Capra’s Evidence Transcript (Applied to Fall 2019 course)
I.
II.
Introduction to Evidence
a. Purpose of Evidence Rules
i. Efficiency – prevent every trial from taking forever
ii. Prejudice at Jury Trials – to control the information that reaches the lay jury; prevent jurors from making bad
decisions and getting confused based on the wrong basis (i.e. D’s prior convictions).
iii. Reliability – don’t want a dubious foundation, flat earth people testifying; improve quality of evidence;
Reliable v. Bogus evidence – protect against unreliable evidence (ex. hearsay rule); creates a baseline for the
reliability of evidence
iv. Social Policy – encourage clients to tell their lawyers things & encourage people to repair things, get insurance,
plea bargain, etc.
v. Fairness – prevent parties from presenting unfairly negative evidence
vi. Expedite Trial – ex. by forbidding the introduction of irrelevant evidence.
b. Pros and Cons to Evidence Rules
i. Pros: prejudice, costly/time consuming w/o them, social policies which evidence rules represent will suffer w/o
them, guarantee and protection against admitting unreliable evidence.
ii. Cons: lawyer disputes, appeals, transaction costs, assume these costs are outweighed by benefits of trial
structuring.
c. FRE
i. Apply to the federal courts and serve as a model for state codes of evidence.
ii. Amendments are proposed by the Judicial Conference Advisory Committee on Evidence Rules. The rule
proceeds through the Judicial Conference and the Supreme Court. If the SC approves, it becomes law if
Congress takes no action for 180 days.
iii. Congress occasionally bypasses the judicial rulemaking process and enacts a statute that imposes upon the
lower federal courts a new or modified rule of evidence.
d. Admissibility/Limited Admissibility/Purpose Driven Rules
i. Whether something is admissible usually depends on the purpose for which it is offered by the proponent.
ii. The purpose is important b/c the same piece of evidence may be admissible or inadmissible depending on the
purpose.
iii. Rule 105: Limited Admissibility
1. When evidence which is admissible as to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly.
2. Limiting Instruction: Where evidence is admissible for a good purpose but inadmissible for a bad
purpose, general rule is that it is admitted and opponent is entitled to a limiting instruction: jury is
told that it cannot use the evidence for the bad purpose but can use it for the good purpose.
a. Ex. A judge may instruct the jury that proffered hearsay evidence of prior inconsistent
statement is admissible for the purpose of credibility of the witness, but not for substantive
truth of the matter (i.e. did D commit the crime?).
b. Limiting instructions presume that the jury will follow or will want to follow such
instructions.
3. Rule 105 & Rule 403
a. Rule 403 imposes a limitation on Rule 105 – when it is clear to the judge that the admissible
purpose for evidence has little probative value and the jury will use it for an impermissible
purpose, a judge may exclude the evidence under Rule 403.
b. Ex. Bruton: Ct ruled that a limiting instruction did not effectively protect the accused against
the prejudicial effect of admitting in evidence the confession of a co-D which implicated the
D.
iv. Rule 104(a): Questions of Admissibility Generally
1. Preliminary questions concerning the qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined by the court (JUDGE), subject to the
provisions of subdivision (b). In making its determination it is not bound by the rules of evidence
except those with respect to privileges.
An Introduction to Relevance
a. Definition of Relevance
i. Rule 401: Definition"Relevant evidence" means evidence (a) having any tendency to make the existence of a
more or less probable than it would be without the evidence. (Any evidence that helps prove the existence or
1
ii.
iii.
iv.
v.
non-existence of some fact that is pertinent to a legal dispute between parties). (b) the fact is of consequence in
determining the action.
Test: Whether an item of evidence, when tested by the process of legal reasoning, possesses sufficient
probative value to justify receiving it into evidence.
Standard: “more probable or less probable than it would be w/o the evidence.”
1. Low standard that favors admissibility.
2. Relevance does not go to the sufficiency/weight of evidence (i.e. if there is enough to convict or reach
a decision).
Note that same piece of evidence may or may not be admissible based on the purpose for which it is offered.
Find the proper purpose for it to get it in. If admissible purpose you can get it in, even if there’s a bad
purpose.
1. Ex. D narcotics distribution admit evidence of prior bad acts, you will say I’m offering it to show
knowledge of narcotics, etc. and the judge will admit it with a limiting instruction to use only for that
purpose.
Two Parts to “Relevance”
1. (1) Tendency to Prove a Proposition
a. To be relevant, evidence must have ANY tendency to prove the proposition that the
proponent articulates.
b. Any tendency to make the existence of a material fact more probable or less probable than it
would be w/o the evidence.
i. Very low standard
c. If your case is better than without any evidence on the point, this prong is satisfied.
d. Not a high threshold – degree of relevancy is not analyzed; just must be any relevance.
e. “Brick is not wall” – the piece of evidence need not make a material fact more probable than
not (or conclusive); it must merely increase the probability (ie tendency) (even by a small
amount) that the material fact is so.
f. Relevance is different from sufficiency/strength of evidence
i. Relevance – look at a particular piece of evidence
ii. Sufficiency – look at the totality of the evidence so the jury can see more likely than
not/beyond a reasonable doubt that this fact exists
iii. Ex. D charged with taking part in armed robbery. Gvt wants to show a wk earlier D
is known to have had a gun. D says that does not prove anything. Evidence relevant
b/c makes it more likely than without the evidence that D was involved in armed
robbery. [NOT that he more likely than not committed the crime though]
g. Circumstantial v. Direct Evidence
i. Distingush from direct evidence - evidence that it happened. Ex. witness says I saw
him rob the person.
ii. Ex. Foster: Testimony from PO hidden in observation post (eyewitness) who saw
drug transaction occur in car and identifies D as being person in front seat giving
drugs to someone in back seat. D wants to ask if PO saw face of person in back seat,
which is allowed b/c if inaccurate about person in back then somewhat less likely to
be accurate about person in front.
1. Here you have direct evidence, but D tries to introduce circumstances
mitigating. But makes it more likely that evidence is wrong if PO couldn’t
see guy in the back. Strenth of inference doesn’t matter.
h. Remoteness
i. The evidence is too far removed in space/time from proposition that it is offered to
prove. May be ground for trial judge to exclude under 403 (does not indicate that it
is not at all relevant, but relevance may be minimal).
i. Conditional Relevancy
i. Rule 401 doesn’t cover conditional relevancy aka when its probative value depends
upon the existence of another fact
ii. Rule 104(b) governs conditional relevancy – when relevance of evidence depends
on whether a fact exits, proof must be introduced sufficient to support a finding that
the fact does exist. The court may admit the proposed evidence on the condition
that the proof will be introduced later.
iii. Must present foundation that the condition exits first
iv. Ex. for notice, must provide enough proof for reasonable person to believe that the
party heard the statement. Then relevance of statement considered under 401-403.
j. Failure to introduce evidence deemed relevant
2
b.
c.
i. Failure to introduce evidence can create a negative inference – if you have custody
of evidence and if it were in your favor, you would introduce it. Failure to produce
relevant evidence gives rise to an inference that the evidence would have been
unfavorable to that party.
ii. Spoliation/ “Consciousness of a weak case”: if you have clearly pertinent evidence
and you destroy it w/o any good reason, you can suffer an adverse inference.
iii. Ex. Tory: Bank robbery case where teller testified that D had a gun in his
waistband. D argued that he was wearing sweatpants and could not have been
carrying a gun. D was allowed to argue during closing that there were photos by a
security camera but prosecution did not admit it b/c it showed that D wasn’t the
culprit. D was allowed to ask the jury to make a negative inference – that if gvt had
custody of evidence and didn’t use it, is not in their favor.
2. (2) Fact of Consequence / Proposition in Dispute (Materiality)
a. Materiality not treated as a separate concept. Subsumed in the concept of relevance.
b. Evidence must tend to prove a proposition that is in dispute – consequence to the
determination of the case (determined by substantive law). If evidence has nothing to do with
an element of the case, it is irrelevant.
c. Ex. Anti-abortion fanatic stood outside abortion Dr.’s house and shot into house, killing Dr.
On trial for federal crime – using force to prevent access to reproductive healthcare; D wants
to introduce abortion video (fetuses still breathing) as indicative of what he saw before
incident. Court says not relevant b/c no matter how much you think abortion is wrong the
statute says you cannot use force to prevent access to reproductive services (defense that
abortion is brutal is not allowed under the law).
d. Ex. D on trial for having sex with minor; wants to introduce evidence that he was at her bday party where they were serving her drinks. All evidence about candles on the cake is
irrelevant to prove he mistook her age (as consent) b/c on a matter not in dispute – under
most state laws age of person is strict liability.
e. Ex. Garland: P sues D for IIED arising from D running over P’s daughter with a car. Under
NYS law, for P to recover she must have been within a zone of danger. P’s evidence of
emotional distress is irrelevant under the substantive law unless she has proof she was in a
zone of danger.
f. Ex. Evidence of validity of Darwin’s theory of evolution irrelevant b/c validity of the theory
wasn’t a defense, it was whether he could teach it.
g. Ex. D charged with leaving scene of car accident, wants to prove that she hit someone with
car who was lying in the road who had a BAC of .35. Not relevant b/c not in dispute whether
she was at fault, but whether she fled the scene of the crime.
Sources of Authority for Excluding Relevant Evidence
i. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
1. “Relevant evidence is admissible unless any of the following provides otherwise: the Constitution of
the United States, Federal Statute; these rules [like R.403]; by other rules prescribed by the Supreme
Court. Irrelevant evidence is not admissible.”
ii. All evidence that is relevant is admissible, all evidence that is not relevant is not admissible.
1. Gets evid in or out
2. This is the procedural rule
iii. But, evidence which is relevant can be excluded if it is excludable by some rule: the Constitution, federal
statute, some other federal rule
1. Ex. Lowery: D being tried for conspiracy and co-conspirators testify against him to get pleas. He says
inadmissible b/c testimony violates Florida Rules of Professional Responsibility (lawyer is not
permitted to give consideration to a witness to testify). He says they are paying the fact witnesses b/c
they are getting a plea deal. Evidence is relevant (tendency to prove) and admissible. Neither state
nor local rules of federal courts can serve as a basis for exclusion of relevant evidence—only federal
law determines the admissibility of evidence in federal court.
2. McDade Amendment: Federal law making states ethics rules applicable. Federal law shall be subject
to the state laws and rules in each state in which the lawyer practices (a federal prosecutor is bound by
state disciplinary rules of where they are practicing). However, has no consequence on evidence rules
b/c ethics rules only deal with professional responsibility sanctions and not evidentiary rules.
Balancing Probative Value Against Prejudicial Effect, Confusion and Delay
i. Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, or Waste of Time, or Other Reasons.
3
“The court may exclude relevant evidence if its probative value is substantially outweighed by the
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, or
undue delay, wasting time, or needlessly presenting cumulative evidence.”
ii. Balancing Test Tilted Toward Admissibility
1. Test: Relevant evidence is presumptively admissible UNLESS the PROBATIVE VALUE IS
SUBSTANTIALLY OUTWEIGHED BY THE RISKS OF PREJUDICE, CONFUSION,
MISLEADING JURY, WASTING TIME, UNDUE DELAY, CUMULATIVE EVIDENCE.
a. The probative value of and the need for the evidence are weighed against the harm likely to
result from its admission.
i. Probative value – how far it advances th issue in dispute
b. “Substantially Outweighed” = even if evidence is 100% prejudicial, and also 100%
probative, it will be admitted because the prejudice does not substantially outweigh the
probative value.
2. Even if evidence is relevant, can be excluded if trial judge finds that introducing evidence will raise
negative consequences.
3. Therefore, the rule is geared toward admitting rather than excluding evidence – if evidence is
extremely probative, it is unlikely to be excluded under 403.
4. Rationale – probative evidence furthers the search for truth (can deal with negative consequences by
instructing the jury).
5. Ex. McQueeney: P suborned perjury in fabricating a witness, who was testifying that he saw P slip
and fall. Once the court knew of the perjury, P decided not to use the witness but D still wanted to
bring up the fraud to the jury. Judge decided that it would be too prejudicial to P so didn’t allow
evidence of perjury. On appeal, found that TJ erred b/c underestimated the probative value and
misevaluated its prejudicial impact. Evidence of suboredination of perjury may have made the juror
reevaluate P’s case. Virtually all evience is prejudicial or it isn’t material. The prejudice must be
‘unfair.’
6. Consciousness of a weak case admissible in a civil case?
a. When a document relevant to a case is destroyed, the trier of fact sometimes may infer that
the party who destroyed it did so out of a realization that the contents were unfavorable.
Before this inference is drawn, there must be a foundation showing that the party who
destroyed the doc had notice of the potential claim and the doc’s protential evidence.
b. Ex. Hinkle, 1983 excessive force action. Alleged that police destroyed shirt and bullet. Trial
corut correctly excluded evidence that police destroyed decedent’s shirt and removed bullet.
Ct said Ps had no showing that these acts were deliberate to hide evidence.
7. Is 403 balancing tilted toward admission or exclusion of relevant but prejudicial evidence?
a. Probative value must be substantially outweighed by the risk of prejudice.
b. Policy is if balance between probative and countervailing factors is close, the court should
admit. Presumption in favor of admitting.
c. Rationale for admissibility is that it can be redacted, limited by instruction, etc.
iii. Prejudice
1. All evidence is prejudicial to some extent, but prejudice alone is not sufficient to exclude under 403.
2. Prejudicial = inflammatory to the other side; unfair
a. It is evidence that affects the trier-of-fact in a manner not attributable to the permissible
probative force of the evidence.
b. It is only when a factfinder might react to aspects of evidence in a way that is not supposed
to be part of the evaluative process that the reaction is considered unfair prejudice.
c. Things that factfinders could consider to be useful to them when it is not useful to them.
i. Ex. Details of prior conviction is prejudicial in Old Chief b/c nature of conviction
would inflame the jury and get them thinking about things they are not supposed to
think about – if convicted of arms transaction, he is a gun guy; or if convicted of
child porn, he is a scumbag.
d. Cannot just say prejudicial b/c it hurts the other side.
i. Ex. D disputes he possessed a gun in Old Chief and gvt wants to introduce
fingerprint expert and OC’s fingerprints found on gun. D says evidence prejudicial
but gvt says that is a fair blow.
iv. Stipulation
1. Stipulation: An agreement between the parties to an action that allows a certain fact into evidence. If a
D admits to doing something wrong so that proffering party does not have to admit the evidence
related to the stipulation. By way of proffering a stipulation, one party is trying to take away the
weight of the other party’s evidence. In criminal cases, a D can try to stipulate evidence (i.e. prior
1.
4
felony conviction) to avoid evidence that would be highly prejudicial (i.e. details of the prior felony
conviction). [Be wary when other side wants to stip.]
a. Ex. D on trial for escape from federal prison. One element of crime requires proof that D was
incarcerated. To do this, prosecution introduces evidence of D’s conviction for murdering a
nun. Evidence is 100% probative on fact that D was incarcerated, it is 100% prejudicial b/c it
paints D as a nun-killer. Under 403, probative value equal to the prejudice, so evidence
admitted. The solution for the defense would be to stipulate to the incarceration.
2. General Rule: Government is usually allowed to reject stipulation if the stipulation is not as good
as/less probative than the evidence that is offered (note: rejection must be in good faith).
a. Reasons to reject stipulation:
i. Sometimes stipulations are not as good as evidence b/c they rob the proponent of
the ability to tell the full story from all angles (evidence is really good/juicy).
1. In a jury trial, want to tell the jury a story – get them involved with witness
testimony, videos, etc. One thing they do not appreciate is a stipulation
being read to them. And Jurors feel jipped and blame the government.
2. Therefore, jury might penalize the party who disappoints them by drawing
a negative inference or wonder what they are being kept from knowing.
3. Might cause “negative inference” that gvt doesn’t really have good proof
4. Note: This does not apply when stipulation deals with a legal status (such
as a “prior felon”).
5. Ex. In a civil case, party calls expert to qualify need to ask Qs about
expert’s background, etc. Other side might stipulate that the expert is
qualified (rather than let you question him on and on about how qualified
he really is). You might reject b/c you want him to keep going on about
how well he did if introduction of qualifications would be more probative.
6. Ex. Peltier: Native American activist was involved in gunfight, and federal
agents killed. Gvt wants to show he fled the scene, b/c that is
“consciousness of guilt” evidence. Gvt rejects D’s stipulation that he fled,
b/c there are several storms of flight, and D’s flight was so serious that he
prosecutor wanted to get the details on the record. The stipulation would
rob the prosecution of highly probative evidence.
ii. A single piece of evidence often proves more than one disputed point.
1. Stipulation would deprive the proponent of the rightful weight of evidence.
2. Ex. D being tried for shooting but says accident; D says I’ll stipulate to fact
that I shot victim; gvt wont accept b/c wants to show through evidence that
he shot victim w/ intent (that it wasn’t an accident).
3. Exception: The gvt must accept stipulation in felony gun possessions or where stipulation is as good
as the proof/evidence and is less prejudicial.  do not unnecessarily introduce prejudicial evidence
a. Where all the evidence does is prove the status element of the crime (a felony conviction for
crime that requires conviction) and the proffered stipulation proves the same thing and is less
prejudicial (just saying was convicted), then stipulation cannot be rejected and evidence
inadmissible.
b. Ex. Old Chief: D accused of the crime of being a felon in possession of a firearm. The D
admitted that he was a felon, but the trial court allowed introduction of detailed evidence of
the D’s earlier crime (i.e. drug trafficking, child sexual absue). This was erroneous. A full
description of D’s prior offense had no probative value b/c the D had conceded that he was a
felon and that proved the status element of the current crime.
i. The gvt had to accept stipulation because the stipulation is exactly as probative as a
judgment of conviction – “no felon can possess a gun” – reading conviction will be
more prejudicial (underlying crime = sexual assault). Note: limited to its facts!
ii. Each felony conviction is equally probative because offered to prove only one thing.
iii. Evidentiary alternatives: If you can provide evidence with same probative effect but
less prejudicially then you go to that evidence (here it was the stip).
c. Ex. Felony gun possession charge. Says he didn’t know the gun was in the house, and the
govt wants to introduce prior conviction for child porn. Relevance? Yes, because felon is
element of the crime. Defense counsel will say 403 but the prejudice doesn’t substantially
outweigh probative value. May try to stip that he’s a felon.
v. Reasonable Efforts to Prevent Prejudice/Unnecessarily Prejudicial: Even if evidence is admissible under
403, the proponent cannot make it more prejudicial than necessary.
5
Evidentiary sanction for parties “over-doing it”—may need to exclude if the party accentuates the
prejudice, i.e. doesn’t do enough to limit the prejudice
2. Ex. Torres: Border patrol incident; officer sees someone in river shooting at him; he is brought to
identify perpetrator in mug book; officer picks on guy (Torres) who says it wasn’t me; border patrol
wants to bring the fancy book into court. It is prejudicial to have mug shot book b/c indicates he is in
a group of ppl with a prior conviction. It is also probative b/c gives weight to the fact that there were
alternative ppl to chose and officer weighed alternatives and chose D. Gvt wants to limit prejudice by
putting duct tape over D’s prior bad acts – Court says there has been an error under 403 b/c covering
only D’s acts accentuated prejudice b/c jury might think he did a really bad thing so they covered it.
Certain things could have been done to take away obviously prejudicial things: Title on front of mug
book simplified (something other than “thieves, murderers, and pimps”); Put duck tape over all
candidates’ crimes.
a. Evidentiary alternative as in court identification? No, not as strong as the immediate out of
court identification.
b. Just take D pic out of book and introduce that? No
c. If only his is duct taped? May think the worst compared to others, etc.
d. Take reasonable efforts to control the prejudice. If they had covered it completely it would
have been ok.
3. Ex. Terry: Gvt wants to introduce photos of victim (child allegedly killed by parents); certain photos
probative b/c show injuries intentionally done; however photos of child post autopsy excluded b/c
unnecessarily prejudicial.
vi. Bench Trials
1. No objection based on [unfair] prejudice b/c judges are presumed to be able to avoid being prejudiced
or unfairly swayed.
2. No objection based on confusion b/c judges are presumed to be non-confusable.
3. The only ground for excluding evidence in bench trials undr 403 is DELAY—as evidence becomes
more cumulative, it becomes less probative and there is more delay.
vii. Judicial Discretion/Standard of Review
1. Abuse of Discretion
a. 403 provides that evidence “may” be excluded – trial court judges have discretion in
weighing factors under 403. When Rule 403 determinations are appealed, they are reviewed
under an abuse of discretion standard.
i. Was it a completely unreaonsable balancing?
b. Appellate judge does not review a 403 determination for what they think is wrong/whether
they would have done it differently.
c. Appellate judge asks: could reasonable minds differ about this resolution of the matter? If so,
no reversal. Deference to trial judge b/c he was there and these determinations usually made
quickly. So long as the process was right, usually will not get reversed on evidentiary
grounds.
d. Generally, a decision to exclude evidence will be found to be an abuse of discretion more
than a decision to admit evidence.
e. Credibility questions are for the fact-finder—the 403 balancing test assumes that the
proffered evidence is true. Judge should not exclude evidence b/c he decides that it is not
credible.
i. Ex. Gvt wants to introduce evidence said to trigger D’s presence at drug transaction
(a picture). Judge says I do not believe you so excludes it. Court says error of law
b/c when witness testifies, judge cannot exclude on grounds that he does not believe
it. Therefore, probative value under 403 by assumption that witness testifying was
believable.
2. When Reversal?
a. Note: Evidence must be objected to to be inadmissible
i. If lawyer fails to object on 403 grounds initially, the standard of review on an
unpreserved becomes plain error, which is hardly ever overturned. The judge must
be so wrong that it creates an injustice. It is not the judge’s place to object, he is
neutral and is not arguing the case for the parties.
1. Reasons for not objecting: it might open a door that isn’t open i.e. strategy.
Maybe the jury feels there is over objection
2. The objection must be specific, you cannot change your objection on
appeal.
b. (1) If trial judge’s decision was clearly wrong that reasonable minds could not differ.
1.
6
c.
(2) If judge did not approach the balancing test correctly (legal error).
i. Ex. McQueeney: D wants to introduce evidence that P bought off witness and
suborned perjury. Lower court excluded but this court reversed. It was not unfairly
prejudicial and was probative. Judge incorrectly excluded evidence that was
relevant. Judge also misapplied the balancing test by thinking something was
prejudicial when it was not.
ii. Ex. D wants to call an alibi witness, P says 403. Judge hears what the witness is
going to say first. Judge says I’m excluding this under 403 because I don’t believe
you. You’re a liar so the evidence isn’t probative. This is an error b/c creditbiitiy is
for the jury. Don’t confuse credibility with probative value! Error of law here.
3.
Timing
a. Motion in limine: motion before trial to exclude evidence on 403 grounds—want to exclude
the evidence before the jury hears it.
b. In civil cases, you know when to object b/c of discovery; in criminal cases, it is more
difficult.
viii. Evidentiary Alternatives
1. In using 403 balancing to admit probative evidence and exclude prejudicial evidence, the trial judge
will look to what other alternatives there are.
2. Doubtfully probative evidence is more likely admissible in cases that are tough to prove.
3. Where there is no other way to prove something, especially b/c of an act of the opponent of the
evidence, the judge can allow the evidence in.
4. Ex. Discrimination cases – evidence is usually based on similar occurrences and random statements.
Employers will always invoke Rule 403 objections, but trial judges will admit the evidence if it is
“close enough” b/c P’s do not have evidentiary alternatives.
5. Ex. Plane crashes – wrongful death actions – the plane is gone and the people are gone. The only
evidence the court has is similar plane crashes. Therefore, the court will usually admit evidence of
similar crashes b/c of the lack of evidentiary alternatives.
6. Ex. US Border Patrol agent shot. Agent asked to look through mug shot book and identifies D as
shooter. Book says “pics of pimps, murderers, drug dealers, etc in this area.” Judge says book
prejudicial, but no evidentiary alternatives. Photo cannot be removed from book b/c jury must see the
ID process featured agent looking through many photos and picking out D. Admitted w/ blurb of
priors covered.
ix. 403 Examples
1. Inflammatory Information about Victims
a. Wrongful Death/PI Cases
i. P is victim of some kind of act (plane/car crash) and D wants to bring negative
evidence/something unsavory about P’s. P says you are smearing victim and that is
unfair.
ii. Rule: Cannot just show P is a loser and his life is not worth that much in terms of
damages compared to a kid who’s getting straight As with a bright future
iii. Ex. Car accident; wrongful death actions brought by parents b/c lost children. D
brought up evidence that children was a pot smoker and argues that there is a
difference between the quality of a relationship between a pothead child and parents
than child who is not a pothead. This is probative b/c when you are a parent you do
not like that child smokes. But it is a minor thing so only minimally probative.
Under 401, relevant, but under 403 background of pot smoking was too prejudicial
in this case.
1. Is this probative at all? It seems probative
2. Court: when showing something negative about victim there are concerns,
in this case the judge excludes evidence because at best it is marginally
probative that she’d be less sad and it could raise some issues of prejudice
that the ∆ did her a favor and it ends of confusing the jury on the issue of
damages
iv. Ex. Child suing for loss of parent in car ax. On issue of damages, D wants to
indicate that victim/father is alcoholic (even though crash wasn’t father’s fault).
Admissible under 403 b/c less of a source of comfort (which child argues) and less
earning power (child argued his dad supported him) due to alcoholism. Probative
value higher here for the reasons above.
v. Ex. Perrin v. Anderson: Dad shot by police after confrontation. Kid sues for
wrongful death under excessive force. D wants to introduce evidence that father had
7
2.
3.
bondage mags in house. Court says let in evidence b/c probative value of evidence
goes to type of person father was and loss suffered by son (implication that dad was
no good and of little value to son). More probative than pot case for what kind of
dad decedent was/would continue to be.
1. It’s relevant to figure out who that Dad is: if there are bad mags in the
house, he was a bad influence
a. Losing a dad means losing a role model
vi. Ex. P, survivor of someone who died from plutonium infection, sues nuclear power
plant (D). D wants to introduce evidence that victim tried to commit suicide earlier
b/c unhappy w/ lesbian affair (to show value of P’s life for damages). Ct held that
evidence of depression is probative on issue of damages, but prejudice that would
flow from suicide/lesbian affair substantially outweighed probative value on issue
of damages so excluded.
vii. Husband is suing in a wrongful death accident for the loss of his wife who died in a
airline accident. Airline wants to introduce that the husband remarried right after the
death. Prejudicial because it makes it seem like he doesn't love his life. Not too
probative . Courts find that remarriage is not admissible under 403 because juries
could interpret it. See below
1. Court usually say: it’s not like people are fungible, if you lose a person and
get another person it doesn’t mean you haven’t been hurt whereas if you
lose a pack of money and get a pack of money you are not hurt
2. Remarriages not admissible except for one: he is claiming he is
depressed, can’t get out of bed, can’t hold job, sad all the time…∆ wants to
introduce evidence of marriage, not for the fact of remarriage, but who you
remarried
a. In this case he is all depressed and everything because he got a
new shitty wife…not from the old wife…
b. Remarriage in Wrongful Death Suit
i. Evidence of remarriage in wrongful death suit is generally NOT admissible b/c loss
isn’t compensated by the fact that a new spouse exists.
1. Ex. P sues for loss of spouse: D wants to introduce fact that 2 mos later P
got remarried; Prejudice outweighs probative value – prejudicial b/c
religious jurors might not like it, relationship might have started earlier
(cheating), companionship replaced so shouldn’t get damages, etc. Very
confusing b/c not asking for a wife but for a specific person. So not
admitted.
ii. Can be admissible to show the new marriage, not loss of old one, is the root of the
complained problems (i.e. depression).
1. Ex. Evidence of remarriage was let in in a case where P as part of damages
called witnesses about her depression and D allowed to show that cause of
woes is not loss of first wife but picking up second wife.
Finances
a. Punitive damages: information of D’s financial condition is relevant to the issue of punitive
damages b/c it tells the jury the judgment necessary to punish D.
b. In cases involving non-punitive damages, the information would be excluded under 403 b/c
the jury might make judgment based on that instead of the ultimate determination of liability.
c. D’s often argue for bifurcated trials so liability and damages are determined separately so
that liability determinations are made w/o regard to Ds’ ability to pay.
d. In criminal cases, judge should permit this inquiry only where there is a proffer that the
evidence, in light of other proof, is highly probative (Ex. Evidence of financial distress
relevant to provide motive for burning down a building to collect insurance proceeds).
Inflammatory Proof of Damages/Evidence of Injury
a. Situation – Where victims are injured physically and want to prove the nature of their
injuries. D argues being done in an emotional/inflammatory way so should be excluded
under 403.
b. Rule: If fairly presented evidence, not excluded simply b/c it is powerful
i. If damages are gory, then presentation will be gory and this is fair
ii. However, cannot be unnecessarily over the top/overkill (i.e. Terry)
c. “Day in the Life” Films: P’s introduction of their OWN damages—presentations on the
impact of the injury on P.
8
d.
e.
i. Such evidence can present Rule 403 problems b/c of the emotional impact they have
on juries.
ii. While D will try to exclude under 403 due to prejudice, such evidence is probative
on the issue of damages – D cannot object to the film on the ground that it is too
powerful (403 doesn’t exclude powerful evidence).
iii. Judge needs to make sure the jury does not use these films to determine liability1. To prevent this trials are bifurcated
iv. Ex. injury is lost arm in an industrial ax. Film shows victim getting out of bed,
losing his balance, trouble turning off clock, etc.
v. Potential Rule 403 Problems
1. Exaggeration of P’s daily struggles
2. May not be a typical day
3. Film is art – techniques can make it more emotional/bleak
vi. Requirements—court will allow such presentations on the issue of DAMAGES if:
1. Foundation presented by the party who put the film together that the film
has not been doctored – no artificial means of adding to the presentation
(i.e. no tears in the eyes)
2. No music; no voiceovers; no effects
3. Edits permissible b/c films usually composed of excerpts (all excerpts not
used must be preserved)
4. Day must be a “typical” day
5. Procedural protection – judge may decide to bifurcate trial and use during
damages stage to shift focus away from liability
6. These are ways to make the evidence less unfairly powerful
Injured P in Courtroom
i. There can be a demonstration on the stand at judge’s discretion (in-person
equivalent of day in the life film)
1. Ex. having a glass eye – asks P to take his eye out; judge allows it b/c P
has to do it every day and it is something the jury can see.
2. Ex. Taking off prosthetic arm.
ii. What if P screams/yells in the middle of D’s expert’s testimony?
1. 403 not applicable b/c P is not proffering evidence (did not call
witness/introduce exhibit; this just happened in the courtroom so it cannot
be excluded b/c it is not evidence).
2. Trial judge can exercise his authority in courtroom to make sure
proceedings are fair – judges have the power to control proceedings,
including evidence as well as conditions of trial (i.e. who sits in
courtroom).
iii. Presence in Courtroom
1. Can put injured person at counsel table if he has “input.”
2. P’s counsel could argue some kind of right to be present.
a. In criminal cases. D has a constitutional right to be there.
b. In civil cases, idea that the party has a due process right to be
there b/c it is her COA.
c. Right to be there b/c might have info for counsel as things are
going on.
3. Note: Many cts have excluded an injured P who cannot contribute to the
proceedings (i.e. braindead, child) if presence is inflammatory.
Gruesome Visual Presentations
i. When Inadmissible: When being used just to show that victim is dead (proof of V’s
death). D can stipulate that victim is dead while still contesting that he is
responsible.
ii. When Admissible
1. Showing INTENT – photos can show D’s criminal intent (i.e. 1 stab v. 50
stabs).
2. Negating DEFENSES – photos can show that death was not consistent
with (i) an accident (i.e. 3 shots in head), (ii) SD (victim mutilated), or (iii)
a crime of passion (i.e. surgical cuts in victim’s body).
a. Ex. D claims death accidental. Picture of condition of body may
rebut that.
9
b.
4.
Ex. D might defend on basis of emotional disturbance. Photos of
corpse might prove stabs were controlled/surgical rather than
emotionally disturbed.
c. Ex. D says I shot wife accidentally. Picture of wife w/ three
bullets in head shows not an accident.
3. Tying victim to D – photos can show physical attributes like the fact that a
blow came from above, implying D is taller than victim.
4. CONTEXT of crime – location of bodies, blood samples, etc.
5. Argument for admitting the photo is to show how the victim is killed,
his/her injuries, etc. Picture might prove how victim died, at whose hands
they may have died, etc. Might be probative beyond the fact of proving
death.
iii. Rule: Unless presentation is unfair, not representational, or over the top, hard to say
prejudice outweighs probative value (even if gruesome).
1. Ex. Terry: autopsy photos showed incision, exposure to fractured bone and
the exposed fracture of the skull. Inadmissible b/c other evidence (i.e. x-ray
of broken bones, pictures of bruises on body) established the same facts
without the same prejudice. Could confuse the jury
a. Extent of injuries shows not an accidental death…but at least
some of this evidence was improperly admitted because the
autopsy photos were cumulative on the point
i. And prejudicial because its inflammatory: this is like
the mugshot casethe government unnecessarily
introduced prejudicial evidencesometimes when there
is overkill involved
2. Ex. Douglas v. Hustler Mag: Pic put in hustler and career plummeted.
Submitted slides of what it is like to be in Hustler. 403 analysis here” like
“day in the life” but only submitted most disgusting photos. Went out of
their way to be inflammatory. Could have been random photos/one mag
issue to be representational.
3. Ex. P works in chemical factory and set on fire. During fire, P tried to put
out fire, but killed his best friend. At trial, P introduces 44 pics of himself
over 5 yrs and 7 of his charred friend. Pictures of P admissible b/c went to
show P’s condition over time/went to issue of damages. Pictures of P’s
friend also admissible to show emotional injury (P was in zone of danger)
and exaggerated fear of death. 7 pics might be too much, but 2-3 probably
okay.
Implicating Another: Alternative Perpetrator Evidence
a. Situation – In a criminal case, D argues I did not do it, someone else did it and I will bring up
evidence to show that.
b. Requirements: (i) Alternative must be a plausible possibility, and (ii) some factual
foundation needs to be established before judge can admit evidence of alternative
perpetrators.
i. Need a nexus – the alternative perpetrator needs to be connected to the crime.
ii. In admitting the evidence, you do not have to prove that the other person did it (that
is for jury consideration).
iii. The concern is that the D will merely throw out theories and people to blame
without support which could distract the jury and take it off track.
c. Constitutional Right to an Effective Defense
i. Only applies when the evidence D introduces is SO CRITIAL to the defense is
excluded for such a stupid reason that the constitutional protection must step in.
ii. If govt has exculpatory evidence, it cannot be unreasonably excluded.
iii. Cannot be remote/disconnected acts – must be evidence which tends to point to
someone other than the accused.
iv. Couldn't be a 403 case anyway because violation of a state rule of evidence is not a
federal rule violation.
v. Ex. Holmes v. South Carolina: D wants to introduce alternative perpetrator
evidence, which is barred by a state rule of evidence that said if strong forensic
evidence of D’s guilty cannot allow evidence of alternative perpetrator. Not a 403
ruling b/c it is a state case – FRE not applicable at trial. However, violation of
10
5.
Constitution (due process) – a criminal D has a constitutional right to an effective
defense. The state cannot arbitrarily exclude critical evidence of innocence on
behalf of the D.
1. This is not an evidentiary case; the state has its own rules of evidence; the
issue is a constitutional one
2. Constitutional right to an effective defense
a. The state has an arbitrary rule: E excluded if the government has a
certain kind of forensic evidence of your guilt (doesn’t matter
what the foundation)
b. What’s arbitrary about this is that in this case there was no caseby-case approach—no consideration of countervailing matters
(broken machine, high machine operator, etc…)
d. McVeigh: Defense proffered minimal evidence that anti-gov group bombed Murrah building
instead of D. Prosecution argued that evidence of alternative perpetrators should be excluded
on the ground that it will confuse the jury. D argued that the real issue of the trial should be
whether D was guilty or not. However, the TC excluded the evidence of alternative
perpetrators on the ground that the evidence was not strong enough – highly speculative and
generalized. There were two conspiracies, which would confuse the jury (wouldn’t be sure
who they were really trying). This was pretty good evidence
i. Capra hates this reasoning because it is not up to the D to prove their innocence.
App. Ct. says the TC could have found that there wasn’t enough foundation to admit
the evidence; doesn’t say TC was right, just says its not reversible error. Also, these
other ppl are not on trial, and the jury will be confused as to what trial they are at.
McVeigh says he shouldn’t be on trial so he should be able to show that someone
else should be.
ii. Basically: this is just a theory and you can’t just throw stuff on the wall and hope
that it sticks
iii. All in the nature of the foundation the ∆ has to provide
1. How strong is the factual predicate? Is it just a theory or something
supported by evidence
2. What did the ∆ have by way of evidence?
a. Testimony from an undercover officer who was involved in the
other group, but he couldn’t say what they did on that day
b. CAPRAis this standard making the ∆ prove his innocence?
Why should he have to do that, shouldn’t he be able to introduce
some alternative possibilities
Negative Information about the Accused
a. P saying some kind of bad thing about the D. D invokes 403 to argue that P cannot introduce
that part about me.
b. Not all criminal Ds’ libraries are off limits as evidence against the D. Depends on remoteness
of evidence and the leap to relevance required.
c. Library
i. Depending on the circumstances, can be convicted by what is in your library – some
things are probative of your state of mind.
ii. Judge must read the evidence
iii. NOT Admissible Ex. Shymanovitz: Charged w/ having sex w/ minor boy and has
x rated gay mags in house. Capra says relevant b/c shows he was interested in sex
and with males at that. However, inadmissible under 403 b/c the evidence doesn’t
take the case far and very prejudicial to use stuff in your library against you. The
jury would think D was gay and total pervert. Capra does not agree-thinks court is
overly broad.
1. Having an interest doesn’t mean you did it; BUT the standard it that it has
a tendency to show
iv. Admissible  Ex. US v. Curtain: D is caught when invites undercover cop in a
chat room to meet him in person. D claims engaged in fantasy “age-play” (trying to
get someone of age to act under age). When arrested, found 144 stories on computer
about young girls having sex w/ old ppl. Judge allows 6 stories to come in b/c very
probative of his mindset toward having sex w/ young people – goes to the heart of
his asserted expectations.
11
1.
6.
7.
Problem here because the stories involved irrelevant acts far afield from
the crime that the D was accused of so the case was remanded for the judge
to read. If you’re going to admit text based evidence, you must read it .
a. Your library can be used against you, it just depends
b. Opening the door: ∆ counsel exploited the trial judge ruling
d. ∆ on trial for drugging women and having sex with them; he has on his computer lots of
visits of dudes banging drugged women
i. sufficiently probative to withstand prejudice: like Curtin it shows an interest
and an interest is important for intent and secondly it shows preparation,
e. What about a rap video?
i. There has to be parallels between the case and the video
1. i.e., how certain guns work
Guilty Pleas of Co-Conspirators
a. Ex. D charged with conspiracy to murder. Gov wants to introduce that co conspirators pled
guilty to conspiring to commit that murder. Can guilty plea be introduced as evidence that
the D is guilty?
b. Rule #1: Guilty plea of a co-conspirator is NOT admissible under 403 to prove D’s guilt.
i. Prejudice always outweighs probative value.
ii. Ex. D involved in drug conspiracy and gvt wants to introduce fact that henchmen
plead guilty to conspiring w/ D in drug conspiracy.
iii. Probative value of pleader’s guilt is minimal – reason someone might plead guilty
might not have to do w/ their guilt but a cost benefit analysis (getting a plea bargain
easier than contesting gvt’s evidence of guilt) …doesn’t speak to D’s guilt
iv. Confusing and prejudice – jury might think if you are hanging out w/ scumbags you
are one too.
v. Emotional reasons as well – guilty of what you did not what ppl say you did
c. Rule #2: Guilty plea agreement ADMISSIBLE when co-conspirator/pleader testifies as a
witness for the gov’t on direct examination—the guilty plea goes to pleader’s
CREDIBILITY rather than co-D’s guilt.
i. D would want to cross-examine and introduce the fact that a person plead guilty and
is a cooperator—has a stake in the action and reason to lie b/c their deal is
contingent on providing effective testimony against the D. D can get limiting
instruction – i.e. you’ve hear this witness has plead guilty and this information
should only be used on issues of witnesses’ credibility but not as proof of D’s guilt.
ii. However, the gvt will want to bring up this evidence in their case in chief because if
they don’t it will be brought up by the D and jury will think the gvt hid the deal (to
prevent negative inference).
iii. D may not to keep this evidence out but P won’t want to keep it out because 1. By
pleading guilty, you’re actually increasing your credibility of the crime itself and
have personal knowledge about the crime and 2. It may confuse the jury because if
the witness testifies that he killed all these ppl with the D co-conspirator and gets to
walk away free after testifying.
iv. Open door principle: if ∆ lawyer brings in the guilty plea, the gov’t can bring in the
crazy shit from the guilty plea (polygraph clause)
v. Concern about selective prosecution; under 403, it is probative even without preemptive issues, to do away with risk of inferences of selective prosecution
Similar Occurances – Requriement of Substantial Similarity
a. Almost always in civil cases
b. Party trying to prove how something occurred at trial by introducing similar things occurred
to draw inference for fact finder that this is the way it happened during the accident too.
c. Usually involves injury from the circumstances – one side wants to submit into evidence past
occurrences which had a particular outcome to show THIS circumstances had the same
outcome.
d. Requirements: (i) Substantially similar circumstances; (ii) Point you want to prove from the
other accident has to have actually been established (otherwise, trial within a trial and 403
issues).
e. Concerns: might not be similar enough and might confuse the jury (hearing a different case
might make it difficult to figure out what they are dealing w/ on a particular day and about
the power of evidence).
f. Two possible grounds for admission
12
8.
i. Causation
1. P trying to prove a particular question of causation by introducing an event
that is not at issue in the trial but is similar to what is contended to be the
circumstances in the trial.
2. Standard: Must be substantially similar.
3. In employment discrimination cases, other occurrences do give inference
of intentionality.
4. If there is any dispute about how other event happened (the one you are
comparing the current case to), probably excluded
a. Ex. Nachtsheim v. Beech Aircraft: Plane crash. Plane caught in
ice (purported to be caused by frozen elevator). No one saw plane
go down so no evidence and cannot reconstruct it so hard to prove
causation. The similar circ brought up was one in which the
causation was disputed – first plane went down and no one knows
whether it went with a frozen elevator. Excluded b/c P was trying
to prove causation with a similar event that wasn’t similar enough.
i. Disputed as to whether there was a frozen elevator or
not; but in the one case there was a dispute as to the
frozen elevator or notFAA didn’t find there was a
frozen elevator, so using that would be proving to cases
in the same dispute.
ii. Too few established facts
b. Ex: makes drug, P alleges that drug causes heart attack. P wants
to introduce other incidence of heart attacks from everyone else.
