.
▪ Example: Lawyer and non-lawyer play squash, one day non-lawyer tells lawyer the government is after him
for criminal enterprise and they’ll probably find drugs in his house → NO privilege because two friends
talking, not seeking advice/expertise
▪ Example: Micheal Cohen had a ton of documents. Special master looked at them. Only 12 privileges
document only because doing business, not legal work
• Court date – client isn’t there and judge is mad. Calls lawyers. Did you inform them of a court date?
o I can’t tell you that is legal advice
o Confidential communication – no it isn’t.
▪ But there could be legal advice – “what if I didn’t show up?”
▪ But just rendition of info isn’t
o Multiple Motivations: As long as the predominant intent of client is to seek legal advice, then all communication
will be protected, even if it includes other nonlegal components
Example: Sports agent under GJ investigation because might’ve signed college athletes; subpoena lawyer
and ask how he came upon producing the documentation and he says privileged
• If the client just pays the lawyer to deliver the documents to the GJ, that is NOT privileged because
delivery service could do that job
• If client asks lawyer to copy files and put them in a box and deliver them to GJ, that is NOT legal work
either because file work/delivery could be done by non-lawyers
• If client brings subpoena to lawyer and asks about it, lawyer looks at subpoena and figures out what
documents to produce and then produces them, this IS privileged because predominant thing is legal
advice even though other things come along
▪ Where lawyer retained by client on business matter, as long as legal advice is predominant, then business
advice is protected as well
• For in-house lawyers, the closer they are to general counsel, the more likely communications with
them will be protected
o Business versus legal distinction
▪ Example: Lawyer consulted for zoning, new plant, transaction, reorg of a corporation – along with business
issue. Question then becomes – were services significantly for legal work?
▪ Example: many corporate execs are lawyers but doesn’t mean that all Board of Director meetings are
privileged. Need to have the legal hat on. If it’s a mix, that’s fine. If its just business, not protected.
o Government has attorney-client privilege just like any other institution
▪ Also – legal versus moral
▪ County of Erie → Woman brought suit over county policy of strip searching everyone who was arrested and
brought to the station; find emails between county attorney and supervisor about litigation where they
discuss the morality of this provision
• Holding: Want lawyers to have broader perspective and be able to discuss morality; started with
litigation so all communication is protected
o Factual Investigations: Can’t buy privilege for getting lawyers to do what a private eye could do BUT retaining
lawyers to do factual investigation can be predominantly for legal advice
▪ Rowe → Managing partner is suspicious that another partner is stealing money from a client so has
associates investigate him; senior partner is summoned to GJ for fraud and want to introduce associates’
report but managing partner says it’s privileged
• Investigative work is in context of a legal problem
▪ Mark Rich: pardoned by Clinton. In a particular litigation, the question arose: Were Rich’s communications
with lawyers about how to get pardoned privileged? Not legal advice
• After being pardoned, then discussed with lawyers the meanings of the pardon – this was protected
by privilege.
o Need to be between a CLIENT and an ATTORNEY
o Work Product Doctrine
▪ Work produced by or for lawyer in anticipation of litigation
▪ This is rule of discovery not evidence but important because it makes it so that lawyers don’t keep all
information in their head and will lead to less investigation
• BUT Capra thinks it’s a windfall and don’t need to be protected because lawyers will write things
down even in absence of doctrine
▪ AC Privilege comes first because it’s absolute while WP is qualified and only litigation-based
▪ Protects information made in anticipation of litigation
▪ Privilege isn’t necessarily about litigation – just all legal work
▪ Doctrine exists so lawyer can prep work freely
o Client
▪ The communication must come from the client
▪ Upjohn → Lower level operatives who have allegedly committed misdeeds communicate to the corporate
lawyer and government argues not privileged since agents are not clients of the corporate attorney since
the corporation is the client
Holding: Court rejects the control group theory which says the ones who run the show are the
corporate client, and anyone under that is not (too narrow)
• Limits the information that the government can get from corporate employees
▪ Subsequent courts have held that any agent of the corporation who is directed to speak to the corporate
attorney about a matter within the scope of the authority is part of the corporate client for purposes of the
• This is windfall for corporations → would still summon agents to talk to lawyers even without
• Also seen in the government context – White House Counsel represents the government, not the
▪ Corporate Miranda Warnings/Upjohn Warnings → Lawyer represents corporation and not agent so
communication about the agent and not the corporation will NOT be protected
• Serious sanctions for not giving warning or for agreeing to represent
• There is often a conflict between the interests of the agent and that of the corporation – that’s why
an attorney cannot represent both
▪ When lawyers include non-lawyers in communications, that might make it not privileged
▪ Kovel Doctrine → Court expands definition of attorney to include all non-legal agents who are necessary to
the legal representation
• U.S. v. Kovel → D in trouble with IRS and goes to lawyer who loops in an accountant
o Attorney doesn’t destroy privilege BUT if you go to accountant first who then hires lawyer, then
privilege doesn’t apply → must show other person was necessary to legal representation, so
lawyer must hire the agent
o Judge Friendly: where a non-lawyer agent or third party is necessary to the legal
representation, it does not destroy the privilege
▪ Necessary: doesn’t mean absolutely vital, but means “useful” – would make the lawyer
better in the legal advice category
▪ Examples: environmental experts in environmental cases, security experts in security
cases, etc.
o What about consultants that do jury picking or helping witness prepare to give the best
impression to the jury (i.e. wear a yellow tie not a green one)? Those are typically covered by
the Kovel doctrine because that’s involving the legal representation
o Capra brings this up with the privilege of self-analysis (see below): corporations asking for
privilege to docs and reports they create internally. Solution to this: hire a lawyer and have
them to do!