D will argue that age health ect will change the circumstances. P
will say that he’s introducing evidence not because of causation,
but rather because of notice that the company knew of the heart
attacks but did nothing about it. The 403 analysis would be
balancing the fact that the jury might get confused and believe the
evidence is to prove causation. Possible bifurcation. See below
(these are my class notes)
ii. Notice
1. Duty of “inquiry” even if causation is not in dispute.
2. Where knowledge/notice is a live issue, similarity is not as important.
3. P saying that based on other circumstances, you should have inquired into
the safety of your product.
4. Note: D will always argue prejudicial under 403
5. Ex. P wants to show Vioxx causes heart attacks and Pfizer had reason to
know it was dangerous; P wants to introduce 15 ppl who died of it and D
wants to show dissimilarities. P argues that I am not arguing causation, but
arguing you had reason to know the product was dangerous. (end 1/15/14)
6. Note: no substantial similarity requirement (can’t distinguish between the
46 year old versus 47 year old, drinker/smoker, etc. etc…)
Demonstrative Evidence/Recreations
a. Do some sort of purported re-creation of the event OR a scientific demonstration of how the
event occurred Trying to recreate the event to show the fact finder how it happened
b. Issue arises b/c demonstrations in court cannot reproduce how something occurred in the
exact same way in which it actually occurred, it confusing it may be to the jury and the
recreation may take very long
c. In general, this rule is geared toward admissibility.
d. Test: weigh the accuracy of demonstration v. confusion to jury
e. if you want to present demonstrative evidence to prove how a accident occurred,
must conduct test under identical conditions as reasonably possibly.
f. If you want to present demonstrative evidence to illustrate general scientific
principles, must conduct demo under very dif. circumstances than those involved in
the accident so jury isn’t misled
g.
Is evidence of no accident admissible?
i. Yes, but must provide adequate foundation ie a similar product used in similar
settings and icrcumstances
13
h.
i.
j.
k.
Can evidence of other accidents be admissible for purpose other than to prove how accident
in dispute occurred?
i. If you are recreating it must be under similar conditions
ii. But if offered to explain general scientific prinicples the demonstration need not be
made under substantially similar conditions. In fact it must be conduted under
different circumtntaces, so the jury isn’t misled.
When is evidence of prior claims by P admissible?
i. If made similar claims that were deomonstrably false or fraudulent -> admit
1. But only if there is evidence that prior lawsuits were fraudulently filed.
Computerized Demonstrations: Cts will allow the use of computerized recreations of
events based on facts that are agreed to by the parties.
i. Some kind of computerized presentation seeking to illustrate to jury how the party
believes the incident happened.
ii. Take undisputed information and use computer program to show how it ought to
play out.
1. Ex. If one party said it was sunny and other side said it was raining when
plane crashed, you could not do a computerized demonstration of why the
plane crashed.
iii. If experts can validate the programming of the demonstration, evidence will be
admitted.
iv. Ex. excessive force cases – when I fired he was turning to me with a gun.
v. Ex. In airline crashes, parties will take all of the vital information available about
the crash and put together computer recreations. Plane went down – P took
recordings of airplane (communications, meteorological info, etc) and shows plane
going into a black cloud; admitted b/c there was only a question of how the plane
went down.
Proof of How Accident Occurred/Recreations
i. If trying to prove causation, re-creation must be very similar to actual case.
ii. Conduct test under conditions that are as identical as reasonably possible to those
existing at the time of the incident. Sometimes this is impossible where the accident
cannot be sufficiently replicated.
iii. Ex. Michalena: D arrested on boat searched by coastguard and drugs found. D says
he did not know there was pot. Gvt contends he should be able to smell that much
weed. P wants to demonstrate what it is like to be on a boat where you would not
smell weed. P wants to take some weed found on boat and put in front of jury. Court
finds this isn’t sufficiently similar and insufficiently probative; says doesn’t come
close to demonstrating real life event so did not allow it in.
iv. Ex. Abernathy: Woman run over by truck backing up. D claims she should have
been alerted to the truck backing up by beeper noise. D records the truck backing up
and wants to introduce in court. Court says no b/c context of COA is that woman
was walking down the street while jurors would be aware that the sound was
coming. Also issues about the placement of the microphone and whether they
filtered out sounds. Inadmissible under 403.
1. How do these variables work? Is the microphone a block away or what?
2. Plus the jurors were expecting to hear it; there is no real way to exactly
recreate the same situation…
v. Ex. Fusco: P driving car and ball disengaged; P says caused by ball joint, but D
says when ball joint goes car doesn’t act this way; D offers video demonstration of
what happens when ball joint disengages; Ct says inadmissible b/c diff context –
this was a professional driver on a dry track. Demonstration not close enough to real
event to prove causation and too close to prove illustration of expert’s opinion b/c
would confuse jury. Not a demonstration of scientific principles b/c looked too
much like the recreation, but not a recreation b/c it was not substantially similar to
the conditions at the time of the incident.
vi. Note: if you want to get a demonstrative in, you should make the situation worse
than it was at the time so be on the side of the person objecting. Make it the most
egregious circumstances possible.
vii. To the extent there are dissimilarities they should work against you
1. If the kid was a strong kid, but then in the video then give it to a weak kid
then boom
14
But if all the variables run in ∆’s favor then the evidence is more
palatable
i. 4 month older kid could definitely hold up the gun if the
4 month younger kid could
l. Illustration of General Scientific Principles
i. If trying to illustrate expert’s opinion (general scientific/physical principle),
demonstration must be conducted under very different circumstances from those in
the accident so the jury is not misled.
ii. Ex. Gilbert: Child safety seat in car that P’s allege to be defective. Action against
manufacturer of child restraint devices for resulting injuries. Video of car seat with
fake baby down icy hill is admitted b/c demonstrates scientific principles that
formed the basis of the expert’s opinion on mechanics of car seat instead of
causation. There was no chance of any kind of jury confusion
iii. Ex. Kehm Women getting TSS; med allegation that toxic material in tampons; P’s
doctor called to demonstrate with beakers – shows serious reaction; judge allows it
and says question of “weight, not admissibility.” D can tell the jury what is wrong
and it is up to jury to decide. Judge says diff conditions but not diff enough. Since it
would be impossible to bring a woman into court to show how the reaction actually
occurs, P was allowed to present demonstration (then D’s experts could counter the
demonstration with their own evidence). Even though fire happened judge allowed
it.
1. Example of why this is a big scale;
iv. Ex. D is charged with shooting his sleeping wife; D says it wasn't him and it was
probably his little boy who picked up a gun and accidentally shot his mom. The
gov’t shows a presentation where the give the child a gun and ask him to shoot it.
The child cannot pull the trigger he was lacking the strength. Court found it ok, esp
because child was 6 months older during trial
v. Ex. Coast guard during night and 75 feet away places light on two Ds and sees
them jump off the boat. They are found on the beach and claim they had been
there the whole time. At trial, they say how could you have seen us. At trial
they shine the light 75 feet away as a demonstration. See below
vi. Gaskee is in charge of a baby
m. Demonstrative Evidence In Criminal Cases
i. Sometimes allowed.
ii. If want demonstration admitted, make conditions favorable to the other side.
1. Ex. D charged with lying to bankruptcy court b/c had cash from law firm;
says he burned the money which is alleged to be a lie; FBI is allowed to
demonstrate the lie—recreated event by taking $100 bills in barrel w/ even
more gas and lit it—middle bills untouched; made more favorable b/c even
older bills which are more flammable and $100’s which weigh less than
$20’s. Still didn’t work so he was lying. (did not cover)
iii. Ex. D’s stopped on boat going to US for drugs; coast guard shines light and saw
D’s; D’s say not properly identified you were 50 ft away from deck and light not
bright enough; Gvt wants to demonstrate light in courtroom by turning off lights
and measuring 50 ft; Ct says admissible b/c coast guard was focused on the light
also b/c the reason they shined it was to find someone – jury in the same situation;
also prejudice minimized by the fact that they didn’t make D stand in the corner.
iv. Over the top example – Gaskell: trial for murdering baby; shaken infant syndrome;
D says I didn’t intend it; gvt wants to show how hard you have to shake to cause the
syndrome; court does not allow gvt so use CPR baby b/c has rigid neck but real
babies do not – it was not close enough to real life event. Also could be made less
prejudicial by using a computer for demonstration. Jury would think that’s how hard
you have to shake the baby to get shaken baby syndrome, which was incorrect. 403
violation because there were other ways to show how a baby gets that syndrome like
a video demonstration. Very unnecessarily prejudicial so the court excluded it.
Evidence of a Party’s State of Mind
a. Ex. Haisher: D appealed her jury trial conviction for committing and consipiring to commit
wire fraud. TC excluded all evidence of her alleged abuse at the hands of her then boyfriend
(and alleged co conspirator) – this was in error. Her trial counsel abandoned duress defense
midway and used a mens rea defense that she lacked the knowledge and intent to cmmit wire
a.
9.
15
fraud. Gov’t sought to have evidence of abuse excluded. The TC said that under 403 had no
probative value and was “highly prejudicial” and instructed the jury to disregary any
testimony of alleged abuse.
b. Appeallate court: 403 is an extraordinary remedy to be used sparingly. The danger of
unfair prejudice must not merely outweigh the proborative value of the evidence, but must
substantially outweigh it. This was wrong b/c jury could have found that the “deliberate
ignorance” was “influenced by coercion” because of the abuse and was not deliberate at all.
c. Unfairly prejudicial if provokes emotional response or affects jury’s attidute toward the D
wholly apart from its judgment as to his guilty or innocence of the crime charged.
10. Terrorism Cases (ex. Al-Moyad): Charitable organization being tried for funneling money to Hamas.
Under statute must prove that charity knew it was a terrorist org they were funneling money to.
Evidence brought up from survivor of Tel Aviv bus explosion who testified how shrapnel from bomb
went through cousin’s face. Ds never denied knowledge about Hamas’s involvement in violent acts.
Ct said they over-did the presentation b/c could have shown knowledge in a less prejudicial way.
Also called Goba who testified about Al-Qaeda training camp and the Mujahidim form, Bin Laden in
pics and video, etc. Gov’t had misleading poffer as to what Goba would say and the coruta llowed
Goba to continue testifying far beyond the proffer. Ct said should not have allowed – inflammatory
and irrelevant. Didn’t present evidence linking Goba to D and no limiting instructions by court.
a. Kind of missed this and I’m not sure if this is the example he gave
b. Terrorist organizations listed by state department
i. Defendants who set up “charitable” organizations to funnel money to
terrorists, including hamas
1. ∆ charged with being in charge of charitable org that sent money to
hamasgov’t introduced evidence of bombing to show that it was a
terrorist organization (victim on the bus that day testified how she was
there and saw her cousin’s head blown off)
2. ∆ knew it because of the terrorist act
3. What’s wrong with the evidence?
a. Unnecessarily prejudicial evidencemillions of ways to show
that Hamas is a terrorist organization and the dude knew it
16
III.
Special Relevance Rules
a. Subsequent Remedial Measures
i. Rule 407: Subsequent Remedial Measures
1. “When, after an injury or harm allegedly caused by an event, measures are taken that, if taken
previously (before the event), would have made the 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, a
defect in a product's design, or a need for a warning or instruction. This rule does not require the
exclusion of evidence of subsequent measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”
a. The “event” is the occasion, occurrence, or mishap that is the immediate cause of the
harm/injury.
b. Such remedial measures take a variety of forms such as repairs, design changes, new or
amended safety regulations, warnings to users, product recalls, new or amended instructions,
disciplinary action against the employee causing harm, closing the particular geographic area
which was the site of injury, etc.
c. Applies only to changes made after the occurrence that cause the injury/harm. Evidence of
measures taken prior to the event are not excluded.
d. Classic case: someone falls down the stairs. Next day, the owner fixes the stair. P says stair
was in bad shape and the fact that you fixed it is evidence that the D was at fault. P will want
to introduce it as a recognition of fault. 407 says you can’t do that.
2. Issue: Whether subsequent remedial measures should be admitted against a D as evidence of liability.
Generally arise only in civil suits such as product liability cases or personal injury cases.
ii. Policy
1. Social policy – courts do not want to discourage repairs
a. But…is this a strong argument? Evidence rules might not really affect conduct—there is a
human reaction that after someone gets hurt you fix the product/condition (Rejoinder –
corporations do know about these evidence rules). Also, people do a cost-benefit analysis—
just fix something to prevent future injury.
b. Advisory committee note is all about this policy reason
2. Relevance issue – what is relevant is what D knew at the time of the accident, not what D learns
afterwards. The fact that condition was changed does not mean that D should have recognized it
before. The change could also be a cosmetic change, or a change to accommodate the public.
a. Using this action as to what they should have done is confusing and not that probative.
b. Fixing a problem to prevent future accidents does not necessarily mean you were liable for
first accident.
c. Ex. what if you’re in a jurisdiction without 407 and they ask you, a lawyer, if you should
take some sort of remedial measure. You would say as a good lawyer you would fix it
anyway because you know there’s a risk of future liability, recklessness, punitive damages.
i. Posner: says you have to think that these future events are random.
ii. Capra: 407 is a gift to corporate America. The repair would be made anyway. The
rule is overkill.
iii. Probative value in some cases might be Monday morning quarterbacking – just
because you take measures doesn’t mean you knew/should have known.
iii. Application of the Rule:
1. Evidence is of measures taken
2. 407 only applies if the P is offering this measure for a certain barred purpose
a. ie showing negligence/fault
b. strict liability – def product, failure to warn
3. but court may admit the same evidence for other purposes – this will be the fight whether it is
being offered for a barred purpose or for a proper one.
iv. Measures
1. The rule covers measures: any actions taken after injury that would have made it less likely to occur.
a. Repairs to a defective design
b. Design changes
c. Change in rules/policies
d. Any process that is changed
e. Can include staffing issues, such as firing people (ex. drunk employee pressing wrong
buttons and then fired after something bad happens). Or reduction in speed of a train
17
2.
Has to be some kind of action taken—Does not cover product analysis or post-accident reports that
lead to the remedial measure (those reports are not excluded under the rule).
a. Reports can be introduced in court – not covered by rule b/c just a bunch of information, not
a measure.
b. Ex. Lawn mower blows up and P sues; P wants to introduce report that D’s engineers
undertook after incident which indicates that product was defective. Report not protected
under 407 b/c not a measure/action taken.
c. However, if the report makes recommendations, it might be covered and inadmissible
because it could be subject to 403.
d. Now: changing work rules, corp reorg, firing someone. These broad measures are protected
under 407. Like if in a hospital someone dies and the hospital changes policies, etc. that is
protected under 407.
e.
v. Barred Purposes
1. Barred Purposes: negligence, culpable conduct, defect in product, defect in design, failure to
warn/give instructions
2. Cannot offer evidence of subsequent remedial measures to show that D recognized they were
negligent before the accident occurred (applies to negligence and strict liability cases).
3. Situation – civil case in which P has been physically injured and wants to introduce the fact that after
injury caused by D’s product/condition, D went and changed the product/condition; however, if D had
done it before less likely the ax would have happened. P trying to prove that by doing that D
recognizes it is liable.
4. Ex. P falls on stair saying improperly maintained b/c not level and wants to introduce evidence that
the next day D made stairs level to fix it; that cannot be introduced to show that D recognized there
was a dangerous condition.
vi. Proper Purposes/Exceptions
1. Evidence of subsequent remedial measures not barred if offered for certain purposes. If proper
purpose purported by P, D will argue that jury is prejudiced under 403 b/c the jury will consider the
evidence for an improper purpose like fault.
2. Two steps: (1) P finds a good purpose; (2) If proper purpose, does it work under 403?
3. Proper Purpose: Control/Ownership
a. Sometimes the D disputes whether he owns/controls the premises, product, instrumentality,
or process alleged to have injured the P. Proof of ownership/control is permissible
i. Ex. P sues D after getting run over by D’s car. Evidence shows that driver not
negligent but brakes faulty. D defends on grounds that he did not own the car. SRM
is that after the ax, D brought car to shop to get brakes fixed. P argues that D would
not do that unless he owned the car. Admissible because fixing the brakes of a car
after an accident is probative on the issue of the fact that you own the car.
b. Rationale
i. D makes extravagant claim/aggressive defense (i.e. saying he does not own the
product)
1. Don’t want some crazy defense that it wasn’t even mine therefore I’m not
liable.
ii. There’s no one to discourage
iii. Social policy – a Good Samaritan will not be deterred by this rule
c. Control must be controverted
i. Ex. If D asserts a defense that he did not have control/ownership, then P can rebut
this by using SRM evidence.
ii. Note: in cases where D is manufacturer of product, D will not say the product is not
ours b/c company names are usually on the product.
4. P’s Negligence – To Rebut Contributory Negligence
a. D has to plead as an affirmative defense contributory/comparative negligence, and then any
SRM relevant to rebut that defense is admissible by P to show that P was not at fault.
i. P not trying to prove D’s fault but trying to prove P’s lack of fault.
ii. Usually followed by a jury instruction not to use it for an improper purpose (that D
was at fault).
b. Note: must follow this by a 403 analysis.
c. Ex. “Open and obvious” ski slope case. P injured on slope says rocks out in the open. D says
so obvious that no need for warnings, signs, or ropes. P wants to show a week later D put
18
5.
padding on rocks. Court lets SRM info in w/ instruction to jury that not supposed to use as
D’s recognition of fault but only for what it says about P’s lack of fault.
i. Not offered to show that the D was negligent/at fault.
ii. Here the PLANTIIFF is saying I want to use this to show that I was NOT negligent,
it was NOT MY fault. So this can be used when Ds allege contributory negligence.
This opens the door.
iii. When offered to rebut a charge of contributory negligence – there is a legitimate
403 issue regardless.
d. Ex. Flamenio: P crashes motorcycle claiming should have been designed w/ thicker spindle;
D claims P was contrib. beg and brings in evidence that on that day P was drunk. P wants to
introduce evidence that a couple months later bike company made thicker spindles. D argues
that even with thicker spindle he still would have crashed b/c he was drunk and stood up on a
wet track. While P’s purpose is proper, the condition of the spindle has nothing to do with
the contributory negligence claim under 403 (that he was drunk).
i. The remedial measure is not probative in eliciting the lack of contributory
negligence that the P was drunk
ii. Their change wasn’t sufficiently probative of the contributory negligence, even
though this was a proper introduction.
Feasibility of Precautionary Measures/ To prove that a change was feasible
a. P will say: but you did do it. But you say we didn’t have to do it and then the rest
(negligence, etc.) is barred. If ever you do make a change as the D, you need to concede
feasibility/liability. Because if not the P introduces it and then affects the liability case.
b. Some change in design that could have been made that was not beyond the scope of scientific
knowledge, financially feasible, and would not make products unsafe in another way.
c. If P claims defective product, as part of claim has to show another way to design the product
that is feasible. P has to show that design was unsafe and that there was another reasonable
safer design (how D could have acted).
d. Feasibility must be disputed (old rule: controverted)—If D says P’s suggestions for change
is not feasible, then P can respond with the SRM.
i. If feasibility of an alternative design is refuted by the D, the evidence of a SRM is
admissible.
e. D can take feasibility issue out of the case by not contesting feasibility (stipulating/conceding
feasibility).
i. Ex. Cameron v. Otto Orthopedic: P falls when artificial leg made by D broke. P
says D’s fault and sues for breach of warranty/negligence. D defends that it was the
fault of the prosthetist for “overtorquing” (screwing too tight). D then sends letters
to customers specifying torque levels. P says letters to doctors should have
contained instructions about how tight to torque screws and I did not get them. P
wants to show jury that after ax, D sent new instructions to customers. If D says not
feasible, P can respond with the new letter. However, feasibility was not
controverted since the defense offered to stipulate to feasibility.
f. If D concedes liability (meaning that they did make a change), D can still defend – could say
the original way was fine and no duty to change the design (even though D did it) OR that
the change would result in other disadvantages/safety problems.
i. Ex. Flamenio: D concedes that it did change spindle design, but that the first way it
was designed was not unreasonable since there are thin and thick spindle bikes.
When spindle thick, bike bobs instead of wobbles – either way we make them there
is ether a bob or wobble.
1. Issue: But was the original design unreasonably dangerous? You should
say it wasn’t. When we did this in R&D in the first place and there would
have been a bob or a wobble anyway.
ii. Ex. D runs motel in area with no crime rate. P opens door and sees a killer, so sues
D for negligence (conditions unsafe at motel – no chains, peep holes, etc). D could
argue that even though put up chains/peep holes a week later, that does not mean the
prior condition (just locks) was unreasonable since this is a very safe area so keep
the addition of chains/peep holes out of the case.
1. P wants to introduce changes to show the changes were feasible. D
concedes feasibility, retain defense that it was a safe neighborhood and that
they could have had everything and it wouldn’t have been a reasonable
response to the underlying 0 crime rate.
19
iii. Ex. P is pushing a snow blower which becomes impacted with snow. P tries to get
snow out but the snow blower is still running. P kicks the shoot to kick snow out
and blade cuts his foot off. He claims product is unreasonably dangerous. After,
company made auto shutoff when impacted. P wants to introduce for feasibility. D
shows that blower would shut up all the time and they didn’t like that and caused
heart attacks from constant turning on.
6. Impeachment By Way of Contradiction
a. Sometimes Ps want to contradict a witness by introducing a SRM
b. SRMs valuable to contradict the testimony of D’s witnesses – the key to admissibility is a
showing that the testimony of a witness (typically a D) is contradicted by a SRM that he,
himself, ordered and implemented.
c. Idea is that SOME (not all) SRMs can be used to show that the D’s witness is not a credible
person.
d. Some evidence showing that part of what the D’s witness says is not true – jury can draw an
inference that the witness is not believable.
i. Ex (non 407 case): Witness says I was at restaurant and saw the D and another guy
doing drug transaction on the street (points out D). D wants to impeach by showing
that restaurant was not open that day – if inaccurate about being at restaurant might
be inaccurate about what he saw.
ii. Ex (SRM): D’s witness/expert testifies that product was safest at time. P is able to
introduce SRM to contradict the fact that statement about safety.– if safest why
change product a month later?
e. Courts have narrowed this rule – two ways to impeach:
i. (1) D makes an aggressive claim – “extravagant testimony about safety”
1. Ex. Colt Industries: D makes guns and P had a gun that went off when he
dropped it. D put on safety lock after the accident. CEO of D took stand
and testified on direct that product P used was safest product ever made by
D. P can bring in evidence that the product was changed by the company
two months later to show that witness was not credible when said safest
product.
ii. (2) If D/D’s witness lies and says we never changed it at all, but D actually changed
it a month later.
1. P can bring in evidence that D did change it to undermine credibility.
2. Ex. this product is safe and we would never change it! And it has never
been changed!
vii. Third Party Repairs
1. Rule: Evidence of a repair made by someone other than the D is not barred by 407 (403 question).
a. Ex. P has job on road crew and is injured by sander manufactured by D. P wants to show that
after ax the owner of the road construction co put up a barrier on sander so people could not
get close. That can be let in b/c repair made by someone other than the D.
b. You could argue that third parties at the time don’t know if they are going to be a party in the
case/get sued and that 407 should apply to third parties but this is not how the rule works.
2. Rationale: Policy argument does not apply b/c not trying to encourage third parties to make repairs
(just the D). Also, the third party might have made the repair for some other reason (such as
aesthetics) than recognition of the danger.
viii. Timing
1. The measure taken/change to the product or condition must have occurred AFTER the P’s INJURY
for 407 to apply and SMRs excluded.
a. If D respond w/o the injury having occurred (before injury), not a 407 issue rather a 403
issue
b. No cause and effect if change is made before injury.
2. Ex. P buys law mower on June 15, 2008. Over winter D changes model (Dec 1, 2008). On June 15,
2009 P injured by old model of mower. P wants to introduce evidence to show that original product
was defectively designed. Since the change did not occur after P’s injury (only after P’s sale), P can
introduce this evidence b/c the rule does not cover changes made before the P’s injury.
a. Social policy because we want companies to do a recall.
b. Rule is all about incentivizing –The D should notify people about the change in their own
product to make it safer so they shouldn’t get a pass from 407.
ix. Does 407 apply to Contractual changes? Yes.
20
1.
b.
Ex. Upenn employees signed employment Ks entitling them to some kind of benefit. Upenn takes a
different interpretation of the K. The Ps want to show that shortly after the Ps brought this disputer to
Penn attention they changed the K to make it obvious the people weren’t entitled to it. They wanted
to use it as a way to say its vague in their favor. Penn wants to claim that 407 protects the K change.
2. Issue: Should 407 apply to subsequent contractual changes?
3. Social policy? Want Ks to be changed to be more clear to protect from litigation
a. BUT 407 sounds more like a tort-style rule.
b. What’s the injury or harm? The harm could be breach of K.
4. Court found that 407 applies.
x. Rule 403 Still Applicable!: Evidence of SRMs not barred by 407 may still be subject to exclusion on Rule 403
grounds when the dangers of prejudice/confusion substantially outweigh the probative value of the evidence.
However, since 403 is a rule of inclusion, evidence will not normally be excluded.
xi. Restyling
1. 1975 Fed Rules enacted by Statute
2. As of Dec. 2011, every FRE rewritten but no change to substance.
3. No “shall” in restyled rules b/c fuzzy word.
4. Prefers active to passive voice. Need to have an actor in each situation.
5. Optics: was one big block of words ie the old 407
6. 407 change: “does not require exclusion of evidence…but the report may admit this evidence for
another purpose.” Difference in emphasis – geared more toward admissibility.
7. How do rules get amended?
a. Congress generally delegates to the Supreme Court in an act called the Enabling Act,
SCOTUS delegates to the Judicial Conference of the US and they make the policy for the
Fed Courts. They have a Rules Committee (Judges, Practitioners, etc.) 5 bodies: appellate,
civil, criminal, bankruptcy and evidence. These have advisory committees which are
responsible for generating evidence rules committees.
b. Evidence Reporter (Capra) they consider proposed amendments from courts, judges, the
public, usually from reporters. Advisory pitches to a rules committee and then they issue for
public comment
c. Exception: privilege rules have to be directly enacted by Congress
d. Hierarchy: Congress - > SCOTUS ->Judicial Conference->Rules Committee-> 5 bodies:
e. Congress has from May 1- Dec 1 to do something about the rule. If they don’t it becomes
law.
8. Rehnquist didn’t want rules being restyled b/c evidence rules are substantive because you really have
to know them in your head, not just something you want to look up. CJ Roberts said you can only
change style but you can’t use substance. That’s really not what happened.
9. With Restyling:
a. They didn’t want bullet points – how to cite? You couldn’t cite anyway. Practitioners said
we have space limitations and this takes up more space.
b. And or But to start sentence?
c. Possible substantive change – has to do with the passive voice. Advisory notes say it isn’t
meant to be substantive.
d. What about updating for electronic info? The fix is added a definition section that includes a
def of “writing” as including ESI.
Offers of Compromise
i. Rule 408: Compromise and Offers to Compromise
1. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or
promising to accept, valuable consideration in compromising or attempting to compromise the claim;
evidence of conduct or statements made in compromise negotiations regarding the claim.
a. Protects not only offers of compromise, but also compromises that were agreed to but not
implemented.
b. Any statement made during the course of settlement negotiations is inadmissible.
c. Includes settlement activity between a party and a third person.
i. Ex. Suppose A, B and C involved in 3 car ax. In the A v. B suit, A offers evidence
that B paid C $30,000 to settle C’s claim. Rule 408 applies to protect the
compromise.
d. Protects evidence of “conduct or statements made in compromise negotiations,” thereby
making it unnecessary for a negotiating party to constantly resort to protective statements.
21
i. Would make settlements harder. If you were worried about it you wouldn’t try to
settle the case.
e. Protects only statements/conduct made in an effort to compromise a claim that is “disputed
as to validity or amount.”
i. Not served by protecting a party who refuses to satisfy a claim that he
acknowledges is valid.
2. Excluded when offered:
a. To prove liability for, invalidity of, or amount of a claim that was disputed as to validity or
amount,
b. To impeach through a prior inconsistent statement or contradiction (EXCEPT when offered
in a crim case and negotiations related to a claim by a public office/agency in exercise of
regulatory, investigative, or enforcement authority).
i. As to contradiction, the same evidence that could not be admitted in the case-inchief would be admitted for “impeachment” whenever the party who made the offer
testifies, which is presumably in every case. Ex. If the P is testifying that his claim
is worth $100,000, then why did he offer to terminate the case for $50,000.
ii. As to prior inconsistent statements, parties would be reluctant to say anything
during compromise negotiations for fear that it would be inconsistent with future
trial testimony.
3. Permitted when offered: for purposes other than to show a claim/defense is weak.
a. To prove a witnesses bias or prejudice
i. Ex. P sues A, a truck driver, and B, the truck company. Prior to trial, P and A settle
P’s claim against A, and A agrees to testify for P in his trial against B. After A
testifies, B could disclose A’s possible bias by introducing evidence of his (A’s)
compromise (i.e. his financial relationship) with P.
b. To negate a contention of undue delay
i. Ex. P sued D bank b/c bank withheld P’s assignment of property subject to bank’s
mortgage. New purchaser refused to close b/c of delay in negotiations. Bank offered
evidence of letters between D and P to show no undue delay of transaction between
P and new purchaser. This was allowed.
c. To prove an effort to obstruct a criminal investigation or prosecution
i. Many times parallel civil/crim proceedings occurring simultaneously. Majority
courts say evidence of civil agreements with a govt agency is admissible evidence
in the criminal case as evidence of guilty mind.
ii. Policy/Rationale: Want to people to be forthcoming and want people to settle cases b/c settlements are in the
public interest. Allows freedom of statement/interchange in a settlement negotiation.
1. Probative value increases or decreases in proportion to the percentage of the amount in dispute in a
case offered by a P or D. If the value offered is high, that might indicate that the D thought his defense
was weak.
2. However, other factors, such as negative publicity, may influence a party’s “settlement behavior.”
3. In the end, the best rule is one that disregards the amount of the offer and simply declares that
evidence of an offer of compromise is inadmissible.
iii. Scenario
1. Rule 408 is triggered when there is a “dispute” between the parties. 408 can apply even before
litigation.
a. Showing of a disputethe parties have to be disputing a matter
b. i.e., multiple letters back and forth about patent infringing
i. 1st letter: no dispute yet
1. no knowledge of the dispute which incentivizes the second letter
ii. BUT: in some cases the first letter might be parcel to a dispute
2. The two sides just have to disagree—there is a dispute to either validity or amount if there is a
difference in opinion that may lead to a lawsuit or threatened litigation.
3. Ex. Alpex: Someone w/ patent claiming infringement. Counsel for Alpex (P) sends letters to alleged
infringers saying we believe you are infringing and want to offer you a licensing agreement. Offer is
not taken and litigation is brought. Alleged infringers want to bring statement up as to what Alpex
thinks about how much their license is worth. Alpex and court say protected by 408 so excluded.
a. D says the letters were sent before any litigation was brought;
b. Ct: whether in litigation or pre litigation we want to settle disputes. There’s still a dispute so
its protected by 408. There actually has to be a dispute.
iv. Notes:
22
Admissions of liability not covered by 408. If someone says, “I am liable, how much should I pay
you?” that is an admission of liability, not an offer of compromise. Not excluded. There must first be
a dispute!
a. If there isn’t a dispute – like you say oh this was all my fault, I’ll pay you this that isn’t
protected.
2. The rule applies to related disputes as well (cannot use settlement letter in another case)
a. if P enters into compromises with one of them they wouldn’t enter into negotiations with the
other ones later. 408 protects compromises in RELATED litigation as well.
v. Offered by Offeror
1. 408 applies to evidence offered by either party
a. If made by the P, to show that his claim is weak
b. If made by the D, to show that his defense is weak
2. Usually, someone makes an offer and the other side wants to admit that offer at trial as admission of
fault or amount of claim.
3. However, the party who makes the offer wants to have it admitted b/c either it backs up their story
(good faith) or mitigates damages.
a. Cannot admit proof even if offer works in your favor (2006 Amendment) – any compromise
offer/statement regardless of who made it is NOT admissible. (You can’t even admit your
own offer in your favor)
b. Ex. Pierce: Employer suing for AIDS discrim saying employer laid him off and pretended it
was for corp restructuring. D’s lawyer calls P’s lawyer and says willing to give P job back
with diff title but you have to release us from liability. P’s lawyer rejects offer. Case goes to
trial – D wants to admit fact that it made an offer of re-employment b/c backs up D’s story
and tends to mitigate P’s damages if P has an offer of re-employment. D cannot admit its
own offer.
4. Rationale as to why extended to admission by offeror: Parties would try to generate evidence in their
favor at trial through compromise/negotiation by giving offers which seem respectable to the jury but
that they know the other side will not take. This will generate pity by the jury for the defendant but the
pity is ill founded because no P would accept. Also hard to prove at trial b/c would have to put both
attorneys on the stand.
vi. Use of Evidence of Civil Compromises in Subsequent Criminal Cases
1. General Rule: Generally, statements/offers of compromise in civil cases cannot be used as evidence
in subsequent criminal cases.
a. Rationale – would deter civil negotiation because of the intertwinement of civil and criminal
liability and to avoid criminal liability; would make civil cases go to trial and would deter
compensation of individuals/civil P’s.
i. However, an argument to allow it would be relevant to the criminal case.
b. Ex. Person sued for fraud and settles by paying out large amount and admits as part of
settlement that they committed fraud. The gvt brings indictment for fraud and wants to
introduce the settlement that D entered into in which agreed to pay money and admitted he
was a fraudster. D says I made those statements pursuant to compromise and cannot admit in
criminal case for validity and amount of claim b/c of 408.
2. Exception: If D makes a statements to investigative government agents in pursuance of settlement,
those statements are admissible to prove guilt in subsequent criminal admission of guilt
(old notes said: if D makes a statement conceding guilt (admission of fault) an investigative
capacity/in the course of a settlement with the government (investigated by regulatory authority), that
statement CAN be introduced in a subsequent criminal case as an admission of guilt)
a. 408 does not prohibit the introduction in a criminal case of statements or conduct during
compromise negotiations regarding a civil dispute by a gvt regulatory, investigative, or
enforcement agency.
b. This applies in enforcement proceedings with the IRS/SEC
c. When an individual makes a statement in the presence of gvt agents, its subsequent
admission in a criminal case should not be unexpected.
d. Demonstrates a compromise between civil and criminal litigators: civil said if it can be used
against you, negotiations will be stifled, while criminal prosecutors said that if you know
someone is guilty (i.e. tax evasion), for ‘slate’ to be wiped clean when they are brought on
criminal charges is unfair.
e. Rationale – Not worrisome b/c lawyers will tell their clients not to make a statement that
would be any kind of admission of fault (Who suffers from this rule? People w/o lawyers!)
1.
23
f.
g.
h.
Note: Statements made in compromise negotiations of a claim by a gvt agency may be
excluded in criminal cases where the circumstances so warrant under Rule 403.
i. Ex. if an individual was unrepresented at the time the statement was made in a civil
enforcement proceeding, its probative value in a subsequent criminal case may be
minimal.
This rule ensnares the little people who have no lawyers to advise them against speaking to
civil gov’t bodies
Civil wants protection to settle cases; criminal wants all the information possible
vii. Impeachment
1.
c.
d.
Old Rule: if a person made a statement at a settlement negotiation that is inconsistent with his trial
testimony, it could be introduced in some courts to impeach the witness’s credibility (inconsistency)
but not as a concession of liability/amount of claim.
a. Problematic – very hard to make statements that are absolutely consistent with trial
testimony; clever lawyers will bring up some kind of inconsistency; therefore, people will
not speak freely in settlement negotiations.
i. People wouldn’t want to provide details even though details might further the
negotiation
ii. Limits free speaking
2. New Rule: a witness CANNOT be impeached by prior inconsistent statements made in settlement
negotiations.
a. Courts should not admit evidence of statements made during settlement negotiations as
impeachment evidence when they are used to impeach a party who tried to settle the case but
failed.
b. Ex. car accident – I cant remember my speed but I don’t think I was going very fast. But at
trial, I was looking at my speedometer and it said 45. The other side wants to bring up the
prior statement. Is this within the bar of 408 or not? These statements cannot be used as prior
inconsistent statements.
c. Rationale – such broad impeachment would tend to swallow the exclusionary rule and would
impair the public policy of promoting settlements.
d. Ex. Issue in car ax case was whether one party was speeding. Driver says in settlement I
might have been speeding but I am not sure so what will it take to settle. At trial, driver says
I was not speeding. P says didn’t you say in negotiations that you might have been speeding.
That is not allowed under new rule.
3. Can Impeachment be Waived?
a. Yes. Gvt can get around this by getting D to waive the right to be free from impeachment.
Payment of Medical Expenses—never comes up
i. Rule 409: Payment of medical and similar expenses
1. “Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses
occasioned by an injury is NOT admissible to prove liability for the injury.”
2. Ex. D ran down victim in car and says I will pay medical expenses. At trial P cannot admit this to
show that D conceded to fault.
3. Not contingent on a dispute like 408 is
ii. Rationale: offers to pay medical expenses should be encouraged, not discouraged; if could later be used against
you, you would not make that offer. [social policy based rule]
iii. Note: Admissions of fault are admissible. This rule does not exclude collateral opinions/admissions of liability
when made in connection with offer to pay medical expenses – only the offer and payment itself are protected.
1. Ex. “I am sorry I ran over you so negligently” is admissible (not protected under 408 because there is
no dispute yet—didn’t say it wasn’t my fault or that I didn’t do it), but “I will pay your medical
expenses” is not (even if spoken in same sentence).
a. Ex. D goes to hospital says I’m so sorry I ran you over can I pay your bills? That’s not an
offer to pay in the beginning, its an admission of fault. Is the first part barred by 408 though?
Wasn’t subject to a dispute. First part admissible, second isn’t.
iv. Payment Information Admissible To Show Bias: The use of payment information is not barred by 409 even
though it does exclude evidence of medical payments if the evidence is introduced to show possible bias.
1. Ex. Two parties injured when hit by bus. At P1’s trial, P2 testifies that P1 and P2 were talking and not
paying attention when crossing the street. P1 can bring in that Bus Co paid P2’s medical expenses to
show bias.
Guilty Plea Negotiations
i. Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements
24
1.
Except as otherwise provided in this rule, evidence of the following is NOT, in any civil or criminal
proceeding, admissible against the defendant who made the plea or was a participant in the plea
discussions [criminal counterpart to 408]:
a. (1) A plea of guilty which was later withdrawn;
i. Once the court accepts a guilty plea, the D cannot withdraw it without the court’s
permission.
ii. The trial judge may grant permission to revoke on a number of grounds, including:
the plea was coerced, the D was inadequately represented, the D did not fully
understand the consequences of entering into a guilty plea, or the factual basis
underlying the plea was weak.
b. (2) A plea of nolo contendere;
i. Civil cases alleging the same facts that gave rise to the criminal plea.
ii. Essentially a “no contest” plea, which essentially says, “I admit doing nothing, but I
will not contest the charges against me.”
iii. The court must approve the entry of this plea.
iv. A D wishing to enter a nolo plea is usually concerned about the effect that an
adverse (crim) judgment will have on a civil suit based on the same conduct that is
the subject of the criminal charge.
v. The nolo plea avoids what a guilty plea would not – the introduction of evidence in
a civil trial that the D had plead guilty to a criminal charge based on the conduct
that now forms the basis of the P’s civil claim.
c. (3) Any statement made in the course of any proceedings under Rule 11 of the Federal Rules
of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas;
or’
i. Rule 410 makes the plea offer and any collateral statements inadmissible in any
later civil proceeding.
d. (4) Any statement made in the course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a plea of guilty later
withdrawn.
2. However, such a statement IS admissible:
a. (i) In any proceeding wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it, or
i. When the D introduces evidence of a statement that Rule 410 would exclude if
offered against the D, this opens the door for his opponent to introduce evidence of
related statements if fair and necessary.
ii. Application of the “completeness” principle that underlies Rule 106.
b. (ii) In a criminal proceeding for perjury or false statement if the statement was made by the
defendant under oath, on the record and in the presence of counsel.
i. Evidence of the statement is admissible in the trial for allegedly false testimony.
ii. Largely confined to prosecutions for false/perjurous statements made during a plea
hearing conducted under Rule 11 of the FRCP.
ii. Introduction
1. Rule: If there is a plea bargaining matter, but case still GOES TO TRIAL, statements/offers made by
the D are not admissible against D at trial.
a. Note: If negotiations end in a guilty plea, 410 is not applicable.
b. Doesn’t make simple interrogations inadmissible, but formal negotiations with the
prosecutor.
2. Rationale
a. Public Policy – D will not be forthcoming in making proffer/agreeing to some kind of
offense if he knows that if it doesn’t take and case goes to trial, statements will be used
against him.
b. Not Probative of Guilt – plea is not probative of guilt since D might find a lesser
charge/lighter sentence attractive even though innocent.
3. For 408 to apply, case goes to trial by:
a. D made statements but parties never entered into a plea, or
b. A guilty plea has been entered but is either rejected by the court or later withdrawn (TJ may
grant permission to revoke b/c plea coerced, D inadequately rep, etc).
iii. Scope
25
1.
Covers guilty plea AND any factual admissions made during the course of unsuccessful plea
negotiations (collateral admissions of fact).
2. Only statements made to “an attorney for the prosecuting authority” are covered.
3. Statements made to police officers are not protected by rule 410
a. Rationale – would never be able to admit confessions.
b. Ex. D arrested and brought down to station says I do not want to talk but POs say it will help
your case so D confesses to PO to being first in cooperation line. Case goes to trial and D
says I was attempting to compromise/negotiate so shouldn’t be allowed in. Not a 410
statement and allowed in b/c made to police officer and not a prosecutor.
c. Note: Some courts have extended 410 to situations where police gain authority from
prosecutor to negotiate plea as part of custodial interrogation.
4. Note: Rule 410 does not apply to sentencing phase.
iv. Impeachment
1. Rule: Cannot use statements/offers made during plea negotiations for impeachment purposes.
a. In a guilty plea negotiation that breaks down, D’s statements cannot be used against D by the
prosecution, and if D is called as a witness, the prosecutor cannot use the confession as
impeachment evidence.
b. Ex. D makes proffer saying I am guilty with respect to drugs; plea not entered and case goes
to trial; D says I do not know about drugs or what gvt is talking about; then gvt says didn’t
you give proffer in negotiations in order to impeach? That cannot be used at trial to impeach
the D.
c. Rationale: to encourage D’s to be forthcoming/not to be on guard all of the time; any little
inconsistency could haunt them at trial and that would hurt those negotiations.
2. Exception: if D introduces into evidence a plea statement, the prosecution is then free to use other
statements made during the same discussion to impeach him, if the statement the prosecution seeks to
introduce “ought in fairness be considered contemporaneously with” the one introduced by the D.
3. Perjury charge is not included in this rule
a. Ex. not just an inconsistency but a lie between proffer and trial. You can use the prior
statement in a subsequent perjury prosecution and there is an exception made, but not for
impeachment in the same trial. But sentencing guidelines will punish this person.
v. Waiver
1. Can 410 protection be waived? Yes. A prosecutor can refuse to plea bargain with a D unless the D
waives the evidentiary protections of 410.