▪ Sometimes PR firms will destroy privilege → can tell them what decision has been made, but shouldn’t be
at strategy discussion
• Calvin Klein → Law firm decides to bring in PR firm that is already on retainer by CK
o Holding: PR firms spin litigation, don’t help with it so when they sat in on discussions, the
communications were not privileged because interloper is there who is not necessary to legal
• Martha Stewart → Judgment made that they should put her out in public and do more charity;
bringing public opinion to place where US Attorney wouldn’t indict her
o Holding: Communications were privileged (different from CK because there they were just
trying to protect their brand)
• Bausch & Lomb → PR firm kept making suggestions that lawyers kept rejecting
o Holding: Can’t be necessary to legal representation because not about law but trying to spin
lawyer in public; all emails had to be turned over where PR firm was copied
o Spin is not legal representation
▪ Timing is important
Example: Kovel has tax trouble and goes to his accountant, the accountant says they need a lawyer
and then they bring the lawyer in → its much better for the lawyer to hire the agent than for the
client to hire the agent (we don’t want the client bringing in his posse)
▪ Communications are protected, but not the underlying information → facts being communicated are not
protected, just have to call agent and ask them what they did and what happened (just can’t ask agent what
they told lawyer)
• BUT context of telling something to lawyer isn’t the same as government asking; agent still can plead
the 5th and refuse to disclose
▪ Seeking communication for non-communication purpose is NOT privileged
• Example: Person sends typed Unabomber manifesto to newspapers; government wants to prove he
sent it so subpoena letters he sent to his lawyer previously
o Holding: No privilege because just want letters to show they were typed on the same
typewriter; not seeking communication but just forensic evidence
▪ If lawyer knows about action that’s not communicative, then it’s NOT protected (physical activity not
• Non-verbal things that are clearly intended to communicate information, however, are
• Example: Lawyer representing client hit by bus and he’s in body cast but lawyer goes skiing and sees
client there skiing without body cast and withdraws from representation
o Holding: Not privileged because no communication involved; lawyer found this out/observed it
on his own
• Example: Lawyer representing deadbeat dad; P wants to find out where D is so subpoenaed lawyer to
tell him but claims privilege
o Holding: If you know fact from something outside of communications, then won’t be privileged
o Variations
▪ Example: If you know where the client is because they told in you in confidence, then
that is privileged
▪ If you know where he is because you saw him walking down the street, not privileged
▪ Postcard would be a communication but there is no expectation of privacy because there
is no envelope – anyone can read it – not privileged
• Example: D tried in criminal case and after break where he communicates with lawyer, P sees lawyer
come out looking like he got beat up; P wants to tell judge
o Holding: NOT privileged because being beat up is not communication
▪ Privilege does NOT cover preexisting communications made other than to the lawyer or a document/video
that is then sent to a lawyer → transmission can be privileged but underlying information is not
• Example: At GM, bad things keep happening in cars so engineering team sent to investigate and
report to lawyers; P wants to see report
o Holding: Communication made before lawyer was involved is NOT privileged; don’t become
privileged just because they’re sent to a lawyer (although actual email with report attached
might be privileged, even if attachment is not)
• Report that was pre-existing and just turned over to the lawyer is not communication between the C
and L; it is a communicative document, but not privileged
o Would make discovery obsolete otherwise
o Example: when the client sends the report to the lawyer, they’re implicitly saying “we think this
is relevant to the legal matter and we need you to address this” → the act of production is a
▪ The actual document/the content of the document isn’t privileged but the fact of it being
transmitted is privileged
▪ If a document was sent with a message of transmittal, the party seeking discovery of the
document gets the document but not anything that went along with the transmittal or
the fact of the transmittal
o Communication cannot be made in front of other people who can hear it
▪ Example: Client walking up to lawyer at lunch with 8 people and says help me I killed my brother is NOT
▪ Diet Doctor: D kills long-time boyfriend, calls police and they come and she says she wants to talk to a
lawyer and they say she must be monitored; goes to call on one end of ballroom while officer was on the
other side and could read her lips → NO reasonable anticipation of confidentiality so no privilege
▪ Example: D calls lawyer after arrest from detention center → NO privilege because there’s knowledge
about a monitoring policy
• EDNY said that this wasn’t an issue for effective assistance of counsel (argument was that Ds couldn’t
talk to their lawyers over the phone so they couldn’t get effective assistance) because you can
arrange for an appointment with your lawyer to talk to them in a secure place
o Communication while at work via email is NOT protected if client knew or should’ve known that employer might
be monitoring email
▪ BUT: talking to your lawyer on your cell phone in front of everyone isn’t going to be privileged but emails
may be
o Communication from home computer shared with family with no password protection is NOT privileged
o Sending Word document with meta data including old tracked changes and comments has no reasonable
anticipation of confidentiality so no privilege if one side sends it to the other and other side looks at tracked
▪ Courts have held that you should know that things like track changes can be uncovered
▪ Example: Power-points for SEC representation.
• Lawyer and company send drafts of ppt deck back and forth. The final version is not protected
because it is made to be public, but what about the back and forth?
o Argument against privilege: it was all in furtherance of making a public statement
o Argument for privilege: process of editing/changing means that you may take out privileged
o Answer: depends on the lawyering - if the client just gives the lawyer everything and tells the
lawyer to prepare the document or presentation than its probably not privileged because the
client is just giving the lawyer everything with the expectation that it will go into the
▪ What the lawyer should do is say: give me everything and I will decide what needs to be
made public, and please confirm that you want everything else to remain private.
o Common Interest Rule → If parties are pursuing a common interest, they can exchange privileged information
and it will still be deemed reasonably anticipated to remain confidential (e.g. if 2 clients in case are represented
by different lawyers but charged with same thing, can share information)
▪ Client 1 and Lawyer 1 + Client 2 and Lawyer 2 → they make a common interest agreement and then they
become a single attorney-client unit
▪ DOWNSIDE: If at some point A and B sue each other, then the communications are no longer protected
(UNLESS there is a handcuffs clause where both sides agree not to)
• This is the only time you could reveal the shared information → if B flips and government wants them
to testify against A, this does NOT break the privilege
▪ Another issue: the two parties aren’t suing each other but one could use the information.
• Example: two criminal defendants that made an arrangement to pursue a common defense but then
one of the defendants decide to take a plea and cooperate and wants to use the confidential info and
trade on it for leniency; can they do that?
o No → there have to be some limits on the doctrine because otherwise no one would ever do it
o Rule is that litigation severs the privilege but just using it against someone doesn’t →
particularly because the expectation that the communications will remain confidential as
against other people continues, there is just no expectation that the communications will be
confidential as between the two of them
▪ Parties must agree in writing to pursue a common interest
• You can’t share info, then decide to pursue a common interest arrangement, and then claim that the
info shared is privileged
• EX: A, B, and C are all charged with same crime and A and B have common interest agreement but C
is not involved; A and B try to convince C to join and invite him to their session that night → whole
meeting becomes unprivileged
o Name of client is NOT confidential, nor is fee they pay → heart of privilege is where client tells lawyer his legal
problem; name of client and payment are incidents of representation, not heart of it
▪ EXCEPTION: If introducing the name of the client would tie them to the substance of the representation,
then it’s privileged
• Example: Lawyer represents client and is paid in cash, which turns out to be counterfeit; when asked
who gave him the money he says it’s privileged
o Holding: Not privileged because counterfeiting money is not what client was seeking advice for
• Example: Hit-and-run where drive is at large; driver’s lawyer goes to DA to negotiate a plea but won’t
say who the client was; P subpoenas lawyer for client’s name
o Holding: This is privileged because this is what client sought legal advice for
Issues Invoking the Privilege
o Privilege lasts beyond the scope of the attorney/client relationship
▪ Does not die when the client dies (even for criminal cases)
o Procedural issues
▪ The client holds the privilege and has the power to invoke it but practically the lawyer usually invokes it
because it’s a legal act to invoke it (move to quash a subpoena, for instance on the lawyer’s behalf)
▪ What about issues where potentially privileged material is sought from the lawyer but the client in those
circumstances can’t be reached for consultation; can the lawyer invoke the privilege on the client’s behalf?
• Yes, the lawyer has an obligation to invoke the privilege if the client is not available for consultation
o That can be costly because the lawyer may end up not being compensated for that legal work if
the client is in the wind
o Example: Swiddler and Berlin --- Whitewater Controversy:
▪ Vince Foster has all this information that is potentially incriminating to Hillary Clinton and he tells his lawyer
about it and then he commits suicide and then independent counsel is investigating and wants the
information and argues that the privilege should not extend past death in criminal matters
• Argument was that in civil cases, you might be concerned about the interests of your beneficiaries of
your will
• What would be the interest in a criminal case? In this case, if he would be concerned about the
criminal implications of the info for someone else if it were disclosed when he died, he might not
have told the lawyer
o But there is a good argument that whether it can be disclosed after death does not factor into
people’s decisions as to whether they will tell their attorneys something
o Congressional hearings: because the privilege is common law, and Congress has the authority to abrogate the
common law, they can override it
▪ Capra says: but even though the common law is controlling in the federal system, its controlling because
the statute, rule 501 says so, so it’s actually statutory
Waiver: Exception to Privilege
o 1) Voluntary Waiver: Showing that the client made a knowing and voluntary waiver of the privileged information
▪ Example: Two corporations are merging and that merger will never happen unless the two share all their
confidential info because both sides want to see all the skeletons in the closets so both sides will turn over
everything and will voluntarily turn over privileged info
▪ If you cooperate with the government and turn over documents, then that is voluntary-- applies in the
context of government investigations, IPO disclosures to underwriter, etc.
• Some corporations have tried to argue that these aren’t really “voluntary” because the exigencies of
the circumstances.
o Court: No – that is the cost-benefit analysis but it is not involuntary
Involuntary means some compulsory process with serious penalties that forces you to
disclose privileged info → has to be something like a subpoena or a court order where, if
you don’t comply, there are criminal penalties
▪ Philip Memorandum: In deciding whether to indict, it’s irrelevant whether they cooperated or not and you
can’t take into account the fact that they won’t turn over information (BUT if they did turn it over, that is
NOT a reason not to indict)
• Corporations try to argue that giving documents to the government is not a waiver because it’s a
corporate death sentence, whereby they’ll die if they don’t cooperate with the government Capra
has no sympathy for this argument
▪ When you turn over a document to get an advantage, there will be a disadvantage too because there will
be a waiver of privilege
▪ Doe --- Company won’t turn documents over to underwriter so underwriter refuses to help; then they turn
them over and say it was involuntary since millions were at stake
• Holding: This is still a waiver! If it’s turned over as requirement to do business, still voluntary and
information is no longer privileged
2) Subject Matter: Forced disclosure of all information on the same subject matter
▪ If crime involves knowing element, D might argue advice of counsel defense that they went to a lawyer and
the lawyer said it was legal → then must disclose all communications on that matter between client and
• Cannot use privilege as a sword rather than a shield → if lawyer’s advice is at issue, that is considered
to be subject matter waiver and must disclose complete rendition of communications
• Bilzerian Case: he went to a lawyer to ask about a transaction and the lawyer told him it was legal so
he went through with it but it turned out that it wasn’t
o His defense is that he acted on the advice of counsel so he testifies that he told his lawyer
about the transaction and was told it was legal
o On Cross, prosecution wants to ask D all kinds of things about the conversation with the lawyer
and D argues that the extent of the waiver was only narrowly the fact that the asked his lawyer
and was told it was legal, that he didn’t waive the whole subject of the conversation with his
▪ That doesn’t work because that permits manipulative and selective use of the privilege in
an offensive matter (as compared to defensive manner) and its like the rule of
completeness, the government cant ask about whether D really told his lawyer
everything, whether the lawyer said “its legal, but only if…”
• It would be unfair to allow D to claim privilege over all of that info so the rule is
that in advice of counsel defenses, there is a subject matter waiver of everything
related to the advice of counsel
▪ Relevant communications are also deemed waived if you sue a lawyer for malpractice → advice of counsel
at issue deals with subject matter waivers beyond specific disclosures
3) Selective Waivers: NOT enforced; once you waive it to one entity, you waive it to everyone
▪ Westinghouse → Corporation turns over report to SEC on condition that SEC signs confidentiality letter but
then private Ps sue on the basis of the content of reports
• Holding: No such thing as a selective waiver (except in one circuit) and Ps can use
o Not convinced you need this to make corporations cooperate; don’t want strategic use of
privilege to gain an advantage
▪ There are like 2 courts that have selective waiver but for corporations they don’t care but plaintiffs will just
sue somewhere else
▪ Policy reasons for selective waiver
• Encourages cooperation with investigations
• Cuts down work for plaintiffs who then don’t have to do the investigational all over again
▪ Optics of selective waiver are bad
• Allows parties to us the privilege in a manipulative way, taking advantage of it and denying certain
parties the information
• Parties cooperate with the government even where there isn’t selective waiver
▪ When 502 was being drafted, it was originally proposed that it would provide for selective waiver, but no
one wanted it
• This included corporations because they liked being in the situation where the government really
wants the report and the corporation can say “we need some time to figure out the cost-benefit
analysis and whether this creates issues of liability for us, so we’ll be back to you in a month” → gives
them time to temper the government and gives them a bargaining chip
o It also makes them look good when they do cooperate because they can say “we’re turning this
over in the spirit of cooperation even though we’re risking liability from other plaintiffs”
• But in Westinghouse, the corporation argued that the fact that they had signed a confidentiality
agreement with DOJ should have some weight
o But the agreement between the DOJ and the corporation can’t override the c/l rule
o BUT, nonetheless, the confidentiality agreement has value → it keeps the DOJ from sharing it
with the public, from sharing it with other agencies, etc.