2. Mezzanato Agreement [for prosecutors trying to get around the perjury exception/protection of 410]:
D signs agreement during negotiations that says if case goes to trial any statement made inconsistent
with trial testimony can be used against D at trial to impeach him.
a. D must testify at trial for his prior inconsistent statements to be used against him.
b. D does not have to be lying to be impeached, only inconsistent testimony.
c. Mezzanato case: Argument by D who made statements that he was involved in drug trans
and in trial says he was not but had waived 410 before trial saying if inconsistent with
statements at trial can be used to impeach him. Gvt says waived 410 and court agrees that
410 rights are waivable.
3. Requirements: Waivers are admissible if: (i) the waiver is voluntary, (ii) advice is received from
counsel, and, (iii) it is not an “adhesion K.”
4. Rationale: Many prosecutors will not plea bargain with D’s without a 410 waiver—shows D’s good
faith and makes D more worthy of prosecutor’s time. The D might lie at trial and prosecutor could do
nothing about it if D doesn’t waive this right. Also all of your constitutional rights are waivable, so
why not this evidence rule?
5. Caution: Mezzanato becomes boiler plate – everyone might have to sign a waiver like a K of
adhesion.
a. But court says that the ability to waive something has value for the D, it’s a bargaining chip.
You show a sign of good faith and this is something the prosecutors might want.
6. Mezzanato-Plus Agreement (Us .v Burch): whether it is offered to rebut or not, gvt can introduce
your statements into the case in chief (not just impeachment) – whether or not you testify!
a. NUCLEAR agreement: anything you say in proffer can be used against you as evidence
of a confession before we go to trial (different than inconsistency). We can use this as a
fact against you.
i. SDNY USAO: anything you say can be used if it contradicts anything in our
case then we can use it against you. Ex. D caught with drugs and proffers “I
intended to distribute.” At trial eventually D makes an argument that I was
26
e.
just possessing this stuff, then that contradicts the statement in the proffer.
What can the D do? Can challenge burden of proof, witnesses are liars ok. But
not the date
b. Government says before we get started we want you to sign an agreement and waive your
410 rights. D and his lawyer read the agreement which says that if no guilty plea entered
anything D says can be used not only to impeach D but also as an admission of guilt in
prosecution’s case in chief.
c. Anything you say in negotiations can be used as an admission of guilt at any time.
d. Enforceable if D knowingly and voluntarily waived these rights.
e. Idea is that if give up more rights, it is a sign of good faith and makes the D someone the
prosecutor would more likely deal with.
vi. Prosecution Statements
1. Even though the rule is written to protect D’s only, courts have said that the “spirit of 410” protects
statements made by prosecutors as well.
a. Ex. when pros want to say that “he was the Napoleon of the kingpin” – can’t do it even
though the rule doesn’t directly protect the government in these proffers for the same
reasons.
b. Also the governments words aren’t probative of a fact when they say things
2. Prosecutor’s statements in guilty plea negotiations are NOT admissible in subsequent trials (according
to case law). Statements made by gvt in guilty plea negotiations cannot be used against the gvt when
inconsistent.
3. There are occasions when statements by the prosecutor during plea negotiations would be useful to
the D at a subsequent trial. However, inadmissible.
4. Ex. Prosecutor during plea bargaining discussion admits that there are gaps in his evidence, or that his
witnesses are not credible, or that in light of the entire evidentiary record he is willing to reduce the
charge to a lesser offense if the D will then plead guilty.
5. Ex. In plea negotiations, prosecutor says I know you are not the kingpin, so I am not trying to put you
in jail forever, what do you think about 2 years. Proposal does not take and case goes to trial. At trial,
prosecution makes an argument like this: “our D was high up in conspiracy.” D says inconsistent with
what you said in plea negotiations. Prosecutor says cannot do that and court agrees.
Liability Insurance—he writes the questions on the bar and won’t put one on evidence/liability insurance so don’t
worry about it b/c he hates it.
i. Rule 411: Liability Insurance
1. Not Admissible: Evidence that a person was or was not insured against liability is NOT admissible
upon the issue whether the person acted negligently or otherwise wrongfully.
a. Its main application is to forbid evidence of insurance coverage.
b. Probative value of insurance to show negligence is so low.
2. Admissible: This rule does not require the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a
witness.
a. Ex. take out life insurance on wife 2 weeks before killing her. Goes to motive.
ii. Permissible Use of Liability Insurance:
1. Proof of Agency, Ownership, or Control: Insurance coverage is some evidence of ownership and
control.
2. Bias/Prejudice of Witness: If D’s insurer employed D’s witness, then there is possible bias.
a. Ex. in medmal action, courts have held that the fact that D’s insurer employed the D’s
impeaching witness was clearly admissible to show possible bias of that witness.
3. If D claims that he can’t pay a judgment, proof of liability insurance would be admissible to show that
he can pay.
iii. Rationale:
1. Little Relevance – Inference of fault from the fact of insurance coverage is a tenuous one, as is the
converse.
2. Prejudicial – knowledge of the presence or absence of liability insurance would induce juries to
decide cases on improper grounds (i.e. deep pockets). Concern that if jurors were made aware that a
party charged with liability was insured, they might think about a “deep pocket” and impose liability
when they otherwise would not or increase a damage award.
27
IV.
Character Evidence, Prior Bad Acts, and Habit
a. Introduction and General Rule
i. “Character” = the aggregate of moral qualities which belong to and distinguish an individual person.
1. We’re not talking about habits, conduct/impeach a witness or conduct in issue.
a. Habit: smoking in bed every night
b. Character: being an idiot, careless person
ii. “Character evidence” = used to show the nature of the person as it pertains to a particular trait, i.e. reckless,
careful, hot-tempered, peaceful, violent, calm, etc. and that the person acted in conformity with his character
on a particular occasion.
a. Circumstantial character evidence - The idea that you can prove what happened by
proving what someone is like.
iii. Character Evidence Generally: Rule 404(a). Evidence of a person’s character or trait of character is NOT
admissible for the purpose of proving action in conformity therewith on a particular occasion, EXCEPT
1. Character of Accused (a)(1). Evidence of a pertinent trait of character offered by an accused, or by
the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the
crime is offered by an accused and admitted under 404(a)(2), evidence of the same trait of character of
the accused offered by the prosecution.
a. Bottom line – D can offer it for himself or victim, but then prosecution can rebut with
evidence of the same.
2. Character of Victim (a)(2). Evidence of a pertinent trait of character of the victim of the crime
offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the
victim was the first aggressor.
a. Bottom line – prosecution can offer evidence of peaceful victim if D claims victim was
aggressor and he acted in SD.
3. Character of Witness (a)(3). Evidence of the character of a witness, as provided in rules 607 (who
may impeach), 608 (evidence of character and conduct of witness), and 609 (impeachment by
evidence of conviction of crime).
iv. Evidence of Other Crimes, Wrongs or Acts: Rule 404(b). Evidence of other crimes, wrongs or acts is NOT
admissible to prove the character of a person in order to show action in conformity therewith. It MAY,
however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause show, of the general nature of any such evidence it intends to introduce
at trial.
v. Substantive Character Evidence v. Impeachment Use of Character Evidence
1. Substantive Character Evidence: When a character trait is relevant to an issue in the case. Proof of a
fact
a. Here, we are talking about someone’s character for something they did in a particular
incident, not what they are doing on the stand.
b. Ex: Homicide case where D claims the victim was the initial aggressor. Aggressive
character of V is relevant and admissible as substantive evidence (and must be proved).
2. Impeachment Use of Character Evidence: An attempt to discredit the witness or witness’ testimony so
that the judge or jury will find their testimony unworthy of belief. Proving tendency to lie
a. Use of character testimony for impeachment purposes comes under an exception to the
inadmissibility of character testimony provided in Rule 404(a)(3).
b. Ex. Murder case where the prosecution’s principal witness has several convictions for
perjury.
c. Ex. In a criminal prosecution for murder, prosecution’s witness convicted for perjury.
Evidence of convictions has nothing to do with the issues in the criminal trial for murder.
However, defense counsel will want to introduce perjury convictions to impeach the witness,
i.e. to undermine the witness’s testimony by showing factfinder that the witness is not a truth
teller/not credible.
vi. Circumstantial Use of Character Evidence v. Character In Issue
1. Character In Issue: To prove the case, you need to prove character because it is a material fact in the
case. Admissible. very rare
a. Character evidence is admissible if character is in issue in the case.
b. A person’s character is an element of proof under substantive law.
28
c.
2.
To prove the case, you need to prove character because it is a material fact in the case under
substantive law that determines the liabilities and rights of the parties.
d. If substantive law requires you to prove character, evidence of character is allowable.
e. No bar to introduce character evidence under 404, but admissibility governed by 401-403.
f. Ex: In a defamation case when truth is a defense, character is said to be in issue because
evidence of P’s character will lead the fact finder to determine whether D defamed P or
whether D published a true statement about D’s character.
g. Ex. Claim against employer for hiring unfit employee or agent. D’s liability hinges on proof
that he negligently hired a person of unfit character. Employer is liable only if he hired a
person whose character made her unfit for the position she filled and, further, if the employer
knew or should have known about her unfit character.
h. Ex. Negligent entrustment cases where the issue is whether D knew the person who he lent
his car to had the character trait of being a bad driver.
i. Ex: Criminal- most common situation in which character becomes an issue is when a D
claims entrapment in a jurisdiction in which the question is whether the D was predisposed to
commit the crime.
Circumstantial Use of Character Evidence: Evidence of a person’s character/trait to show that on a
particular occasion the person acted in conformity with his character.
a. Inadmissible in civil cases, but might fall under exceptions in criminal.
b. Cant introduce evidence of character traits to show commit crime.
i. But D can introduce character evidence to show that they didn’t commit the crime
ii. I’m a peaceable person
iii. Ex. where you have video evidence of one guy and his alibi is that he was at home –
the only evidence he has is his “good name” – the RULE OF MERCY. There are
costs to this.
iv. Civil cases – character evidence not admissible to prove conduct
c. Ex. If a person acted violently on the occasion in question, prove this by proving that they
are a violent person which is why they acted in this specific way.
d. Ex. Criminal battery case where there is an issue as to who was the first aggressor. The
character evidence to support an inference that an individual in a specific situation acted
consistently with the proven trait, i.e. that an aggressive “victim” attacked first, or that a
peaceable D did not attack first.
e. Policy for Exclusion
i. Relevance: Evidence of character to prove an act is not probative because people
can act contrary to character in the heat of the moment.
ii. Prejudicial: Where D has a history of violence, a jury would be more likely to find
him guilty.
iii. Jury might not even look at the facts of the case. Becomes a popularity contest as to
who is like rather than who did what to whom.
iv. Don’t want to turn trial into popularity contest
vii. 2 Steps:
1.
2.
(1) First determine whether evidence is admissible;
a. Is it being used circumstantially to show propensity, or because character is in issue?
b. Any exceptions?
(2) Then look to Rule 405 to determine what type method of evidence can be used to present it to the
court (reputation, opinion, or specific instances of conduct).
a. Rule 405: Methods of Proving Character
b. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to reputation or by testimony
in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
i. Reputation: Something the community should know about (generally admissible).
1. “he’s known as peaceful”
ii. Opinion: Something personally known by the witness about the D (generally
admissible).
1. Opinion: “I think hes peaceful. I’ve known him forever, etc.”
c. (b) Specific instances of conduct. In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense, proof may also be made of
specific instances of that person's conduct.
29
i. Ex. Specific acts: “ I saw him get hit and then he turned the other cheek. I
tried to kill a fly and he said no don’t kill the fly.”
d.
e.
ii. Character by way of specific acts not admissible UNLESS character in issue:
1. Not for character purpose
2. Responsive in testing a character witness (when witness mentions
something about D’s character).
Ex. D on trial for consumer fraud and wants to call witness who will testify to his good
character ). Witness testifies on cross as follows: “I have known D for 50 yrs and he has a
very honest person. He is known in the community as being an honest person. I was w/ him
one day at an ATM and money came out – he returned the money.
i. What is permissible?
1. “I know him” – opinion testimony
2. “Known in the community as…” – reputation testimony
ii. What is impermissible?
1. Testimony about ATM incident – specific act
iii. Prosecutor seeks to ask whether he knew the D lied for perjury twice x years ago?
1. These questions are permissible because they are offered to impeach the
witness.
Ex. D was on trial. Witness testified that he knew D for a long time and was non violent. He
also had that reputation in the community. He tells the story of a fly in the kitchen and I took
a newspaper and tried to kill the fly. The D said no lets just shoo it out of the window. This
was wrong because you cannot use specific acts. The opinion and reputation is admissible
but not the specific act testimony.
b. Civil Cases
i. Rule #1: Circumstantial Use of character evidence is NOT permitted in a civil case.
Rationale: The conduct typically in issue in civil cases represents a smaller departure from the “norm”
than in criminal cases. Since there is less departure, the probative value of character evidence is
decreased below the standard of relevancy.
2. Ex. Ginter: Action by a beneficiary of an insurance policy against insurance company. The insurance
company defends its non-payment of the benefits of the policy on the grounds that the deceased left
material information out of his policy. P wants to admit evidence from a witness that would testify to
the fact that the deceased insured was a man of good character who would unlikely submit an
erroneous application. Inadmissible. Honest to show honest in this caseabsolute barred
3. Ex. Cannot prove contributory negligence in a case by showing that a person is accident-prone.
ii. Rule #2: Exception-Character in Issue – Where character is in issue in a civil case (character is an essential
element of a charge, claim, or defense, i.e. libel or defamation cases), evidence of the pertinent character trait is
admissible and may be proven by: (a) reputation, (b) opinion, and (c) specific instances of conduct.
1. Ex. Fitness to provide care or the character of being a good parent is in issue in child custody
proceedings.
2. Ex. If character of P is put at issue in a defamation case (i.e. by a plea of truth as a defense) then
character may be proven.
3. Ex. Negligent entrustment case where issue is D’s knowledge of the competency of the driver to
whom he entrusted a vehicle.
4. Ex. Negligent hiring/supervision cases—evidence of bad character of employee may be in issue in
case where the employer is sued for negligent hiring/failure to supervise.
iii. Rule #3: Not for Character Purpose
Criminal Cases
i. Rule #1: General Rule – In a criminal case, the prosecution may NOT offer character evidence concerning the
D in the prosecution’s case in chief (in order to prove D’s conduct).
1. Cannot show character evidence to prove how party acted in the “first instance.”
2. Indirect/subtle references to one’s character are as bad as direct references (nickname/prejudicial
alias).
a. Ex. Williams (“Fast Eddie”): D on trial for theft related charge. Gvt calls arresting officer
who testifies to facts about investigation, how he came to suspect D, etc. One question asked
raises objection by D-“did you know him before incident” and officer says “he was known
around the community as Fast Eddie.” Basis for complaint is that this was a
backhanded/subtle reference to his character (didn’t call him thief but nickname has
connotations). While the prosecution may introduce evidence of aliases to aid in the
identification of the D, the use of the nickname here was unrelated to any of the other proof
1.
c.
30
against D—was proffered to show that the D acted in conformity with his character
(reputation for unsavory activity), but this cannot be used in gvt’s case in chief b/c it causes
undue prejudice.
b. Can’t call a fact witness who references the defendant’s character
c. Ex. Farmer in the 2nd Cir. – the guys nickname was Murder. Every witness says I know him
as “Murder.” And he was charged with Murder! Kept saying this in arguments, etc. court
reversed.
d. Vanishing jury trial
3. Can be used for identification purposes – if aids in identification of D and for a purpose (i.e. directly
relates to the proof of the acts charged in the indictment).
a. Ex. Delpit: D charged with drug crime. Prosecution tapes refer to someone as “monster.” D
objects to a witness who testifies that D is known as “monster.” Here, admissible b/c not
using tapes to show character but to connect D to the tape so that the jury can make
connection.
i. Note that a limiting instruction was given – monster does not necessarily mean bad
guy/killer.
4. How do we rectify these two? The gov’t cant introduce someone’s character to say how he acted. But
sometimes you introduce someone’s character not to show how he acted but for some other purpose.
Some other purpose other than proving character can be permissible. R. 404(b).
ii. Rule #2: Mercy Rule – In a criminal case, character evidence of a PERTINENT (relevant) trait of the
defendant is admissible if OFFERED voluntarily BY THE D, after which the state may offer rebuttal evidence
with their own witness on cross-examination. Proof may be made only by reputation and opinion. (See Rule
404(a)(1) & 405(a)).
1. A criminal D is allowed to introduce evidence about his/her own good character to support an
inference that he/she did not commit a charged crime.
2. Relevance: D can introduce evidence of his own character but it has to be a pertinent character trait
relevant to the crime charged. Must have the tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be w/o
the evidence.
a. Good moral character—pertinent trait in criminal actions.
b. Law abiding character—generally admissible, but court will not allow a free for all (cannot
be too specific). [This is Michaelson] But this opens up the door to a lot.
c. Honesty—most likely admitted for fraud, bribery and receiving stolen goods cases
i. Not pertinent in aggravated assault, drug possession, or murder.
ii. Ex. If fraud-based crime, D can introduce evidence that he is an honest person but
cannot introduce evidence that he is a gentle person.
iii. Ex. D is charged with murder. Can show he has reputation for being peaceable, but
cannot show his reputation for being truthful/honest since that trait is irrelevant to
the murder.
iv. Ex. Gupta is an honest person, but cant testify that he is a man of integrity (isn’t
that a character trait? Does it mean something other than honesty?)
d. Truthfulness—pertinent to robbery, burglary, theft, and perjury.
i. Not pertinent to drug charges, assault, kidnapping, false imprisonment, firearms
crimes, etc.
3. Rationale: Allows the criminal D with so much at stake and so little available in the way of
conventional proof to tell the fact-finder just what sort of person he really is.
4. Methods of proof: Reputation or opinion (through testimony of a W who states his/her opinion about
the D’s character or reputation in the community) – NOT through specific acts of conduct.
a. Opinion—what someone else thinks.
b. Reputation—what community thinks.
5. Open Door/Rebuttal – When D introduces character witnesses, the prosecution may then introduce
evidence to rebut the character witness’ testimony. This rebuttal must respond to the door that has
been opened by D on direct.
a. Gvt can ask D’s W about specific acts, but must accept the W’s answer (no independent
evidence of event/act).
b. Government can enter door only so far as it is opened.
i. Ex. D charged with two crimes and D presents evidence of honesty. Gvt can
introduce evidence of dishonest traits but cannot introduce evidence of propensity
for violence b/c D did not open the door for character evidence of violence.
31
1.
Opening the door for as far as the defendant chooses to open it cc law
abiding personopens the door for absolutely everything
ii. Ex. Michaelson: D convicted of bribing a federal agent. D called witnesses to
testify to his “law abiding character”/good reputation. On cross, pros asked
witnesses if they knew of D’s conviction for trading counterfeit goods. All said they
didn’t know. Judge gave limiting instruction to the jury that they were not to assume
the incidents they were asked about actually took place but only to establish D’s
reputation. Ct held that the cross of D’s character witnesses was proper b/c his arrest
for receiving stolen goods weakens D’s assertion that he is known as an honest and
law abiding citizen (which is what D tried to prove with his witness).
iii. Ex. US v. Dahlin: D was charged with robbery and his alibi was that he was
babysitting his sister’s infant child at the time of the robbery. The prosecution
argued that D could still have committed the robbery by leaving the children at
home, unattended for a period of time. D took the stand and testified that he was
deeply devoted to his niece and that he never left the child alone. The prosecution
rebutted this claim of D’s family relations by questioning D about a knife fight he
had with his father. D opened the door to this evidence because he “put at issue his
reliability, responsibility and familial devotion,” which were all traits pertinent to
the jury’s appraisal of his defense. Prob a jury instruction not to use it for truth that
knife fight occurred just to rebut his family devotion.
c. Character trait cannot be too specific
i. Many D’s narrow the character traits they introduce by giving details
ii. Ex. D on trial for being kingpin in drug trans and calls witness to say I do not think
D has character traits to be a kingpin in a large international drug transaction (give
details to narrow trait as much as possible). Ct says this is a character trait for
abiding by the law so held the doors wide open…plan backfired.
iii. Or I don’t want to say he has the trait to obstruct justice, etc.
d. D can be held to have opened the door through WITNESS as opposed to through himself
i. D’s fact witnesses may stray into character traits b/c any word that refers to
personality traits opens the door.
ii. Ex. D’s (who allegedly abused someone) son testifies that he saw his dad on that
day and there was nothing strange about him. Government says “isn’t it possible he
might have done the abuse and came out and acted normally?” Witness says he
could not have done something like that (character reference) – he was interjecting
positive character trait into the trial. Government is allowed to respond even though
the character trait was introduced on cross by D’s witness.
1. As fact witness: you should say this didn’t happen, and not opinion about
personality traits.
iii. Rule # 3: Character of the Victim (404(a)(2)) – In a criminal case, character evidence of a pertinent trait of a
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 DEFENDANT. Proof may be made only be reputation and
opinion.
1. If the D brings up bad evidence about the victim, the gvt can bring in the same type of bad evidence
about the defendant as well as evidence of good traits in the victim.
a. If a D in self-defense case attacked the V for violence, that means the gov’t can introduce the
SAME character trait for the D for violence. If you invoke the character rule to attack the
victims character trait then you open the door to have your character trait.
2. Note: It is essential that the victims’ character is relevant to the accused’s defense.
a. Ex. a victim’s violent disposition is exactly the sort of evidence the rule was intended to
encompass.
b. Note: it would not be relevant to show that the victim was a cheat/drug addict.
3. Rebuttal must be on the same trait of the defendant.
4. Self-Defense Cases
a. If D purports SD, can include violent/aggressive nature of the victim, but ONLY BY
REPUTATION/OPINION.
i. But exception to this whole character bit, is credibility
1. Prosecutor, “did you know he killed 8 people last week.”
b. Ex. US v. Keiser: D shot V and claimed he was acting in defense of his brother. During the
trial, D called D’s brother to testify about an incident that occurred the day prior in the lobby
outside of the courtroom (V screamed at D’s brother). D counsel approached the bench and
32
d.
explained that his purpose of the question was to introduce the testimony to bolster D’s claim
of self-defense, arguing that the incident tended to show V’s character as violent and
aggressive. Court held that V’s character was relevant to D’s claim of defense (Rule
404(a)(2)). Even though relevant, excluded under Rule 405. V’s character could only be
proved by opinion and reputation evidence because V’s character wasn’t essential to D’s
claim. D could have successfully asserted a claim of self-defense against a pacifist as long as
the jury finds that D believed that unlawful force was about to be used against him. D could
not bring up the specific act that occurred outside the courtroom (only opinion/reputation).
c. Ex. Martinez: Evidence of violent character of victim excluded where there was no viable
SD claim in a case in which D was charged w/ murder arising from a prison conflagration.
Ds argued they were acting in SD at the beginning of the fight, but this was not relevant to
the subsequent conduct that was at the heart of the murder charge. (stabbing a lifeless body)
iv. Rule # 4 Homicide Case: In a homicide case, if the defendant offers evidence that the DECEASED WAS THE
FIRST AGGRESSOR, the prosecution may then offer rebuttal evidence of the PEACEFULNESS OF THE
VICTIM. Proof may be made only by reputation and opinion.
a. Ex. State v. Hicks: P asked W about peacefulness of V. D objected because self-defense was
never raised at trial. Court held it was error to allow evidence of V’s peaceful character since
there was no evidence raised for self-defense or that V was the first aggressor.
2. Open Door – Once D attack’s V’s character, door is open to attack on same trait of D.
a. Rationale: D cannot attack V’s character and remain shielded from disclosure of equally
relevant evidence concerning the same character trait of D (V is dead!). If this were not the
rule the jury would only hear bad stuff about the V and not the D. Therefore, the amendment
acts as penalty – once D goes after victim, the prosecution can go after D’s similar traits.
b. Note: it is important for the D to narrow the trait they are trying to get across as much as
possible, b/c if D opens the door to show V is violent, gvt can show that D is the one who is
violent.
Other Crimes, Wrongs, or Acts (404(b)): no acts to prove character to prove propensity to commit or not commit
the crime
i. Rule: Evidence of other crimes, wrongs, or acts is NOT admissible to prove character of a person in order to
show action in conformity therewith.
ii. When Specific Acts Allowed:
1. (1) Character is in issue (mostly civil)
2. (2) Responsive in testing a character witness (when witness mentions something about D’s
character).
3. (3) Not for character purpose (criminal and civil)
a. Such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake/accident.
b. Evidence of the collateral misconduct can in such cases be permissibly used to draw
inferences about some particular feature of the present crime – either to the accused’s
conduct (including identity) during the charged crime or his state of mind during the charged
crime.
iii. Note: Predominantly used in criminal cases (except for defamation-like cases where character in issue).
iv. Notice: At request of accused (criminal cases), prosecution must give general nature of the bad acts evidence it
plans to offer at trial.
v. Character in Issue
1. Rule: When character is in issue, you have to prove someone’s character and can use specific acts to
do so. In cases in which character/trait of a person is an essential element of a charge, claim, or
defense, proof may be made of specific instances of that person’s conduct.
2. Ex. Defamation of character case where there is a dispute about whether a description of the P was
true. A D accused of defaming P by describing him as a “thief” would be able to show whether the P
is a thief.
3. Ex. Negligent entrustment, where a P alleges that the D was culpably careless in letting a particular
individual operate a car or some kind of machine. To show that the D was negligent, the P could
introduce evidence about the character of the operator to show not that the person drove badly or
operated a machine badly on a specific occasion, but to show that based on what the D should have
known about the operator, the D should have known about the operator, the D should not have let
him/her be in control of the car/machine.
a. Ex of character not in issue. Kaiser: D, who alleges Self-Defense, wants to introduce
evidence that victim has acted aggressively on occasions toward others to show that victim is
33
violent/aggressive. Cannot do this b/c victim’s character for aggressiveness is not an issue in
a SD case. However, D could call a witness who knew victim and could testify that witness
is a violent person or known in the community to be a violent person. Cannot use specific act
evidence
i. Is character trait of violence in issue for self defense case? No its not something you
have to prove. You just have to prove they acted violently, not that they were violent
people. The reason you cant use violent person character trait here is that it doesn’t
mean you acted violently on that occasion.
ii. [ I screwed this hypo up! FIX What if D wants to testify that I was a stranger, I went
into a bar, sat into a bar, guy ran up to me and said don’t sit there, that’s bills chair
he’ll kill you if you sit there, and he killed people 9 other times. D doesn’t say im
offering to show the V is violent and that the D could have believed the V was a
violent person and character rules don’t apply – shows state of mind. Different than
in Kaiser.]
vi. Testing Character Witnesses
1. Rule: 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. However, the cross-examiner is
required to accept whatever answer the W gives.
2. Rationale: Here, the purpose of cross-examination is to impeach the witness’s credibility rather than
to smash D’s character. Target of cross-examination is the credibility and reliability of the witness,
not D who the witness is endorsing. Since the inquiry tests W’s basis for testifying as a character
witness, cross-examination may test his knowledge of specific instances of D’s bad conduct. If the
D’s witness does not know about specific acts, it tends to prove that W has either a weak link to D
(opinion) or a weak link to the community (reputation).
3. Scope: Cross-examination concerning a character witness’s knowledge of D must relate to character
traits that are pertinent to the crime charged.
4. Double-Edged Sword of Character Witnesses: Going down character road is difficult (double edged
sword) – if D has specific acts in past that could be brought up by gvt on cross (w/ limiting
instruction), could be risky rebuttal and attack on character witness.
a. Opinion Testimony: Gvt asks: “Did you know that D…” If W testifies that he knew about the
bad stuff, but had a good opinion about D, he looks like an idiot. If W testifies he did not
know about bad stuff, looks like a bad witness b/c if he knew D he should have known that.
i. Often use “have you heard that x,y,z”
ii. This isn’t really character evidence – it’s wafting innuendo into the jury box. When
you get into character evidence, this kind of stuff happens.
b. Reputation Testimony: Gvt asks, “Have you heard that D…” If W testifies didn’t know, No I
have not, bad witness b/c how are you a member of the community if you have not heard
that? If admits to knowing it, bad witness b/c reputation for nonviolence when did a violent
thing so community not worthy of credit.
5. Requirements
a. (1) Good faith proof acts occurred (and present at side bar to judge before bringing it up)
i. Need to articulate some of the sources of information you have, but do not need
actual witnesses, affidavits of people who were there, etc.
ii. Prosecutor must have good faith proof that the event occurred and must present it
sidebar (to judge when jury is absent) before question is asked.
iii. Ex. Brughier: D charged with sexually abusing his child. D called 2 witnesses to
testify that he was a good father. P asked whether they knew the child was under the
supervision of Child Protective Service. Court said okay. Although sidebar didn’t
happen (confirming source of evidence), the D did not object so he waived
argument. Must have good faith proof that the act happened.
iv. Ex. D introduced evidence through witness of his reputation as honest and lawabiding individual. Gvt, on cross, asked these witnesses whether they were familiar
w/ allegations that D was in arrears on child support payments and of sexual
harassment at workplace. Allowed b/c D opened the door and gvt is allowed to
probe the witness’s familiarity with D’s reputation/character.
b. (2) Reasonably KNOWN to Witness (opinion)/Community (reputation)
i. If questioning a witness, what you ask about has to be something the community
actually knows about (anything poss spread out in the community) or something
that should be known to an opinion witness who is close to the D.
34
ii. Does not have to be adjudicated.
iii. Can be anything possibly spread out in the community or to an opinion witness who
is close to the D.
iv. Ex. Monteleone: Gvt wanted to ask witness if he knew D perjured himself at grand
jury hearing. Not permissible b/c grand jury proceedings are secret and there is no
reason for anyone besides the D to know that.
6. Restriction: Guilt Assuming Hypos
a. P/Prosecution cannot ask W questions that assume D’s guilt of the crime charged.
b. It is permissible to ask guilt assuming hypotheticals to the witness testifying to D’s good
character only where the question posed to the character witness assumes facts that have
already been admitted by D. However, it is impermissible to ask guilt-assuming
hypotheticals of a witness who has testified about the D’s good character if the facts have not
already been admitted by the D.
c. Ex. US v. Smith-Bowman: D was charged with using employer’s credit card for personal
purchases. W testified to D’s reputation for honesty in the community. P asked whether W
had heard that D used the credit card for motel use and jewelry. These acts formed basis of
the charges against D. Court held that it was okay because D conceded to these acts (but
claimed she was authorized to do so), but if D hadn’t conceded those acts, P could not use
these facts. The prosecutor’s question (asked whether witness had heard D used her
employer’s cc to rent a motel room to sleep with her bf) did not present a guilt-assuming
hypo b/c the D admitted she used the cc for personal purchases.
vii. Uncharged Misconduct Offered for Purposes Other Than Proving Character
1. Rule 404(b): Specific Acts for Non-Character Purposes
a. “Evidence of other crimes, wrongs or acts…may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause show, of the general nature of any such evidence it
intends to introduce at trial.”
i. Cts now trying to take a more careful approach – Gomez (changed law in the 7th
Circuit and said be more careful), Miller, Caldwell
ii. Caldwell – not really saying I didn’t know it was a gun or didn’t have intent. So
prior bad acts can’t be introduced. Just saying I didn’t possess it. Denying guilt of
this offense with a knowledge based mens rea, a D opens the door to admissibility
of prior convictions of the same crime.
iii. Caldwell rule – have to introduce evidence where the issue is actually contested
iv. Rule of inclusion R.404(b): Caldwell shows you that rule of inclusion doesn’t
always mean you admit prior bad act evidence. Any good purpose can support
admissibility of evidence, the list is not exclusive. Capra thinks they just made up
Congresses’ intent. If you want to get away from a Rule of Inclusion – 403 is
inclusion and the way to geta way from this is amend Rule 404(b) to get it to be
applied more reasonably and change the balancing test so that the probative value
for this purpose outweighs the prejudicial effect.
v. Ex. Constructive possession case and a gun is found in the D’s closet. Gov’t wants
to show that a year earlier they found 4 guns in the D’s closet. Constructive: know
it’s there and control it. Admissible, because the case will have knowledge actually
in dispute.
vi. [note that “uncharged” means in this specific case, not ever]
b. Rule: Specific instances of conduct are admissible to prove intent, motive, plan, design, or
any purpose other than character, so long as the probative value of the evidence as to its notfor-character purpose is not substantially outweighed by the risk of prejudice, confusion, and
undue delay.
c. Two Steps
i. (1) Government articulates a not-for-character purpose under 404(b)—criminal case
in which gvt is trying to show bad acts the D did that are not charged in this case in
order to prove something in current case.
1. The government will actually have evidence of a fact.
ii. (2) Judge conducts 403 analysis—if gvt articulates proper purpose, D can argue that
prejudicial value substantially outweighs probative value.
35
1.
2.
3.
4.
Proof—court examines evidence and decides whether jury could
reasonably find that D committed the uncharged act by a preponderance of
the evidence.
2. Court will be influenced by the proponent’s need for the evidence; if there
are other ways to establish whatever the proponent says the past bad acts
evidence will show, courts will ordinarily exclude the past bad acts and
relegate the proponent to less inflammatory proof of that issue.
d. Laundry list approach: gvt cannot leave it up to the court to decide/pick which proper
purpose it is admitting the evidence for.
e. D is on trial for felon with possession of gun. Guns found on his property, but claims he
didn’t know. Gov’t wants to show he is tatted with guns and wants to introduce picture of
him with his tattoos. Gov’t says this is not a bad act, not illegal to have gun tats. BUT this is
still “bad” in the sense that a jury will thing this is a bad act. We want to introduce it to show
knowledge of what guns are. Doesn't work. Absense of mistake? No. No proper purpose for
this evidence.
Plan/Scheme
a. Two circs in which prior bad acts can be used to show a “plan/pattern”
i. When a D’s prior bad acts are part of a broader plan/scheme relevant to the charged
offense.
1. Where gvt must prove premeditation, gvt can show preparatory acts.
2. Conspiracy – can show acts that indicate association.
3. Provocation defense – if D defends with provocation, prosecution can
rebut by showing plan/scheme.
4. Insanity defense – if D defends with insanity, plan/scheme shows sanity.
5. Ex. When a criminal steals a car to use in a robbery, the auto theft can be
proved in a prosecution for the robbery.
ii. As direct proof of a charged crime that includes a plan/scheme element, or evidence
might serve both intrinsic and direct-proof purposes.
1. Ex. In drug distribution cases, knowledge/intent are often contested facts
proven in part through prior bad acts.
2. Ex: D found with heroin in his mailbox, to which another person had
access. D also found with a number of empty glassine envelopes in his
bedroom. Court admitted the evidence on the reasoning that the tools of
the trade made it more likely that he was the one that possessed the drugs
that another person might have had access.
Mental State
a. Bad acts are often admissible to show D’s mental state during the crime with which he/she is
charged.
i. We’re not doing it to show he’s a bad person, but to show he had this state of
mind/intent during his actions.
ii. Are they really saying intent or are they saying propensity?
b. Ex. Hearst: On Jan 15, D argues duress in robbery charge (“forced to rob bank”), which goes
to mental state. Patti Hearst saying she had an inadequate mental state. Gvt wants to
introduce evidence that shortly after (Feb 15) event the way she acted when she shot up
streets so the same kidnappers (who allegedly forced her to rob) could escape (she was not
under duress) in order to show that she was not under duress when robbed bank. The
evidence showed that D had an opportunity to escape from the kidnappers (the same people
who “forced” her to rob the bank) but didn’t. D objected because the two crimes were
dissimilar. Court agreed, but crimes must be similar only if the similarity of the crimes is the
basis for the relevance of the evidence. Here, the relevancy of the evidence is to show state
of mind, that she was not under duress, and was admitted. Admissible b/c her mental state
was the issue in the case – probative of lack of duress at time of incident.
i. Idea of this continuity of her conduct – she was voluntarily doing other things. It
makes it less likely that she was under duress at the earlier point.
ii. Note: Critical in this case is that she is the one bringing up her mental state. She is
affirmatively stating duress.
Knowledge
a. Prior uncharged similar acts are admissible to show that the acts in question were not
performed inadvertently or without knowledge.
b. To show that D’s learn as they go/absence of accident – bad acts teach you certain things.
36
c.
d.
e.
f.
5.
Intent
a.
Past bad acts can be used against you if you claim innocence to charged conduct – what you
learned before is probative of your knowledge now.
Doctrine of chances – repeat groper, who says it’s an accident he falls on people. Accidents
can’t keep happening to you in the same way. This is not a direct character reference.
Knowledge At Issue
i. D’s defense is lack of knowledge If D says “I did not know that…” the gvt can
introduce similar acts to show that D should have learned from experience and
knew.
1. Ex. Martinez: D said didn’t know drugs in backpack, but gvt showed that
same scheme done 3-4 times before. Ct held that prior bad act (prior heroin
importing conviction 10 yrs ago) was admissible to prove knowledge of
meth smuggling, including how drugs are imported, packaged, transferred,
etc.
2. Ex. D driving in car w/ cocaine and says didn’t know. Evidence that 5
times previously was stopped and arrested in cars at the same checkpoint
with drugs and used same excuse each time.
ii. Knowledge is an element of charged crime
1. Ex. stealing something knowing it was stolen; knowingly applying
excessive force.
2. Ex. Huddleston: D prosecuted for “knowingly receiving stolen goods”
(video tapes). D claims he did not know tapes (which be bought from
Wesby) were stolen. Prosecution offers evidence showing that on prior and
subsequent occasions, D bought other stolen goods from Wesby,
suggesting that D must have known the tapes were stolen. Gvt admitted
since tends to prove knowledge, an element of the offense.
Absence of Mistake/knowledge  Bad acts admissible to show that D’s excuse of accident
is invalid.
i. Ex. Lavoti: D police officer puts guy in choke hold as part of an arrest and kills him
but says didn’t know it would kill him because he didn’t know his own strength.
Evidence shows D put 8 ppl in choke holds in the past and sent them to hospital.
1. Probative of knowledge of his own strength. Here the D also actively
contested his mental state.
ii. Ex. Woods: D claims mistake when baby turns blue. Gvt can bring in evidence of
14 other cases where baby turned blue in D’s custody.
1. Doctrine of chances: 14 babies turning blue is not a chance of a mistake.
2. Ex. guy takes out life insurance before each accident of wife’s deaths.
Rebutting the idea of accident, absence of accident.
3. Knowledge plays here too –after 10th blue baby, you have knowledge you
aren’t good with babies.
4. Note that these aren’t convictions, but acts.
iii. Ex. Random inspection of car crossing border. Police find the gas compartment
tampered with and find cocaine in it. My friend wanted me to do a favor and drive
his car, I had no idea there were drugs in the car. Gov’t wanted to show that two
previous times she was stopped at checkpoint with drugs. That is probative of
knowledge.
iv. Ex. Martinez – said no reason to know she had drugs. Govt wants to show that he
had knowledge. Captra thinks this is a weaker case. He was driving friend to pick
up friend’s girlfriend, it is kind of an extra step to stretch the knowledge to him.
Yes, you learn about drugs as you go but his implication of this situation may nto be
so strong.
v. Ex. Lyle – 2nd circuit case. D has traffic violation, search car, find meth in trunk.
Says no knowledge of meth in car. Gets released and lets gov’t in hotel and he’s
packing meth in bags. You can’t learn backwards. The court held that it was
admissible to show knowledge. Capra thinks it more of a propensity issue and the
corut got it wrong. But at least in this case he contested knowledge, but still prob
wrong.
Bad act evidence may be introduced to show that D acted maliciously, deliberately, or with
the specific intent required for the crime.
37
b.
i. Ex. Beechum: D/mail carrier alleged to have stolen from mail. Gvt sets him up and
puts silver dollars in mail. Mail never distributed and gvt finds him w/ coins. D says
no intent to steal from mail (a dog attacked me, mail went all over the place and put
coins in bag b/c they were on ground I was going to return them). To rebut, gvt
introduces fact that when arrested they pulled D’s wallet and found 4 credit cards w/
ppl on his route (from mail due to be delivered 6 wks earlier). Inference that D did
not have intent to return silver dollars b/c didn’t have intent to return credit cards. Ct
says evidence admissible to prove intent to commit charged crime.
1. Another case where D actively contested his mental state.
Commonality of intent: Intent of uncharged matter has to be similar to the intent to commit
this crime
i. Cannot just be an intent to violate the law in general – past act must be related to the
present crime.
1. Ex. past murder cannot be used for present drug charge.
2. Ex. D has committed many burglaries in past would not indicate
untruthfulness of his claim of SD in murder case.
3. Ex. D charged with intent to distribute drugs and other act was murder. Gvt
cannot say we are trying to show intent to murder b/c intent to murder has
nothing to do with intent to distribute drugs, just that D violates laws.
4. Ex. D on trial for turning back odometers and selling cars. Gvt wants to
admit uncharged act of carjacking 2 yrs prior. Argument that shows
“disrespects cars” does not work. Stupid, propensity inference re cars.
ii. Intent to distribute similar drugs – many courts allow evidence of garden variety
intent to distribute in uncharged crime in a charged crime to show commonality of
intent.
1. Ex. Intent to distribute heroin charge – can admit evidence of prior act of
intent to distribute crack.
2. Note: possession and distribution are two different kinds of mindsets in
drug crimes.
a. Ex. Charged w/ running narcotics distribution network. Evidence
that possessed weed previously not admitted b/c only says you are
into drugs and that is inadmissible propensity evidence.
b. I mean it makes sense if youre like I didn’t know it was meth,
then it might work. But generally no these are not the same
things/intents.
3. Also, amount is significant – large scale participation v. small amt of drugs
does not demonstrate commonality of intent.
4. [note that gov’t has the burden to prove every element, and D doesn’t have
to prove/contest anything; but now the gov’t has to always argue intent
here b/c charge includes mens rea. Miller and Gomez make it clear that the
gov’t cant bring up unless the D is actively contesting intent. ]
5. basically gov’t cant let it in in the case in chief.
6. DOJ fighting against active contest rule that means youc an introduce prior
bad acts if they aren’t contesting intent.
iii. Jones intent to distribute in one case is probative of intent to distribute in another
case.
1. What we’re really prohibiting is evidence that he’s a really bad person.
We’re not trying to show that because he raped someone he has a
propensity to deal drugs. Here, even though this is propensity evidence, its
more closely tied to the case.
2. However, courts are beginning to be more careful about this because this is
really just a propensity inference
iv. The D charged with intent to distribute coke, he was previously found to have
manufactured crack but that isn’t admissible. Just cuz drugs are drugs doesn't mean
there is a sufficiently common intent.
1. D charged with turning back an odometer and selling a car. He was
previously convicted of car jacking. Not sufficiently realted. The mind set
you need for the first crime is fraud. The second crime is not a fraud based
mindset. Car car or drug drug crimes are not enough.
38
SO long as the intent is common to do both crimes, gov’t can offer it and
its not dependent on the D’s defense. But in such jurisdictions, can the D
forestall that by stipulating intent.
v. 6th circuit approach: denies Jones approach
vi. Compromise approach: we will allow act to be admissible but only if the defendant
is contesting intent
vii. ∆ contests intent to stealing car with force
1. gov’t wants to introduce that ∆ introduced car with turned-back odometer
a. no commonality herejust a propensity to do bad things to cars
viii. intent to distribute heroin vs. intent to distribute cocaine?