4) Mistaken Disclosures: Usually happens in discovery when party turns over documents that they didn’t realize
were privileged
▪ Circumstances where you do something that makes it unfair for you to claim waiver so you forfeit it
▪ Why do we punish clients for the inadvertent disclosures of their lawyers?
• The sins of the lawyer are always visited upon the client, that’s just how it works → courts take the
position that if you’re upset with your lawyer’s performance, you can sue them separately
▪ Different standards prior to 502
• Strict liability
o D.C. case: 40,000 docs to be reviewed and 4 privileged documents were inadvertently
disclosed; court held that it didn’t matter how careful the review or the measures to avoid
disclosure, those 4 documents meant that there was waiver and it was subject matter waiver
▪ Client had to turn over 20,000 more related documents that would have otherwise been
▪ Court analogized to crown jewels → you have to treat privileged material like crown
jewels and you wouldn’t throw four crown jewels in a box
o That crown jewels analogy doesn’t really work, particularly in the context of giant amounts of
ESI and data and the costs of production have become so exorbitant and the solutions of using
things like predictive coding or Boolean word searches don’t really work for privilege because
the Boolean searches are only slighter better than a person reviewing and the predictive coding
requires cooperation of both parties to figure out how to train the computer and what terms to
use, etc.
▪ In the absence of other solutions, parties try to make agreements
▪ Coburn → In producing documents in litigation, ended up turning over some that are privileged or work
product and receiving party says that’s a waiver
• Under federal common law, different courts had different rules, but lowest common denominator
was that if you turned over documents, that was a waiver
▪ Parties started entering agreements that were either claw backs (firm does initial review and produces it
then later takes back what they determine is privileged) or quick-peaks (turn over everything, other side
says what it wants, then pull out privileged documents)
• BUT these agreements were binding only on parties, not on 3 rd parties so can be used in other cases
▪ 502(a): Codifies subject matter waiver → When client is trying to unfairly use some privileged
communications to the client’s advantage, other side can fully inquire into all communications
• Only covers INTENTIONAL disclosure (not mistaken); only if you use privileged information
affirmatively or offensively (e.g. advice of counsel defense)
• Not all intentional ones are waiver – just those that are essentially unfair
• Very narrow
▪ 502(b): If you make a mistake in disclosure, it is NOT a waiver if you took reasonable steps to prevent it and
promptly tried to get it back once you became aware of the mistake
(1) Reasonable Steps → Quality control and protective devices to prevent errors, huge production
and only a few mistakes
o The more accelerated the discovery schedule, the more easily you could make mistakes (and
long time for discovery is a factor against reasonableness)
o Don’t want people to take advantage and don’t want other side to rely on it – detrimental
▪ Doesn’t mean you have to keep checking production. But when you have found out
about a disclosure, you have to promptly request it back
o Example: receiving party amended their request and you saw that you had revealed info
o Example: other side mentioned a fact they shouldn’t have known in a deposition. You then find
out there was a disclosure somewhere
• (2) Promptly Seek Return → Once you discover it’s been disclosed (usually during depositions); don’t
want other side to develop reliance on documents
o If you use electronic software, makes it more reasonable
o Consideration of staffing constrains and whether conduct was proper
o Case-by-case approach
o This test is pretty unpredictable
▪ Example: Lawyer wants to send info to co-counsel Molton but accidentally emails to the
counsel on the other side Mollon; immediately realized and tried to get it back but
opposition won’t give it back
• Holding: Judge said it was a reasonable mistake and he acted reasonably promptly
to fix it (BUT many courts wouldn’t agree)
▪ 502(d): If there’s a court order that mistakenly disclosed privileged information is not a waiver, then it’s not
a waiver in this or any other state or federal case; covers privilege and work product
• Order must be made in the course of a proceeding → disclosures in the context of cooperating with
the government that aren’t protected by selective waiver cannot become protected by a 502(d) order
• Doesn’t authorize a party to disclose privileged information, it only provides protection for a party
that inadvertently discloses privileged information
• Parties don’t have to agree to it and court can order it anyway; usually convince judge if you say you
can shave months off production schedule with an order
o Example: If one side only has 4 documents to look over while other side has a million, can’t
argue for no order because that’s not legitimate
o CANNOT use 502(d) as a quick-peak order; must be a protective order and cannot use it to
make people produce protected information
▪ Can’t use it to speed up discovery to such a degree that you know parties will disclose a
lot of privileged information but court allows it because you can make other party give it
back → this is compelled quick peak but can’t use 502(d) to extent that privileged
information will definitely be handed over
• If you receive something from the other side that you know is privileged and not meant for you, you
have an ethical duty to tell them, but not necessarily give it back
o Model Rule 4.4: You have a duty to inform but no duty to return it if you are aware that it’s
clearly privileged
• Important to add: “This covers not only mistaken disclosures but also intentional disclosures”
Crime-Fraud Exception
o Rule: Privilege does not apply if client is seeking advice to further/perpetrate a crime or fraud
▪ Applies even if lawyer doesn’t know about crime/fraud (only state of mind of client matters)
▪ Applies even if client never actually committed fraudulent/criminal act → triggered when client
communicates with the lawyer with INTENT to further a plan of crime/fraud
▪ Focusing on the intent of the client
• Example: C goes to L and asks them to do paperwork for a sham but lawyer doesn’t know – doesn’t
matter. Client had intent.
o Past/future distinction
If you go to lawyer after crime is committed and ask for help, that is protected
If you go to lawyer before the crime to ask whether something you want to do is legal, then that is
privileged BUT if client knows they want to violate the law and goes to lawyer with help on how to do it, this
is NOT privileged
• EX: Ds come to lawyer saying they destroyed documents so might be guilty of obstruction of justice,
but can you make a list of documents we might have missed → NOT protected because they want
lawyer to help further the crime
• EX: Corporation doing business in Algeria but government won’t pay; investigation done and report
says they won’t pay because they bribed an official, which voids the K; 6 months later corporation is
up for sale and says all receivables are fully collectable but buyer sues seller for fraud and wants
report from law firm
o This is NOT within the exception because didn’t get the report in order to hide bad facts in the
future sale; only matters if intent was to further crime/fraud
• 1) Adverse Testimony Against Spouse
o Rule: Protects wife from having to give adverse testimony against her husband at trial because doing so will hurt
the marriage at the time
▪ Privilege belongs to the WITNESS so if she wants to testify, he cannot stop her
▪ Applies only in CRIMINAL cases, and not all states have (NY does not)
• Example: Car accident case where H is driving and W is passenger – cannot invoke because interest is
next – harmony of marriage isn’t jolted by saying “he was texting and driving”
▪ Trammel → Wife was arrested at same time husband was and P told her if she testified against him, she’d
get a better deal
• Holding: CANNOT make wife testify on pain of contempt because that would be forcing her, but CAN
say that they’ll give her 1 year instead of 27 if she testifies
o Where W wants to testify, not much martial harmony – D doesn’t control the privilege, the W
o Can’t throw someone in jail for refusing to testify, but can cut a deal with them if they do testify
• After Trammel, lower courts argue about whether privilege exists
o Must be currently married: privilege ends at time of divorce/legal separation/permanent separation so cannot
invoke privilege if divorced, etc. at time of testimony
▪ Protects just an existing marriage
▪ Carter → Married in 1953, he left in 1954 and in 1958 started living with another woman but never
divorced → permanent separation ends Trammel privilege
• New girlfriend cannot invoke privilege either → bright-line rule that if not married, no privilege
• Courts defer to state law for what constitutes marriage
o Sham Marriage Exception → Cannot get married just to invoke the privilege
▪ Example: Kansas couple are driving on the highway, get cut off, and guy shoots the driver; then they go to
Vegas to get married and try to invoke privilege
• Holding: This was a strategic marriage so privilege does not apply
▪ Trammel doesn’t apply to sham marriages – like green card examples
▪ It is hard to show a sham marriage
• 7th circuit created a clearer rule that events before the marriage are not covered.
o Hearsay is okay as long as it fits exception → Privilege ONLY applies if spouse is being FORCED to testify,
otherwise it won’t apply (even if her words are used against her husband)
▪ Example: Wife is on the porch and sees husband hit neighbor with a shovel; she runs in upset and calls her
mother to tell her what happened and government calls mother-in-law at trial → nobody is compelling wife
to testify so privilege doesn’t apply here
o Joint Participant Exception: If spouses are involved in crime together, forfeit right to invoke privilege in some
circuits, but not others
▪ Koecher → D is sending secrets to Czechoslovakia by putting papers in sliced bagels; wife is helping and 2nd
circuit argues for no exception to privilege (SCOTUS never ruled)
• Judge Friendly: no joint participation exception because data points suggests they can participate
harmoniously – quotes the Rosenberg Case: all intents and purposes, they were harmonious
• 2nd circuit: W allowed to invoke
• 10th circuit and Trammel: cannot invoke
• SC opinion was going to do away with the privilege – never released
▪ Would be problematic because would swallow the rule
▪ Example: Government is proceeding against both H and W on a criminal matter – W says I need to get
severed and be prosecuted separately because I have a defense that I did the crime under duress from H
and I cannot testify to that in this case b/c privilege. So need to be separated out to protect under Trammel
and have my defense
• 3rd circuit: severance required – cannot trade one privilege for another – she gets to decide Trammel
or not
Harm to Child Exception: Privilege doesn’t apply if D is accused of harming a child and spouse can be forced to
▪ Need this to force spouse to testify because of balancing of interests BUT issue that if you force her, then
husband might come after her
▪ Child in the home is the standard – foster children covered
2) Confidential Communications Between the Spouses
o Rule: Confidential communications between spouses are protected because such communication will further
their relationship; one spouse’s confidential communication to another spouse cannot be introduced against
that communicating spouse
▪ Privilege belongs to the LITIGANT (so spouse can’t testify even if they want to)
o Federal common law except in New Mexico who recently abrogated it on the grounds:
▪ 1) advisory committee is right that no one relies on it and
▪ 2) extends patriarchy of old-school marriages – always a guy in trouble, always woman with info and this
puts a muzzle on the woman and autonomy to testify – so basically codifies patriarchal society
o Narrower than adverse testimony because only protects communications
o The communicating spouse holds this protection
o No sham exception
o Must be married at time of communication, not at time of testimony → even if divorced at time of testimony, if
communication happened during marriage then privilege applies
▪ Being divorced at trial doesn’t matter
▪ Carter → Between 1953 and 1982 they got together every year for dinner and he made confidential
communications to her
• If they were permanently separated at time of communication, then NO privilege because it’s a dead
marriage (doesn’t matter that they can revive it later) → costly rule; courts try to limit privileges as
much as they can
▪ Bright line rule in NY: all communications protected until paper filing so even if permanently separated,
communication will still be protected if marriage not legally dead
o Only applies to confidential COMMUNICATION, but nothing else → communication is something you can control
and express and does not apply to actions
▪ Example: D on trial for bank robbery; wife saw him come home with a mask and bag of money and he told
her that he robbed a bank → she can testify to the acts but not the statement
▪ Example: Government calls wife to testify and she says she saw D shoot a possum with a rifle → this is not a
confidential communication (only would be if she asked how many he shot and he said 3)
▪ Example: D being tried for series of sexual assaults; claims it couldn’t have been him because during that
time he was sexually dysfunctional → court says he doesn’t have control over this so it was not a
▪ Crying is not a communication
o Spousal hearsay is NOT admissible here because speaker owns the privilege
▪ Example: Wife doesn’t see husband hit neighbor with shovel, but he tells her when he gets home and she is
upset and calls her mother
• Double Hearsay → BUT it’s fine because first statement is party-opponent statement and second
statement is excited utterance
• Confidential Communications Privilege → Privilege protects reliance interest of speaking spouse so
wife doesn’t have the power to waive privilege by telling mother, hence the mother cannot testify
▪ Rationale: For the adverse testimonial privilege, concerned about forcing W to testify. However, for CC
privilege, concerned about H being able to rely on confidential relationship.