1. Sufficient commonality
ix. Distribute cocaine vs. three years ago found with a small amount of cocaine
x. Intent to distribute a drug vs. intent to do a drugthese things are totally different
xi. Intent to distribute cocaine vs. intent to manufacture crack
c. Stipulations of Intent
i. D’s sometimes try to take intent out of their case so that gvt cannot introduce
similar act of prior distribution charge if D says no intent to distribute in charged
crime case.
ii. Generally, the gvt is allowed to prove any case w/o being forced to accept a
stipulation (w/ Old Chief exception).
iii. Rule: D does NOT have the right in intent cases to stipulate intent and keep out a
bad act if the bad act is being used to prove intent.
1. Despite a D’s offer to stipulate an element of an offense (and agree to jury
instructions), 404(b) does not preclude the gvt from introducing evidence
of other bad acts to prove that element.
2. Ex. Crowder: D charged with possession and intent to distribute. P wants
to prove MO, knowledge, and intent with evidence that D sold drugs to
undercover on the same block 7 months ago. D willing to stipulate that the
amt of drugs found were consistent with the intent to distribute. P did not
want stipulation b/c D’s defense is that there was no knowledge or intent to
distribute b/c he got framed by police. Court held that under 404(b) and
403, the evidence could be introduced despite offer to stipulate.
iv. Note: the court in its discretion might make the gvt accept the stipulation.
v. Example: cleaning gun, accidentally went off; gov’t wants to show that last year, at
the same table with two friend (friends had brought over a ferbie and they started
turning the ferbie on and the defendant went to get gun and shot the ferbie
Context/Background
a. To explain to the jury that if jury did not have bad act information in front of them, the jury
would be speculating and unable to figure something out and unable to understand the case
b. The uncharged conduct explains something to the jury that they might otherwise speculate
about to the gvt’s detriment.
c. If prosecution does not admit the prior bad act, there would be a gap in the story, so the gvt
introduces prior conduct to provide context for the jury so that jurors do not unfairly
speculate.
d. Ex. Steinberg: (404(b)): Charged w/ killing daughter. Evidence indicates that beat up girl at
8pm and left her in bathroom and left wife in house. Came back 4 hrs later and found
daughter basically dead. Gvt wants to introduce evidence that he beat up his wife routinely
(prior bad act) so that jury does not wonder why the wife never did anything to help the
daughter (she is not an independent actor b/c victim of abuse). Admissible but ct says do not
overdo evidence of her abuse (403), but also very probative.
e. Delpit Monster case; not introducing his nickname to show he’s a bad person but rather to
allow the jury to understand what monster means.
Motive
a. Bad act evidence may be used to establish motive for the crime charged.
b. Since motive itself is never an essential element of a crime, the use of bad-act evidence to
establish motive is always part of a chain of reasoning. Thus the proof of motive may be
probative of conduct (if D had a motive, it is more likely that he did commit the crime) or of
intent (given that D did the act, he did so intentionally, purposefully, maliciously, etc).
2.
6.
7.
39
8.
i. Ex. D charged with placing car on railroad track and leaving it there. Wants
to introduce evidence of putting dead cousin in car and putting it on the track
because that’s what happened. Railroad charge was federal; murder was state.
ii. Ex. D owns pharmacy and burns it down-charged w/ arson. Gvt wants to introduce
evidence that D distributed Quaaludes with fake prescriptions to show he burnt
down pharmacy to destroy those records. Shows motive for burning down
pharmacy.
iii. Ex. Roux – child porn. Wants evidence of victims minor sisters as motive evidence.
Sexual interest in children as part of sexual interest of children. Have to show how
its probative of motive. The reason they are using is a propensity to do these things.
iv. Ex. D charged with unlawfully prescribing Quaaludes. Gvt wants to show Dr. has
sex w/ patients to show doctor’s motive to trade Quaaludes for sex. Shows motives
for prescriptions.
v. Ex. Motive to kill to gain admittance into gang. Evidence of D’s affiliation with a
Mexican Mafia prison gang properly admitted to explain why D would kill a
stranger.
vi. Ex. D charged w/ car theft. P offers evidence that 2 weeks prior to the theft, D
escaped from jail 80 miles away. The court held that evidence of D’s escape
relevant to show motive to steal car.
vii. Ex. Ace charged with murdering Vincent. Prosecution can intro evidence that Ace
previously tried to run down Vincent w/ steamroller to explain Ace’s motive for
killing Vincent.
viii. Ex. D is charged with coercing a minor to create sexually explicit images. Gov’t
wants to introduce testimony from victims minor’s sisters to say he abused them as
well as motive. No error.
ix. Ex. D is charged with robbing a lq store and gov’t wants to prove that he has a drug
habit. Arguably, everyone robs because they need money.
c. Propensity v. Motive
i. Ex. D charged with arson for burning down restaurant. P offered evidence that D
had burned down his car 16 mos earlier and got money. P wanted to extend the
motive from that to show that D burned his restaurant to get money b/c of financial
stress. Court said inadmissible b/c more about propensity.
ii. Ex. If robbed a building previously to get money, that might be admissible to show
financial stress motive.
d. Drug Use Evidence for Financial Crimes
i. Drug use does not create an inference that there was a motive to commit a financial
crime. Cannot admit evidence of prior drug use to ask the jury to draw an inference
about the D’s motive in a bank robbery case.
ii. Under 403, drug use is not probative of financial crimes, b/c everyone that commits
a financial crime needs money for something.
iii. More likely admitted if: (i) D has a significant drug habit/addition, and (ii) D did not
have the financial means to support it.
1. Ex. D charged w/ robbing liquor store. Gvt wants to introduce evidence
that D has a drug habit to show financial motive for robbery. However,
almost everyone who robs has a financial motive so the drug habit is not
probative. However, this might be diff under 403 if D had a really
expensive drug habit, such as a $2,000 heroin habit.
Identity/Unique Crimes
a. Prosecution wants to show that D acts in a particular way so D must have committed the
crime as charged. Prior crimes may be used to show the identity of the present perpetrator
(i.e. that it is D, not someone else for whom D has been mistaken).
b. Generally, when other crimes are offered to show “identity,” the prosecution’s theory is that
the other crimes by the accused are so similar in method to the crime charged that all bear
D’s “signature” (uniqueness) – that the D usually does something in a specific way and this
crime was done in that way.
c. Two requirements
i. Denial by accused – the accused must deny participation in the crime charged.
ii. Proof of identity – the methods involved in other crimes must be so similar to those
used in the crime charged that the similarity is “substantially probative of identity.”
40
A mere showing that D has committed other crimes in the same class as the offense
charged is not sufficiently probative of identity to justify admission.
d. Two factors to consider:
i. (1) distinctiveness of the facts that makes the crimes unique, and
ii. (2) proximity of the crimes in space/time.
e. Modus operandi: the method used in all of the crimes must be so similar and so
idiosyncratic that it amounts to a unique “signature.”
i. You can argue that this is a propensity but it’s so unique that you could argue its
different. Like OCD maniacally obsessive stuff.
ii. Judge must make a threshold determination that a reasonable juror could conclude
that the same person committed both crimes.
iii. If the MO is sufficiently rare, then the probative value of that evidence is high
enough to constitute evidence of Ds identity. If the evidence of the prior crimes
includes no significant signature trait, then its probative value is so low that is
considered to be mere propensity or character evidence.
iv. Ex. Drug case dropped the bag of drugs and ran away in prior incidents. Not unique
at all, everyone does this.
v. Ex. Robberies, person robbed at gunpoint and perp forces them to strip naked and
throw clothes and run away. Court thought it was unique. Capra thinks its close
because it’s a good way to do it.
vi. Ex. D killed business associate by injecting him with draino and urine but says
didn’t do it. Gvt can introduce evidence that 4 yrs earlier D did the same thing in the
same way. This is a signature crime that sets D apart.
vii. Ex. Carroll: Bank robbery case. Evidence of prior robbery not admitted b/c not
unique – nylon mask, gun, jumped over counter, etc.
viii. Ex. Robbery case. Evidence that D used gun w/ silver hammer on it both times
admissible b/c unique – like 500 guns like that in the US. The more commonality
factors there are the better: 2pm in the afternoon, fall day, tall guy short guy, one
runs one direction, one runs the other direction
ix. Ex. People v. Brown: Old couple gets ripped off by guy selling fake TV. Court
admits evidence that D went to same corner each time he ripped ppl off (4 th and
Pine).
x. Identity isn’t just about MO: somebody with a signature is obsessive, the guy who
robs the same place 54 times is obsessive insofar as he obsessively robs this place
f. Location or person: not just modus that gives rise to identify evidence but can be location or
some other weird obsession. Crime can be unique because of a person or place connected to
the crime (not just how the crime is done).
i. It is a showing of a unique connection between the D and the victim or place of the
crime shown by prior acts.
ii. Ex. D robbed guy at 7/11. Can introduce evidence that he robbed ppl at this 7/11 55
times.
iii. Ex. Can admit evidence that D robbed the same person 65 times previously.
g. You have this obsessive need to do this specific thing that is your signature
9. United States v. Reme – D says I wasn’t in charge of the boat. This case is used to show that the
404(b) list is a non exclusive list and that they are not using the evidence to show that it was his
character but to show that he was the leader of the boat. Also used a limiting instruction.
10. Gomez (p. 254) – much more stringent requirement. Judge should be giving 404 limiting instruction
sua sponte, the D has to ask for it. You can’t just give a laundry list, you have to articulate the proper
purpose and tell the jury just want it is for. And then you should tell them why you don’t allow that.
“we try case,s not people” REVIEW!
11. Reverse 404(b) evidence, where the D uses absence of non-quid pro quo acts as evidence to say he
wasn’t being bribed. Gov’t objected to this and that type of evidence is barred.
viii. 403 Analysis
1. Once government articulates clear specific purpose, D might argue that the evidence will be used by
jury as indication that D is a bad person which is prejudicial. Gvt would admit prejudice but argue that
probative value outweighs it. Court must do 403 analysis.
2. Balancing Act: Admissibility of prior bad acts depends on whether the danger of unfair prejudice
substantially outweighs the probative value of the evidence in view of the availability of other means
of proof and other factors appropriate for making decisions of his kind under Rule 403.
3. Four Part Test
41
a.
b.
c.
4.
5.
Evidence offered for a proper not for character purpose.
Evidence must be relevant for that purpose.
Trial court must make a 403 determination of whether the probative value of the bad acts is
substantially outweighed by its potential for unfair prejudice.
d. Pursuant to 105, the trial court shall upon request instruct the jury that the evidence of similar
acts is to be considered only for the proper purpose for which it was admitted (limiting
instruction).
Proof of Act (if there is a dispute about existence of bad act) – Huddleston/104(b)
a. If D is convicted of prior act, this is not an issue.
b. There is sometimes a factual dispute as to whether D actually committed the prior act.
c. Issue is how much evidence the gvt has to present to the judge in order to satisfy the fact that
the act is relevant and it happened.
d. Standard of Proof: Gvt must convince the judge that a reasonable juror could find that it
happened more likely than not (preponderance).
i. Pro-prosecution (low) standard.
ii. Ex. Bank robbery. Gvt wants to prove D committed prior bank robbery in same
way. D says didn’t do it (the old robbery). Gvt presents in sidebar hearing the teller
to prior bank robbery who testifies that he saw D come in, etc.
iii. Ex. Huddleston: To prove knowledge that goods were stolen, P offers evidence of
D’s previous offers to sell other goods. D objects on the ground that P’s only proof
that the goods were stolen was D’s failure to produce receipts. Evidence was
admitted to show knowledge. Dispute as to whether he even committed the prior
bad act (i.e. he wasn’t even convicted of that act).
1. Trying to bring in evidence of a previous crime which the D was acquitted
of charge: still can do it because that doesn't mean that jury didn’t find him
guilty under preponderance evidence, they acquitted on reasonable doubt
standard. The act isn’t relevant unless he did it.
2. D arguing: the govt must prove to the judge that I committed that crime
more likely than not (preponderance)
3. Gov: we have to prove to the judge that a juror could believe it happened
more likely than not. The judge doesn’t’ have to be convinced, just have to
find enough evidence to convince a reasonable juror. Much lower
threshold.
a. This is the standard b/c of 104(b)
e. 104(b) – Conditional Relevancy
i. “When the relevancy of evidence depends on the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.”
1. Policy: leave it to the jury – if they find it didn’t happen, then it just falls
out of the case, it doesn’t really affect the case, etc.
2. But you can use prior bad act and it’s acquittal could come in.
ii. Sometimes evidence is only relevant/probative if a condition is met.
1. Ex. I notified you of a danger. That could be relevant but if you did not
hear it, it is not relevant.
iii. Need to set a foundation that the condition exists – “enough to support a finding.”
iv. Judge can require proof or admit evidence of the fact subject to “connection up”
with later proof.
v. Court examines all evidence and decides whether the jury could reasonably find the
conditional fact by a preponderance of the evidence.
vi. The TC does NOT have to be convinced by a preponderance of the evidence that D
committed the bad act.
403 Balancing Factors (by TJ)
a. Acquittals
i. Acquittals do not preclude admission of prior acts under 404(b) – bad acts are not
inadmissible just because the D was acquitted (But 403 arguments—D may argue
that evidence has diminished probative value in light of the acquittal).
ii. Under Rule 104(b), the issue is only whether a jury could reasonably find that D
committed the prior bad act by a preponderance of the evidence. In criminal trials,
D must be found guilty beyond a reasonable doubt (a higher standard). Therefore, a
42
prior act may be admissible even though D was acquitted in a criminal trial because
of the disjunction in the required level of proof.
iii. D should be prepared to argue that the probative value of the uncharged conduct is
diminished in light of the acquittal.
iv. Ex. Dowling: D charged with bank robbery. The robber wearing ski mask and
carrying gun. P wants to bring evidence that assault occurred 2 wks later with D
wearing ski mask/gun. The assault charges dropped but P wants to use evidence to
strengthen ID and link D with getaway driver. Ct said admissible b/c not admitted to
be re-litigated, but b/c a jury might reasonably believe it was D that assaulted the
witness, even though not beyond a reasonable doubt.
b. Arrest
i. Arrest alone is not probative. Mere arrest w/o any showing of the underlying act or
circumstances does not show D committed the act.
ii. Yet, where there is more evidence, such as officer testimony of surrounding events,
this can properly be admitted since it is more probative of
intent/knowledge/supports that D committed the act.
c. Timing/Dating of Bad Act
i. If the prior act were committed 6 months before the charged act that's one
thing, but 6 years another. The longer apart the acts are, the less probative
they are.
ii. No bright line test for time/number of years that have passed since prior act.
iii. Show continuous mental state of intent to distribute drugs.
1. Ex. Gvt wants to show intent to distribute drugs. D charged w/ possessing
drugs w/ intent to distribute. D says I was going to use not trying to
distribute. Gvt wants to show prior act in which possessed drugs and
distributed under similar circs.
2. More recent date will be more probative.
iv. Depends on purpose – if probative of knowledge, act must have predated charged
crime
1. Ex. Lavoti: Choke hold case. If charged in 1989 and gvt wants to introduce
the fact that did similar choke hold in 1991 at trial in 1993. This does not
work b/c similar act happened after the charged crime.
d. If there are evidentiary alternatives (besides the bad act), use them
i. Rule: Old Chief says you should try and consider less prejudicial alternatives if can
be reasonably presented.
ii. Ex. United States v. Reme: D charged with carrying refugees from Haiti to US in
violation of statute that says cannot pile ppl on boat. Gvt tries to “find the pilot.” D
alleged to be the pilot on boat. As evidence, gvt wants to introduce an account from
one of the refugees that midway in the transportation D threw 2 ppl off for
insubordination. Admissible for proper purpose-to show control of boat. Also
satisfies 403 b/c even though prejudicial that threw ppl off (worse than crime itself),
very probative to show he was captain.
iii. Ex. United States v. Costa: Pilot’s cap/license found in boat in D’s name. As he got
off boat refugees saluted him. Gvt also wants to throw in evidence he threw ppl into
the water to show control. Under 403 Ct says do not need control aspect even
though probative since there is a lot of evidence to prove the point (testimony from
refugees, evidence from car) so that would be cumulative.
ix. Notice: “The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to
introduce at trial.”
1. Government has to provide notice that they are going to seek to introduce evidence of uncharged
misconduct under 404(b).
2. D must ask for this – “Upon Request” – amendments to take this out b/c its difficult.
3. Rationale – anticipated that there will be arguments against the gvt’s “proper purpose” so give D time
to prepare and also to contest the fact that he actually did the bad acts.
a. Difference in discovery between civil and criminal cases. You won’t get the bad acts
evidence. The reason for this is a mistrust of crim defendants - you don’t want the D to tailor
defense to what he knows (lie) or to tamper with witnesses.
4. Note: No notice requirement in civil cases, but there is civil discovery so do not need extra notice
rules in FRE. Also for convictions you do not really need notice since it is known.
43
x. What type of evidence does the judge use here – Huddleston – has to provide enough evidence for a reasonable
e.
juror to find by a preponderance. They are applying rule 104(b) – standard of proof for the judge to employ.
More likely than not that this happened. Low standard, all the gov’t needs is an eyewitness to this event.
1. 404(b) analysis can also apply to acts where the person was acquitted b/c of this standard.
xi. 403 analysis also may apply here, judges will look at:
1. timing of the act – the prior bad act that occurred 15 year ago is kind of less probative to intent,
knowledge, etc.
2. type of bad act
3. evidentiary alternatives (old chief analysis)
xii. Ex. Reme case – where guy charged with piloting boat of refugees. What if they had other evidence that he
was in control? Then we don’t need to go to the we through people off the boat into the water evidence
xiii. Civil Cases
1. No notice requirement!!!!
2. But 404(b) applies—still have to articulate a not for character purpose.
3. Ex. Employment discrimination case. Other acts of discrimination cannot be admitted to show corp
has bad character, but may be offered to show intent depending on similarity and then 403 analysis.
4. Ex. D/PO alleged to injure P by hitting w/ nightstick. P claims damages for not sleeping, loss of
cognitive facilities, etc. D allowed to show that P did a lot of LSD in order to show another source of
injuries.
a. Ex. P’s drug use was properly admitted for the not-for-character purpose of providing an
alternative explanation for his emotional turmoil.
5. Ex. Title 7 action- P is going to try to introduce other acts of discrimination that the corp. did, not that
charged acts, but rather that other ppl like her got fired. D is going to argue that P is trying to show
that they were racist. P is going to look for another purpose like intent.
xiv. 404(b) Restyling
1. Word “accused” was deleted b/c applied vaguely; instead “D in a criminal case.”
a. Some courts though that this could include a civil D who was accused of a wrong. So
restying made clear it only applies to a D in criminal case (not a criminal D – prejudicial)
2. Also “this rule does not exclude” was changed to “may be admissible” to emphasize that can be
admitted in a lot of cases. Rule of inclusion.
a. Didn’t want “the court may admit”
3. The rule covers crimes, wrongs or other acts- restyling suggested cut out wrongs but there is
something that is not a crime, not an act but is still wrong like neglect of a child (which isn’t an act or
a crime).
Habit and the Line Between Character and Habit
i. Rule 406: Habit; Routine Practice
1. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person
or organization on a particular occasion was in conformity with the habit or routine practice.
2. Ex. Question is whether D was smoking in bed when fire. D says did was not smoking in bed. P can
show habit of smoking in bed as evidence he did it on that occasion.
3. Habit is relevant to action
4. Habit rule also existed under common law so when they were codifying the rules they included it.
a. There were other limitations to habit under common law that got thrown out. Like b/c they
considered it lesser, circumstantial evidence.
ii. Habit v. Character Evidence
1. Proponent of evidence has burden of proof to show that the activity is a habit rather than character
evidence.
2. Character: is a more generalized description of one’s disposition or of individual traits (i.e. honesty,
temper, peacefulness). R.404
a. More complicated and have to think about it more before you do it.
3. Habit: is a regular and repeated response to specific situations; semi-automatic. Habit is admissible
because it is not volitional and therefore more probative.
a. Not Volitional - The more volitional an act is, the less likely it will be considered habit.
i. The more you have to think about it, the less likely it will be admitted as a habit.
b. Specific - More specific, more likely to be considered habit (easier to express with
particularity)
c. Regular - More regular, more likely to be considered habit
44
i. Comparison - Compare the number of times that D acted in a certain way with the
number of opportunities D had to act in a certain way (i.e. police brutality case, cop
was only brutal to 5 out of 10,000 arrests)
4. Ex. Admissible in criminal case where D charged w/ breaking into car to steal stuff. D claimed he saw
valuable and felt concerned for person’s safety b/c car was unlocked. Gvt responds w/ evidence that
car owner habitually locks his car.
a. Note: evidence that car driver is a cautious person would not be admitted.
5. Ex. D wants to establish alibi for crime on Sunday across town from where D lives. D says goes to
church every Sunday. Not a habit but Capra says it should have been admitted since he has a habit of
how he gets to work (w/o thinking).
a. This is preeminent case.
b. This is not an automatic thing, you have to take many steps to get to church. The court
thought it was more indicative of character b/c it’s too planned out.
c. There’s a good argument that if you speak of habit in terms of what you call muscle memory.
6. Ex. Angwin: Transporting illegal aliens. Taking the “least confrontational approach” is a way of life,
not a habit.
7. Ex. Everytime you talk to your mom you drink. That might be a habit.
8. Ex. Perrin: D who shot P says wants to introduce fact that P was violent. Violence considered to be a
habit in this case b/c every time he sees police officers he acts in a crazy way – when specific
stimulus, he goes nuts every time. We’re not saying he is a violent person in general (that’s character)
we’re saying that he reacts violently to a specific stimulus is a habit.
a. Specific reaction [to law enforcement] is the habit
b. You have to establish a foundation for that habit then before introducing it, here they
introduced 12 incidents where that happened.
9. Ex. Sampol: D charged with putting pipe bomb under limo of the Chilean ambassadors who he
wanted to murder. Gvt trying to admit evidence of D’s habit with the three previous Chilean
ambassadors. Ct said cannot have a habit of doing this. Too many steps in between.
10. Ex. having a seatbelt on all the time is a habit.
iii. Requirements:
1. (1) Foundation – regular response to certain repeated situation
a. Have to prove that the actor has a habit for doing something – show a sufficient number of
instances.
b. Must provide an adequacy of sampling and uniformity of response in specific circumstances.
c. More likely to be found if proponent can provide multiple instances of specific, identical
conduct over a relatively short period of time.
d. Ex. P says D was on cell when driving. P wants to introduce evidence that on another
occasion D was on the cell when driving. Not habit if only provide evidence of one time.
e. Ex. Officer charged w/ using excessive force-pulled on handcuffs and dislocated P’s arm. P
wants to show that D has that habit-did it 5 other times. Capra says could be habit, but not
sufficient foundation b/c over 1,000 arrests in 25 yr career and 5 times is not enough.
i. But you always have this 404(b) doctrine of chances argument or knowledge that
you know from this exercise of force you should be pulling this up so hard if he
says I didn’t know my own strength.
2. (2) Habit must be tied specifically to the conduct in the case.
iv. Routine Practice of an Organization
1. Introduced to show on a particular occasion the routine was conducted.
2. Must show that activity was of a structured organization.
a. Loose/ad hoc does not give inference (ex. freelance trucker org was not structured enough).
3. Usually admitted b/c highly probative – courts more likely to admit routine practice over personal
habit.
4. Emphasis on routine nature instead of particularity.
5. May not be dispositive but highly relevants
6. Ex. P goes into cave tour and hits head on low rock. P says he was not warned. D can introduce fact
that they have a policy in which each guide must give a warning to every group.
7. Ex. Someone very ill b/c allergic to drug and says was not screened. Hospital says policy is to screen
patients for giving drugs. Admissible.
v. Rebutting Habit Evidence
1. Show acts inconsistent with the pattern of habit.
45
2.
Ex. D charged with using excessive force while making arrest (dislocating P’s shoulder). D argues
accident. P shows 5 other cases of excessive force involving D. However, this is not a habit in light of
the 10,000 arrests in which D did not exhibit the habit.
46
f. Cases Involving Sexual Misconduct
i. 412 Rape Shield
1.
2.
3.
4.
Rule 412: Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged
Sexual Predisposition
a. (a) Evidence generally inadmissible. The following evidence is NOT admissible in any
civil or criminal proceeding involving alleged sexual misconduct except as provided in
subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in
other sexual behavior; (2) Evidence offered to prove any alleged victim's sexual
predisposition.
i. Applies equally to reputation, opinion, and specific act evidence.
b. (b) Exceptions.
i. (1) In a criminal case, the following evidence is admissible, if otherwise admissible
under these rules:
1. (A) evidence of specific instances of sexual behavior by the alleged victim
offered to prove that a person other than the accused was the source of
semen, injury, or other physical evidence;
2. (B) evidence of specific instances of sexual behavior by the alleged victim
with respect to the person accused of the sexual misconduct offered by the
accused to prove consent or by the prosecution; and
3. (C) evidence the exclusion of which would violate the constitutional rights
of the defendant.
ii. (2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise admissible under
these rules and its probative value substantially outweighs the danger of harm to any
victim and of unfair prejudice to any party (REVERSE 403).
1. Evidence of an alleged victim's reputation is admissible only if it has been
placed in controversy by the alleged victim.
c. (c) Procedure to determine admissibility. If a party wants to admit such evidence, they
must
i. File written motion 14 days before trial specifically describing the evidence/purpose
ii. Serve motion on all parties
iii. Conduct hearing in camera to give victim the right to be heard
iv. Motion must remain under seal
Introduction
a. 412 is an exclusionary rule with respect to evidence of a victim’s sexual behavior or
predisposition.
b. Limits evidence of victim’s past sexual conduct/behavior to protect victim
c. Applies in any case in which sexual misconduct is alleged
d. Note: Rape prosecutions are rare in federal law b/c usually state prosecution under state law.
i. However, federal case if rape occurs in federal geographical jurisdiction, such as a
Post Office or an Indian Reservation.
ii. Rule 412 is still used as a model for states’ rape shield laws.
e. Under 412, evidence is presumptively excluded rather than 403 where evidence is
presumptively admissible
Policy
a. The rule protects victims of sexual misconduct.
b. Do not want to discourage victims from prosecuting a case for fear that past sexual history
will be admitted.
c. We also do not want juries coming up with their own views about the victim that will taint
the verdict.
Civil Cases
a. R.412: Reverse 403 Balancing Test: The sexual conduct of the victim can only be
introduced if the probative value substantially outweighs: (1) the risk of prejudice, AND
(2) harm to the victim. Favors exclusion…
b. Placed in Controversy: Evidence of an alleged victim’s reputation is admissible only if it has
been placed in controversy by alleged victim (if the victim opens the door by introducing her
reputation—presumably one for a virtuous character).
c. Why need this rule if have rule 403?
47
5.
6.
7.
i. 403 does not consider the fact that witness will be upset by the evidence being
brought in – 403 only protects the parties to the case.
ii. 412 takes into consideration the fact that the victim might have a difficult time at
trial and will not want to prosecute the case because of it.
iii. 412 is very exclusionary since the probative value must substantially outweigh both
the prejudice and the harm to the victim, while 403 is inclusionary.
d. Ex. Judd v. Rodman: Rodman had unprotected sex w/ Judd, who said she asked if he had
STDs and he said no but she gets herpes. Civil suitPart of damages are loss of self-esteem.
i. He wants to introduce evidence that she had unprotected sex w/ others at that
time—court admits as alternative sources of the herpes.
ii. He also wants to introduce evidence that he met her while she was dancing at a strip
club—trial court says probative value outweighs prejudice b/c it was not private but
a public act. Argument was that she cannot feel that bad about herself if she is still
working there. Admitted over 412 objection because probative on V’s confidence
and lack of psychological injury (she’s still comfortable enough to strip even after
she got the disease).
iii. He also wants to bring up her boob job after the incident. It is relevant b/c body
image improved which might affect damages. However, not very probative b/c
might not have gotten a boob job b/c of the incident. P’s counsel said not relevant
according to 401 and did not argue under 412 b/c not a sexual act/behavior.
1. Original argument was general relevancy which doesn’t call up 412,
screwed up b/c they argued 412 in the other two instances!!
2. 412 may not have fallen under sexual activity/conduct and not protected.
a. But the advisory notes are that it is intended to be broad, and
includes activities of the mind.
3. Capra says most courts would analyze under 412 and exclude it since
activities of the mind are protected under the rule.
4. What does sexual behavior mean? Includes behavior and activities of the
mind things that didn’t happen but were in the victims mind.
iv. Capra says since its supposed to be broad apply anything under 412 to something a
12 year old boy would think was sexual
e. False claims of sexual assault? Argument that 412 would cover activities of the mind and
exclude these. Other argument is that this doesn’t cover lies. Most false claims get rejected
b/c of the difficulty of proving falsity. Difference when a V has admitted that there was a
false claim or revoked a charge.
f. Ex. Wolak: P alleges hostile work environment when D puts on x rated pictures up at work.
D wants to show that P was at a party where ppl were having sex in front of her and she
voluntarily watched. This is an activity of the mind (voyeurism). The evidence is not that
probative b/c if okay with it in private does not mean okay at work. This is not a 403
analysis…but if it were (regular 403) good arg that probative value is not substantially
outweighed by prejudice b/c nothing harmful to her would come out in trial besides for the
fact that she watched porn voluntarily. However, evidence excluded since not probative
under reverse 403.
g. Ex. Rock v. Arkansas: D charged w/ shooting husband to death in home. Only 2 witnesses
(her and husband). D blocked out memory so goes to hypnotist, where she remembers.
Arkansas does not allow hypnotic evidence. However, b/c this is her only line of defense, it
was admissible.
“Sexual Behavior”: Very broad (See Wolak above), includes activities of the mind, such as fantasies,
as well as sexual harassment.
Evidence of Prior False Rape Convictions
a. Issue is whether or not D can introduce evidence that V has previously made prior false
accusations of rape.
b. Rule 403 analysis – Likely to be admitted b/c probative value is high and the likelihood of
unfair prejudice low.
c. Rule 412 analysis – The rule does not exclude prior false complaints of rape, since not prior
sexual behavior in itself…However, most courts think false claims of rape ARE sexual
conduct and therefore EXCLUDED.
Criminal Cases: If a D is charged with sexual misconduct, the sexual behavior of a VICTIM CAN be
introduced in three ways (ALSO MUST DO A 403 ANALYSIS):
a. (1) Alternative source of the injury
48
b.
c.
i. Evidence of specific instances of sexual behavior by the alleged victim offered to
prove that a person other than the accused was the source of semen, injury or other
physical evidence.
ii. D can prove victim’s sexual activity to prove that that particular sexual activity is
the one that caused the injury complained about.
iii. D is trying to show that someone else assaulted the victim – alternative source of
injury.
iv. D might try to show that whatever the victim is complaining about can be explained
by sexual conduct with another person.
v. Could be the heart of the D’s defense.
vi. Ex. Bear Stops: D wants to show that the boy who he allegedly assaulted was
sexually assaulted by another (but not the same night). Most impt evidence against
him was testimony of a psychiatrist that boy had child sexual abuse syndrome. D
wants to rebut the implication that he was the cause of the diagnosis by showing the
boy was assaulted by others during the same time period. Ct allowed this evidence –
rape shield law overcome by right to an effective defense.
1. The reason for the rule is to protect the victim from the promiscuity stuff
2. But this is a case that the right to effective defense implicated and the
mother could have testified as to the prior sexual assaults so the reason for
the rape shield law isn’t really applicable.
(2) Prior acts to show the alleged victim consented
i. Evidence of specific instances of sexual behavior by the alleged victim with respect
to the person accused of the sexual misconduct offered by the accused to prove
consent or by the prosecution.
ii. Introduction of prior acts between the victim and the D to show consent.
iii. Collateral (uncharged) sexual encounters between the accused and the victim have
more probative force than do sexual encounters between the victim and a third
person.
iv. Ex. D says we had sex but it was consensual – tries to introduce evidence that
victim is promiscuous and has consensual sex w/ strangers, which is why she had
consensual sex w/ him. Evidence excluded b/c that fact is not very probative
because even promiscuous people have some degree of selectivity.
v. Ex. D might want to introduce evidence that the victim has sex in a specific way
and she had it in that way with D (that the victim likes) to show consent.
vi. Ex. D’s lawyer may ask V, “Didn’t you have consensual sex with D on previous
occasions?” or “Didn’t you sometimes play a game with D in which you pretended
to resist but really were consenting?”
(3) D’s Constitutional Rights
i. Evidence the exclusion of which would violate the constitutional rights of the D.
ii. In criminal cases, D has a right to an effective defense under the Due Process
Clause of the Constitution. One aspect of this right is the idea that the FRE cannot
cut out an entire line of defense. Under certain circumstances, the exclusion of
evidence under the FRE would mean that D does not have a case without the
evidence and therefore automatically loses.
iii. The critical inquiry is: How important is the evidence to D’s case? How prejudicial
is the evidence offered?
1. In criminal cases, the issue is whether the D’s evidence is so critical that it
would be unjust to protect V at the expense of the D.
2. Only rarely will the D be able to overcome the rape shield law.
iv. Ex. D says sex was consensual. Tries to show victim had sex w/ 6-7 ppl at same bar
consensually. This is likely not probative, and D would still have good defense w/o
this info.
v. Ex. Bear Stops: even if rape shield law precludes this, Constitution permits it – the
fact that PM was sexually assaulted by the three older boys was constitutionally
required to be admitted. W/o an alternative explanation, the jury may have been led
directly to the conclusion that Bear Stops was the perpetrator b/c the victim
exhibited the symptoms of this illness.
vi. Ex. Offer to show bias
1. Olden: D meets victim at party and D claims that he and victim had sex,
and he dropped her off at home where another man was outside and she
49
gets out of the car in a sort of way that shows they had sex. D wants to
introduce evidence that when she got out of the car, there was a guy
waiting for her and she lives with that guy and is in a sexual relationship.
Evidence admissible to show sexual relationship with that other man in
order to show she is making a false rape claim to cover herself. Evidence
critical to victim’s credibility.
a. Not using her sexual history to show alternative perp or to show
consent between them.
b. Bias evidence – she has a motive to lie.
c. Evidence has to be strongly probative of the D’s case.
2. This evidence is important because you have two people saying opposite
things so you have credibility interests. Weigh: not that prejudicial because
ct won’t make the victim go into relationship details with the boyfriend.
3. SCOTUS found that this was a violation of Olden’s constitutional rights.
4. Ex. Enticing a minor to make a pornographic video. D wants to introduce
chat logs where victim is chatting with other men and offering to show
them pictures to show that he didn’t entice her because she’s already into
this lifestyle and offering to send these pictures out. Prejudices the jury
because it makes the minor look like some kind of wild child and its jarring
to show how many ppl this victim chats with. Prejudice outweighs
probative value.
d. Note: No heightened balancing test in criminal cases. If a specific sexual act is offered for
one of these reasons, admissible as long as satisfies 403.
ii. Rules 413-415: Admissibility of Evidence of DEFENDANTS Prior Sex Acts
1. Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
a. (a) In a criminal case in which the defendant is accused of an offense of sexual assault,
evidence of the defendant's commission of another offense or offenses of sexual assault is
admissible, and may be considered for its bearing on any matter to which it is relevant.
b. (b) In a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that is expected to be offered, at
least fifteen days before the scheduled date of trial or at such later time as the court may
allow for good cause.
c. (c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.
d. (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under
Federal law or the law of a State (as defined in section 513 of title 18, United States Code)
that involved--(1) any conduct proscribed by chapter 109A of title 18, United States Code;(2)
contact, without consent, between any part of the defendant's body or an object and the
genitals or anus of another person;(3) contact, without consent, between the genitals or anus
of the defendant and any part of another person's body;(4) deriving sexual pleasure or
gratification from the infliction of death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
2. Rule 414. Evidence of Similar Crimes in Child Molestation Cases
a. (a) In a criminal case in which the defendant is accused of an offense of child molestation,
evidence of the defendant's commission of another offense or offenses of child molestation is
admissible, and may be considered for its bearing on any matter to which it is relevant.
b. (b) In a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that is expected to be offered, at
least fifteen days before the scheduled date of trial or at such later time as the court may
allow for good cause.
c. (c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.
d. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen,
and "offense of child molestation" means a crime under Federal law or the law of a State (as
defined in section 513 of title 18, United States Code) that involved--(1) any conduct
proscribed by chapter 109A of title 18, United States Code, that was committed in relation to
a child; (2) any conduct proscribed by chapter 110 of title 18, United States Code; (3) contact
between any part of the defendant's body or an object and the genitals or anus of a child; (4)
50
3.
4.
5.
6.
contact between the genitals or anus of the defendant and any part of the body of a child; (5)
deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in
paragraphs (1)-(5).
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
Molestation
a. (a) In a civil case in which a claim for damages or other relief is predicated on a party's
alleged commission of conduct constituting an offense of sexual assault or child molestation,
evidence of that party's commission of another offense or offenses of sexual assault or child
molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of
these rules.
b. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the
party against whom it will be offered, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least fifteen days before the
scheduled date of trial or at such later time as the court may allow for good cause.
c. (c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.
Introduction
a. Rules were a response to Kennedy v. Smith – Ted Kennedy’s nephew sexually attacked a
woman. Court excluded it and the identity of D. High profile nature of case led Republicans
in Congress to say that D’s cannot hide behind 404(b). Propensity to commit sexual assaults
should be able to be admitted by the gvt.
b. General Rule: Evidence of similar sexual offenses is ADMISSIBLE in both civil and
criminal cases when specified sexual misconduct is alleged to prove that the D had a
PROPENSITY to commit such crimes.
i. Argument is that because the alleged D committed similar sex crimes, he committed
this one as well.
ii. Does away with 404(b) in sexual assault cases.
1. This is essentially an exception to 404(b) in sexual assault cases where the
prosecution or P wishes to offer previous acts of sexual assault committed
by the D. Under 404(b), the prosecution would have to articulate a not-forcharacter purpose for a prior act of sexual assault.
iii. No limiting instruction necessary!!! A limiting instruction is not required since the
jury is free to use the prior act of sexual misconduct as evidence of D’s propensity
to commit such crimes.
c. Goal: Provide for more liberal admissibility of the D’s prior sexual offenses in cases
involving alleged rape or sexual abuse. Too often critical evidentiary information is thrown
out at trial b/c of technical evidentiary rulings.
d. Notice: have to provide the other side w/ notice of intent to introduce this type of evidence.
e. Rationale
i. It is appropriate for the jury to consider the fact that someone charged with a sexual
assault has the propensity to commit sex crimes.
ii. Sexual assault crimes pose unique problems of proof and the trials often swing on a
credibility determination of V’s v. D’s words.
Standard of Proof: Bad Acts, Not Convictions
a. Bad acts can be admitted under these rules EVEN IF they did not result in a conviction.
b. Preponderance Standard: There just has to be enough for a reasonable juror to believe it
happened (same standard as 104(b) under Huddleston).
403 Analysis
a. D has the option to ask the judge to exclude the admission of sex crimes by arguing that the
prejudice substantially outweighs the probative value under 403.
b. The probative value includes not for character purposes (motive, plan, etc) AND that D has
the propensity to commit sex crimes.
c. If Rule 403 could not be applied, there would be constitutional issues, such as due process
(i.e. you committed a sexual act when you were 19 and now you are 55).
d. Five Factors Judge Can Use to Decide Whether to Admit
i. Similarity of the prior acts to the acts charged
ii. Closeness in time
iii. Frequency of prior acts
iv. Presence or lack of intervening circumstances
51
v. Necessity of all the evidence beyond the testimonies already offered at trial
Examples when D does not get bad act excluded under 403
i. Ex. D charged with sexual assault and committed 2 others in the past (one in 2005
and one in 2000). It is unlikely D will get relief under 403 b/c D cannot argue
prejudice due to a showing of his propensity to commit sex crimes–that is an
appropriate argument under 413-15.
ii. Ex. LeMay: Argued that 414 was unconstitutional b/c not reciprocal (cannot
introduce evidence of V but can introduce evidence of D). Ct says evidence shows
propensity because similar crimes not prejudicial since a jury can consider
propensity so D loses under 403. The prior acts were similar to the charged crimes –
each involved force oral copulation and in each case the victims were young
relatives of LeMay and occurred while LeMay was babysitting. Prior acts evidence
also relevant to bolster the credibility of victims after LeMay suggested they could
be fabricating.
f. Example of when a D gets a bad act excluded under 403
i. Evidence cannot just be shown to show D has deviant personality!!!
ii. Ex. D charged w/ assault on OBGYN table. Gvt wants to show that 18 yrs ago D
engaged in a date rape. Trial court excluded under 403–acts are different and do not
show propensity. Also timing was very far apart (propensity can change over time).
1. Prejudicial effect–act in past so disgusting that we do not even have to
consider what you did in this case.
2. Most other courts would admit this
iii. Ex. D charged w/ molesting a child (414). Lots of similar acts in past. D says
instead of admitting all 15, how about 10? Judge has discretion to limit the cases
allowed in b/c each case says a little bit less about propensity–it is about delay
under 403.
Objections to Rule (rejected by Congress)
a. Discrimination: Native Americans claimed discrimination since reservations are federal
property and state rules are not this generous toward the prosecution in sexual assault cases.
i. No intent to demonstrate that this was part of it, this was just a jurisdictional
consequence
b. Equal Protection Violation: Others made an equal protection argument that these criminals
(in sexual assault cases) are subjected to a rule of evidence other criminals are not. However,
sex fiends are not a protected class (just need a rational basis), the cases are hard to prove,
and rate of recidivism is high.
i. Bank robbers have to go through 403 and proper purpose; but just because I did a
sex assault, they go crazy on that
ii. Rational basis? These cases are harder to prove+ recidivismboom rational
c. Evidentiary Imbalance: A third argument is that the rule is not reciprocal – that a D cannot
smear a victim but a victim can smear a D. Response was that not all rules have to be
reciprocal and should keep closed victims’ door or else would never have these claims/cases.
i. Good policy: want to encourage victims to bring the claims
ii. Beyond a reasonable doubt is the ultimate advantage
Restyling
a. This rule is good in consent cases
i. Where D has the defense that the P/victim consented, it is useful to have
P’s/victim’s past brought in.
ii. The jury should know about how this person operates and that he/she should or
should not know that no means no.
b. This rule makes no sense when identity is the issue
i. Typically, the victim goes to the authorities and says that she was sexually assaulted
but does not know the perpetrator. Then victim IDs perpetrator in line-up comprised
of sexual assaulters – picks the person who looks most like the person who did it.
That person is convicted on the basis of bad stuff he/she did in the past.
ii. There was a proposal to allow 413-15 in consent but not identity cases – Congress
disagreed. Apply to identity and consent cases.
c. Rule 413 used to say “D’s commission of another offense or offenses of sexual assault,” and
restylists were shot down when they tried to make it “another sexual assault” b/c changed
from plural to singular. Makes it seem like they can only admit 1/50. Now it says “any other
sexual assault.”
e.
7.
8.
52
V.
Opinion Testimony
a. Lay Opinions
i. Lay witness: anyone in the world using their regular thoughts/opinions without any particular training on an
issue.
ii. Rule 701: Opinion Testimony by Lay Witnesses
1. If the witness is not testifying as an expert, the witness' testimony in the form of opinions is limited to
those opinions or inferences which are:
a. (a) rationally based on the perception of the witness, and
i. should be something that a lay person would ordinarily observe/be able to form an
opinion on.
b. (b) helpful to a clear understanding of the witness' testimony OR the determination of a fact
in issue, and
c. (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule
702.
2. CL Rule: Lay witnesses could only testify to facts and not opinions.
a. Ex. “he was drunk”, “they were in love,” “he was angry,” were barred by CL rule.
b. Why? Relies on abstracting from underlying facts and that is what juries are supposed to do –
so depriving juries of making inferences. It's a level of extraction from their personal
knowledge. The jury is supposed to take the facts and make their own conclusion from the
lay witnesses facts
c. Does not work
i. Line between fact and opinion is too difficult. Everything is a form of opinion – i.e.
“he staggered.”
ii. Sometimes an opinion is better than a long recitation of the facts.
iii. Opinion might also be the best vehicle for a witness to express his views.
3. FRE Rule: Lay witnesses can testify to facts OR opinions as long as they are:
a. (1) helpful to the jury, AND
b. (2) based on personal/first-hand knowledge.
c. Limit: needs to be a basic inference
i. Permissible: box was heavy, speed of car, they were in love, he was
angry/upset/nervous
ii. Impermissible: he was a manic, schizophrenic
iii. Helpfulness to the Jury
1. Can go to anything you conclude based on your experiences in the world, as long as it assists the jury
in understanding (1) the witness’s testimony, or (2) a fact in issue.
a. Ex. “he was in good health,” “they were in love,” “he was drunk”
2. Can draw reasonable inferences from personal perceptions.
3. Can testify to how you think a person felt at a particular time.
a. Ex. “he was angry,” “he was sad”
4. Note: The fact that you are inaccurate about your opinion is for the jury to figure out.
5. Limits: Can testify as to another’s state of mind (“D was angry”) but cannot cross into the domain of
experts (“D was enraged in the midst of a schizophrenic episode”). Bare conclusions are not helpful
(i.e. Was it an accident? Yes).
6. Having a lay witness come up and look at the same evidence as the jury is looking at is not helpful.
a. Ex. Rae: D charged with fraud and says I did not know. Gvt calls someone with a similar job
who says looking at the papers he had to have known the transactions were fake – testifying
to D’s knowledge/state of mind. Ct says should not have been admitted b/c jury already had
the papers to look at so witness on stand not helpful—jury could have made assessment of
D’s belief themselves.
i. Actually the juror had more papers, so the jury had more of a basis to draw the
conclusionnot helpful to the jury
b. Ex. Picture taken of the perpetrator at the scene of the crime. Gvt calls D’s friend who looks
at the pic and says that is the D. Not helpful b/c the jury can look at picture.
i. But if this is a recording (voice recording), then this doesn’t apply(1) defendant
doesn’t have to testify; even if he does, he may mask his voice
7. If the jury is at an informational deficit, testimony will usually be admitted.
a. Sometimes need opinion testimony to demonstrate ineffable qualities – lay witnesses are
permitted to draw reasonable inferences from their personal perceptions.
53
b.
Ex. If the question was how the D appeared after he received a phone call, and the witness
says “angry and annoyed,” the jury does not have that in front of them, so that is helpful and
will be admitted.
c. Ex. D’s voice on a tape and gvt calls D’s friend who listens and says that is the D. If D takes
the stand and says I never did it, then not admitted. However, in this case D had not chosen
to testify so the jury was at an information deficit since didn’t know what D’s voice sounded
like so this is helpful.
d. Ex. Yazzie: Statutory rape under state law that allows reasonable mistake of age (not strict
liability). D wants to prove he reasonably believed she was of age – wants to call people
from neighborhood to testify that they saw her that night and she looked over 16 since she
dressed a certain way, etc. Ct admits b/c she might try to dress differently at trial (look
young), it is hard to tell small age differences, and opinion testimony is helpful b/c based on
indescribable bases.
i. She looks young now, which is a year and a half later; shit she must have looked 9
then, he couldn’t have made a mistake
8. Illustrations
a. Matters of taste, smell, and appearance = admissible
i. Ex. “it smelled like dynamite”; “I saw grease and blood on the accused’s shirt”
b. Identity = admissible
i. Ex. W can testify that the accused “looks like” the person who committed the crime,
or that “I recognize his voice,” or “it sounded like his footsteps.”
c. Mental condition/sanity = admissible
i. Ex. When the validity of a writing is in dispute, the subscribing W can give opinion
concerning the sanity of the signer at the time of execution.
d. Physical condition (such as age, health, or pain) = admissible.
i. Words such as “nervous,” “drunk,” etc. are permitted b/c the person’s condition
may be difficult to describe by any language other than this sort of verbal
“shorthand.”
e. Value (by owner) = admissible.
i. Proof of ownership of property for a reasonable length of time usually qualifies the
W to give an estimate as to its value.
f. Dimensions, etc. = admissible.
i. Estimates of any measurement/dimension usually admissible when they will assist
the trier of fact in its determination.
ii. Ex. size, speed, weight, color, quantity, time.
g. Handwriting = admissible.
i. The opinion of lay witness is admissible to identify handwriting as that of a certain
person if the W is shown to be sufficiently familiar with that person’s handwriting.
iv. Foundation
1. Before a lay witness can testify, the foundation must be laid to show that they have the requisite
knowledge under 701.
a. Lay witnesses need to provide foundation for why they would even be helpful in some cases.
b. Must be established before the judge upon objection.
2. Objective factual basis from which it is possible to infer that a person knows a given fact:
a. What a person was told directly
b. What person was in a position to see/hear
c. What statements he himself made to others
d. Conduct in which he engaged
e. What his background/experiences were
3. If not familiar has to be established before the JUDGE upon objection
4. Ex. If witness testifies that he picked up the phone and heard D’s voice, witness must demonstrate that
he is familiar w/ D’s voice. Note that if witness was D’s mother, do not need foundation since it will
not be contested.
5. Ex. Someone testifies about the value of a business (i.e. it would have grown a lot, etc). Must
demonstrate familiarity with the business by showing that you work there, etc.
6. Ex. W testifies “I saw D selling pot on the corner.” First need to establish that W knows what pot
looks like.
v. Personal Knowledge
1. Your opinion on something must be based on your own personal knowledge. Lay witness needs
sufficient familiarity with what he is testifying about.
54
2.
3.
Standard: whether a reasonable juror could believe that the witness had personal knowledge.
Cannot use experience as knowledge—ex. driver w/ 29 yrs experience cannot give opinion of whether
driver of truck involved in an ax did everything he could to avoid the accident b/c W was not in the
truck when the accident happened.
4. Ex. If you say it is my opinion that I was hit over the head with a sledge hammer by Bill, would have
to show how you knew it was him, i.e. that you saw him coming at you so you turned around and it
was only the two of you in the room.
5. Ex. “It is my opinion that I was injured at birth.” This is not helpful b/c you do not have any first-hand
evidence of it yourself.
6. Ex. W testifies that “the D took my TV while I was sleeping.” Not admissible b/c W has no personal
knowledge/perception.
7. Ex. Hoffner: Dr. D was charged with distributing controlled substances not for legitimate medical
purposes. At trial, D offered the lay witness testimony of three witnesses (employees of Dr. D) of
whether D intended to issue the prescriptions for legitimate medical purposes. Court held that the lay
witness testimony inadmissible because none of the witnesses (employees) were present in the
examination room when the patients who received the prescriptions were with the doctor. Therefore,
the opinions could not be based on the witnesses’ rational perceptions or observationsthey were
merely speculative conclusions.
8. Ex. Experienced truck driver who witnesses ax could not testify that driver did everything possible to
avoid ax b/c no personal knowledge of the truck’s safety features and was not in the truck at the time.
vi. Legal Conclusions NOT Allowed
1. Lay witnesses cannot draw actual legal conclusions/use legal buzzwords. However, W can say things
that allow the jury to infer legal conclusions (can give opinion on ultimate issue).
a. That is part of the jury instruction from the judge (to apply the opinion to the facts).
b. Ex. The witness to a murder testifies to how D shot victim. Cannot say that I think it was
malice aforethought or that D violated a specific statute.
c. Ex. W testifies that “the police did not clearly announce themselves and therefore committed
an illegal search.” Not admissible b/c draws legal conclusion.
d. Ex. W cannot say that the accident was caused by “the injured’s own conduct.”
2. Use of Terminology with Legal and Colloquial Connotations
a. Must determine whether the terms used by the witness have a separate, distinct, and
specialized meaning in the law different from that present in the vernacular.
b. When the common and legal meanings of a term are not easily unfurled from each other, it is
difficult for courts to conclude that testimony is unhelpful to the jury unless the testimony
actually frames the term in its traditional legal context.
c. D will often contest and say that is a legal term/conclusion.
d. Rule: Judge has discretion to permit colloquial uses but will instruct the jury to use it in that
way only.
i. Ex. “unreasonable,” “excessive,” “discrimination”
ii. Ex. W was allowed to testify that D’s were “trying to kill” prison guard.
iii. Ex. United States v. Koon (Rodney King): D charged with intentional violation of
civil rights by excessive force. Officer testified for gvt and said D was “out of
control at the time.” Ct says can testify this way even if it leads up to ultimate
conclusion (if you could not then you could not testify to anything).
vii. Restyling of 701
1. Since restylists try to get rid of duplicative/unnecessary words, they took out “inferences” and just left
“opinions” since inferences are opinions.
viii. Lay v. Expert Testimony: 2000 Amendment to Rule 701
1. Amendment: To the extent a lay witness’s testimony is based on special, technical, or scientific
knowledge, that part of the testimony must be evaluated under 702.
a. In 2000, Rule 701 was amended providing that lay witnesses cannot give testimony based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.
b. Does not distinguish between expert and lay witnesses, but rather between expert and lay
testimony.
c. Litigants often declare that a witness is an expert because if they do not, there is a substantial
risk of discovery violation.
2. Rationale: Seeking to eliminate the risk that reliability requirements will be evaded by proffering an
expert in lay witness clothing. To “tighten up” 701 – concerned that lay witnesses could ask a lot of
questions and evade Daubert as well as evade discovery obligations.
3. Note: line between specialized knowledge and common knowledge is not always clearly drawn.
55
Lay – results from process of reasoning familiar in everyday life.
Expert testimony – results from process of reasoning which can be mastered only by
specialists in the field. Someone with specialized knowledge/training/substantial experience
that others do not have on a particular issue/topic.
Ex. Crane supervisor testifies that he heard loud noise and saw a crane go down. Thinks cause was
metal fatigue and faulty design. D says need Daubert hearing. P argues that he is a lay witness
testifying to what he saw at the time (since more likely to be let in under 701). This was before 701
was amended. Now probably expert (prob non-scientific) since based on technical
information/experience in the field.
Ex. Witness sees accident and testifies that the passenger was bloody – lay witness since we all know
what blood looks like.
Ex. Witness sees someone in alley and says “you got hit by a blunted instrument” – expert because
requires some background knowledge.
Ex. Criminal case – gvt wants to prove drug operation. Women on bodega testifies she saw D hand a
package to another person and receive cash – lay witness since based on experience not outside
ordinary realm. But if saw conversation and could tell it was a drug steerer, that would be expert
opinion.
Ex. Environmental case. Gvt wants to prove something industrialist did changed flight of eagles.
National park guy said saw eagle flying west – lay b/c we all know eagles. However, if said eagle was
flying toward nest, that would be expert knowledge.
Ex. Witness says “I smelled a dead human body and I know b/c of Vietnam war” – expert testimony
b/c experiential. However, do not need expert to say “I smelled something dead” or maybe “I smelled
a dead animal” because many ppl smell dead animals.
a.
b.
4.
5.
6.
7.
8.
9.
b. Expert Opinions
i. Rule 702: Testimony by Experts
1.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
a. (1) the testimony is based upon sufficient facts or data (basis of testimony),
b. (2) the testimony is the product of reliable principles and methods (methods employed), and
c. (3) the witness has applied the principles and methods reliably to the facts of the case (how
they were employed).
d. Note: factors added in 2000 amendment.
ii. Requirements
1. Expert is qualified
2. Subject matter is so specialized that need expert to explain it to jury
3. Testimony is Relevant
4. Methods and application of methods are reliable
iii. Reliability & Scientific Expert Testimony
1. General Rule: the expert’s testimony concerns a scientific test or principle, the federal courts impose a
requirement that the proponent must show that the scientific test or principle is scientifically valid and
applied correctly and reliably (Daubert).
2. Frye General Acceptance Standard
a. Frye v. US: Held that only scientific evidence that was generally accepted could be admitted
(intended to protect against jury being misled by unreliable scientific expert testimony).
Court refused to admit the results of a lie detector test offered by D in a murder case. The lie
detector test was too new a technique to have attained such acceptance among physiological
and psychological authorities.
b. “General Acceptance”: what is accepted as reliable necessarily changes with technological
progress over time.
c. Head-counting methodology: Do others in the field/community of scientists generally think it
is reliable? Then judges count up the experts and if more experts agree that method is reliable
than not reliable, it is admissible.
d. Note: usually applied when methods are novel.
i. Frye is still important in some state law (NY and CA are still Frye states)
e. Rationale:
i. Do not leave it all to the jury b/c the jury will rely on the first person who uses
fancy terms and has a fancy degree.
ii. Cross/bringing in another expert might not be effective either to change jury’s mind.
56
f.
3.
4.
6.
7.
Head Count under Frye
i. Accepts - DNA, rape trauma, child abuse syndrome, fiber evidence, bite marks
ii. Rejects - Polygraphs, hypnosis, psychological stress tests, voice prints and other
techniques that courts have mistrusted
Critique of Frye: too conservative test that may exclude reliable scientific evidence
a. Rejects cutting-edge science (considerable lagtime): every scientific technique must be new
at some point and therefore not “generally accepted in the field.” However newness alone
does not equal unreliability.
b. Difficult to apply: requires the court to define how “general” the general acceptance must be,
exactly what principle it is that must be accepted, and what the “particular field” is to which
the evidence belongs and in which it must be accepted.
c. Too exclusionary: the dangers cited by proponents of the Frye standard can be combated
with a less exclusionary rule, such as focusing on the reliability of the technique, of which,
general acceptance is a factor.
d. Hinders advancement: since the scientific community determines admissibility, new methods
that are reliable may not be admissible. It takes science time to test it all out so that a method
becomes “generally accepted.”
Rule 702 & Daubert v. Merrell Dow
a. Facts: Ps were minors born with serious birth defects who claimed that they were caused by
Benedectin, a drug manufactured by D that P’s mothers took during pregnancy. Ps tried to
establish their case by using testimony of 8 experts who would have offered two main types
of evidence that drug had caused their injuries: (1) analysis of test-tube and animal studies
finding a link between drug and malformations, and (2) unpublished “reanalyses” of
previously published epidemiological (human statistical) studies, with the reanalysis finding
a link between drug and birth defects even though each published study had not found such a
link.
b. Holding: Supreme Court rejected the Frye standard and substituted a new reliability standard
more in line with liberal admissibility of federal rules in general. The ruling is binding on all
Federal courts, but not on state courts. Makes judge a gatekeeper for determining whether or
not the methodology is reliable. In general, “general acceptance” is not a necessary
precondition to admissibility of scientific evidence but rules of evidence give the trial judge
the task of ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand. Pertinent evidence based on scientifically valid principles will
satisfy those demands. In Daubert, the SC rejected the Frye test since R702 does not impose
any requirement of general acceptance.
Daubert Test: scientific evidence must meet two requirements:
a. (1) Reliability Prong: Evidence must be shown to be scientifically valid–must be supported
by adequate validation to render it trustworthy.
i. Scientific evidence must be shown to constitute scientific knowledge—must be
scientifically valid, derived by the scientific method, must be good science and must
rest on a reliable foundation.
ii. Scientific = grounding in methods and procedures of science
iii. Knowledge = any body of known facts or to any body of ideas inferred from such
facts or accepted as truths on good grounds (not a mere subjective belief or
unsupported speculation).
iv. When trying to solve a problem, the methods the expert uses must be the same as
they would be in the expert’s out of court life.
b. (2) Relevance Prong: Evidence must fit at least one issue in the case (i.e. evidence must be
relevant). Thus, the evidence must be sufficiently tied to the facts in the case to help the jury
resolve the factual dispute. Evidence that is scientifically valid, but offered for a purpose
that the evidence does not fit would be rejected.
Daubert Factors
a. Flexible: Non-exclusive factors to be used in courts in determining reliability of evidence.
No one factor is dispositive.
b. Falsifiability/Objectivity
i. Whether the expert’s methodology can be tested reliably and methodologically.
ii. Need an objective methodology that can be replicated and proven wrong by other
scientists. Methodology cannot be subjective.
iii. Expert must be able to explain how he came to perform the test he did.
1. What did he rely on? Experience, reading, etc.
57
c.
d.
2. Are there any red flag factors?
3. Would other scientists be doing this?
iv. Ex. Expert did test to determine if a substance was in P’s bloodstream, but it was his
own test that involved 8 steps, but did 8 steps only sometimes. His notes on the
method were destroyed. Too subjective.
v. Ex. P alleges cataracts caused by D’s radiation. Ophthalmologist testifies as to the
truth of claim using visual inspection (knows just by looking). Too subjective since
no one else can do this.
vi. Ex. Three Mile Island: Nuclear radiation leak. Question was whether nuclear could
settled. D says it didn’t and witness uses a computerized wind dispersion model to
show that cloud blew right over the neighborhood. P calls hydrologist who uses
water, drops oil, and shakes it to prove it settled. Second experiment excluded b/c
made up the test to make it come out this way – not falsifiable b/c there are
computer models that could have showed this.
Peer Review
i. Whether the theory/technique has been subjected to peer review and publication. If
so, it is more likely to pass muster b/c submission to the scrutiny of the scientific
community is a component of ‘good science’ b/c increases likelihood that the
substantive flaws in the methodology will be detected.
ii. Function of general knowledge and shows respect for the method/model.
iii. Witness does not have to publish himself – only method must be published.
iv. Problems
1. Difficult to get work published.
2. There is a problem with peer review journals b/c experts sometimes have
incentive to publish (bogus factor).
3. Some topics are so obscure that no one publishes.
4. Problems also arise with “old” research that the scientific community
doesn’t care about.
v. Ex. P testifies on the basis of methodology. D asks if wrote article and witness says
no. Still okay if reliable.
vi. Ex. P wants to show well water contaminated by toxic substance from 8 miles away.
P hires hydro-geologist who says connection based on research. Would not be able
to publish b/c only did research for this case–was using peer reviewed methods but
did not publish himself.
Standards and Controls/Minimum Rate of Error
i. Two Related Factors
1. Whether there are standards and controls in place in methodology that lead
to an accurate determination. If a respected professional organization
maintains/oversees the standards for how the test should be performed, that
favors reliability.
2. Determine a risk of error/how often the method can be wrong—the more
errors in individual applications of a technique/test, the less likely the test
will be found to be scientific knowledge.
ii. Polygraph Testimony
1. Ordinarily EXCLUDED under Daubert. *However, if parties agree in
advance that it will be admitted, then it is.
2. Usually, one party gets tested and then the examiner testifies that based on
his procedures the person failed/passed the test.
3. Rationale for excluding polygraph testimony – (i) no standards or testing
(may depend on test administrator and actual questions asked), and (ii)
high rate of error (many ways to beat tests, cannot determine error rate,
etc).
a. One question does not give you the answer – can only do it by
differentials (compare answers to different questions) and every
examiner has their own way of doing this.
b. No standard of control questions since people act differently to
different questions.
c. Some people are upset by all questions or equally upset by all
questions.
d. Can beat the polygraph (i.e. bite tongue, step on nail).
58
iii. Alternative to polygraph = functional MRIs
1. Ask questions and take pics of brain.
2. Same problems as polygraphs. 0 admissibility as of now because it just
doesn’t fly under daubert
3. Low rate of error as proved from sophomore in college, dist court said
that’s not reality and we don’t know that the brain of a 18 old isn’t like a
70 year old.
e. Method Generally Accepted
i. The Frye Test (the general acceptance test) but its one factor not the dispositive test
ii. Determine what the scientific community thinks of what the expert is doing.
iii. Under Daubert, proponent must convince the judge by a preponderance of the
evidence.
8. Standard of Proof104(a)
a. Under 104(a), judge must be convinced by a preponderance of evidence/more likely than
not that the method is reliable.
b. Judge as Gatekeeper – judge must determine whether the expert is proposing to testify to
scientific evidence that will assist the trier of fact to understand or determine a fact in issue.
c. It is not sufficient for the judge to determine that there is enough evidence for a reasonable
juror to find reliability.
d. Once the judge lets the evidence in, it is up to the jury to weigh the actual results of the
methodology.
e. Want to protect the jury from evidence it wont understand
9. Daubert Hearings
a. A discretionary adversarial hearing out of the jury’s presence for the purpose of considering
data and arguments for and against the admissibility of scientific evidence.
i. Ex. P claims injury and issue is causation (scientific question) that D contests (such
as did the Dr do operation properly). P’s expert on frontier side and D says P hasn’t
established reliability of expert’s testimony. Then judge grants a hearing to inform
himself.
b. Judge has to be informed about the methods, challenges, how to substantiate the method, etc.
c. Judge might ask expert for an affidavit or the expert might testify.
d. Usually case dispositive if expert is knocked out.
i. Ex. Want to prove that when mother took Bendectin while I was in utero it caused
birth defect (scientific question). If expert knocked out, SJ granted for other side b/c
triable issue of fact on causation w/o expert to testify.
e. Note: Novel techniques have a better chance of admission into evidence under Daubert! Can
be inadmissible under Frye but accepted under Daubert–if you convince the judge the
method was reliable even though not yet generally excepted.
i. Ex. Ferry: D allegedly breaks into window of house and kills someone-see footprint
but don’t have shoe. Gvt has scientist who testifies about erosion factor to determine
D was wearing a certain shoe on the night. Expert did studies by having ppl wear
shoes and said wrong 20% of time but wrong about false negatives (say didn’t wear
shoe when you did). It got published in a journal. Not generally accepted/not
published but judge says sufficiently reliable. (Note: it turns out she was
lying/falsified the evidence).
10. Court Appointed Experts
a. Rule 706: Court Appointed Experts
i. (a) Appointment. The court may on its own motion or on the motion of any party
enter an order to show cause why expert witnesses should not be appointed, and
may request the parties to submit nominations. The court may appoint any expert
witnesses agreed upon by the parties, and may appoint expert witnesses of its own
selection. An expert witness shall not be appointed by the court unless the witness
consents to act. A witness so appointed shall be informed of the witness' duties by
the court in writing, a copy of which shall be filed with the clerk, or at a conference
in which the parties shall have opportunity to participate. A witness so appointed
shall advise the parties of the witness' findings, if any; the witness' deposition may
be taken by any party; and the witness may be called to testify by the court or any
party. The witness shall be subject to cross-examination by each party, including a
party calling the witness.
59
ii. (b) Compensation. Expert witnesses so appointed are entitled to reasonable
compensation in whatever sum the court may allow. The compensation thus fixed is
payable from funds which may be provided by law in criminal cases and civil
actions and proceedings involving just compensation under the fifth amendment. In
other civil actions and proceedings the compensation shall be paid by the parties in
such proportion and at such time as the court directs, and thereafter charged in like
manner as other costs.
iii. (c) Disclosure of appointment. In the exercise of its discretion, the court may
authorize disclosure to the jury of the fact that the court appointed the expert
witness.
iv. (d) Parties' experts of own selection. Nothing in this rule limits the parties in
calling expert witnesses of their own selection.
b. Witness can:
i. (1) Testify at trial under 706, or
1. When judge cannot tell whose expert is right/more reliable.
2. Unbiased experts testifying in areas of difficult scientific topics.
3. Usually neutral people who do not like litigation.
4. In order to help both the judge AND the jury to understand.
5. Subject to cross by either side.
6. Problem – judges worried that appointment decision will be dispositive of
result
ii. (2) Act as a consultant for the judge
1. Two issues; (1) bias – judge will probably believe him; and (2) process
must be fair and the consultant cannot be identified with one side or the
other.
c. Note: rarely used. Court may appoint its own neutral experts to help the judge figure it all
out. In civil cases, the parties pay for court appointed experts and will virtually always
object to the judge appointing such experts because experts’ conclusions are generally
outcome determinative and judges are concerned that they themselves will determine the
merits of the case. Judges may also get a technical advisor to help them out.
11. Frye v. Daubert
a. Who decides?
i. Under Frye, other scientists
ii. Under Daubert, the judge
b. What kind of evidence/issues?
i. Frye test only used for “novel scientific evidence” (such as DNA in the 70’s)
1. Other experts, such as those testifying on standard methodologies/nonscientific evidence are allowed to testify as long as testimony is not
ridiculous.
2. Non-scientific let in more easily in Frye States.
ii. Daubert has been extended to all experts.
1. If you are a P with an expert who is a little weird you are in worse shape
under Daubert than Frye (limited to novel scientific evidence).
2. Non-scientific analyzed under Daubert as well.
12. Applications of Scientific Methods
a. Get notes on Daubert II
b. Daubert and Remand: 3 sets of experts
i. (1) Chemists
1. Build molecular models of chemical structure and known birth defect and
conclude that structures are substantially similar so must have same effect
on body.
2. Experts excluded b/c no substantiation for the point that changing a
chemical structure a little has essentially same result.
ii. (2) Animal Studies v. Epidemiological Studies
1. Different concentrations b/c studies not done for litigation.
2. Inconsistent with human studies that do not show a statistically significant
connection between chemical and limb reduction.
3. Rule: If have human studies, cannot rely on animal studies to the
contrary; but animal studies can be used if there are no human studies
and they are reliably conducted.
60
4.
c.
d.
e.
Can use animal studies if no contradictory human studies. However, cannot
use animal studies if unreliably conducted.
5. Ex. Joiner: animal studies excluded b/c not reliably conducted.
6. Ex. Metabolife case. Animal studies allowed in b/c reliable and no human
studies that contrasted w/ result.
iii. (3) Result-Oriented Studies
1. Here, epidemiological study – meta-analysis (lower level of statistical
significance). Ct said not reliable b/c when looked at human studies being
retained as expert in this case…being paid by P to come up with a result so
inherent bias.
2. Rule: If doing general research (does X cause Y) in anticipation of
litigation, very negative factor in Daubert analysis. Should be done in a
lab.
3. Note: DNA testing sufficiently reliable under Daubert – if a forensic
expert testifies on basis of DNA ID.
List:
i. Analytical gaps
ii. Fit
iii. Alternative cause (specific causation)
iv. Differential diagnosis
v. Temporal Proximity- can be used in the case but cannot be dispositive
vi. Testing
1. If you have a theory, it must be a tested theory.
2. Comes up often in product liability cases where this product was unsafe
because it didn’t have this, could have had that ect. But if that’s merely a
theory, it cannot be relied upon. Must be tested
Analytical Gaps
i. The expert leaps to an unsupported conclusion where the studies do not support the
premise (big leaps prohibited).
ii. Expert must give some explanation (does not have to be perfect) for the connection
between research and conclusion.
iii. Ex. Daubert: Concluded that because chemical structures are similar/look the same,
they cause the same thing. Too much of a leap!
iv. Ex. Lust Clomid drug case; witness testifies that it caused P to have birth defect of
big head. Argument that studies showing it causes limb reduction means causes big
head bad – not true that if bad in this situation it is bad for all things. Expert’s
problem is that P doesn’t have limb reduction but rather a facial defect. Expert
concludes that drug can cause facial defect since we know that it causes birth
defects its bad enough to cause facial defects.
v. Ex. Kennedy: P takes collagen and contracts lupus. P wants to show cause and
effect. Studies show connection between collagen and other autoimmune disorders.
Not admitted b/c too much of a leap. But when witness says collagen induces body
to produce the same autoimmune antibodies that are the hallmark of lupus, court
allows it in.
Fit
i. Must be a relatively close fit between the testimony and facts of the case.
ii. Ex. P uses acne cream on occasion with chem. and contracts cancer. Studies show
connection with large amounts of use. Bad fit.
iii. Ex. Westberry: Dr. testifies that talc in the work place causes sinus problems. Even
though witness does not know exact/precise exposure, knows that P had a lot
exposure to talc (worked at a factory). Does the expert have to have that level of
extactitude? No. because expert knew there was a high level in the factory which
was enough. It’s fair for the except to say that a lot of talc causes sinus issues and P
was exposed to a lot of talc. Can base opinion on differential diagnosis and temporal
proximity.
iv. Ex. P claims disease caused by exposure to jet fuel. Expert testifies that exposure to
jet fuel causes her disease. But testimony doesn’t fit facts of case – P only breathed
jet fuel while walking near airport while most studies based on long-term, heavyduty exposure.
61
f.
g.
h.
i.
v. P sues ford for a product defect. She parked car down hill and put the gear in P. I
look back and the car was rolling down the hill and I got run over by my own car.
She calls an engineer who testifies that this model of ford has a product defect.
Temporal Proximity
i.
Alternative Causes
i. There must be a scientific connection between the cause and effect (cannot just rule
everything out and say there for this is it).
ii. Rule: Must rule out the OBVIOUS alternative causes – do not have to rule out every
possible alternative cause.
1. Ex. Three Mile Island: To prove radiation exposure in neighborhood, P
calls Chernobyl expert to testify. Takes soil samples from states w/o
nuclear power plants–less radiation. However didn’t show alternative
causes since soil in PA has a lot of radon (should have compared it to NJ,
which has soil with a lot of radon as well).
2. Ex. Expert testifies that lung cancer caused by asbestos; have to rule out
smoking as possible cause.
3. Ex. LV/DB case. Compared sales of LV in US and worldwide since DB is
US bag. Too many variables – other countries liked particular models,
economic factors, etc.
4. Ex. P works for landscaper and claims injury due to defoliant used on job.
P’s expert testifies that defoliant caused P’s spelling dyspraxia and
dyscalculia (bad at math). No good b/c witness did not consider alternative
causes of P’s problems (i.e. P is a natural idiot and D proves this with 4 th
grade report card).
5. Ex. P, an alcoholic, takes Tylenol. P diagnosed with liver damage. P’s
expert testifies that combo harmful (general causation). P’s MD says P’s
liver laced with biproducts of the combination—eliminates alternative
causes such as genetics, virus (specific causation). Courts receptive to such
an analysis.
iii. “Differential diagnosis”: Think of all of the possible causes and rule all of them out
one by one until you come up with the most likely cause.
1. Ex. Westberry: Does not know that sinus infection is caused by the talc.
However, there are common sources of sinus infections and P does not
have them/wasn’t exposed to those sources. Health gets better when not
exposed to talc.
2. LIMITThere are limits b/c some disorders are of unknown etiology.
a. Ex. Black: P hits her head in supermarket and gets fibromyalgia.
Since no one knows what causes fibromyalgia, cannot rule out
other causes of it to say that it was caused by fall.
Litigation Prep
i. Makes it less reliable if it was done in preparation for litigation.
ii. If the research was conducted in anticipation of litigation, inadmissible unless:
method was peer-reviewed or expert explains precisely how he got to the conclusion
and points to some objective sources.
iii. Two kinds of research: (1) General causation (does X cause Y); (2) Specific
causation (did this P get X from this drug)
1. General causation research must be done in the lab, not in anticipation of
litigation.
2. Should be generalized causation - expert should speak in general truths, not
about this particular P.
3. The factor cannot be used when dealing with specific causation (if expert is
testifying to the facts of the case at issue) since all testimony is in
anticipation of litigation.
Product Liability Cases – Design Expert Testing Requirement
i. P must show that a safer alternative design has been tested by a competitor or by the
gvt.
ii. Does not mean that P’s expert himself has to have tested the model – just show
someone has tested a model in a relatively comparable way (i.e. consumer product
safety group, another designer, etc).
62
j.
Evidence Cannot be Purely Anecdotal
i. After Daubert, need a sufficient quality and quantity of testing.
ii. Ex. Issue is whether asbestos causes larynx cancer. P’s expert testifies that P’s
disease came from asbestos. MD says treated 150 workers in plant and 4 had cancer
of larynx. Much higher than normal incidence of cancer of larynx in general
population, so expert concludes that asbestos causes larynx cancer. This is not a real
study b/c it is anecdotal and not scientifically relevant.
iv. Applying Daubert to Non-Scientific Experts
1. In general, the Daubert gate-keeping applies equally to scientific and non-scientific experts, but the
application of the Daubert factors will differ based on the type of the non-scientific expert.
2. Rule: Expert must use the same intellectual rigor to come to his conclusion as you’d expect him to use
outside of court.
3. 2000 Amendment to Rule 702
a. Meant to codify Daubert/Kumho Tire and provide a checklist for courts/lawyers to go
through in evaluating the admissibility of expert testimony.
b. 3 Requirements
i. Expert has sufficient basis/foundation (facts or data)
1. Must have enough information on which to make conclusions.
2. Ex. Expert proving underground connection between the P’s well-water
and a plant 10 miles away. Process with soil samples. 2 samples over 10
miles not enough.
3. Ex. Expert says went up to accident scene and figured out what happened.
Not enough if didn’t take measures and just eyeballed.
ii. Expert followed reliable methods/principles
1. Expert must describe how they came to their conclusion (methods).
iii. Expert reliably applied those methods to facts of case
1. Expert might use reliable methods, but must also apply them correctly.
2. Ex. Survey evidence in LV/DB case. Bad method to obtain purchasing
group – went to downscale mall and used videos where model was far
away.
c. Relevant Concerns
i. Objective testing of the expert’s methods
ii. Peer review
iii. Potential/known rate of error
iv. Careful standards/controls
v. Acceptance by other persons in the field
vi. Whether the methodology was developed especially for litigation (less reliable)
vii. Whether alternative explanations are adequately addressed and accounted for
viii. The debt of the expert’s knowledge/experience
ix. Whether the expert used the same care in developing an opinion as experts use
outside of court
4. Kumho Tire:
a. Facts: A proffered “tire expert” (engineer) used 4 factor test – claimed that through a visual
and tactile inspection of the tire in question, he could determine whether the tire’s failure was
caused by a manufacturing or design defect rather than consumer mistreatment. Problem was
that he just made it up and would never employ it outside of the courtroom.
b. Holding: Court held that the gatekeeping obligation applies to both scientific and also
technical and specialized knowledge and requires analysis using the Daubert factors
(mechanics, accountants, etc.). Must do the same things outside of litigation as they do in
anticipation of litigation (i.e. if mechanic would do steps 1-3 on a daily basis, can’t do 1 and
3 and skip 2 and then be called as an expert to testify on those results).
i. Daubert gate-keeping function applies, but do not apply Daubert factors in the same
way.
c. Flexible Inquiry: not all Daubert factors necessarily apply, but the TCJ acts as the gatekeeper
to make sure the evidence is reliable. The flexible inquiry is based on what you expect from
a professional (i.e. what would other professionals have done).
d. Methodology Can’t Be Entirely Subjective (as was the case in Kumho) - the expert must be
able to explain their methodology to the court.
e. Rationale: If you didn’t apply Daubert to non-scientific experts, their testimony would be
subject to lower scrutiny for reliability. Don’t want to create two standards (otherwise,
63
everyone would be trying to use non-scientific experts to avoid the gate-keeper inquiry). [end
class 2/18/2014]
5. Experience-Based Expert Testimony
a. Rule: Testimony based solely on experience is okay as long as the expert explains how they
did what they did/explain their process as much as possible, i.e. how their experience leads
them to a conclusion.
b. Must evaluate:
i. How experience leads to conclusion reached
ii. Why experience is a sufficient basis for opinion, and
iii. How experience is reliably applied to facts.
c. Ex. Wine expert in a theft case cannot just swig a bottle and say this is the expensive wine
and I know based on my experience.
d. Ex. If its “I just can tell” that is not sufficient.
e. Ex. Handwriting expert okay with experience, training, and explained methods.
6. Ballistics/Fingerprints
a. Both NON-SCIENTIFIC…
b. General Rule: If they use the standard practices of the field, and explain their methodology,
they will be permitted to testify. But courts are now saying that they can't testify to a
reasonable degree of scientific certainty.
c. Ballistics – Have a bullet and trying to determine if shot from a particular gun. Compare
ridges with bullet found at scene.
i. Idea is that each gun puts different impressions on the bullet.
ii. It is rather subjective.
iii. Under Daubert, ballistics experts have to explain their technique. If go through
proper steps that ballistics specialists usually go through, that expert can testify that
“the bullet more likely than not came from that gun.”
d. Fingerprints – It is generally accepted in the field of fingerprint people that it is a reliable
means of coming to a conclusion.
i. No scientific studies done to show how many points of comparison equals a match.
ii. Ex. Baines: D said ID process problematic b/c comparing D’s fingerprint to a
smudged/partial fingerprint.
7. “Expert Lay Witnesses”: when a lay witness testifies “in the expert realm” on the basis of their own
personal knowledge.
a. Daubert and Kumho don’t apply to expert lay witnesses, but witnesses cannot masquerade as
laymen while trying to give what is essentially expert testimony without being subject to
Daubert.
b. Why Call Someone as A Lay Witness When Testifying on Technical Matters?
i. Get around Daubert test
ii. Get around disclosure requirements in criminal and civil trials
iii. Hide the ball, especially in criminal trials - don’t let adversary know what’s up
iv. 701 amendment solved this!
8. Effect of Daubert on Cases
a. Criminal Cases: prosecutors are very successful at getting scientific evidence in for criminal
cases. DNA is the best example of evidence accepted post-Daubert
b. Civil Cases: Plaintiffs have trouble getting scientific evidence in under Daubert. P’s have
problems getting in evidence of causation.
c. Procedure and Structure: Daubert is not in the constitution and does not apply to the states.
NY and CA are Frye states.
vii. Reliability: Probability and Statistics
1. Admissibility - Foundation
a. If probability evidence is to be introduced at all, a proper foundation must be laid.
b. The expert must establish that the statistical method has been applied in a scientific/reliable
way.
c. The statistical analysis could be reliable but must be tempered because problem if done in
artificial way or did not take into account confounding factors.
d. Solid evidence of the numerator and denominator used to compute the probabilities must be
presented to the jury. Key is that probability and statistics cannot substitute for the role of the
jury.
2. Probability Theory: This rule involves assessing the separate probability (expressed as a fraction) of
the occurrence of each of a number of independent events (or conditions) and then, b/c these events
64
3.
alleged concurred, multiplying these individual probabilities. The product of these two or more
probabilities represents the probability of the joint occurrence of these separate events/conditions.
a. Find out how often something occurs, then find independent factor that occurs at same time,
multiply for likelihood of those factors occurring together. (likelihood of occurrence x
convergence = unlikelihood of occurrence).
b. Probability evidence is looked at under Daubert  must be reliable and probative.
c. Requirements:
i. Need empirical factors
ii. Factors must be independent.
d. Ex. D charged w/ stealing race track ticket. D had ticket with same bets and said coincidence.
Expert wanted to show small chance coincidence. Did not take account of confounding
factors, such as whether people bet on favorites, long-shots, etc. Ct excluded figure but
allowed expert to testify that it was very unlikely they would have the exact same bets.
e. Ex. Title 7 action brought against a corp promoting women. P calls statistician to show
minimal likelihood of picking all men out of a hopper of total employees (took into account
that more men than women). CEO said pick randomly (promote blindly). Called statistician
who said pulling all men out of hopper is unlikely—that is controlled. Admissible.
f. Ex. Collins: D and wife were charged with robbery. There were no complete eyewitness IDs
of D or wife. The prosecution produced evidence of 6 facts about the perpetrators: (1) had a
yellow car; (2) man had mustache; (3) girl had ponytail; (4) girl had blond hair; (5) man was
black with a beard; (6) robbers were an interracial couple in a car. The prosecution called a
math professor who was introduced to assume certain probabilities for each of these events
(e.g. 1/10 for yellow car, 1/4 for man with mustache, etc.). He then testified that the
probability that any given couple would possess these 6 factors by chance could be computed
using the product rule (each probability multiplied by the next). Applying this rule, the
professor concluded that there was only 1 in 12M chance that any given couple would
possess these 6 factors. P then argued to the jury that the individual probabilities assigned
were “conservative” and the chance of any other couple other than D and wife having these
same characteristics was probably more like 1 in a billion. Court reversed, holding that there
was:
i. No basis for individual probabilities: No evidence on the record relating to any of
the 6 individual probability factors (e.g. evidence that 1 in 10 autos is yellow).
ii. No showing that the factors were independent of each other (a requirement of the
product rule of computing probability). For instance, once a man is assumed to
have a mustache, the chance that he would also have a beard is much higher than if
he does not have a mustache and therefore much higher than the % the prosecution
used
iii. The jury would be tempted to accord disproportionate weight to the resulting figure
instead of sticking to the ultimate issue of whether couple is guilty. Don’t want to
lead the jury astray into mathematical and automatic decision making.
iv. Probability evidence falls apart if the underlying assumptions are wrong (i.e. bad
IDs)
v. Probability only determines the chance that another couple did it and not whether D
is guilty of the crime charged.
g. Ex. Ps suing on fire policy. Ins co calls expert, who testifies to the small probability this was
an accident after 3 prior fires. Too many confounding factors, like locations, kind of house,
etc.
h. Ex. D argues GJ not representative of community b/c underrepresented Hispanics. Expert
says 1/8 Hispanic on GJ but 1/3 Hispanic population in community. Wrong pool – have to
compare with Hispanics eligible to serve, since need to be a citizen to be on GJ (closer to
1/8).
Use of Probability Evidence Alone
a. Rule: Courts will not usually use probability evidence or statistics alone to determine
liability.
i. It is probative, but not dispositive – reliable, but not sufficient
ii. Ex. Smith v. RT (Blue Bus): P is negligently knocked down by a blue bus. P is
unable to directly identify the bus as belonging to D, one of two local bus
companies. P can establish only that D owns 85 of 100 blue buses operated in the
town. Court found that the evidence was not sufficient to prove liability even
though the burden of proof is preponderance of the evidence. Imposing 100%
65
liability where the bus company has 85% market share would punish based on
market share.
b. Negative Inference: When probability evidence is the only evidence, you can infer that either
P did not find any other evidence or that P is going after a deep pocket (even if they have
evidence that someone else did it).
i. Jury would conclude that perpetrator was not RP b/c P didn’t introduce evidence
besides statistics about market share to prove that it was RP (i.e. paint on the side of
P’s car, etc).
c. Social Policy: Even though RP owns a lot of busses, doesn’t necessarily mean it was them.
Then everyone would sue them—just because a company does well doesn’t mean they
should have to insure everyone.
d. Exceptions: DES case.