o Must have reasonable expectation of confidentiality
▪ Example: D communicates with wife by posting post-its on the fridge; in-laws are in town so he cannot
invoke privilege because other people can see it
• Difference between postcard (no expectation of confidentiality) and letter in envelope
▪ Example: D communicated with wife via letter dictated to secretary → NO privilege
• Different for ATC, because secretary is agent necessary to legal representation
Must be a communication between the two of them
▪ Pugh: charged with trying to join ISIS
• W speaks Egyptian and H speaks English – don’t know the other language
• Communicates over FB message via google translate
• Is this reasonable to remain confidential?
o Can you never communicate over google or facebook b/c they monitor it?
o If you have a real life translator, you lose the privilege
o But google is a machine
• But easier case than this – draft letter on the computer saying im joining ISIS but hadn’t click send
o Not within marital privilege because it wasn’t a communication – just a thought in his head
▪ Child/Spousal Abuse → No privilege in cases trying to prove harm to child or spouse because hard to prove
these cases and high interest in proving them; communications are not useful and don’t further marital
▪ Crime-Fraud → Asking wife to bury a gun is not protected because it’s intended to be in furtherance of the
Waiver → Can waive by inaction as well as action
▪ Hamilton Case: D communicates with wife from office email, which institutes monitoring policy in 2008;
emails before 2008 are still on server at time of trial because he never deleted them → this is a WAIVER not
to delete them; disclosure of previously confidential communications constitutes waiver
Adverse Testimonial
Non-litigant spouse holds privilege
Broader: protection against testifying
to anything
Married at time of trial
Confidential Communications
Litigant spouse holds privilege
Narrower: protection against testifying to confidential communications,
not acts and not non-confidential communications
Married at time of communications (trial doesn’t matter)
Clergy-Penitent Privilege
• Rule: A clergy-communicant privilege does exist and protects communications to a member of the clergy, in his/her
spiritual or professional capacity, by persons who seek spiritual counseling and who reasonably expect that their
words will be kept in confidence.
o Depends on the advice being sought
• Rationale: Want penitents to be able to seek this kind of socially valued communication without fear of disclosure;
clergy has ethical/spiritual requirements not to disclose so don’t want to run into 1 st amendment issues
• Cannot be about something other than spiritual guidance → if guy talks to minister and asks for financial advice, that
is NOT protected by privilege
o Example: someone asks priests – I hear you know a lot about taxes and fund depletion. This was not privileged
o Spiritual with the little s
• Crime-Fraud Exception
o When would you go to a clergy person to further crime or fraud?
▪ NJ Scandal: Clergy get caught up in probes around federal tax issues – involved with communicating to
members of their flock
▪ Kansas: Person was planning on bombing a planned parenthood – private conversation with the priest
o Example: D on trial for murdering abortion doctor and government wants to obtain communications made to
member of the clergy; communications about how best to commit the crime is NOT protected
o Concerns about terrorism
State Secrets Privilege
• Rule: Government argues that information sought to be used in litigation is a state secret, defined as something
where disclosure would harm a national security interest so it cannot be disclosed
o Didn’t get invoked much until 9/11
o Find identity, staffing, etc.
o Tough doctrine if you are a plaintiff
▪ But if you didn’t have this protection, then a P could say they are injured and it is proven up by state secret.
Then government would have to pay those cases off
▪ Gray mail problem – extort money from the government by saying it involves a state secret
o CIA Case: CIA agent brings an employment discrimination action – he didn’t get good spy stuff and he was
discriminated. To prove that case up, lots of problem: who staffs spy stuff? What do spys do? This involves states
o Application: Fewer state secrets implicated now
▪ Not as invoked as it used to be because procedural standards are tightened
▪ Not as many state secrets anymore – because of whistleblowing and Snowden, Wikileaks, etc.
▪ Lots of this comes up in FOIA requests
• If court finds that case can only be proven with state secrets, then case is DISMISSED on its merits
o Example: Land owners in Nevada suing government because of eradiated water; case dismissed because would
have to prove groundwater runs from silos so have to prove where silos are and get that information from the
government. Privilege non-suited the plaintiffs
o Example: journalist case dismissed not because we don’t know about the drone kill list – but the details of who
gets placed on it.
• If information has already been disclosed, then privilege will NOT work
o Classified doesn’t mean state secret and courts recognize the pattern of over classification.
o Example: Spy program was disclosed and party being sued for disclosing spy program contends he is not the one
who did it → since spy program was already disclosed and not talking about details of it in the case, case can go
▪ State secret wasn’t necessary to prove the case
o Example: P suing government because he was tortured through rendition program started after 9/11; argues
that everyone knows about the program so it shouldn’t be state secret → BUT even though everyone knows
there’s a program, you’d have to reveal all details that went into it and this is still a state secret so case dismissed
▪ 9th Circuit (Lockhead): We find this standard to be harsh because a particular P is paying to effectuate a
state secret. Congress ought to have a fund – like workers compensation fund – if you have been injured
and you have a state secret and therefore cant get money – congress should give you that money. Ps still go
without recovery.
▪ Brought against private parties
▪ Plaintiff argued that rendition is not a state secret because everyone knows it existed. He cites to a
Hollywood movie – clearly not a state secret. So why dismissal?
• Not about program itself, but how it got implemented. Who made the decision? It is the details that
would need to be proven up.