4. Market Share Liability
a. If defendants do not meet their burden, they must pay the % of the market share that they
represent. Statistics used to determine liability and amount of damages—defendant is liable
for the % of the market he controls.
b. Ex. DES case: P is trying to show that DES causes cancer through statistics/epidemiological
studies. Experts found that it was 100% probable that DES caused a unique form of cancer
(only DES-exposed Ps ever got cancer). Stats here are diff than in Rapid Transit b/c of the
100% probability.
i. Impossible burden to prove which manufacturer of the pill hurt them b/c each
manufacturer did something wrong.
c. Requirements:
i. There must be a defined market.
ii. There can’t be other sources of contamination.
iii. Must be unable to determine whose product caused the harm.
iv. Generally, large time lapse.
v. Goods must be fungible
d. Note: Smith was an improper application of market share
i. Did probabilities of bus schedules, said it was 60% likelihood bus which sideswiped
her was a rapid transit bus,
ii. Would be strict liability for this company! Would encourage others to be more
reckless since RT would get liability for every accident.
iii. Recall: Posner says negative inferences CAN be drawn from failing to present the
evidence that would ordinarily be there
1. Ex: not admitting DNA evidence when you have it
2. Here- likely pursuing Rapid bc they have no more evidence, or they know
it was a diff co but Rapid has deeper pockets
viii. Kind of Information Experts Can Rely UponRule 703
1. Rule 703: Bases of Opinion Testimony by Experts
a. The facts or data in the particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the efxpert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence in order for the opinion
or inference to be admitted. Facts or data that are otherwise inadmissible shall not be
disclosed to the jury by the proponent of the opinion or inference unless the court determines
that their probative value in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.
2. Standard: Would other experts in the field reasonably rely on this information?
a. Permissive rule—experts can draw conclusions without personal knowledge of the accuracy
of such information (although lay witnesses do need personal knowledge).
b. An expert’s opinion may be based on:
i. First hand knowledge
ii. Facts that are revealed during trial/hearing
iii. “Out-of-court” facts of the sort used by professionals in the expert’s field
1. Want experts to act in court how they act in real life.
2. Make sure the data on which the expert bases her opinion or inference is of
a type reasonably relied on by experts in forming opinions or inferences on
the particular subject.
iv. Hypothetical questions
66
1.
An expert W can base an opinion on data transmitted t her by means of a
hypothetical question drawn from the evidence adduced at trial.
c. Rationale: This is what they do in non-litigation contexts, so they should be allowed to do it
at trial.
3. Regulatory Function: if OTHER EXPERTS in the field would NOT rely on the information to form
an opinion or to make inferences, the expert witness CANNOT rely on such information for his
testimony.
a. When would 703 bar testimony? Rare b/c experts usually rely on information other experts
rely upon.
b. Ex. Paoli: P’s witness called to testify to symptoms of railroad workers who used PCB to
clean off the tracks and that they were caused by exposure. However, the doctor did not
personally examine the Ps, choosing instead to ask them what symptoms they were suffering
via questionnaire (checklist). But no doctor would ordinarily use such a technique in
anticipation of litigation in normal practice so inadmissible.
4. 2000 Amendment to Rule 703 (Reverse 403 Test for Inadmissible Information): Provides that
where inadmissible evidence, such as hearsay, is offered to explain the basis of an expert’s opinion,
this info cannot be disclosed to the jury UNLESS its probative value in explaining the expert’s
opinion substantially outweighs the risk of prejudice to the opponent.
a. Tilts in favor of EXCLUSION.
b. Expert can rely on inadmissible information for his testimony, but it cannot be
admitted/disclosed to jury unless meets reverse 403 test satisfied (probative value
substantially outweighs prejudice).
c. Factual materials that are not admissible may still underlie the expert’s inferences and
opinions, provided these materials are “of a type reasonably relied upon” by other experts in
the field.
d. Limiting instruction – if inadmissible information is disclosed to the jury for the purposes of
explaining the basis of the expert’s opinion, then the court should instruct the jury that it is
not to use the information as substantive evidence.
e. Conduit problem – expert is testifying, but being used as a conduit for something the party
could not admit.
5. Case examples
a. Ex. Metz: Dr who wasn’t at a surgery looked at medical reports/records of P-this is OK—
what Dr’s reasonably rely upon.
b. Ex. Leeson: Psychiatrist makes determination that D was not insane, basing opinion of
interviews with the D and people at jail–Ct says psychiatrists often rely on people who know
the patient so it lets evidence in.
c. Ex. Ford mechanic taking off door and window shatters. Alleges should have been better
instructions. Calls safety expert who testifies that instructions were insufficient, relying on
subsequent manual issued by Ford. Manual not admissible b/c subsequent remedial measure
but expert can testify and rely on the manual since this is what safety experts would do.
d. Ex. Alfa: Alfa corp sued Alfa bank for infringement. Alfa bank said Russian translation. Alfa
corp calls expert to testify that translation is Alpha, relying on Russian manuals and
Wikipedia. Court says okay if Wikipedia wasn’t the only source since other experts partly
rely on Wikipedia.
e. Ex. Holyland: Foundation charged with giving financial assistance to terrorist groups. Expert
on Muslim terrorist organizations testifies. D challenges basis of information b/c admits that
some info came from operatives in organizations (coerced). Capra thinks this is reliable but
court said NO b/c assumed it was procured by torture (Capra- how do you know? Difficult
for govt to prove which were/were not procured by torture).
ix. Qualifications of Experts
1. Rule 702 requires a witness qualified as an expert by knowledge, skill, experience, training, or
education.
a. Although 702 requires that experts be qualified, the standard are not high.
b. Only shockingly unqualified experts are excluded.
c. Qualification usually goes to weight of testimony, but not admissibility.
d. Rationale for why standards are low—counsel can question expert on qualification.
e. Note: Even qualified experts need to use reliable methods.
2. Testimony-Dependent
a. The type of qualifications required by expert witnesses is dependent on what they are
testifying to. Some testimony would require that W had formal training (i.e. need to be an
67
MD to read an x-ray), while others would require experience (i.e. don’t need a PhD to testify
to the fact that drug dealers act in certain ways, just experience with drug dealers).
b. Test: Reasonableness of expert’s qualifications in light of her testimony.
c. Liberal standard: Once you have the right kind of expert for the particular type of testimony
given, the standards are liberal as to qualifying the expert (as long as it is helpful to jury).
d. Ex. Berry v. Detroit: P’s son was shot by a Detroit police officer. Expert witness testified to
failure of PD to properly train police for urban police department. Expert was a “sociologist
cum sheriff” without formal training as a sheriff who testified as to manners of police
practices and procedures. Court held that the expert did not meet the qualification
requirements of Rule 702 because (i) he never worked in an urban PD, (ii) he never served in
a management or training role on the PD and (iii) no academic PD training (a close call)
e. Ex. Kline: at voire dire, P’s expert witness held not qualified to testify in a bank price
discrimination case because he (i) never worked for a bank; (ii) never worked in regulatory
banking capacity, and (iii) never worked for a company that provided hired guns as
witnesses.
3. Experts Can Be Qualified in One Field and Not In Others:
a. Testifying outside area of expertise not typically allowed.
i. Experts are expensive, so there is a tendency for P’s to call one expert for the entire
case.
ii. Problematic if expert is only qualified for one part of the case.
b. Ex. P was injured using a sander when the wheel flew off. A design engineer testifies as an
expert that the design is defective and the warning label was inadequate (P’s will try to have
experts make the whole case). D objects on the ground that the expert is testifying beyond
his qualifications when he gives testimony about warning labels; D argues need an expert in
warning labels to give such testimony.
c. Ex. Meridia weight loss drug case; P calls pharmacologist, who is allowed to testify that it
elevates blood pressure. However, cannot testify that it affects heart health in a particular
way b/c not a doctor. Cant testify to the cost benefit analysis. Qualifications.
4. Experience Can Be Sufficient
a. Ex. Sacher: Held that a former Miami police chief could testify that motorcycle crash guards
are effective in reducing injuries. While EW had no scientific or engineering expertise in
motorcycle design, he was on police motor squad for 9 years and investigated hundreds of
motorcycle accidents.
5. Captive Industry of Experts
a. Ex. Two old people go to the baggage claim at LAX and are trampled. P calls a design
engineer who testifies that the area is unsafe for its use because of defective design. On
cross, D asks him if he ever designed a baggage claim area; he said that while he never
worked on a baggage area, he has designed other public spaces. Since the field of baggage
area design is so small (virtually all members of the profession work under the D’s payroll),
Ps must be afforded some flexibility with finding expert witnesses.
x. Proper Subject Matter
1. Issue: Proper subject matter v. something lay jurors can figure out on their own
2. Rule: Generally speaking, would lay jurors be assisted by hearing the information b/c they don’t have
that particular information/knowledge? If so, expert testimony is admissible.
a. Under 702, a qualified expert may give opinion testimony if the expert’s specialized
knowledge will help the jury understand the evidence or decide a fact in issue.
b. Opinions that are phrased in terms of inadequately phrased legal criteria or that merely tell
the jury what result to reach are not deemed helpful to the jury.
c. If the expert is necessary to P’s case (i.e. the jury cannot figure it out for themselves without
assistance), the testimony will be admitted.
d. As long as some of the jurors will be assisted, the evidence gets in. Based on the hypothetical
“reasonable juror.” If information is not within common knowledge of te jury, expert
testimony is admissible.
3. Drugs (code language)
a. Ex. Gvt calls expert on drug conspiracies to testify that the conversation recorded is not
about decks/chimneys, it is about drugs. Does jury need assistance on that? Yes b/c jurors are
not supposed to know drug code.
b. Ex. Expert translating a drug conversation – guy says “hit me when you have a quarter.”
Expert says it says beep me when you have the $2,500. Then “tonight is the night.” Expert
68
4.
5.
6.
7.
8.
9.
says tonight is the night of drug transaction. Do not need expert for the second sentence, but
use him for the first.
Economic Value
a. Ex. A housewife is killed and claim is for wrongful death. P (husband) wants to call
economist to testify to value of a housewife’s services (makes bed is $10, etc). Does expert
assist the jury? Court said yes this could assist the jury.
‘Human Factors’
a. Ex. Scott: Woman has high heels and walks around grate and fell. Wants to call “human
factors expert” (how humans relate to their environment). Wants to testify women who wear
high heels walk around sidewalk grates not over them. Do not need this to assist the jury.
i. Also wants to testify that when you see something yellow it turns 3D to 2D (flattens
out perception) – that is relevant b/c saying I thought it was flat but it was not. That
clearly assists the jury.
Identification in Lineup
a. Almost always EXCLUDED
b. Capra thinks this is wrong—needed b/c jurors persuaded by ID evidence and don’t know
how problematic it really is.
c. When a W testifies to reliability issues in line-up identification, i.e. expert explain racial
bias in identifications, etc.
d. Ex. Expert wants to testify lineup IDs are unreliable (i.e. cross-racial IDs unreliable b/c white
ppl think all blacks look alike, focus on weapon, etc).
e. Courts have said this is something jurors understand so this is not helpful.
f. However, if it is allowed has to fit the facts of the case (if race isn’t an issue cant bring up
cross-racial problems with IDs).
Memory Loss
a. Ex. Libby: Defense was that I forgot I got information from a particular person. Wants to call
a memory expert who wants to bring up thirteen phenomena/symptoms of memory loss, such
as transferred facts (hearing about two ppl going on trips and mix them up a yr later) and
jumbled dates (cant remember sequencing). When the scandal came out, the person was
obviously lying. Ct said this is not helpful b/c we all know ppl forget stuff so excluded expert
testimony on memory loss.
b. Might be allowed if it is a case where the person had actual memory loss.
If standard involves average person, no experts needed
a. Ex. LV/DB case. Standard is whether consumers would be confused about the mark. LV
wants to call a color expert who has broken down the DB and LV mark– determined made
up of same color in same proportions. Does that expert assist the jury? No…jurors can
determine color and the goal is to determine whether the “average person” would be
confused so don’t need scientific evidence. Therefore excluded.
b. Note: surveys are helpful to a jury to determine opinion of “average person,” but scientific
experts are not.
Harmful v. Harmless Error
a. If expert is telling jury something they already know (i.e. it is unsafe to have person outside
during hurricane carrying 75lb box on deck) and allowed to testify anyway, then what?
b. Have to distinguish experts who aren’t challenging any testimony (not hurting) from those
who are.
c. Credibility Experts – cannot tell jury which W to believe
i. In some cases, expert might be telling jury something subject to a credibility dispute
between the parties.
ii. Appellate judge is allowed to reverse and say that trial judge erred.
iii. “Credibility experts” are NOT permitted – jurors assess the credibility of
witnesses!!!
iv. Ex. Ninely: 1983 action in which P’s son shot by POs when trying to arrest him.
Officers testify that they shot him but when they did, he was turning toward them w/
what appeared to be a gun. Problem w/ forensic evidence b/c 3 bullets in back.
Officers call a pathologist who says that officer had optical illusion in heat of
moment–thought victim was turning but that was not the case. On cross, P will say
to expert that officers might be lying! Expert says in my opinion, they are not lying
(saying to believe officers). Ct said error in admitting testimony – this expert was a
credibility expert who even said in my opinion they are not lying so believe them,
69
even though evidence indicates they are lying. Officers said harmless error – court
said not true b/c testimony of credibility experts harmful to jury.
v. Ex. In Libby, expert was really saying I do not think he is lying, you should believe
him that he doesn’t remember anything. Basically determining which version of the
facts is true. That was harmful.
xi. Ultimate Issue Testimony (Criminal Cases)
1. Class notes:
704 says that experts are not exlucded simply beause they give ultimate issue
testimony
2. 704(a): Except as provided in subdivision (b), testimony in the form of an opinion/inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.
a. My Class note: An opinion is not excluded simply because it contains a statement about the
ultimate issue. If that’s all it contains it wont be admissible but if its helpful and has an
ultimate conclusion then it can be admissible
b. Expert wants to testify that an operation was properly conducted or that it was a reasonable
search and seizure. This is usually something jury decides…Is it barred?
c. Experts are NOT AUTOMATICALLY PRECLUDED from giving ultimate issue testimony,
whereas lay witnesses are.
d. Test: Whether or not the testimony on the ultimate issue is helpful to the jury. Expert must
lay a proper foundation for his conclusion.
e. Rationale: Testimony as to ultimate issues can be helpful to the jury when added to the other
explanations the jury gets from the expert.
i. Sometimes expert will be on the stand for hours for very technical/scientific stuff. If
they were just to leave w/o giving answer, jury might not know what to make of it
all.
ii. Ex. Buchanan: D was charged w/ possessing unlicensed firearm (potato launcher).
Was it a firearm (which would mean he needs a license)? Expert from ATF agency
broke down the relation through the component parts and after 6 hours of testimony,
expert asked if it was his conclusion that it was a firearm. Cannot say yes or no but
his testimony was helpful to the jury. On basis of factors, is it a firearm in your
opinion? Jury needs ultimate conclusion.
f. Limit: Cannot be ultimate issue opinions based on all the testimony given without an
explanation of why this is your opinion.
i. Ex. Witness testified that photos found in D’s home “met the statutory definition of
child porn.” That is something the jury is supposed to decide and expert gives no
indication of why that is so.
ii. Ex. D charged with securities fraud. P’s expert witness says D committed securities
fraud but does not lay fproper foundation–says there is securities fraud wherever the
securities is fraudulent. Not helpful to jury.
3. 704(b): No expert witness testifying with respect to the mental state or condition of a defendant in a
criminal case may state an opinion or inference as to whether the defendant did or did not have the
requisite mental state or condition constituting an element of the crime charged or of a defense
thereto. Such ultimate issues are matters for the trier of fact alone.
a. Hinkley case led to this amendment. Experts said he did/did not have requisite mental state
and jury decided based on which expert they liked better.
b. Rule: An expert cannot in a CRIMINAL CASE testify that D did or did not have mental state
requisite/necessary to commit the crime charged or defense.
i. Ex. Expert cannot say D is crazy and therefore unable to commit intentional murder.
1. However, does not say you cannot testify as to mental state.
c. Capra says bad rule  harmful b/c excludes helpful testimony. Superfluous or excludes
helpful testimony.
i. Ex. West: D charged with bank robbery and his defense is insanity. Psychiatrist for
gvt interviews him – two conclusions: (1) schizoid disorder, (2) on day of robbery
disorder didn’t affect him. Under 704(b), expert cannot testify to #2. So who calls
expert? D does…says you checked out my client and what was your conclusion
about his mental problem? Expert says yes he is schizoid. Gvt will ask did it affect
him on day of crime and D will say can’t ask that b/c of 704(b). Judge says not
going to allow jury to hear he has disorder but not that it didn’t affect him on day of
crime. Judge allows that in, but conviction reversed since 704(b) prohibits second
aspect of testimony. Not fair but that is the rule.
70
d.
Cannot use THINLY VEILED HYPOS to get around 704(b)
i. Cannot call expert to say this D had necessary mental state to commit crime–cannot
tie it to specific person on specific day.
ii. Prosecutors often use hypotheticals so that they do not refer directly to the D.
1. General – do psychotics do X (OK)
a. Ex. “people with this condition,” “in this situation,” “usually.”
The trick is not to say Ds name
b. Ex. In West, prosecutor could say “would a schizoid disorder
affect person in all circs or might it come and go?” Then
prosecutor says “suppose hypothetical person went to a bank, then
hypothetical person drew a gun…etc.” that's ok.
2. Specific – did this psychotic do X (Prohibited)
iii. Many cases of possession with intent to distribute.
1. Ex. D found with pure heroine on him. Says those were for my own use I
had no intent to distribute them. Defense is possession. Gvt calls expert in
drug trade who is asked “would a hypothetical person who was using
possess this level of pure heroine w/o intent?” expert says “no that is the
kind of thing a distributor would do.” Can do that b/c it is a work-around.
71
VI.
Hearsay Overview
a. Flow Chart
Step 1: Does it fit the definition of hearsay?
[801 a-c]
No = not hearsay and cannot be excluded on basis of hearsay.
Yes = go to step 2.
Step 2: Are there any exceptions that apply?
[801(d), 803, 804, 807]
Yes = admissible. If criminal case, go to step 3.
No = excluded.
Step 3 (criminal cases): Where hearsay is offered against accused, is there3 a Confrontation Clause Problem?
Is it testimonial (involves law enforcement/litigation prep)?
Yes = excluded.
No = admitted.
Step 4: Is the evidence excluded under another rule? (403, 404, etc)
b. Policy
i. Goal: To exclude unreliable evidence/testimony. Jurors will not understand the potential unreliability of
hearsay statements. Rule protects against improper decisions by jurors.
ii. Presumption of unreliability
VII.
1. When you want to prove anything, one way is by a person’s statement about it.
2. Some statements that are made are presumptively unreliable.
3. However, there are exceptions.
iii. Testimonial infirmities: Why would someone’s statement be unreliable?
1. (1) Insincerity: person is trying to lie
2. (2) Ambiguity/Imprecision: English has a lot of vagaries in it/things could be understood in two
ways/context is important
a. Ex. “I really killed/murdered him tonight” – diff if said by comedian v. criminal in police
station
b. Ex. Case in England. Two guys on top of jewelry store they robbed. Police stops them and
says put gun down and give it to me. Other guy without gun says “let him have it.” Could
mean let him have gun or shoot him.
3. (3) Misperception: distracted so don’t see it, you don’t have glasses on, it is foggy or far away, etc.
4. (4) Memory Loss: statement not about a contemporaneous event so chances of accuracy diminish
over time.
iv. If statement is made in court (instead of outside court – hearsay), these infirmities can be regulated by:
1. (1) cross-examination
2. (2) witness under oath
3. (3) fact finder can look at witness while he/she is making statement and assess whether person is
lying/look at demeanor
v. Crux of Hearsay Problem
1. Declarant tells a person (Witness) that he/she perceived something. W then comes into court and
testifies as to what he/she was told by the declarant.
2. Having someone repeat another person’s out-of-court statement is a bad way for the jury to determine
the truth about the statement’s content. Getting information from an intermediary is less reliable than
getting it form the declarant because the declarant cannot be cross examined, is not under oath, and
the jury cannot observe the declarant’s demeanor.
vi. Where did rule come from?
1. Raligh trial: Guy said “I heard from someone that R&C have a plot to kill the king.” Did you hear
them say it? No I heard from someone else. This person testifying on stand. But cant assess any
infirmities b/c he had now knowledge about truth. Can determine if accurately heard but not whether
underlying statement is true b/c relying on credibility of someone outside of court.
a. Statement made by “declarant” out of court. Guy on stand is the “witness.”
vii. Rule applies in trials (even bench trials) only
1. But applied more flexibly in bench trial
2. Hearsay doesn’t apply in sentencing proceedings, suppression hearings, etc.
a. It is a judge, not a jury – can understand which hearsay is unreliable/reliable
b. These hearings more flexible than formal fact-finding
Hearsay: Step 1, determining whether evidence is subject to exclusion
72
a. Hearsay defined
i. Rule 801: Definitions
1.
(a) Statement. A "statement" is (1) an oral OR written assertion, or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion/to substitute for words (such as nodding her head
or using hand signals).
2. (b) Declarant. A "declarant" is a person who makes a statement.
3. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.
a. Out of court statement – not made from the witness stand.
b. “Offered” – This is a purpose driven rule, so must figure out what the statement is offered
for.
4. Example: Ask corey for notes Brown tax IRS case
a. Gov’t tried to do is to hide a hearsay problem and get the witness to testify about what seems
to be facts. He asked what were your actual tax deductions. A hearsay problem can exist
even without a direct oral communication. It can exist by way of conduct. The statement is
this: when they produced the shoe box this is all of the charitable deductions and there aren’t
anymore.
ii. Rule 802: Hearsay Exclusion Rule
1. “Hearsay is not admissible except as provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.”
2. Rule: Hearsay rule applies where the probative value of a W’s in-court testimony is dependent on the
truth of an out-of-court statement upon which the W relies.
3. Rationale: If a statement is asserted to prove the truth of the matter, the cross-examiner who is
confronted with adverse hearsay evidence is denied the opportunity to cross-examine the “real”
witness and to expose weaknesses to his statement. However, if the statement is not offered for its
truth, the only question for the trier of fact is whether the declarant in fact made the statement. A
cross-examiner can make an effective cross b/c he can ask questions of the witness that are designed
to show that the witness is mistaken or lying about the declarant’s statement.
4. Dangers of Hearsay Testimony
a. Defects of Perception – the declarant’s statements may be unreliable because he did not
observe or hear accurately.
b. Defects in Memory – the declarant’ statements may be unreliable b/c his memory may have
been weak, inaccurate or incomplete.
c. Defects in Sincerity – the declarant’s statements may be unreliable b/c he purposefully gave
a biased, incomplete, or false account.
d. Defects in Narration/Transmission – the declarant’s statements may be unreliable b/c his
language was ambiguous, or b/c he inadvertently left out an important word or phrase, or
because he used a word or phrase that is peculiar to his culture or social group.
i. Ex. two men on roof with gun pointed at cop; cop says drop weapons; one man says
to the other, “let him have it”; does that mean shoot him or give him the gun?
e. Defects of Reliability – statement not made in court so no testimonial protections-no way to
test the credibility of the declarant (who is not offering the statement in court).
iii. Offered for Truth Of the Matter Asserted
1. The hearsay rule is designed to exclude statements that are not reliable when offered to prove that
what a person said was true.
2. To constitute hearsay, the repeated statement must be offered for the purpose of proving that what the
declarant said is true.
3. Classic situation: a witness testifies that someone else (declarant) made a statement about an event
that is in dispute at trial. The witness relates the statement, but cannot verify that what the declarant
said was true. If the statement is offered to prove that what the declarant said was true, then there is no
way to verify it for accuracy because the declarant is not at trial, speaking under oath, or subject to
cross.
4. Ex. P sues for fraud when discovers odometer turned back. D called investigator who said odometer
turned back–relies on documents in order to testify. Inadmissible b/c witness based conclusion on the
assumption that these documents were true.
iv. Not Offered for Truth = Not Hearsay
1. Rule: If statement offered for a purpose besides for the truth of the statement itself, it is not hearsay.
a. When an out-of-court statement is relevant w/o regard to whether it conveys accurate
information.
73
b.
2.
3.
4.
5.
Ex. Person killed in car ax and action brought on their behalf for pain and suffering between
time of ax and death. If death instantaneous, no pain and suffering. Dispute in case whether
instantaneous or not. P calls a witness who was at the scene. Testifies: “I saw ax…ran to the
car…and saw the P in car…heard her say I am alive.” Doesn’t matter what she says b/c
trying to prove that she said something since only alive ppl can speak. Not hearsay b/c no
reason to be concerned about her credibility. What about fact witness may misheard or is
lying? That is an in-court problem for jury to determine.
Limiting Instruction: If the trial judge decides to admit the evidence for a non-hearsay purpose, the
opponent is entitled to have the judge instruct the jury members that they can consider evidence only
for its proper use and not for its forbidden hearsay use.
Wicks- search for meth and obtain a writing recipe for how to make meth. They want to introduce that
statement. It is an out of court statement. D objects. Is it offered for its truth?
Verbal Acts (magic words/words of independent legal significance)
a. Rule: A statement may be, by itself, an operative fact which gives rise to legal consequences.
Such statement, usually called a “verbal act,” is not offered for the truth of the matter
asserted but rather for the existence of the statement itself.
i. All that needs to be proven is that the words were said. Doesn’t matter if they were
true or not or what the declarant was thinking.
ii. Under certain statutes, what matters is what the person was projecting (they can
explain what they were thinking in court if that is an issue).
b. Significance: Words spoken to create agency relationships, promissory notes, K’s, wills,
leases, and assignments are all non-hearsay when offered to show the existence of the legal
relationship.
c. Oral K’sEx. Crengue: D says “I will sell you my house for $250,000” and P says “I
accept.” D refuses to perform and P sues for breach of oral K. Issue is whether the K existed.
Want to introduce statement from declarant: “I will sell you my house for $250,000.” If P
testifies that D spoke the words of the offer, this is not hearsay b/c the words of the offer had
independent legal effect regardless of whether or not the offer was true.
d. Ex. “I am guaranteeing that loan.”
e. Ex. To prove 2 ppl were married. Witness testifies that at church they both said I do. “I do” is
part of legal aspect of getting married.
f. Ex. In a defamation suit, the P must prove that the D said something defamatory about the P,
but when the P has someone testify about the D’s out of court statement, the P is not seeking
to have the jury believe that the statement was accurate. P just wants to prove the words were
said, not that the words were true.
g. Ex. Question “Would you like to have sex w/ me for money” is an act of solicitation of
crime. The mere fact the statement was made is relevant to the charge even if the statements
were untrue (even if the women would not have performed sex for money).
h. Ex. A declarant runs into an opera house and yells, “fire, fire-there’s a fire in the basement.”
Later he is prosecuted for giving a false alarm. These words were a verbal act b/c they
constituted an offense (giving a false alarm to the public). Not offered by the gvt to prove
there was actually a fire, just to prove the D said something that alarmed the public.
i. Ex. D says to P, “You’re a no good thief who’d sell his mother for a dollar.” P sues for
slander, and testifies that D spoke these words. The speaking of the words was a “verbal act”
which has legal effect (since it constitutes slander), regardless of the truth of the words
spoken.
j. Ex. An issue at trial is whether Smith illegally impersonated a US ambassador named Bruce.
W testifies that when Smith met a rep of the INS, Smith said, “I am ambassador Bruce.” The
words of impersonation constitute the offense.
k. Ex. An issue at trial is whether B, a bank, guaranteed to pay Hospital’s bills for medical
supplies. W testifies that B’s VP said to supplier, “Go ahead and ship the supplies to the
Hospital. We guarantee payment.” The VPs words created Bank’s obligation to cover
Hospital’s bill.
l. Ex. T, a teller in the bank, is called to testify that a man he identifies as the D, said to him,
“Give me the money or I’ll blow your brains out.” Offered by the prosecution to prove that D
is guilty of bank robbery. Admissible b/c nonhearsay-it is a verbal act. Not offered to prove
he was actually going to blow his brains out.
Effect on Listener/State of Mind
a. Rule: A statement is NOT hearsay when the purpose of admitting it is to show the probable
effect of the statement on the state of mind of another person who heard (or read) it.
74
b.
c.
d.
e.
f.
g.
i. You said something to this person and we are offering it for its effect on that person
instead of for the underlying truth of what was said.
ii. ***This principle applies where the out-of-court declaration is offered to show that
the listener (or reader) was put on notice, had certain knowledge, had a certain
emotion, behaved reasonably or unreasonably, etc.
iii. Look to what the person is offering it for—if offering it to show intent, not hearsay.
Evidence of a statement made to a person, or within his hearing, may be offered to show his
state of mind in the sense that he had NOTICE, KNOWLEDGE, MOTIVE, GOOD FAITH,
DURESS, PROBABLE CAUSE, etc. or that he had acquired information that had a bearing
on his subsequent conduct.
ProvocationEx. McClure: D on trial for killing spouse. D wants to testify a friend came up
to him before and told him wife was sleeping with other ppl. If offered for fact that she was
sleeping with others, it is hearsay. But McClure (D) says offered for his state of mind
(PROVOCATION). Truth of statement does not matter. What matters is its effect on me and
that is what I am offering it for.
i. Note: Sometimes concern with context (i.e. if this happened during a poker game),
but lies can easily be rooted out by the jury.
Probable CauseEx. Officer charged with illegally arresting D who is father of 13 yr old
girl. D says no probable cause. Officer testifies that one day girl came in and said “my father
has been sexually abusing me,” so I arrested him. That is not hearsay–offered for its effect on
listener/officer. Whether abuse actually occurred or not, officer had probable cause on basis
of what she said to arrest the D b/c information coming from an individual (whether true or
false) is considered to be sufficient for probable cause.
Excessive ForceEx. P suing D for violating his civil rights by using excessive force when
arresting P. To show D acted reasonably when subduing P, evidence that D heard a radio
transmission from HQ saying P was armed and dangerous. Not hearsay b/c offered for effect
on listener. Does not matter if what officer said was actually true, just that he believed the
person to be dangerous.
Notice/Warning
i. Ex. P trying to show that a company was aware that a drug was dangerous rather
than trying to prove the drug is actually dangerous.
ii. Ex. Vineyard (funeral home): Issue is was the driveway slippery. What is offered P
is statements from a number of ppl (out of court declarants) to funeral home that
driveway is slippery. P saying admitting it to prove that home was on notice that it
may have been slippery so duty of inquiry – goes to notice, not slipperiness of
driveway.
1. Concern: Funeral home concerned that jury might look at statements and
believe that driveway was slippery and use it for its truth even though it
wasn’t offered for it.
2. Answer: 403 analysis. How probative is this statement for its not for truth
purpose (effect on listener) and how prejudicial that jury will be using it
for its truth? Notice is an important issue–if ppl complain you should
inquire. Probative value of statement not substantially outweighed by
prejudice. Admitted w/ limiting instruction.
iii. Ex. Grocery store customer sues store for injuries when slipped. D store calls
checkout clerk who testifies that she heard manager cry out, “Lady, don’t step on
the spilled oil.” This is relevant b/c the patron’s conduct should be evaluated in light
of the warning. Doesn’t matter what was said in the warning just that there was a
warning.
iv. Ex. On issue of whether D was negligent when he drove a car w/ defective tires, a
statement made to D by a service station attendant, who looked at tires and said,
“Both are bad.” Admitted to show D was aware of the possibly dangerous condition
of his tires (not to prove tire was defective).
v. Ex. In an action for medmal, Walt testifies that during the operation he heard Nurse
tell Dr that the sponge count was off. W’s testimony is hearsay if offered to prove
that a sponge was left in Walt’s body, but not hearsay when offered to show the
doctor had been warned.
Defense = DuressEx. Accused tendered the defense of duress. He claimed he had been
captured by enemy terrorists and forced to take up arms against the British. To establish his
defense, he offered evidence of his captors’ orders/threats. Not hearsay b/c not offered to
75
6.
7.
prove their contents were true. Offered b/c their mere utterance was significant to establish
duress.
h. Limit = 403 Analysis: balance probative v. prejudicial value.
i. Note: If D’s first objection is hearsay, and that doesn’t work, next objection should
be a 403 objection.
ii. Limiting Instructions: Where a statement has both a hearsay and a non-hearsay
purpose, the court should give a limiting instruction with the testimony so that the
jury does not use the statement for the impermissible hearsay purpose.
iii. Criminal cases – often the gvt will try to introduce accusations of crime against D
under effect on listener idea.
iv. In a typical case where D arrested for dealing drugs, not strong enough of an
argument that need to tell jury whole story.
1. If the question in an investigation is whether D did it (i.e. was involved in
drug transaction) and gvt introduces out of court accusations, at some point
it is so obvious as to why gvt arrested D. So under 403 not probative
enough and prejudice outweighs probative value.
2. Ex. D charged with running drug operation. Gvt calls officer who arrested
D and found drugs who testifies to this. Officer says “we received reports
from ppl in D’s neighborhood that D running drug operation so we
searched his house.” D objects to out of court statements. Gvt says offering
it for its effect on officer/listener to explain investigation. Under 403, not
probative b/c D not contesting probable cause. Gvt answer to that is that
we want to tell jury a story. Bad argument.
v. ContextThere will be cases where if you don’t talk about how police got
there/why the police made an arrest, might confuse the jury, so admit it in those
cases.
1. Ex. Freeman: D arrested for taking cash for counterfeit money. Officer
who arrests him testifies “I heard on a Friday that Grady whom I know to
be involved in these transactions was going to do a transaction the next day
at a particular address. So the next day I went there and saw Grady walk up
and another guy sitting on stoop w/ paper bag and they exchanged bags.”
Which other guy was there? “Freeman.” Freeman objects to prior
statement: “I heard that Grady was going to do trans at the location.” Gvt
says introduced to show effect on listener—why the officer who went to
location…not that there was a counterfeit transaction. Statement is
probative b/c if jurors didn’t know about prior statement (why he went to
325 Elm), they would be confused as to why officer was there. Not
prejudicial b/c didn’t say D was drug dealer–the statement was about
Grady.
2. Ex. Cruz-Diaz: D charged w/ taking part in bank robbery and gvt finds
getaway car. Gvt maintains that D was in the getaway car. D counsel on
cross attacks gvt investigator for failing to do 11 things to tie D to getaway
car (i.e. forensic testing). On re-direct prosecutor says could you explain
why you didn’t do 11 things. Investigator said he received a confession
from someone in car who said D was in the car w/ him the whole time
(“hearsay”). Confession offered to show why investigator didn’t do the
tests (listeners motivations for not doing the 11 tests). D objects that
hearsay and Ct says no it is not…under 403 it is probative b/c you have
made it probative by attacking the investigation. D says why didn’t you
just say we didn’t do tests b/c “we had other information” – wouldn’t that
have been less prejudicial? Not as probative and would confuse jurors –
what other information? Might be less prejudicial but not equally
probative.
Fact in Issue Proved by Statement
a. Ex. The proponent of evidence wants to prove that Princess Diana survived the initial impact
of the crash. He offers evidence of a photographer who says he heard her say, “Help me, I
am still alive” immediately following crash. Not hearsay b/c truth of statement is not
important for the determination of whether or not she is alive—the fact that she said anything
is proof of the fact she survived the crash.
Consciousness of Guilt
76
a.
Ex. D charged w/ being in drug conspiracy and gvt wants to introduce that when arrested
him, they found in his dresser drawer his own wanted poster saying he has committed a
series of crimes (taken from police station). Could be offered to show he has an interest in
ppl trying to detect him. Admissible.
8.
Threats
a. Ex. D charged with threatening the Pres. White house operator testifies that when D called,
he said “I am going to kill Pres Clinton.” The statement of operator not hearsay b/c evidence
offered to show D made a threat and not whether he was actually going to kill Clinton (the
truth of the matter). The statement itself, regardless of its truth, gives rise to criminal
liability—can be convicted on the fact he made the threat at all, regardless of the quality of
the threat.
9. Slander, Defamation, Perjury
a. Slander Ex. D says to P, “you’re a no good thief who would sell his mother for a dollar.” P
sues for slander, and testifies that D spoke these words. The speaking of the words was a
verbal act which has legal effect (since constitutes slander), regardless of the truth of the
words spoken.
b. Perjury Ex. P introduces inconsistent statements made by D while D was under oath. This is
not hearsay if prosecution is not introducing them for truth but rather to show D committed
perjury.
v. Implied AssertionsTruth of the “Matter” Asserted [end class 2/24/14]
1. Implied Assertions Introduction
a. We often encounter statements that assert something, but carry an unstated
message/implication.
b. What the proponent is trying to offer the evidence for is the truth of the implication.
c. Ex. “New York is intellectually and culturally exciting” = “I like NYC”
d. Ex. Capra is walking with his son in mall. Attractive girl walks by. Son turns towards him
and says “that girl is sick.” Could Capra say I’m not offering it to show she is unhealthy but
for the implication that she is lovely. Is that hearsay?
e. Ex. On ESPN, commentator says “he’s got stupid hands.” It means he has phenomenal
hands.
f. Ex. “It was raining cats and dogs.” Not meant to prove that canines were falling out of the
sky. Not offered for the truth of the state, but meant for the implied statement.
g. Ex. Zenny: POs raided betting parlor. Someone calls and says put $5 on Cowboys. Offered
as proof that it is a betting parlor. Implication is that this is a betting parlor but he never says
that explicitly.
i. Expression versus implication
1. “I want to bet”= expression
2. “This is a betting parlor”=implication
h. Ex. Wright v. Doe: Issue is whether uncle is competent to write a will? Letter put into
evidence from nephew (who was going to take) about his travels, math equations, etc.
Implication is that he is writing to a competent person and that is what it is offered for.
i. Ex. Ship Captain: Offered to show vessel is seaworthy the fact that the captain went on
vessel w/ his family. Non-verbal conduct, but arg is that it is a non-verbal conduct, which
proceeds from a belief that is implied in conduct. If says “it is seaworthy,” then it would be
hearsay.
2. Common Law Rule
a. Bright line rule: implications are hearsay.
i. Ex. Wright: letter excluded as being hearsay b/c implied assertions of competence
and letter being introduced for competence.
ii. Ex. Ship Captain example: hearsay b/c what is implied is that it is seaworthy
according to CL.
b. Why exclude?
i. Explicit v. implicit is narrow—if had a rule that only explicit statements are
hearsay, almost nothing would be hearsay.
1. Ex. “He is the strongest person in the world; he could lift the earth”
Offered to show he is strong. Implicit or explicit?
ii. Implicit assertion could be unreliable
1. 4 testimonial infirmities exist whether the assertion is expressed or implied
77
a.
b.
c.
d.
CL Rule is Overprotective
i. Might not be trying to influence litigation if evidence is conduct instead of a
statement by words.
ii. Ex. Ship Captain example: Evidence could be reliable. With conduct, like putting
your fam on a boat, you are not trying to influence litigation. But ct said it is better
to have a bright-line rule.
Intent Based Test: 801(c)
a. Rule: Implied assertions are not hearsay unless they are intentional.
b. Test: (a) Is the party seeking to introduce something that is implied in the statement
(conduct or words)? (b) If so, did the declarant have the intent to make that implied
assertion? If so, hearsay—would a reasonable person making a statement such as the
declarant made have intended to communicate the implied assertion that the proponent is
offering for its truth?
c. Justification: when you have the intent to communicate/trying to influence people, that is
when the greatest chance of lying occurs.
i. Ex. Ship Captain – when taking family on a boat, just trying to take trip, not
communicate.
d. Colloquialisms: intending to communicate the implicit assertion/the declarant is aware of the
assertion he is making  hearsay.
i. Ex. Statement offered: “D strong enough to lift earth” offered to prove he is strong.
That is hearsay b/c doing it to communicate he is strong in a colloquial way.
ii. Ex. Son says “that girl is sick” to Capra.
iii. Ex. “the clouds burst” = heavy rain
iv. Ex. “he was burning w/ desire” = passionate
v. Ex. “forget the trial-put him in the jug and throw away the key” = he is guilty
e. Ex. P’s contend that operation was incorrectly done. They take their doctor and videotape an
operation he does to show how it is properly done. They offer video at trial, but don’t call
doctor. Doctor knew he was being videotaped and it was done on a fake person. So hearsay –
he knew he was being videotaped and staged it all. The whole point of demonstration is to
declare how operation is done.
f. Ex. The gvt wants to prove D sexually assaulted his daughter. Gvt offered testimony from
child psych that the little girl played with dolls and called one dad and one her and put them
together. Is that hearsay? Depends whether the psych said show me what he did to you…if
psych did that, then hearsay. But doctor walks out of room and when he came back the girl
was down on ground playing with them and he reported what she did. Not hearsay b/c girl is
not intending to communicate anything, just playing w/ dolls.
g. Ex. Zenni: Police receive tip that X’s house being used for illegal bookmaking. During raid,
several telephones in X’s house ring and police answer. Each caller identifies himself and
places a bet (i.e. $5 on Cowboys). The implicit assertion would be “this is betting parlor.”
However, the callers were simply placing their bets – they were not making an intentional
assertion that “X’s house is used for gambling transactions.” This latter assertion was
implied, but implied assertions are not hearsay unless intentional.
h. Ex. You have a problem w/ your neighbor and some kind of domestic disturbance at the
house. Police come to investigate their house. What is a good way to get that guy back? Call
up and say I am waiting down at the school- yard for the drugs. Hearsay? No b/c not
intending to communicate underlying belief, just trying to get transaction done. Similar to
Zenni.
i. Ex. Two conspirators talking and one says “so what do I do next?” and the other says “go get
the drugs from Billy” offered to show that Billy has drugs. Hearsay under intent-based test?
No b/c intent is not to communicate that Billy has the drugs to anyone. His dominant intent
c.
3.
Insincerity – Letter writer was going to take under the will, so
might want to influence the litigation by writing in a manner that
shows uncle is competent.
Ambiguity – Letter writer has no way to know that the uncle is
competent.
Perception – Nephew’s perception of his uncle’s competence may
be impaired. Maybe he wasn’t looking when uncle fell asleep at
Thanksgiving table.
Memory – Maybe he just forgot Thanksgiving incident.
78
4.
was to get the transaction done. It would be different if guy was at police station and said
“Billy has the drugs.”
j. Ex. D on trial for being head of gang. Evidence leads to a guy named Bilbo. So the D is
being tried and issue is whether he is Bilbo. He says I am not Bilbo. Offered to show that D
is Bilbo, an officer takes stand and says I was in unmarked car outside D’s house and
watched more than 15 ppl go by while D outside and said stuff like, “How you doing Bilbo?”
“Bilbo, what’s shakin’?” Are those statements hearsay? No, their dominant intent is
pleasantries, not trying to communicate that he is actually Bilbo/goes by Bilbo.
i. However, when witness says one guy comes up to D with his gf and says “June, this
is Bilbo, Bilbo this is June.” That was hearsay b/c intent was to tell gf that the guy
goes by Bilbo – intentional communication of underlying assertion.
k. Ex. D’s name is Eric who is taking care of 2 young children for a single mother. Little boy
died that day. A couple days later, the girl is with mother and says “Mom, is Eric going to get
me too?” Is that hearsay? Explicit point would be Eric killed my sibling, but she didn’t say
that. Is this hearsay? No b/c only trying to communicate her own fear. Her intent in talking to
her mom is to be safe/get some solace/seek comfort. She was not trying to be the fingerpointer in a crime (if trying to rat him out, it would be hearsay).