• Criminal Cases: Government’s choice of allowing the secret out of not (cost-benefit analysis)
o If D says they need a state secret to prove their defense, the government cannot say you cannot prove defense
b/c of state secret so you go to jail.
o We can make plaintiffs lose their recovery but you cannot make defendants go to jail
▪ Example: Oliver North and Iran Contra: He made colorable claim that he had some defense if he could
disclose state secret. government had a choice of either dismissing or showing the secrets out. They
decided to dismiss the charges
• Waiver
o If state is bringing a case against a D where important evidence is state secret; they have choice to either blow
state secrets and introduce them or drop charges
o Advice of counsel defense
Example (2nd circuit case): Obama administration wrote drone memo; news organizations sought to disclose
the report but government said memo was state secret → doctrine does NOT apply because government
waived it by openly saying that drones are legal (BUT stuff about how drones work still protected)
• No, it is not a state secret – not that you got legal advice. that means the report is not completely a
state secret because you brought it up
o Can the whole report be read by everybody? No, Legal advice portion only
Executive Privilege
• Rule: Held by executive branch of government to encourage president to talk to other members of the branch
without fear it could later be used in litigation
o Communications within executive branch
• Rationale: free flow of info in executive branch is a positive good. If you knew it could be in litigation, no flow of
information and could prevent effectiveness
• This is a QUALIFIED privilege → qualified by interest of a grand jury
o found in Nixon case; qualified by GJ’s interest in prosecuting crime
▪ Watergate tapes had privileged information. But grand jury interest outweighed executive privilege
o Because it’s qualified, Clinton during the Monica Lewinsky scandal instead decided to invoke attorney-client
privilege since he was talking to White House counsel → BUT DC court held that he is not the client, the
executive branch is (similar to Upjohn – held by entity, not agent so have to get your own lawyer if you want
confidential communications)
▪ Courts differ on this
• If it is qualified privilege, is it better than anything at all? When could it be invoked?
o In the face of a congressional investigation
▪ Trump Admin: executive privilege can be invoked on a blanket basis – don’t have to show up. Federal
district court held that was not so – cannot just not show up – need to say it on a question-by-question
• This is true for lots of privilege
• Blanket claims of privilege are not found in the law
Psychotherapist-Patient Privilege
• Rule: Confidential communications between a licensed psychotherapist/clinical social worker and her patient in the
course of diagnosis or treatment are protected from compelled disclosure
o Patient holds the privilege
o Includes licensed social workers/clinical therapists (don’t want wealth discrimination)
▪ Therapeutic non-therapeutic line being drawn
o Absolute privilege
o Didn’t exist previously under federal common law – but in states
• Rationale: Effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is
willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive
nature of the problems for which individuals consult psychotherapists, disclosure of confidential information made
during counseling sessions may cause embarrassment/disgrace. The mere possibility of disclosure may impede
development of the confidential relationship necessary for successful treatment.
• Jaffee → Issue was whether statements a PO made to her therapist during a counseling session after she shot and
killed a man are protected from compelled disclosure in federal civil action brought by family of deceased; court held
that conversations were protected from compelled disclosure
o Courts can develop new privileges “in light of reason and experience” so establish shrink-patient privilege as
matter of federal common law
▪ Cost-benefit analysis: will these communications be made anyway?
• If people will already be forthcoming, we don’t really need the privilege
• Capra: at the margin, I get the point. But I am not sure that is really right.
o Goes back to privilege being political
o Its really an empirical question of whether it will be useful
Lower court held privilege was qualified → if other side really needs it and can’t find other information that
could help them, have to disclose
▪ SC said privilege is ABSOLUTE because otherwise can’t rely on it; must be predictable to work
Medical doctors → Jaffee says that doctor-patient relationship is based predominantly on physical information (rather
than communication) so no privilege here and courts generally say no doctor-patient privilege under federal common
law (not part of advisory committee list; will probably go to doctor anyway)
o Guideposts point in different ways: not in advisory committee list but every states have it
o Federal courts: does not exist before Jaffee, and especially after
▪ Language of court in Jaffee: privilege is necessary for communications and you want to further
communications. Unlike doctor-patient, psychotherapy relationship is completely driven by
o Courts have not adopted this under federal common law
o What about HIPAA?
▪ Communications are not covered
▪ HIPAA statute has language also about legal proceedings
o Situations where it comes up
▪ 1) diversity action – state law applies (except when condition is at issue like personal injury)
▪ 2) lawyer says we need medical advice to properly bring case. You communicate with doctor, I will
communicate with doctor, etc. Then, it is possibly covered: if necessary to the legal representation
• Protected under attorney-client relationship and Covelt doctrine.
Privilege outweighed by right to effective defense
o Example: One eyewitness to case testifies that he saw D coming from premises where crime was committed; D
wants to introduce that the witness had been in mental institutions for 20 out of 28 years and told psychiatrists
that he doesn’t have a firm grip on reality; sees things that don’t really happen
▪ Constitutional right to effective defense outweighs absolute privilege → need very critical evidence and
complete block that would prevent any evidence from being introduced (but privilege not as absolute as
Jaffee implied)
Dangerous patient exception → Only applies where there is an emergency that will be stopped
o Example: D says my cousin is making me depressed and I’m going to kill him tonight; NO exception because at
trial, not protecting anything since person is already dead
▪ Tarasoff duty – imminent threat to the victim. Every state has such an obligation.
▪ Jaffee: don’t need to decide if a dangerous patient exception exists.
• Different from Tarasoff – tells psychotherapist to report. Here, it is a communication privilege
about using it at a later point in trial.
• Courts rejected exception.
▪ Exception would only work if litigation were about letting someone out of mental hospital to kill their
mother or in a commitment proceeding when determining whether or not to commit a patient
No protection if no expectation of confidentiality (e.g. if shrink says I’m going to disclose)
o Example: 5th circuit case: patient goes to psychotherapist, they give a Tarasoff warning. P then says I will kill
brother tonight thanks
▪ Privilege is based on anticipation that it will remain confidential like attorney-client privilege. Once you
get Tarasoff warning, you have lost expectation of confidentiality.
▪ Patient MUST be warned
Other privileges sought but rejected
• 1) Union members and reps
• 2) Privilege for Self-Analysis: Corporations doing internal investigations to not turn over report
o Carnival Cruise Line Case: Female passengers getting assaulted on the cruises. Report to the BoD with various
failures. Now, passengers want to get this admitted. Carnival wants privilege for self-analysis to contemplate
▪ No advisory committee list and no states
▪ Cost-benefit analysis: reports would still be done because don’t want further litigation
▪ 9th circuit: hire a lawyer! Then it is Upjohn report then it is privileged.