Non-Verbal Assertive Conduct
a. Conduct can give rise to implied assertions. Under the hearsay rule, assertions are treated the
same whether they are verbal or by conduct. The question is whether the actor/speaker had
the intent to communicate the assertion that is offered for its truth.
b. Ex. To prove that it is raining, testimony that I looked outside and saw ppl with
raincoats/umbrellas. Each of those ppl have an implicit belief (that it is raining), but not
intending to communicate that belief, so not hearsay. They are just trying to stay dry not
communicate to society that I am going to be the weather person for the world.
c. Ex. Ship Captain: To prove that the ship was seaworthy, proponent tries to admit evidence
that a captain examined the ship during the morning hours and set sail with his family after
lunch. Unlikely that the conduct is insincere. Was not trying to communicate seaworthiness,
just going on vacation w/ family.
d. Ex. Issue is whether mine is safe. Owner walks through picket lines and goes down into
mine. Intent of the act is to prove that the mind is safe. The owner’s act would be hearsay if
offered by W in court for the truth of the statement.
79
VIII.
Hearsay: Step 2, determining whether an EXCEPTION/EXCLUSION to the hearsay rule applies
a. “Not-Hearsay” v. Hearsay Subject to Exception
i. If in either category, admissible despite the fact that it is offered for the truth of the statement.
ii. Not-hearsay is not based on statements being reliable at the time they were made.
iii. Hearsay subject to exception are statements made under reliable circumstances that can excuse hearsay rule,
i.e. if excited you have no ability to lie
b. Exemptions/ “Not-Hearsay” (Declarant on the Stand as Witness) – Rule 801(d)
i. Prior Statements of Testifying Witnesses – Rule 801(d)(1)
1. 801(d)(1): A statement is not hearsay if--(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A)
inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's
testimony and is offered to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive, or (C) one of identification of a person made after
perceiving the person.
a. An out-of-court statement is being offered for its truth and declarant is also the witness
i. Ex. Witness says “I told my brother/sister that the D…”
b. Bringing in statements the witness has said in the past.
c. Requirement: The declarant must testify at trial and be subject to cross-examination
concerning the prior statement.
d. Rationale: Certain prior statements of testifying witnesses are admissible for their truth b/c
the person who made them is testifying at trial or a hearing under oath and is subject to crossexamination.
2. 801(d)(1)(A): Prior Inconsistent Statements Made Under Oath
a. Exempts from the hearsay rule a testifying witness’s prior inconsistent statement if it “was
given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a
deposition…”
b. W says “X” prior to trial and then “Not X” at trial.
c. Person adverse to W will want to bring in these inconsistent statements.
d. Note: Prior inconsistent statements made under oath at formal proceeding admissible to
IMPEACH witness and FOR THEIR TRUTH, but prior inconsistent statements not under
oath only admissible to impeach credibility of witness.
e. Requirements
i. Declarant testifies at trial, subject to cross – declarant on the stand
ii. Prior statement conflicts w/ current testimony
1. Need not be diametrically opposed or logically incompatible
2. What is okay? Evasive answers, inability to recall, silence, change of
position, memory loss (sincere).
iii. Prior statement made under oath at formal proceeding (subject to penalty of
perjury)
1. Capra: “other proceedings thought to be routine, conducted by a legal
officer or under her supervision, and a type that would lead a declarant to
believe that the duty to tell the truth was the same, or nearly the same, as at
trial.”
2. Most prior statements that are made in a trial, hearing, or other proceeding,
or a deposition, are made in formal settings in which there is little reason to
question whether the circumstances in which the statements were made
calls their trustworthiness into question.
a. Grand jury hearings/proceedings, proceeding conducted by a
member of the US Border Patrol, depositions, etc.
b. Official verbatim record routinely kept under legal authority.
c. The existence of a transcript, tape recording, or some other
recordation is generally a reliable means of proving that the
declarant made a prior inconsistent statement.
3. Note: Police interrogations to NOT qualify as formal proceedings.
a. Ex. Livingston: D/E charged with armed robbery at post office. A
postal inspector goes to W’s residence, asks questions, takes
notes, writes statement, and has D/W sign it. Sworn affidavits but
NO formal proceeding so not admissible.
80
4.
3.
Note: if not made under oath, statement can only be used for impeachment
purposes.
f. If prior inconsistent statements can be admissible for impeachment purposes, why have
801(d)(1)(A)?
i. Limiting instruction—impeachment evidence has a limiting instruction, whereas
substantive evidence under this rule does not.
1. Jury instruction will exist if offered for impeachment: “you’ve heard
witness has previously said D did crime and cannot use that for fact that D
committed crime but only for what it says about witness’s credibility.”
2. Capra – when jury hears instruction, won’t really know what to make of it.
ii. Standards—substantive evidence under this exception can be considered under a
sufficiency standard invoked by the judge, which is unavailable for impeachment
evidence (credibility standard).
iii. Makes a difference when the prior inconsistent statement evidence is the only
substantive evidence one side has in a case.
1. Ex. Head of mafia conspiracy. Gvt takes statements from victims/former
associates who testify in grand jury that D is head of mafia. At trial, call
witnesses who say I don’t know about mafia. Then gvt try to introduce
statements for impeachment and directed verdicts entered (all they had was
grand jury testimony that was hearsay since made out of this courtroom).
All of that admissible for truth under 801(d)(1)(A) since statements made
under oath at a formal proceeding.
801(d)(1)(B): Prior Consistent Statements
a. Certain prior consistent statements are ADMISSIBLE FOR THEIR TRUTH even though
they are hearsay.
b. The party who brought in the W will want to admit consistent statements to rebut attack of
lying/fabricating.
c. Limited doctrine of admissibility: what could happen is that if every prior consistent
statement were admissible then someone would get up and talk about their 10,000 prior
statements.
i. “Impermissible bolstering” that don’t tell you that much – only consistent (could
consistently lie).
d. Requirements
i. Current testimony consistent w/ some previous statement
ii. Witness attacked for “recent fabrication” or “improper influence or motive”
iii. Witness is on the stand subject to cross-examination concerning the consistent
statement
iv. Statements predate motive to falsify/the alleged corrupting influence
v. Note: No requirement that the prior consistent statement be made “under oath
subject to the penalty of perjury.”
e. Admissible Only if Rebut Charge of Bad Motive/Recent Fabrication
i. Under most circs, a witness cannot offer that “I saw the D do it, like I told my
husband last week” for its substantive truth.
ii. However, admissible for truth if statement rebuts a charge of bad motive or recent
fabrication.
iii. Rationale—purpose of rule is to rebut charge of bad motive, not to bolster the
veracity of W’s statement.
iv. Circs where charge of recent fabrication/improper motive can be implied
1. Ex. On cross, D asks W whether the witness hoped to secure clemency by
testifying against D.
2. Ex. Extensive and intensive cross can sometimes cross line from
challenging W’s account to a charge of fabrication.
f. Statements Predate Motive to Falsify
i. Rule: Prior consistent statements have no relevancy to refute the charge unless the
statement was made before the source of bias, interest, influence, or incapacity
originated.
ii. Standard: The JUDGE must decide whether it is more likely than not that X’s
consistent statement preceded his incentive to give false or misleading testimony.
iii. Ex. In D’s prosecution for distributing drugs, two of his former associates testify for
the prosecution. On cross, D’s attorney establishes that prior to trial, the two
81
4.
witnesses were incarcerated in the same jail cell; he then asks questions designed to
show that during the incarceration they decided to frame D in order to minimize
their own punishments. In rebuttal, the prosecution presents a police detective who
will testify that the two prosecution witnesses made statements consistent with their
testimony after they were arrested and during a period (preceding their incarceration
in the same cell) in which they were held in separate cells and couldn’t
communicate. This testimony rebuts the charge that the witness’s frame-up was
conceived and planned when they were cell mates b/c he asserts the witnesses made
statements consistent w/ their testimony prior to the time they were placed in the
same cell.
iv. Ex. Tome: D is challenging his daughter’s testimony that he was a sexual abuser. D
counsel contends that she is making the story up b/c wanted to live with mother
(motive to falsify) instead of b/c he is an abuser. Gvt says now you’ve attacked her
motives so we can respond w/ consistent statements she made about abuse. Court
says no you cannot. The statements she made were for the same motive she has
today.
v. Ex. Arresting officer says to arrestee (X), “If you cooperate you will get a lighter
sentence.” Then X agrees to testify adversely to D, which he does at trial. At trial,
the cross-examiner asks leading questions suggesting that X’s testimony is
unreliable b/c X gave skewed/false/unreliable account in return for a lighter
sentence. Later, the prosecutor proffers a police detective willing to testify that after
X’s arrest, but before X spoke with the prosecutor, X gave an account of D’s
activities consistent with X’s testimony. Then D’s lawyer will object that it is
hearsay and the court will probably let it in under this exception.
vi. Ex. D charged with hit and run. His car IDed as perpetrating car. At trial D testifies
that 3 hrs before hit and run, his car was stolen. Gvt’s arg is that you are making it
up to stay out of jail (recent fabrication/motive to lie (in preparation for trial)). If D
says, “but I called that in and said my car has been stolen before the accident,” and
is allowed to admit that call, it weakens the argument that it was fabricated.
vii. Ex. D’s car was allegedly involved in hit and run ax. D claims that his car was
stolen so he can’t be held liable for the injuries. If the other side says he is lying not
to get in trouble, D can testify that he called the police before the accident to say the
car was stolen. This prior consistent statement would be relevant because it was
made before the motive to fabricate arose. If D called police after the accident, this
prior consistent statement would not be relevant.
801(d)(1)(C): Prior Identifications (usually only in Criminal Cases)
a. Rule: Exception to hearsay rule if witness who made statement of identification after
perceiving the person is on the stand and subject to cross about it.
i. Gvt will want to bring this in to prove that the W identified the D in the past.
b. Requirements:
i. It is essential that the declarant take the stand, subject to cross concerning the
hearsay statement.
ii. Statement must be about identification made of a person.
c. Caveats:
i. It is immaterial whether the prior ID is consistent or inconsistent with an ID made
in the courtroom.
ii. *There is no requirement that the ID be sworn or recorded.
1. Broad enough to include an ID made at a “lineup” or “showup” as well as
an ID made in other settings, such as one made at the scene of an accident
or crime or during/after an arrest.
2. Even pointing is okay!
d. Rationale
i. Better Form of Evidence:
1. Generally, an out of court ID is more reliable than one made in the
courtroom.
2. Memory fades over time – prior ID closer in time to the event.
3. Person who is the subject of the ID may have changed his appearance and
his location in the courtroom might suggest who he is.
4. Limited realm of options to be that person at trial.
ii. Cross-Examination is Powerful:
82
1.
Good opportunity to challenge aspects of prior identification b/c witness is
on the stand – can try to show that ID flawed in some way at the time it
was made in the past.
2. A poor performance on the stand by the witness who has made prior ID
usually has the effect of undermining the reliability of that ID (Owens).
3. Ask: Was it dark when you were at the bank, was your back turned, did
you have your glasses on, etc.
4. If lineup, ask: Other ppl identifying him? Cross-racial id? weapons focus?
e. No Courtroom ID is Necessary
i. Pre-trial ID but not trial ID.
ii. Witness who made the identification does not have to be able to identify the culprit
in court; however, he must be questioned on the stand.
iii. The fact that at trial the declarant cannot recall making a prior ID might affect the
declarant’s credibility, but does not establish declarant’s lack of perception.
1. Ex. Gas station attendant IDed two ppl in van that blew up building in
lineup. Prosecution asks: are they here? Witness says yes. Prosecutor says
step down and put your hand on those 2 ppl. Witness walked past the ppl
he IDed on a prior occasion. Does not matter.
iv. You can make a good cross in that circumstance – witness is on stand. If he cannot
make an in-court ID, then just cross that person and do a good job.
1. Ex. Prosecutor says can you ID the person now? Witness says no b/c I was
not at crime. Prosecution says but didn’t you make a prior ID? Then
witness says I repudiate. D says you cannot admit prior ID b/c witness is
backing out. Answer is that he already cross-examined himself!
f. Witness’s lack of memory at trial can be useful for the defendant
i. Two possible consequences of lack of memory on stand:
1. (1) Mistaken ID in past b/c of bad memory, or
2. (2) Implausible assertions of lack of memory – witness is feigning lack
of memory to avoid being confronted with prior statement.
a. Show that the witness is lying at trial, but doesn’t want to commit
perjury (“I don’t remember”).
ii. “Subject to cross-examination” = Adequate cross-examination generally.
1. In most cases the presence of the witness on the stand coupled with his
response to cross-questions will satisfy 801(d)(1).
2. When witness takes stand, anything you get out of them is adequate cross,
so long witness voluntarily testifies (even if they lack memory).
a. Ex. Witness (schizophrenic) said “I never made a prior ID.” His
body on the stand was enough of a cross.
3. If witness says, “I won’t answer,” then not adequately subject to cross.
4. Also, cannot cross a dead body!
iii. Ex. Owens case: D (Owens) allegedly attacked prison guard/W, severely impairing
W’s memory. When W improved, named D as attacker and picked him out from
among photos. At trial W says I cannot remember attack, but I remember vaguely
making prior ID. Owens’ argument is that cannot bring in prior ID b/c W cannot
remember today. Ct says okay b/c witness is subject to cross. Owens says that wont
help me in this case b/c witness got hit in the head by a lead pipe (impaired his longterm memory); can remember short term stuff and the statement he made about lead
pipe was made 45 min after event. Also his statement I don’t remember is not
implausible b/c of the lead pipe. Cross back-fired b/c person who hit him (D) with
the pipe is in court trying to take advantage of his lack of memory! However, he
doesn’t win b/c courts assess adequacy of cross generally – does no assess as to this
particular witness.
ii. Statement of Party-Opponent (Party Admissions) – Rule 801(d)(2)
1. Introduction
a. Party admissions are statements or equivalent actions by a party (or their agent) that can be
construed as admitting some relevant fact that works to the disadvantage of that party.
b. The idea is that the party’s opponent is entitled to introduce evidence of the “admitting”
party’s statements (or other communicative actions), although these admissions are in no
way conclusive.
83
c.
d.
e.
f.
g.
h.
The party against whom the admission is introduced may produce rebuttal evidence that
shows, for example, that in fact there was no party admission or that there is a benign
explanation for what was said or done.
801(d)(2): Statements not hearsay if (2) Admission by party-opponent. The statement is
offered against a party and is (A) the party's own statement, in either an individual or a
representative capacity or (B) a statement of which the party has manifested an adoption or
belief in its truth, or (C) a statement by a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the existence of the relationship,
or (E) a statement by a coconspirator of a party during the course and in furtherance of the
conspiracy.
i. The contents of the statement shall be considered but are not alone sufficient to
establish the declarant's authority under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against whom
the statement is offered under subdivision (E)  need independent evidence to
show agency (and authorization in C), as well as to prove that a conspiracy
existed (suspicious independent evidence - Bourjailey).
Note: No longer called “admission” since the restyling. It is broader than that.
Offered by party opponent
i. Cannot offer beneficial admissions – cannot offer your own statements as
admissions in your favor.
1. Ex. D charged with murder in Syracuse; said to PO I was in Philly robbing
a bank that day-admission. Admissible to prove he was in Philly robbing a
bank that day? No b/c he is trying to offer his own statement.
2. If the statements are not offered by a party opponent, the statements are
hearsay.
ii. Co-D’s in criminal trials are NOT party opponents
1. His party admission is INadmissible against other parties who are merely
aligned as co-Ps or co-Ds with the admitting party.
2. Ex. Statement made by a co-D, in which the co-D admitted sole
responsibility for the crime, cannot be admitted in favor of the other D.
iii. Ex. Branch: Gvt raided compound and there was gun fight. Branch is D that comes
out of compound when it goes on fire and put into custody by Texas Ranger.
Charged with something w/ regard to original raid (crim statute says if fed officials
are approaching/investigating your property, you have to put your gun down). Says
to ranger “When I saw ATF coming I went to kitchen and picked up my gun. Then I
went upstairs but I never fired it. When gun fight was over I put my gun away.” Gvt
wants to admit part of statement – “when saw ATF coming, went down to kitchen
and picked up his gun and brought it upstairs.” D says that is not fair I should be
able to admit it all (that I never fired it and I was peaceable). Gvt can admit
statement D made as a statement of a party opponent. The D wants to admit his
statement but cannot admit it b/c it is his statement (hearsay). Gvt can take the
portion of the statement it wants!
Statement made by party to proceeding (or his agent/co-conspirator)
i. Does NOT apply to statements made by a bystander witness or a non-party
passenger in a car (even if this party is closely linked to a party).
Exception: Rule 106 – Rule of Completeness: If proponent seeks to admit a portion of
statement/writing, then the opponent can admit the remainder IF it ought in fairness to be
considered w/ the portion introduced.
i. Can only complete a statement that is misleading.
ii. Ex. The admission “I killed V, but it was in SD” is inculpatory and exculpatory.
W/o 106, D could not bring in the exculpatory portion b/c D made it.
iii. Ex. Felony gun case. D says “drugs were mine, but I don't know anything about that
gun.” Govt wants to admit only the drugs part, which is misleading b/c they are
using info for inference that gun could be his too.
iv. Ex. “I didn’t do it” is D’s statement to PO. PO testifies to a portion of that “I did do
it” (taking out the “n’t”). That is unfair!
v. In Branch, this is what the D argued. D said he picked up the gun and hid it behind
dead body. Gvt wants to admit only the pick up the gun part. Court says no – he is
84
2.
3.
charged w/ picking up the gun, so that is a confession (that is all that is relevant).
What he did after picking up the gun doesn’t matter w/ regard to charge.
i. Rationale: Manifestation of the adversarial system – the court will not protect you from your
own statements; a party’s past statements, which appear to weaken his contentions at trial,
may be introduced against him by his adversary. Based on the idea that you made the
statement/it is attributable to you, so it is up to you to explain it to the fact-finder.
i. Judges leave it to the party against whom the statement is offered to negate the
probative force of the admission.
ii. Not based on reliability/trustworthiness – even unreliable statements can be
admitted.
j. Important Note: Whether or not a party testifies has no bearing on the admissibility of his
party admission.
k. Note: Personal knowledge not required.
801(d)(2)(A): Personal Statements of a Party
a. Not hearsay if statement is offered against party and is the party’s own statement, in their
individual capacity.
b. Offered by party opponent who is a human being.
c. Usually confessions of a crime by a criminal D that is offered for its truth by the gvt.
d. Does not matter if the party against whom the statement is admitted/person who made the
statement takes the stand and testifies.
e. Ex. A v. B about damages in car crash – A says B is bad driver. A can admit B’s statement,
“I didn’t se th
f. Note: Personal Knowledge NOT Required
i. If you speak about something you don’t know anything about, it can still be used
against you at trial.
ii. Rationale – it is up to you to explain the admission. This rule is not about reliability.
iii. Ex. Wolf case. A statement by the keeper of a wolf that bit child admissible against
the keeper even though he didn’t personally witness the event.
1. There is no personal knowledge requirement. That is a grounding about
reliability- its unreliable if a person heard it from someone else. But here,
personal knowledge does not apply to party opponent statements. If a party
I speculating about something (to their detriment) they have to live with
that.
g. Note: A statement otherwise admissible as a party-admission might be excluded under Rules
404(b) and 403 if it is an admission of uncharged conduct.
801(d)(2)(B): Adoptive Admissions
a. A statement is not hearsay if the statement is offered against a party and is a statement of
which the party has manifested an adoption or belief in its truth.
b. Sometimes a party will manifest “an adoption or belief in…the truth” of someone else’s
statement, thereby putting the statement on the same footing as a party’s own statement.
i. Ex. If you are asked “Are you the one who killed the person” and you say “Yes I
am” that is the adoption of the statement made to you and can be admitted.
ii. Ex. A patient uses the written opinion of a physical therapist to make an insurance
claim.
iii. Ex. a businessman distributes to current/potential customers a newspaper article that
describes his company.
c. Issue: Whether declarant/party opponent adopted the statement and made it their own.
d. Manner of Adoption
i. Express—A says “B is a cheater” and B says “What A has just said is correct.”
ii. Implied—A is present while B makes a statement and A either takes an action
which arguably amounts to an adoption of B’s statement, or remains silent in circs
in which the silence means acquiescence.
e. Silence/Tacit Acquiescence: when the accused fails to deny accusations by or in the
presence of law officials.
i. Rule: A JUDGE must decide if the statement in question was heard and understood
and whether, in the circs in which it was made, a reasonable person would have
expressed his disagreement with it.
ii. Requirements:
85
1.
4.
(1) Conditional relevance: There must be sufficient foundational facts
from which jury could infer that D heard, understood, and acquiesced to
the statement.
a. Ex. In Grand Central, unlikely you heard it.
b. Ex. Carr: Kid handled by PO told parents what PO did to them.
Not doing it in POs presence exactly. Ct held that the P has to est
foundation that the D actually could have heard the statement
(cannot adopt what you can’t hear). There was insufficient
indication of adoption – hubbub of police station, so unclear
whether D even heard statement. Under those circs, officer would
not have gone up to parents and denied it.
2. (2) A reasonable person under the circumstances would have denied it
and lack of denial indicates adoption.
a. An innocent D would normally be induced to respond.
b. Courts are pretty strict about this – aggressively enforced.
c. Ex. Hoosier: Gf says D has been in a bunch of thefts. D says
nothing. Silence deemed assent b/c a reasonable person in D’s
position would have objected. A reasonable thing to do would be
that if your gf says you stole it from me you wouldn’t keep quiet.
d. Where Silence is Unreasonable
i. A accused of murder/heinous crime
ii. A accused of mislabeling products
iii. A is told “you know that’s your signature” while being
shown a K
iii. Exception: Some accusations made in circumstances where it is better to pass them
off. Do not have to speak up whenever someone does something wrong (some
people let some things go).
1. Generally, when the police are present during an encounter, silence is not
assent or an adoptive admission.
2. Ex. Capra took subway to Columbia. Homeless guy comes up and says you
stole those shoes from me. Capra did not respond. That is not an adoption.
He doesn’t have to say, “these are my shoes!”
3. Ex. Fleka: Transporting drugs into US on boat. Coast guard doing search
and finds coke. Perpetrators on deck chained together. One said “Oh my
we are really in trouble now.” Gvt wants to admit against Fleka on
allegation he adopted it – by saying nothing/not denying it. Ct said 2
reasons not adoption: (1) officers were around – when POs around you
know you should be quiet; (2) what was he supposed to say? Silence is
appropriate here. The accusation/statement was we are in trouble…how to
refute that? In chains, on a boat, etc. Undeniable fact.
iv. Problematic: a trial judge should be cautious about allowing ‘adoptions of silence’
in an accusatory environment.
1. The D is usually under pressure and his interrogators probably have
incentives to “trip him up.”
2. It is common knowledge that the Constitution provides a right not to
incriminate oneself and there is a general belief that one is entitled not to
give self-incriminating information to the police.
f. Note: A statement may sometimes be admissible as an admission for substantive purposes as
well as a prior inconsistent statement for impeachment purposes (i.e. when a party makes an
out of court statement that contradicts his trial testimony).
801(d)(2)(C): Speaking Agent
a. Rule: When a party (principal) has delegated “speaking authority” to an agent, statements
made by the agent in the course of exercising that authority are admissible against the party
(principal).
b. Makes no distinction with regard to the persons with whom a speaking agent is
communicating, so long as it is within the range of his delegated speaking authority.
c. No personal knowledge requirement.
d. Demands as a prerequisite to admissibility a showing that the declarant is an agent of the
party with the authority to speak on the subject.
e. Rationale: Principle of Agency – hiring agent to speak on your behalf is like you said it.
86
5.
i. Ex. If you hire a PR firm to speak for your company, those statements admissible
against principal.
f. Limited to Speaking Agents
i. Ex. PR people
ii. Ex. Where a construction company’s CEO is given authority to initiate product
recalls.
iii. Ex. A client’s authorization to a lawyer to speak for her in connection w/ a case or
other legal matters.
iv. Ex. Client’s authorization to her accountant to speak with her with respect to
financial matters.
v. Ex. Doesn’t include statement of janitor – I saw you slip on floor. You don’t hire
janitor to speak on your behalf.
vi. Ex. Translator – if indication of authorization, but not if translator has motive for
mistranslation.
vii. Note: Expert witness NOT an agent! Supposed to be impartial observer.
g. Note: Sometimes the very statement in question contains an assertion that supports the
conclusion that the agent was authorized by the principal to speak for the latter.
i. Under 801(d)(2), that statement can be used as evidentiary support for the
conclusion that the agent had speaking authority. However, the contents of the
statement are not alone sufficient to establish the declarant’s authority to speak.
ii. Ex. “My company, D, has asked that I speak with you about…”
801(d)(2)(D): Agent Scope of Authority
a. Rule: A party may not have authorized a person to speak for her, but the person’s statement
will be admissible against her as long as the statement is related to the scope of agency or
employment AND were made while the agency or employment was ongoing.
i. Ex. Manlandt: employee’s job was to take care of wolf that attacked boy. EE went
to boss’s office and left note saying “wolf bit child that came in our backyard.”
Admissible against corp b/c made by an agent and concerned a matter within scope
of employment and during employment.
b. Statements of low-level agents/employees are admitted more often under D than C.
c. A judge decides whether the statement concerns “a matter within the scope of the agency or
employment” b/c that question controls the admissibility of the statement and implicates
104(a).
i. The judge may consider any portion of the statement itself that is helpful, although
the agent’s statement, standing alone, is not sufficient to establish the scope of his
duties.
d. No personal knowledge requirement.
e. Rationale
i. Substantive law of agency: you get to hire agents who do things for you that you do
not have to do. When agent screws up, that is vicarious liability for principal. Same
idea applies to statements about matters w/in scope of authority.
f. Most statements covered under C also covered by D in federal court (but not state court).
i. Ex. Guy comes off a plane (stairs) and he is blown off the stairs. Tech guy says “So
sorry, sometimes that happens.” Inadmissible under NY common law of evidence
b/c not a speaking agent – they hired him to do.
g. Establish these three things by preponderance of the evidence:
i. (1) The person who spoke was an agent of the party
1. Must be proven independently of the statement itself.
2. Look at:
a. (a) discovery,
b. (b) employment roles, and
c. (c) circumstantial evidence
3. Ex. the agent was wearing a uniform, ask someone who knows the
employee, etc.
4. Ex. Pappas: Slips on icy patch in condo. Calls Condo
management/association and says I fell. Manager says “we will send
someone to help.” 15 min later, guy in overalls comes with bucket, shovel,
etc and says “Can I help you? We have been having trouble w/ this icy
patch it should be better maintained.” Admissible if you can prove agent of
Condo Association. Condo Ass denies he is an agent. P has to prove guy in
87
6.
overalls was agent. Has to be more likely than not. Circumstantial evidence
indicates agency relationship – he called the Ass who sent him quickly and
had overalls/bucket/shovel! Not on payroll but can show employee by
circumstantial evidence.
ii. (2) Statement made during course of relationship/while person still employed
1. The statement must have been made BEFORE the termination of the
agency or employment relationship.
2. Stops where agent is no longer an employee.
3. This protects the principal from damaging statements by terminated
employees or agents who may bear ill will against former employers.
4. Ex. If someone going to talk to media, you should fire them so statement
cannot be used.
iii. (3) They were speaking about a matter within the scope of their authority
1. Rule: Find out what the agent does and whether what they said is about
what they do.
a. Ex. P slips and falls at McDonalds. If janitor says “I am sorry you
slipped I should have cleaned it.” Admissible.
b. Ex. If janitor says “We are engaging in anti-competitive activity.”
Not admissible b/c has nothing to do with janitorial work.
c. Ex. Truck driver has ax while on employer business and then
gives damaging account to police of what happened (i.e. “sorry
about running red light”). Admissible against employer.
2. Comes up in employment discrimination cases
a. P will try to rely on “water-cooler gossip” made by agents. Not
admissible b/c ppl speaking but they are not people who have
control over hiring/firing or any policy of discrimination.
b. Ex. Hill: W testified for P that he had convos w/ other employees
that reason P was fired was b/c of age. Ct said no evidence W had
any involvement in the discharge decision, so not within scope of
employment.
3. Doesn’t have to be while agent is actually on the job/working at the
moment the statement is made, just about the job in general (i.e. talking to
media). Subject matter limitation, but so much a timing limitation (as long
as you’re a current agent)
a. Can be admissible even if “off the clock,” as long as made within
the scope of agency/employment.
b. Ex. Dateline is standing outside meatpacking plant in Iowa and a
supervisor walks out. Reporter says can you speak about
conditions. Supervisor says, “It is terrible in there. They say it is
kosher and it isn’t.” Statement offered against corp for unsanitary
conditions. D will argue inadmissible b/c he was speaking to the
press – he wasn’t on the job, but that doesn’t matter. Issue is not
where they make statement/does it further the corp enterprise, the
issue is whether the statement was about a matter w/in scope of
authority. So admitted!
c. Ex. Construction man goes home and tells friend that scaffolding
fell, killing someone b/c his crew messed up. Statement
admissible against the construction company b/c he is an agent
and subject falling within scope of employment. (Note: if worker
was D and not the company, it would fall under d2A-personal
statements).
801(d)(2)(E): Co-Conspirator Statements (Criminal Cases)
a. Rule: Statement is not hearsay if the statement is offered against a party and is a statement by
a co-conspirator of a party during the course and in furtherance of the conspiracy.
i. In certain circumstances, statements or acts can be admitted against you (you are not
there, and didn’t even make the statement) on the ground that a co-conspirator made
the statement.
ii. Can be a statement to prove the nature of the conspiracy or something that is
relevant to conspiracy. Doesn’t have to say something specifically against the one
D.
88
b.
c.
d.
e.
f.
g.
h.
Basic Hypo: D, Joe, who is not speaking/there. 2 ppl speaking (Bill and Mike). Bill says to
Mike, “Joe wants the drugs transported to the dock tn”-indicates Joe is member of conspiracy
and that he is high up (gives instructions). It is hearsay-can it be admitted?
Justification: One of substantive law. If one conspirator acts, it is also your act (even if you
have never met the person).
Rationale: Conspirators are likely to speak differently when talking in furtherance of their
illegal aims when testifying on the witness stand. Even when the declarant takes the stand,
his in-court testimony will seldom have the evidentiary value of his statements made during
the conspiracy.
Caveats:
i. It is not necessary that a conspiracy be charged in the indictment or, in a civil suit,
alleged in the pleadings.
ii. It is immaterial whether a coconspirator’s party admission is made to another co
conspirator or to an outsider.
iii. It does not matter whether or not the declarant-coconspirator is joined as a party to
the civil or criminal trial.
Requirements – Gvt must show:
i. (1) the declarant’s statement must be intended to further the conspiracy;
ii. (2) the declarant’s statement must be made while the conspiracy is in operation, and
iii. (3) the declarant and the party against whom the statement is offered must in fact be
members of the same conspiracy—there must be a conspiracy.
iv. Note: All of these admissibility requirements must be proved by a preponderance of
the evidence under Rule 104(a). Judge decides whether enough evidence to be
admissible and jury decides whether there was actually a conspiracy.
Procedure
i. Option 1: Ct can hold pretrial hearing and determine that there is a preponderance of
evidence they are co-conspirators.
1. Problematic for large conspiracy cases b/c of duplicative effort of
presenting evidence.
ii. Option 2: Allow co-conspirator hearsay at trial, subject to the condition that the gvt
satisfies the preponderance standard.
1. If gvt has not, provide remedy – mistrial unless clear limiting instruction
would suffice.
2. Judge generally only does this if they think gvt does have enough to satisfy
standard.
3. If judge thinking about deferring question of admissibility until trial,
prudent to require gvt to provide a summary of foundation evidence.
(1) In Furtherance of Conspiracy
i. Courts usually take a generous view of what statements advance the conspiracy.
ii. If not intended to further conspiracy, not admitted
1. i.e. admitted to further declarant’s own goals
iii. Statements in furtherance of the conspiracy should include those designed to launch
the conspiratorial transaction, to recruit new members, to recount past conduct or
events in order to plan for future strategy, to keep members aware of progress, and
to reassure members or elicit their cooperation. The same can be said for
transactional records, inventories, status reports, and other entries that are designed
to track the financial condition/progress of the conspiracy.
1. Ex. “We need to do this to get the drug deal done.”
2. Ex. Statements about who is going to do something at a particular time.
3. Ex. Goes to owner of diner “pay up or I’ll get the other guy”
iv. “Idol chatter”: This requirement precludes the use of the coconspirator statement
to admit simple narratives about past events, idle chatter, bragging, and the like.
1. Inadmissible if not intended to further, but just blabbing about the
conspiracy
a. Ex. “I wish D hadn’t shot the bank teller.”
2. Intra-conspiratorial spat – if just talking about thing that didn’t work or
casting blame, not admitted – just rehashing old stuff.
3. Context dependant – if any reason why declarant is speaking in this way
about things that happened/are going to happen, then admissible.
89
a.
i.
PEP-TALK: Ex. Ianello: Statements made against Ianello.
Probinzano and other co-conspirators. Prob says “I’ve decided to
follow around Ianello. First, he took me out to docks and had
shake-downs, then did drug deal, etc.” D says that is idol chatter –
Prob just blabbing about what he did that day. Ct said intended to
further conspiracy in context. At the time, bad morale so it was
like a pep-talk (“we had a good day today”) to the other coconspirators. Also scares the others (if they don’t cooperate, he
might hurt them).
b. CHECK LIST: Ex. Halderman: Every Saturday, Oval office
meeting about Watergate. Co-conspirators say what they did bad
that week. Context showed Halderman had checklist of bad things
to do. If already done, checked it off–progress report for ultimate
goal for conspiracy. So “in furtherance.”
c. TERRORISM: Sharing past involvement can be seem as
recruitment–showing legitimacy and encouraging others to join by
telling past acts.
d. TEACHING: Ex. Harris: Co-conspirator in hospital w/ fake
accident in insurance fraud scheme describing how it did it to
another in hospital who was also defrauding. Furtherance b/c
learning from each other how to make conspiracy better.
v. Note: Look at subjective intention of speaker. Furtherance of conspiracy
1. If you get busted/unintentionally confess while furthering the conspiracy,
this requirement is met.
2. Ex. Guy comes up to conspirator and says I need drugs. Conspirator says
stay for 10 min I’m going to get Joe he’s coming here. Busted b/c under
cover agent. Were statements that he made to under cover agent in
furtherance? D would say statements brought conspiracy down rather than
furthered conspiracy. But look at intent-wanted to get conspiracy done so
in furtherance.
vi. Note: Statements made to defeat the conspiracy are NOT made in furtherance of it,
i.e. confessions to police officers.
1. If conspirator confesses to PO, no intent to further conspiracy—you are
basically ending the conspiracy.
(2) During Course of Conspiracy
i. Shouldn’t be responsible for others’ statements unless made during conspiracy.
ii. Statement must have been made while conspiracy was still in force and while D
whom the statement is offered against was still a member.
iii. Rule: Statements made before and after conspiracy not admissible.
iv. Note: Statements made during a conspiracy BEFORE D joins are admissible against
D when D ends up joining!
1. Rationale—when D elected to join the conspiracy he took it as he found it;
that is, he subscribed to both its potential for gain and its preexisting risks.
v. The judge must decide when a conspiracy begins and ends or if and when a
conspirator withdrew (104(a)).
vi. Most arguments made by D on two grounds: (1) conspiracy was over, or (2)
conspiracy was ongoing, but I withdrew before statement made.
1. If either true, statement not admissible.
vii. When is Conspiracy Over?
1. BeginsThe conspiracy begins when two or more persons agree jointly to
seek a common end (the fact that persons later join the conspiracy does not
affect the point in time at which it starts).
2. EndsGenerally, the conspiracy terminates when the conspirators achieve
their objective or abandon their quest (a conspirator may withdraw).
Depends on charge.
a. If non-financial crime, conspiracy is over when the central
criminal goal is complete.
b. If financial crime, over when proceeds distributed among
conspirators. (Gruenwald).
c. If conspire to kill, over when killed.
90
d.
e.
f.
If insurance fraud, ends when get insurance $.
Conspiracy to commit arson ends when building burns down.
RICO/criminal enterprise statutes – no end (predicate acts over a
certain period).
3. Are attempts to COVER-UP principal conspiracy part of original
conspiracy or new conspiracy?
a. Considered a new conspiracy if there is a new objective or new
conspirators join.
b. Gvt has to show that D was part of second conspiracy (cover up)
as well.
c. A conspirator to bank robbery could say I’m fine w/ robbing bank
but I don’t want to kill teller. Bank robbery conspiracy over when
rob bank. Killing teller is new conspiracy.
d. Ex. D’s conspire to rob bank and do so. They meet at motel 15
miles out of town and split proceeds. After, one says someone
needs to kill the teller b/c he saw me. D didn’t say anything –
didn’t agree to kill teller (he left motel). Gvt would have to charge
separate conspiracy!
e. Ex. Statements made to cover up bank robbery. Co-conspirator
says, “the gas station attendant saw me-let’s whack him.” New
conspiracy.
viii. When Does a D Withdraw?
1. If A takes affirmative steps to withdraw, statements made thereafter by
continuing co-conspirators B and C not admissible against A.
2. The statements would be admissible against a co-conspirator only if they
predated his withdrawal.
a. Ex. D would say I withdrew on Jan 1. Statement made Feb 1 so
can’t count against me. True if D actually withdrew.
3. A conspirator’s decision to reveal the conspiratorial plot to the police
signals a voluntary withdrawal.
4. Continuous Payments = not withdrawal
a. In crimes involving the illicit acquisition of money, the principal
objective of the conspiracy is not realized until the money has
been received and divided among the members.
b. Ex. D member of RICO conspiracy says withdrew on Jan 1 –
plays video of his going away party. Ct said did not withdraw –
gvt showed he was still getting money from conspiracy so still a
member.
5. Withdrawal if:
a. (a) Confession of guilt
i. An offer to cooperate with authorities NOT enough—
must be an actual confession.
ii. Cannot just deny the conspiracy.
iii. Ex. D importer of art. Gvt has suspicion importing drugs
in packages. Legal search and find package/painting in
warehouse has false compartment. D says I am shocked.
The other guy’s name is Mr. S. Gvt says call him and we
will monitor. D says okay and calls. D says Mr. S about
that shipment…Mr. S says “there weren’t enough drugs
for you?” that is statement offered against D. D says I
had withdrawn b/c I agreed to bring fellow conspirator to
justice. But, D did nothing to actually withdraw.
b. (b) Notify Co-Conspirators (formally or informally), or
i. Ex. Money laundering conspiracy, closing a bank
account where all subsequent wire transfers are bounced
back to co-conspirators was held adequate notification of
withdrawal.
c. (c) Co-Conspirator Dies.
91
6.
j.
Note: If arrested/in jail, sometimes not withdrawal (just geographical
inconvenience), since it is possible that an arrested coconspirator could
promote the conspiracy even after his imprisonment.
a. Can still give information to authorities or communicate with
other coconspirators.
b. Ex. Persico: D arrested/incarcerated. During 8 month period
statements intercepted by former co-conspirators that say
“Carmine wants this done, etc.” He says withdrawn b/c he is in
jail. When you get arrested, do you withdraw from conspiracy
outside? Not withdrawal. He can still conduct business from
inside.
(3) Existence of Conspiracy
i. Gvt has to show there actually is a conspiracy.
ii. Also, D has to be in same conspiracy as declarant.
iii. Evidence of agreement between the declarant and the D
iv. Statement must be made BY A CO-CONSPIRATOR
1. Can be made to a co-conspirator or a non-conspirator
v. Judge has to determine whether D and declarant part of some conspiracy in order to
see whether jury can hear hearsay statements. Then jury decides whether conspiracy
after hearing all of the evidence in the case.
vi. Standard of proof (for judge): Preponderance of the evidence – gvt must show that
more likely than not these two ppl are co-conspirators.
1. Not beyond a reasonable doubt b/c that is what jury decides.
2. Ex. Statements made about Joe by Bill – gvt has evidence they met on
various occasions, were at the scene, they frequent the same places, etc.
also statements like “Joe is my co-conspirator.”
vii. No Need to Charge ConspiracyStatements by one co-conspirator against another
may be admitted even if no conspiracy crime is charged.
1. Ex. Prosecution believes A and B worked together in robbery. Only B went
to bank so B charged with robbery not conspiracy. If judge makes prelim
finding that A and B conspired, A’s incriminating statements about B will
be admissible against B for truth even though no conspiracy charged and A
is not a D.
viii. Acquittals of Co-ConspiratorFact that jury acquits/ doesn’t find conspiracy
beyond a reasonable doubt, doesn’t mean cannot admit statements b/c standard is
preponderance of evidence.
1. Ex. Co-Conspirator made statements against D. D says my alleged coconspirator got tried and was acquitted so cant admit statements against me
that we were co-conspirators. Bad argument.
ix. Synthesis: Hearsay statement + independent evidence which at least somewhat
suspicious/ “fairly incriminating” can satisfy the preponderance standard.
1. Courts can consider statement itself as part of proof.
2. However, most courts require independent evidence of existence of
conspiracy.
3. Independent evidence must be fairly incriminating on its own before the
evidence, together with hearsay statement, can satisfy preponderance
standard.
4. Significance: If gvt’s show-piece evidence is the statement, doesn’t get in
if cumulative evidence doesn’t prove more likely than not that a there was
a conspiracy.
5. Rule: Need at least some kind of suspicious independent evidence to put
together with hearsay statement.
a. Although the trial court can consider the contents of the statement
to determine whether it satisfies 801(d)(2), courts exclude the
statement if the only evidence that satisfies the exception comes
from the statement’s contents.
b. Ex. Silverman: D (Mark-Denver), declarant (Mary-Utah, drug
dealer). Gvt says Mark is drug dealer. Mary says I know we have
been dry but my bro Mark is supplier and he has a new shipment
of drugs I’m going to Denver to pick it up (note furthers
92
c.
conspiracy by implicating mark b/c assurance that drug deal will
god own). Gvt wants to offer statement and add the following
evidence–Mary did go to Denver that wknd, Mark picked her up
at airport, dropped her off the next day, and when she came back
to Utah, she had drugs. Gvt says indep evidence not that great and
statement not that great, since consistent w/ familial activity. If he
picked her up and drove evasively to his home, more suspicious.
c. At least in Bourjailey (see below), there was something
suspicious going on (in back of parking lot).
d. Mary’s statement not admissible because the independent
evidence is not suspicious at all .
e. [end class 3/3/14]
x. “Bootstrapping”: Content of hearsay statement itself as proof of conspiracy
1. When gvt’s evidence is thin, but gvt says if you look at statement itself, it
will help to convince you that declarant and D are part of same conspiracy
2. Bourjaily Case: Declarant, Lenardo, says go to back of shopping mall at
9pm and Bourjailey will be there w/ drugs. Evidence that gvt presents is
that B was in the back parking lot at that time (suspicious independent
evidence). B claims wrong place wrong time. Gvt wants to show that if
consider L’s statements, explains conspiratorial association and when put it
all together shows more likely than not they were co-conspirators. Each
piece of evidence corroborates the other. Take some suspicious
independent evidence plus hearsay statement and it will rise to level of
preponderance.