• 3) News Reporter/Journalist Privilege
o Argue 1st amendment privilege not to disclose sources but this does NOT exist
▪ Posner discusses
▪ First amendment right to keep sources secret – old and wrong argument.
• SC says journalist doesn’t have 1st amendment right to shield sources from grand jury, etc.
• Example: Bush admin – Times reporter goes to jail for failure to give up sources
o Dispute in courts over whether to recognize shield to journalists but even where it’s recognized, it is QUALIFIED
▪ Statute says don’t go after journalist unless you have to; only should be used as last resort
▪ Government’s interest in finding the source could override privilege (e.g. in GJ investigation)
▪ Capra: underwhelming privilege
• In the second circuit: AUSA investigating Muslim organization and determined it was a front for
Hamas. Wanted to seek order to freeze assets of org. Times reporter calls the organization to ask
“do you have an opinion on the assets freeze happening tomorrow?” next day, assets were gone
because there was a leak from the Times reporter. Subpoened the times reporter as to where they
got the info. Second circuit said it is qualified right – government has interest in knowing the leaker.
• In civil cases, recognize it a little more
• Congress asked to intervene to get it in by statute
o Privilege to stuff they didn’t publish
▪ Argue it would be burdensome – cost money to put film, etc.
• Expending money that we could use better to exercise right to now, etc.
• Argument has been rejected – financial obligations on press doesn’t mean first amendment is
▪ Argue it will reveal editorial process and that violates first amendment right
• Not with freedom of speech
• Court rejected this
▪ So no privilege to keep non-aired thing secret
• 4) Parent-Child Privilege → DOES NOT exist; not in committee’s list and not enforced in states; relationship will be
long-lasting anyway so not concerned about preserving harmony (can’t divorce kids)
o Idea is to protect it like a martial relationship – can communicate confidentially and can’t force one to testify
against the other
o Many good reasons to not do this – federal courts have rejected both
o Some states have statutes - Utah
o Why? Married ones are dumb and highly costly. With children, there is a lot of information – more than 2
• 5) Protective Function Privilege → Clinton argues that secret service agents should be kept off the stand for anything
learned in protective function because don’t want president to try to hide things from them and get into security
o White water investigation: Clinton defined as secret service agents should have a privilege not to testify to
criminal acts done by the president
▪ If no privilege, then president who wanted to commit illegal violation would escape secret service
▪ DC Circuit: unpersuaded. Incentive to not commit criminal act comes from other places
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:
o (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
o (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.
o (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
o (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.
o (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.
o (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.
o (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.
o (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that
▪ (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.
o (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces
an accurate result.
o (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.
Classic Case: Government presents evidence, D claims it is fake/not the real thing/forged/wasn’t found there, etc.
Government then needs to prove that the evidence is what they say it is. Without knowing if the evidence is what it is
claimed to be, it is no longer relevant
o Example: Barry Bonds saying it wasn’t really his urine.
Standard: Conditional Relevance (104(b)): whether a reasonable person would believe that the thing being proved is
what it is
o Why low standard? Most questions of authenticity are jury questions. The judge simply must screen for things
that are clearly fake or where the proponent makes no case for authenticity
Authenticity obligations differ depending on what you are trying to show
o Vayner Case (2nd Circuit): FB post that implicates D. Detective just took it off the internet. This was not enough to
show that D did it – we need something else.
▪ Difference between proving something was posted on the internet vs D posted this on the internet.
901(b): Illustrations
o Example: familiarity with handwriting – with the low standard, don’t even need expert, just get someone who is
familiar with it
o Example: recording – someone with familiarity with the voice is enough
Application of Authenticity
o 1) Chain of Custody
▪ Given the low standard, proponent can prove the chain of custody of a piece of evidence to authenticate it
▪ Example: Under spare tire is a brick shaped object. It is tested by chemist and they say its 97% pure
cocaine. Chemist will say I got brick and tested it. D: how do we know the one you tested was from my car.
So chemist needs to say this brick came from D’s car. Government can prove chain of custody aka where
they have it marked when it was at a particular location.
o 2) Gaps in the Chain of Custody
▪ D may show that there was a gap in custody, but courts find gaps to go to weight, not to admissibility itself
▪ Grant Case: took a brick from Ds case and 4 months later goes to chemist. Seems like the arresting officer
and was just getting off his shift and put it in trunk. Then, took trip and then didn’t come into focus. Finally
gives it out. D argues it’s a giant gap.
• Government covered for it by saying that brick brought to chemist weighed exactly the same.
o How does this bare to chain of custody? Idea that government had grand plan to switch bricks
and get it to the same exact weight – definitely unlikely
• Sometimes D may say that it was sugar not drugs – really???
o 3) Circumstances
▪ Government may present circumstantial evidence to authenticate an item
▪ Example: D is charged with drug activity and lives in apartment building with others and there is a common
dumpster and pull out trash bag and find notes of drug activity. They say it is Ds notes. D says it is not my
notes. This is only relevant if they were his notes
• Authenticate via handwriting
o Didn’t have familiarity person here or an expert
• In the bag, there was a handy twist expandable 10 gallon bag – he had the very same bags
• Second, the bag had Tropicana orange juice – he has had those containers
• Court would find that is enough
o 4) Electronic information
▪ With the low standard, electronic information can be authenticated
▪ Circumstantial evidence can be introduced when there is doubt
▪ Often, password or username, etc. won’t be enough – but some circumstantial evidence will sure-up any
• Go to the circumstantial evidence
• Example: authenticate youtube video by date – if before felon versus after felon to figure out if it
was a crime
▪ Easy to fake, hack, etc.
• Basic argument of hacking or possibility of hacking are arguments for the jury
• Can also bring up that there is no indication that THIS specific account was hacked
▪ Examples:
• Email: to and from – lots of courts will say this enough
• Historical information on a website: archived – 903(13)
• Texts:
o Damper Case: Wanted to prove that GF said to friend that I am having fight with BF. We don’t
know if she actually sent it. Circumstantial evidence of using terms of endearment
• Facebook: not hard to authenticate
o Login may be enough for some courts
o Others, you can show birthday posts, etc.
• Deep-Fake
o Example: Fuzzy video – how did we get from fuzzy video to a clear image?
▪ Daubert Q: is the software reliable to figure things out?