3. Holdings of Bourjaily: (1) the judge (not the jury) determines whether
there was a conspiracy, whether the declarant and the party to the suit were
members of it, and whether the declarant’s statement was in furtherance of
the conspiracy; (2) the judge is to use a preponderance of the evidence
standard in making her determination (104(a)); (3) the burden is on the
proponent of the evidence (usu the gvt); (4) the judge must consider the
declarant-coconspirator’s statement itself in resolving the issue of whether
all of the requirements of the coconspirator exemption have been met; (5)
the court declined to decide whether that hearsay statement, standing alone,
would be sufficient evidence upon which to base a finding that all of the
requirements of the exemption were satisfied.
xi. Procedure
1. Admissibility Hearing: Issue is whether jury can hear hearsay statement
itself as evidence of conspiracy. Under 104(a), judge is not bound by rules
of admissibility at admissibility hearings – judge can consider hearsay if is
relevant (even though a jury might not be able to if judge decides not to
admit it).
a. Cumulative approach to fact-finding801(d)(2): “contents of the
statement shall be considered but are not alone sufficient to
establish…the existence of a conspiracy and the participation
therein of the declarant and the party against whom the statement
is offered.”
b. Note that you don’t look at hearsay statement separately–that
statement is looked at with all of the other evidence
c. “Whole is greater than the sum of its parts”
2. Proof on Trial Record: By the time statement is offered, there may already
be enough proof on record to justify the judge finding that conspiracy
exists.
3. Connecting-Up: Judge can admit statement subject to later introduction of
evidence sufficient to allow him to find it more likely than not that
conspiracy existed.
Hearsay Subject to Exception
i. Exceptions Dependent on Declarant Unavailability – Rule 804
1. Introduction
a. Certain hearsay statements can be admitted if declarant is unavailable to testify at trial.
93
b.
2.
Rationale: Statements falling within the 804 exceptions, when the decalrant is unavailable,
are not as realiable as live testimony, but are superior to no evidence at all.
c. Burden of Proof: The party offering the prior testimony has the burden of proving the
unavailability of the witness and that the statement fits a 804 exception.
d. Two Steps: (1) Show declarant unavailable; (2) Ask if there is an 804 exception (not all
hearsay statements of unavailable declarants admissible).
e. Note: Statements made from humans only are hearsay – not machines.
i. Ex. A print-out receipt of what you bought at a grocery store is not hearsay b/c no
one said it.
1. However, a cashier punching in the numbers is hearsay b/c the cashier
could have messed up.
ii. Ex. A breathalyzer printout is not hearsay b/c no human involved in manipulating
the information.
Definition of Unavailability
a. Introduction
i. Standard: Proponent of testimony has burden of proving the declarant is unavailable
by a preponderance of the evidence/more likely than not to the judge.
ii. Situation: Declarant made statement at previous trial that was subject to cross. The
statement is relevant in your trial and you want to admit transcript. Might want
transcript b/c it is written, read to jury, and is canned (you know exactly what it
contains). Producing declrant might not advance your case (declarant might say
something different, might not communicate well, etc).
iii. Note: If you wrongfully cause declarant to be unavailable, you cannot use their
hearsay statement.
iv. Note: You cannot speculate what a W might do; rather, you need to call the W and
actually have them do it.
b. 804(a): Definition of Unavailability. "Unavailability as a witness" includes situations in
which the declarant—
i. (1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant's statement; or
ii. (2) persists in refusing to testify concerning the subject matter of the declarant's
statement despite an order of the court to do so; or
iii. (3) testifies to a lack of memory of the subject matter of the declarant's statement; or
iv. (4) is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or
v. (5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant's attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or
other reasonable means.
vi. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from attending or
testifying.
vii. 1 2 and 3 are most common
c. (1) Privilege (Ruling of Court)
i. “Declarant is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant statement.”
ii. Requirements:
1. Declarant must take the stand and assert the privilege.
2. There must be a judicial ruling that W is exempt from testifying.
a. Privilege cannot be created, it must exist.
b. Criminal D cannot plead the 5th thus making him unavailable, and
use prior testimony.
i. Rationale: a D seeking to testify and make exculpatory
statements must face cross-examination.
c. Cannot just say that you think/predict there is going to be a Fifth
Amendment problem.
d. (2) Refusal To Testify
i. Refusal to testify even if ordered by the court.
ii. Ex. “I am not going to testify against my child.”
94
e.
f.
g.
h.
iii. Requirements: Judge should order W to testify outside jury’s presence and subject
to threat of contempt. If W still refuses, then unavailable.
1. Note: judge does not need to actually hold the person in contempt.
(3) Lack of Memory
i. If the witness testifies to a permanent lack of memory as to a material portion of the
subject matter of his prior testimony, he is unavailable under Rule 804 and his
former testimony on the subject is admissible.
ii. A witness is not unavailable where he remembers the general subject matter of a
conversation but cannot remember certain details.
iii. Permanence is not an absolute requirement – while duration is important, it does not
need to be permanent memory loss.
1. Duration only needs to be enough that it is not worth it to postpone the trial
.
(4) Death, Physical, or Mental Illness
i. Declarant is unable to be present or testify at hearing b/c of death or then existing
physical or mental illness or infirmity.
ii. Question the timing or nature of the illness, since illness may have other
mechanisms to assure in court testimony—ask whether the declarant be brought in
later when they are better w/o undue delay?
iii. Balancing Test—trial judge must weigh on the one hand policy favoring live
testimony/confrontation in the presence of the fact finder, with prompt disposition
of criminal trials.
iv. Establish of permanence is not required—the duration only needs to be long enough
that the trial or testimony cannot be postponed.
(5) Absence
i. Declarant absent from hearing and proponent has been unable to procure declarant’s
attendance/testimony by PROCESS or OTHER REASONABLE MEANS.
ii. Absence means absence of testimony, not physical absence of the declarant.
iii. Proponent must try to find declarant by way of compulsion if declarant does not
voluntarily come to testify.
iv. Grounds for Absence
1. You cannot find him even if you tried
a. Standard of diligence – you must make a good faith effort to find
him.
b. Cannot just show up at his house when you know he works.
c. Look for declarant as if you did not have the prior statement in
your favor.
d. Ex. Proponent says we looked for him using a process server.
Process server says I went to his house 4 times. Other side should
ask follow-up questions: Did you look other places (i.e. job)?
What time did you go to his house? What day of the week? Turns
out the declarant was working when the process server went there.
2. You know where he is, but he is beyond subpoena power
a. Civil: throughout entire state.
b. Criminal: throughout the US.
3. Note: If dead, must use death/infirmity, not absence.
v. Attempt to Depose: The party relying on absence to support an offer of hearsay
evidence must demonstrate that it has not been possible to take a deposition.
1. If attempt to depose is successful, the hearsay declarant is no longer
unavailable.
2. Rationale: if a deposition can be taken, the deposition testimony will be
admissible as prior testimony, and prior testimony preferred to statement
against interest, b/c it has been subject to cross-examination.
(6) Forfeiture by Wrongdoing
i. A declarant is not unavailable as a W if exemption, refusal, claim of lack of
memory, inability or absence is due to the procurement of wrongdoing of the
proponent of a statement for the purpose of preventing W from attending or
testifying.
ii. If proponent wrongfully creates the unavailability, then loses the ability to argue
unavailability.
95
3.
iii. Negligence is not enough—must be in bad faith (i.e. D kills declarant to make him
unavailable).
Unavailability-Based Exceptions
a. 804(b): Hearsay exceptions. The following are not excluded by the hearsay rule if the
declarant is UNAVAILABLE as a witness:
b. 804(b)(1): Prior Testimony. Testimony given as a witness at another hearing of the same or
a different proceeding, or in a deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now offered, or, in a
civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
i. If a party has had an opportunity and similar motive to develop (by direct or cross) a
witness’s testimony in the first trial as the party would have today if the declarant
were produced, the witness’s (trial one) testimony should be admissible against that
party in trial two.
ii. Prior testimony is read from a record.
iii. Classic form: Criminal case for bank robbery. Gvt calls witness who saw D rob
bank. Witness takes stand, gives direct, is cross-examined by D, BUT case mistried
and new trial on same charge. In the interim, witness who has previously testified
has become unavailable (i.e. death). Now gvt wants to introduce transcript of that
witness’s prior testimony. Rule says it can be done even though transcript is
hearsay.
iv. Rationale: the hearsay dangers are minimized by the prior opportunity and similar
motive to develop the testimony and by the fact that the testimony was made under
oath.
v. Requirements
1. W is unavailable
2. Testimony given in a prior hearing/proceeding/deposition
a. Okay—prior proceedings (trials), depositions, grand jury
testimony (not but testimony offered against D), preliminary
hearing/suppression hearings in crim cases.
b. Not okay—affidavits/statements made to police during
investigations.
3. Proponent must establish that a party against whom prior testimony is
sought to be introduced had an OPPORTUNITY and SIMILAR MOTIVE
to cross-examine the witness at the previous proceeding.
vi. Identity of the “Party”
1. The focus is on the party against whom the former testimony is now
offered.
2. Central question: whether the prior testimony of a witness should be
admissible against X on the ground that X was adequately protected by an
earlier examination of the witness or by an earlier opportunity to “develop
the testimony” of that witness.
3. “Same Party” Requirement in Criminal Cases: the party against whom the
former testimony is offered in the second proceeding must have also been a
party to the first proceeding.
a. Rationale – liberty at stake; constitutional issues (confrontation
clause)
b. Ex. Bank robber 1 cross examines eyewitness. Then bank robber
2 tried and witness unavailable. Gvt cant introduce transcript from
prior testimony against robber 2.
4. Criminal Trials Followed by Civil Trials: Depending on the facts, a similar
motive requirement may be met where the former testimony occurs at a
criminal trial and is sought to be introduced at a later civil trial. Generally,
W testifies against D in the criminal suit and then becomes unavailable for
a later civil suit and the P wants to introduce W’s prior testimony in the
civil suit—ask whether the D had the same incentive to cross this witness
during the criminal suit.
5. No Same Party Requirement in Civil Cases: In some civil settings, a
different party (from the one against whom the prior testimony is now
offered) may have adequately protected the interests of the present party by
96
developing the witness’s testimony in the same way as the present party
would do if the witness were now available. When this is the case, the prior
party is the “predecessor in interest” to the party against whom the
testimony is offered in the current trial.
a. Ex. could be 2 P’s in a plane crash, one company that merges into
another.
i. Note: usually not allowed if 2 competing companies.
b. If the prior party had developed the testimony in a way that the
new party would do in the current litigation, then the prior party
will be considered a PII of the new party.
c. The greater the divergence of the issues in the first and second
trials, the greater the likelihood that the similarity of motive
required by the rule is lacking.
d. Rationale – no constitutional right to confrontation.
e. Same Defendant and Different Plaintiff
i. Former testimony of witness at first trial admissible b/c
defendant had opportunity to interrogate witness.
ii. Offered by new P against DEx. Plane crash 60 people
die. First suit is by P1 v. American Airlines. In that case,
P1 calls eyewitness to crash, who testifies in a way
favorable to P1’s case (glanced into cockpit and saw
pilot partying). American’s counsel cross-examines.
Now new suit brought by P2 (another passenger) against
American. In interim, the witness that testified in first
trial unavailable and P2 wants to admit transcripts of
testimony. Even though P2 not a party in trial 1, P2 can
use transcript. If this witness were presented today,
American’s (D’s) motive would be the same as it was
during trial 1. In both situations, American would have
same goals in crossing witness.
iii. Offered by D against a new PEx. P1 sues American.
American calls witness who shows pilot was diligent. P1
crosses. P2 sues American. Witness is unavailable. Can
American bring in W’s testimony against P2? P2’s
lawyer didn’t cross but P1’s lawyer did cross witness.
Yes American can use it against P2.
iv. P2 will argue I am not bound. P2 says well I have a
better lawyer, diff strategy, diff questions, etc. P2 loses
on that argument. P2 is bound. If there is only just a little
bit of a difference in what P2’s lawyer will do, judge
probably will allow American to bring in W’s testimony
from first trial.
v. Would it be fair to hold P2 to P1’s inquiry and
representation? Burden on party opposing the
introduction of prior testimony to bring up its defect. If
the opposing party cannot do this, the prior testimony
will be admitted.
f. Same Plaintiff and Different Defendant
i. Former testimony of witness at first trial NOT admissible
b/c new defendant at second trial did not have the
opportunity to interrogate witness at the first trial.
g. If P1 did a good enough job, then P1 is P2s predecessor in interest
(class notes)
vii. Opportunity to Cross Examine
1. The rule requires only an “opportunity” and similar motive to develop the
witness’s testimony in the first proceeding – thus, a party who chooses not
to develop adverse testimony may nonetheless be bound by it in a
subsequent proceeding.
2. It is immaterial whether the opportunity is afforded at the juncture of direct
or on cross.
97
a.
Ex. If P calls W, asks only several questions and, following his
opponent’s cross, declines redirect, the rule is satisfied—so long
as the motive for developing the testimony is similar to the motive
that the party would have to develop the testimony in the current
trial.
b. It is also satisfied if a cross-examiner (against whom W’s
testimony is subsequently offered) waived cross-examination in
the first trial.
3. Depositions count!!! If deposition taken and then the witness deposed
becomes unavailable, the deposition testimony can be introduced at a
subsequent trial.
viii. Similar Motive to Develop Testimony
1. The party against whom the prior testimony is now offered must have had
a similar motive to develop the testimony by direct, cross, or redirect
examination at the prior proceeding.
2. Find out motives of developing testimony in first case and second case.
3. Where there is a new party, testimony cannot be offered against them if no
opportunity to cross the first time and goals are different from the first
time.
4. Ask: What kinds of questions would that party ask if W was here today?
5. Ex. 1: Asbestos cases – admissible
a. Ex. P against Manville. In discovery, P called Dr. Crane who
worked for asbestos manufacturer (Manville) but then became a
P’s witness. Testify that company knew about dangerous nature of
asbestos and continued to market it. He is deposed before trial
(took 2 days). 2 weeks later, Crane dies of asbestosis.
b. At trial 1 in which he gave the deposition, P wants to admit it,
which he can do because he was deposed for that trial.
c. At trial 2, P2 sues Manville. P2 wants to use Crane testimony.
Manville says diff issues-in first case, end user (put in house and
died); here worker in asbestos plant so diff issues (no breach of
warranty if worker, end user might need diff warnings, etc). Can
be admitted b/c it was testimony about Manville’s knowledge
(R&D). Party against whom testimony is being offered will try to
point out diff issues about the case. Often does not make a
difference as to what witness was testifying to. Everything
witness was testifying to in trial 1 relevant in trial 2 so similar
motive were Crane alive.
d. At trial 3, P1 against Raybestos (new D). Raymark arges that the
original cross-examination was directed at acts done by Manville,
not those by Raymark, so diff motive now. However, the court
held that the prior testimony was admissible because the issue
under the substantive law of product liability was “state of the art”
and knowledge of one is imputed onto all. Crane testimony
admissible against all asbestos manufacturers.
6. Ex 2: Bailey – dissimilar motive
a. US v. Bailey: Bailey tried for robbing federal institution. Alibi is a
witness who says she was w/ Bailey at Plaza hotel the whole day.
b. Bailey v. Bailey: Wife suing him for divorce. Testimony husband
developed about him and another woman together. Can wife
admit the woman’s testimony from US v. Bailey? No. Different
motives/strategies! At the first trial, Bailey had no motive to
develop exactly what him and other woman were doing, i.e. they
weren’t having sex. Here, his motive would be to develop
woman’s testimony about them not having sex. Transcript not
admissible.
7. Ex. 3: Anderson – dissimilar motive.
a. P’s husband is killed and she is the beneficiary of his insurance
policy. The insurance company defends its non-payment on the
ground of conspiracy (P killed husband). The issue in the case is
98
whether P conspired with Smith to kill her husband. The
insurance company wants to introduce prior testimony given at
Smith’s earlier trial for hiring a hitman to kill P’s husband. At
this trial, the hitman testifies against Smith and Smith’s counsel
did an aggressive cross examination. D (insurance co.) seeks to
introduce the hitman’s testimony against P. The court held that
the prior testimony is inadmissible because Smith, as D in the
previous trial, had a different motive to cross-examine the hitman
than P would in the subsequent trial. In Smith’s criminal trial, he
was trying to shift the blame onto P. In P’s suit, she is trying to
show that she didn’t have anything to do with it.
8. Ex. 3 – inadmissible if very different stakes
a. P1 v. American – Plane grazed a barn and knocked down stuff. P1
suing for property damage for $5,000. P calls witness but doesn’t
ask so much.
b. P2 v. American – P2 suing for $2 bil. Dissimilar motive.
ix. Grand Jury Testimony
1. Where prior testimony occurs before a grand jury, the prosecution can
never use the testimony at the later trial because the defendant never has
the opportunity to cross-examine a witness before the grand jury. The only
way former grand jury testimony might be used is if the defense that wants
to use exculpatory evidence by a witness. There the prosecution will argue
that it did not have the requisite similar motive during the grand jury
proceedings.
2. Cannot be offered against a criminal defendant at trial.
a. Ex. Witness says “I saw D do everything” in GJ hearing, then W
is unavailable. That testimony cannot be admitted at trial against
D.
b. Rationale: D cannot cross-examine witness since only prosecutor
has the opportunity to develop testimony at GJ proceeding.
3. D might be able to use exculpatory evidence by a witness against the gvt.
a. Depends on strength of evidence to GJ—turns on whether the
prosecutor in GJ proceedings had a motive to develop the
witness’s testimony that was similar to the motive that would
exist if the witness testified at trial.
b. The prosecutor at a grand jury proceeding generally does not have
a similar incentive to attack the testimony of witnesses who testify
favorably to the D as she would have at trial (this is what
prosecution will argue).
c. Rationale: the standard of proof for obtaining an indictment
(probable cause) is substantially lower than the beyond a
reasonable doubt standard that will apply in a criminal trial (one
witness can sway jury). Standard of proof at GJ proceeding is
probable cause.
d. Similar Motive (trial-like situation) is found where 3 factors exist:
i. (1) issuance of an indictment that is in doubt b/c
probable cause is close,
ii. (2) it appears as if the grand jury could have believed the
witness, and
iii. (3) W is attacked in the same way as he would have been
at trial.
e. Ex. Salerno (2d Cir): Gvt trying to prove Salerno engaged in
kick-back scandal. Construction K above $2 mil, 5% goes to the
mafia. Gvt calls Kers in city to testify to kickbacks to mafia
(criminal act). No one wants to testify. Gvt gives all Kers
immunity-statements cannot be used against them ever. 53 Kers
say I paid my 5% to mafia. 2 say I never paid anything to mafia.
Exculpatory testimony for D. Prosecutor was shocked at this
testimony. At trial, D wants to call 2 Kers who invoke 5 th
Amendment Privilege. Prosecutor wont grant them immunity. D
99
c.
says that makes them unavailable and should be admissible. Ct
says what happened was unfair—gvt immunize testimony in gvt’s
favor but don’t immunize testimony against gvt. Lower ct
admitted under 804B1 b/c fair. Supreme Court said the rule
doesn’t say fair. Says admissible when similar motive/opp–look at
plain meaning of the rule. SC remanded. Back to second circuit,
which held that diff opportunity/motive b/c different standard.
The indictment was not in doubt (53 Kers testified they paid
money to mafia), but one witness can sway the jury.
f. Ex. McFall (9th Cir): Does not have to be the same motive/opp,
just similar. The goal would be the same in both cases. You would
want the witness to be addressed on the matter and the goal would
be to develop the testimony that is not favorable to the D. 2nd cir is
talking about intensity of motive not similarity. Any exculpatory
testimony at GJ admissible if witness becomes unavailable in
interim.
x. Forms of Evidence for Former Testimony
1. Use of the transcript from the former proceeding.
2. The witness who heard the former testimony can take the stand in the
present trial and recite what he/she heard the declarant say (can use his/her
notes as well to refresh memory).
804(b)(2): Dying Declarations. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarant's death was
imminent, concerning the cause or circumstances of what the declarant believed to be
impending death.
i. Rationale:
1. A declarant faced with what he believes is his certain death is unlikely to
lie. One facing death has nothing to gain by promoting a fabrication.
2. The lapse of time between the relevant events and the declarant’s
declaration is likely to be short, thereby reducing the hearsay danger of a
faulty memory.
3. Memory problems reduced by the restriction for dying declarations that
limits their content to “the cause or circs of what the declarant believed to
be her impending death.”
ii. Counterargument: You have nothing to lose by lying-might want revenge. Capra
thinks this exception used to make more sense. Many dying declarations are
unreliable.
iii. Note: Infrequent. In most cases, murder is not a federal crime.
iv. Admissibility: The trial judge will look at the categorical requirements of the rule as
well as the circumstances of the dying declaration—proponent must show by
preponderance of the evidence that the declarant had an unequivocal belief of swift
and certain death with no hope of recovery.
1. Under 104(a), the judge may look to the hearsay statement itself in
determining admissibility.
2. The jury then determines the weight such evidence should be accorded.
v. (1) Awareness limitation: Declarant must be aware of imminent death/swift and
certain doom.
1. Declarant must be conscious and aware of a swift/certain doom and must
have given up on all hope of recovery.
2. Look at the totality of the circumstances – do not need to be explicitly told
that you are dying.
3. Actions normally associated with expectation of death: last rights, dividing
up property, etc.
4. Ex. Declarant said “the D shot me and I am now dying.” D says cant
consider that part b/c hearsay. Judge isn’t bound by rules of evidence so
judge can do what he wants w/ that statement under 104(a).
5. Ex. Phillips: Woman terminally ill in pain. Being cared for by nurse and
her sister. Nurse came around one day and asked woman how she was
feeling. She says I am in pain and my sister said taking these pills would
help. Woman dies 2 hrs after from poisoning. Gvt wants to use statement
100
d.
to prove sister gave poison. Not a dying declaration b/c she wasn’t aware
of swift and certain doom—more than terminal illness is needed.
6. Ex. Nieves: Gf brought into hospital w/ stab wounds. She says Angel
stabbed me here and here (2 places) and I don’t want to die. She dies 45
min later. Court said no dying declaration—wounds did not appear to be
fatal and she said I don’t want to die which shows she didn’t have
awareness of swift and certain doom (Capra thinks second arg is bad – rule
does not say you have to like the idea of dying).
vi. (2) Subject matter limitation: Statement has to be about the immediate causes
and circumstances of your death.
1. Statement cannot just be about anything–must be about the declarant’s
cause of death or the circumstances of death.
a. Ex. Nieves: Gf said “Angel stabbed me here and here, just like he
did last yr.” Ct said not under awareness of swift/certain doom. Ct
also said latter part not allowed b/c what Angel did last yr is not
about immediate cause/circumstances of death.
b. Ex. D is robber, before dies says, “I am the one who robbed bank
and X is the one in jail for it.” Cannot introduce b/c not related to
cause/circs of death.
2. Statements must relate to cause/circumstances of one’s OWN death, not
someone else’s.
a. Ex. Declarant hit by truck dying on street, says he knows he will
certainly die swift and certain death. He then admits to killing
someone. Someone else charged w/ murder could not use this
statement as evidence of his innocence-the statement must
concern the cause of circs of what the declarant believed to be
impending death.
vii. (3) Personal Knowledge Required
1. Dying declaration should not be admitted absent a showing of some firsthand knowledge by the declarant – suspicion/conjecture is not sufficient.
2. No hearsay evidence allowed w/o personal knowledge b/c don’t allow
witness’s on stand to testify w/o personal knowledge.
a. Ex. If you were to say someone shot me and asked how do you
know and you say I don’t know, you would not be permitted to
testify b/c every witness other than an expert has to have personal
knowledge of what they testify to.
3. Personal knowledge is an admissibility requirement that applies to hearsay
exceptions.
a. Depends on circumstances
b. Exception: party admissions offered by party opponents.
i. Mr. poos in case says sophie bit the baby. Ct says its
admissible even though you have no personal
knowledge, because if you make speculative statements
you live with the consequences.
4. Ex. D, Robert, charged with murdering victim, Jesse. Witness (Frank)
testifies that dropping by Jesse’s one day and went into house, he was lying
in parlor face down in blood but was still breathing he said “Robert Ford
shot me in the back and I have got to die.” He died right after. Jesse
doesn’t know Robert shot him. However, circumstantial (diff if he was
shot in a hall of mirrors).
5. Ex. Owens: Hearsay statement is Owens hit me in head by lead pipe.
Evidence that lead pipe was from back. Perpetrator had to be in the back.
Owens said no personal knowledge. Lower court said if guard had no
personal knowledge, cannot allow it. But defensive wounds on arms –
evidence that he saw perpetrator (wounds that he was defending himself).
6. Ex. Shot in back. Says “I know I’m dying. Billy did it!” Could not have
known so inadmissible.
804(b)(3): Statements Against Interest. A statement which was at the time of its making so
far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the declarant against
101
another, that a reasonable person in the declarant's position would not have made the
statement unless believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
i. Declarations of interest are disserving statements made by unavailable nonparty
declarants—statements of declarant offered against a third party (not the declarant).
ii. Rationale: based on a psychological assumption that a person does not make
personally disserving statements unless they are true.
iii. Requirements
1. (1) the declarant is unavailable as a witness.
2. (2) statement was against declarant’s interest (disserving)—the
statement so far tended to subject the declarant to criminal liability that a
reasonable person in the declarant’s position would not have made the
statement unless he believed it to be true, and
3. (3) corroborating circumstances clearly indicate the trustworthiness of the
statement (in criminal context)
4. (4) declarant must have first hand knowledge of facts asserted in
declaration
5. (5) offered against a third party (not the declarant).
iv. Declarations Against Interest v. Party Admissions (801d2A)
Statements Against
Interest
-must be disserving
-unavailable declarant
-admissible against any
or all parties to the suit
-need personal
knowledge
Party Admissions/Statement
by Party Opponent –
801(d)(2)A)
-need not be disserving
-declarant need not be
unavailable
-admissible only against the
party responsible for it
-do not need personal
knowledge
v. “Against Declarant’s Interest” = Tendency to Disserve (use context!)
1. “Bill and I robbed the bank and we tried to get Joe to come along but he
wouldn’t” offered by Joe to show that he did not rob the bank. Defendant
seeks to exculpate himself through the statement
2. Reasonable Person Test: whether the statement was so far contrary to the
declarant’s interest that a reasonable person would not have made the
statement unless believe it to be true.
3. Ask: Could the statement subject the declarant to a RISK of criminal
liability?
4. Three kinds of interests the declarant can impair:
a. (1) Pecuniary (property, financial, debts, tort liability)
i. Ex. Ghelin: Statements that decedent made that he was
not married are admissible as hearsay b/c statements that
he was married might have resulted in declarant saving a
substantial amount of money.
b. (2) Proprietary
c. (3) Penal (subjects declarant to jail time)
i. When statements are offered as exculpatory evidence by
the accused, the trial judge may not admit such
statements in the D’s favor unless corroborating circs
indicate its trustworthiness.
ii. Although the rule does not require corroboration when a
delcarant’s declaration against penal interest is offered
by the prosecution against the accused, some courts have
required corroborating circumstances for governmentoffered statements.
d. Note: The proponent cannot claim the statement is against
reputation, social standing, etc. too amorphous.
102
vi. Inculpatory Statements: Prosecution’s use of one suspect’s confession against a
second suspect where the confession implicates both.
1. Offered by the prosecution against the D for what it says about the D, not
the declarant—Ex. Person who was arrested for robbing the bank says, “I
robbed the bank with the D.”
2. Custodial Statements: Statements offered by the prosecution by alleged
accomplices to police officers are NOT ADMISSIBLE against the accused
under 804(b)(3) b/c such accusations are not against the declarant’s penal
interest–-more about currying favor with the police.
a. Statements by alleged accomplices to POs are not admissible
against the accused under 804(b)(3) because such accusations are
not against the declarant’s penal interest.
b. Courts are reluctant to admit statements that while are selfinculpatory, have a self-serving aspect.
i. Ex. Williamson: The gvt sought to use certain statements
of one Harris, an alleged accomplice, to implicate the D,
Williamson. Harris was arrested after two suitcases of
cocaine were seized from the trunk of his rented car.
During custodial investigation, Harris told a DEA officer
that he was transporting the Cocaine for Williamson. Ct
said inadmissible b/c the against-interest exception did
not apply to the confessions insofar as they implicated
Williamson b/c implicating Williamson was not contrary
to Harris’s interest given the context in which the
statements were made. Harris may have thought that his
statements would decrease his own punishment–he had
incentive to identify other criminals/cooperate.
c. Note: the statement would be admissible against declarant
because of statement by a party opponent exception.
3. Non-Custodial Statements: Statements made to friends/family instead of to
POs are usually ADMISSIBLE b/c the Dnever knows if a person will rat
him out (potentially disserving).
a. Ex. Katsougrakis: Diner in LI losing money goes on fire. Police
find out that someone in diner, who is still alive and has matches
on him. He is in the ICU/burn ward. A week later his friend
comes up to him and says what happened to you? Burn guy says
“K paid me to burn down the diner but I messed up.” Gvt wants to
introduce that statement against K. Admissible as a declaration
against declarant’s penal interest? No motivation to curry favor
with law enforcement (b/c talking to friend), which is diff than
Williamson. So not self-serving since admitting to a conspiracy,
insurance fraud, inside knowledge about crime. However, made it
to a friend…how is that disserving? You never know who your
friends are – rule is could it subject you to a risk of criminal
liability.
b. Ex. Declarant made statement to his wife. D took position that
cannot be against his interest because it is declarant’s wife.
However, Ct said the point is not whether statement can be used
against declarant as evidence, but could it ever be disclosed to the
authorities and the authorities could act upon it? Yes, she could
advertently or inadvertently give the info to the police.
c. Ex. “D paid me” is admissible b/c can implicate the declarant in
the conspiracy.
vii. Exculpatory Statements: a common use of declarations against penal interest is
the use by the accused D of a statement by a third person declarant (often by
confession) exculpating the accused.
1. Usually in the form of statements made to POs that are offered by the D on
his own behalf.
a. Ex. “I robbed the bank by myself” (without the D).
103
Ex. “I robbed the bank with Larry, but not D.” That is offered by
the D as a declaration against interest by the declarant.
2. Rationale: If you have been arrested and you say who did not do it or
accept complete responsibility, that does not help your case and is certainly
disserving.
3. Requirements:
a. (1) D has to show that statement tended to disserve declarant’s
interest AND
b. (2) D must provide evidence of corroborating circumstances
clearly indicating trustworthiness of the statements.
4. Statement While Incarcerated Ex. Silverstein: Silverstein head of prison
gang charged with murdering guard. Offers statement made by fellow
prisoner, Matthews, who says “I killed the guard, not Silverstein.”
Silverstein says against Matthews interest. However, Matthews was
serving a life sentence. He had nothing to lose by saying that and could
actually help the leader of the gang by saying that. Could not tend to
subject him to a risk of criminal punishment that he was already subject to
so inadmissible. However, if 3 yr term and said I killed the guard not D,
then D can admit this.
5. Leading People Into Crime Ex. Paguio: Dad says I engineered fraud and
my son only signed some docs. That is exculpatory of son who is D in the
case. Disserves Dad’s interest to say son was a dupe b/c he admitted he
was leading son into a crime, which makes your crime worse! A
reasonable person would know it is worse to dupe ppl into crime rather
than just do it yourself.
6. Statements at Sentencing Hearings Ex. D2 charged with committing
robbery w/ partner D1. Tried separately. At D1’s sentencing hearing, D1
admits his guilt and the fact he was solely responsible. D2 cannot use this
as evidence of his innocence b/c the statement at D1’s hearing is not
against interest b/c already found guilty.
viii. Corroborating Circumstances (for Exculpatory Statements)
1. If an exculpatory statement of the declarant is offered by D to exculpate
himself, the D also has to show corroborating circumstances clearly
indicating trustworthiness.
2. Rationale for extra admissibility requirement. Bad guy can ask another to
say that he did it. Would tell that person that won’t get into trouble b/c no
evidence against him.
3. Factors
a. Inside information (knowing info only perp could know). Could
be in the form of details that the declarant gives that no one other
than the guilty party would know.
b. Independent physical evidence (fingerprints, etc) linking the
declarant to the crime.
c. Speaking to trusted confidant (tends to be truthful)
d. Making statements spontaneously (if reliable)
e. Declarant’s story is plausible (if implausible, cuts against
corroboration
f. Where more than one person hears the out-of-court declaration,
the more likely it is that the declaration was at least made.
g. Character of declarant (if criminal, less likely declarations will be
admitted)
h. Look at declarant’s relationship with the D (does declarant have
motive to lie?)
4. Two Sources:
a. (1) Actual Evidence That Shows Truth
i. D cannot corroborate with his own testimony (selfprofessed innocence).
ii. Information that is known by the public (i.e. from
newspaper) is not good evidence of corroboration—
b.
104
make sure declarant didn’t have access to the underlying
information.
iii. Ex. Mills: Someone murdered guard. Hogan says “I
murdered guard, not Mills.” Mills tries to admit.
Statement against interest? Yes b/c Hogan was doing a
15 yr sentence (he was going to eventually get out).
Now, D has to show CC. Mills says “he did it.” Not
enough. However, a CC would be something like Hogan
saying “I killed the guard with a can opener and made a
weird star on his chest.” They find guard with the star on
his chest done by can opener. Or maybe Hogan had bad
relationship w/ guard for a long time (speaks to
motivation). Or maybe forensic evidence leading to
Hogan.
iv. Ex. “I killed the person, not the D, and I left him in…”
Gvt implanted incorrect info in newspaper (details that
didn’t exist). Declarant said all of these details; clearly
not CC b/c not personal knowledge.
b. (2) Statements Made Under Peculiar Circumstances
i. CC must be reliable for evidence to be admissible.
ii. If person appears to be acting in an unreliable fashion,
hard to establish CC.
iii. Ex. McDonald: D charged with killing his family and
says a bunch of hippies came into his house looking for
drugs, and then killed his fam. The woman who led the
episode had a blonde wig and floppy hat who ran into
house saying “kill the kids.” Later, D’s investigator goes
out and finds this woman Helena who just got out of
detox program. She says we went into his house, I had on
my blonde wig and hat and I remember saying something
like kill the kids or pigs. That is a declaration against
interest. But D has to show CC. He says her account
accords w/ my account (but she might have had access to
that account – it was in newspapers, etc. so not CC).
Court concerned b/c statement was made under
unreliable circs – made to McDonald’s own investigator
AND she is an unreliable person (faulty memory, drugs,
etc). Not admissible.
iv. Ex. D rents car in Texas, drives to Mexico, comes back
at end of day. Car searched and cops find coke in duck
tape – charged w/ trafficking. Wants to introduce
statement made by another person: “I rented that same
car a week earlier and I went across border into Mexico
and picked up a rectangular shaped brick of coke and put
it under the back seat. I got across and no one checked
me. Then I turned car in and forgot about the brick.”
Disserving b/c declarant admitted to driving w/ coke but
circumstances too unrealiable/implausible.
ix. Amendment – Prosecution Must ALSO Show Corroborating Circumstances
(for Inculpatory Statements)
1. If look at existing rule, says if statement offered by the accused, the
accused must present CCCIT but doesn’t say statements offered by the gvt.
a. Ex. “I robbed the bank with the D.” Offered against D by
prosecution - don’t have to show CC. “I robbed bank w/ Larry but
not the D.” If offered by D, has to show CC.
2. Amendment expands CC requirement to prosecutors as well as Ds.
a. Under existing rule, no CC requirement for inculpatory. However,
with amendment CC requirement when gvt brings in inculpatory
statements.
105
e.
804(b)(6): Forfeiture by Wrongdoing. A statement offered against a party that has engaged
or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
i. Any party who wrongfully acts, or acquiesces in wrongdoing, with the intent to
render a declarant unavailable to testify, forfeits the right to object to the
unavailable declarant’s hearsay statement.
ii. A D’s intentional misconduct constitutes a waiver of the right to confront witnesses
against that D, supplied by the Confrontation Clause of the Sixth Amendment.
iii. The “wrongdoing” need not rise to the level of criminal activity.
iv. The most obvious situation for employing this exception is where a criminal D kills
a witness, or has him killed, to prevent him from testifying.
1. However, if a prosecutor intentionally intimidates a defense witness so that
the witness refuses to testify, the prosecution loses the right to interpose a
hearsay objection w/ respect to any hearsay statement that the witness may
have made.
v. Rationale: a party should not be able to profit by excluding hearsay that is only
necessary b/c the party has made it impossible to produce the declarant.
vi. Rule: It must be shown that the party against whom the evidence is offered acted
with the intent to procure the unavailability of the declarant as a witness. If you
were the cause of the unavailability, you cannot object to bringing in hearsay
(something that the unavailable declarant said outside of court).
vii. Preponderance
1. The proponent of the evidence must prove that the opponent of the
evidence acted with the intent of making the declarant unavailable by a
preponderance of the evidence.
2. Gvt has to show more likely than not that the D acted wrongly in creating
the unavailability of the declarant.
3. Classic case: Someone testified in front of the grand jury. D has a hearsay
objection at trial, but if D goes and kills witness and gvt cannot present
him, D cannot object to the GJ testimony. At hearing, Ct will hear evidence
of what the D to cause unavailability of the declarant.
viii. Intentionality
1. The intent to render a witness unavailable can be inferred from wrongful
activity.
2. You have to act wrongfully w/ the intent to make them unavailable to
testify as a witness/keep person off the stand–not just with the intent to
make them dead.
a. If had it another way, there would be a murder exception to
hearsay.
b. Ex. Murder case-victim made statement not admissible as dying
declaration. “I’m pretty sure the D is going to kill me” or “D has
shot me.” Victim is now dead b/c murder case. Gvt seeks to admit
hearsay of victim. D says hearsay. Gvt says you forfeited on
hearsay grounds b/c murdered victim.
3. Having an intent (doesn’t have to be the sole intent) to keep witness of
stand is all that is required.
a. Ex. Ds charged w/ murder during drug conspiracy and murder a
co-conspirator. Gvt says we want to introduce hearsay and you
forfeit b/c intent to keep him off stand (he would flip). D says we
had a dual intent for killing him – we wanted to keep him off
stand BUT dominant intent was that he sucked as co-conspirator
(firing by murder).
ix. Others Besides the Criminal D
1. Rule: Any party who causes or acquiesces in wrongdoing with the intent to
render a declarant unavailable forfeits the right to object to the unavailable
declarant’s hearsay statement.
2. Conspiracy: If an act which lead to the unavailability of the W was in
furtherance of and within the scope of the conspiracy, and reasonably
foreseeable as a ‘necessary and natural’ consequence of the conspiracy,
106
then the D waives his constitutional confrontation rights if he was part of
that conspiracy.
a. Ex. Cherry: D is part of conspiracy and get arrested. Witnesses
get killed by co-conspirators. D didn’t kill them or order the
killing. The Ct found forfeiture. By joining conspiracy, that is
wrongful conduct. Idea is that when join conspiracy mutual
understanding that if anyone is going to testify about bad things
they die. Intent to conspiracy is imputed to the D. If someone in
your conspiracy kills the witness, sucks for you.
3. Prosecution: If the prosecutor intentionally intimidates a defense witness
so that the witness refuses to testify, the prosecutor loses the right to
interpose a hearsay objection with respect to any statement that the witness
may have made.
x. Domestic Violence Cases
1. If victim refuses to testify, doesn’t fall into any exceptions
2. Can we say husband caused the forfeiture? Usually NO. Had to have
INTENTIONALLY created unavailability of victim as a WITNESS, while
this is just prior history fear.
3. Not beating wife up so that she does not testify/to keep her off the stand,
you’re just beating her up b/c you are an asshole.
4. Rule is narrow here…
ii. Hearsay Exceptions Not Dependant on Declarant Unavailability – Rule 803
1. Introduction
a. Rule 803: “The following are not excluded from the hearsay rule, even though the declarant
is available as a witness…”
b. Rationale: Reliable—these exceptions have admissibility requirements that tend to
guarantee that the hearsay statement is better than any testimony the declarant could provide
on the matter at trial. At trial, concerns are memory, time lapse, and the formality that tends
to take away evidentiary power.
c. Admissibility: If the statement meets the requirements of 803 as determined by a judge by a
preponderance of the evidence, it will be admitted. Once admitted, the jury determines the
weight it will accord to such evidence.
d. Personal Knowledge: except for admissions and expert testimony, all hearsay exceptions
require that the declarant have personal knowledge of what they are testifying to.
e. Note: If another hearsay exception/exemption applies, the proponent may wish to proffer
evidence under either or both rules.
i. Ex. If a given statement were both a party admission (801d2) and an excited
utterance (803(2)), the proponent may wish to proffer evidence under both or just
803(2) so that it can be used freely against every party (admissions admissible only
against party who made it).
2. Present Sense Impressions
a. Rule 803(1): “A statement describing or explaining an event or condition made while the
declarant was perceiving the event, or immediately thereafter.”
b. Requirements:
i. There must be a close temporal nexus between the event (or condition) and the
declarant’s descriptive/explanatory statement.
ii. The statement must describe or explain the event the declarant perceived.
iii. Declarant must have first hand/personal knowledge of the event or condition about
which he speaks.
iv. Corroboration of event.
c. Rationale:
i. Immediacy—the brief period between the declarant’s perception and her statement
allows very little time for devising a fabrication.
ii. Credibility—there is someone else to check on the perception of the declarant b/c
these statements are made to someone else, the W, who is at trial.
d. Ex. Declarant caught in late afternoon rush hour traffic jam observes a fire engine speeding
down highway in opposite direction. She remarks to her passenger, “look how fast he his
going, over 90 I bet!”
e. Ex. Houston Oxygen: Car accident – whether particular car speeding through intersection.
P’s offer proof that a particular car was speeding. Another driver not involved in ax comes
107
f.
g.
h.
up to testify. “Were you driving on highway 59 on particular date? What happened.” He
says, “Car passed us…my friend said ‘that car is going really really fast.’” Hearsay statement
by passenger (car going fast) offered to prove it was going really fast. Not an excited
utterance b/c not startling event - capable of reflection. Admissible as present sense
impression b/c driver heard statement right away and was also there at the time of the event.
B/c driver was also there, driver can tell fact-finder on the stand whether he thought the
statement was true or not.
i. If driver can testify to car going fast, why do you need passenger’s statement?
1. Two pieces of evidence – passenger’s statement about car going fast and
driver’s testimony about car going fast. Therefore, corroboration.
Immediacy
i. Most impt part of the rule
ii. Immediately thereafter OR at the actual event
1. Anything more than a minute after the event, it will be tough to admit it as
a present sense impression
iii. Case by case determination – court will see if there was significant time for
reflection.
iv. Note: Line-ups are NOT present sense impressions. The essence of an ID such as
photo array/lineup is a comparison between what the witness is contemporaneously
viewing and the witness’s recollection of a prior event.
1. Ex. Brewer: D tries to admit present sense impression and Ct says no.
Statement is “That is not the guy” made at a line-up. D wants to introduce
fact that he was not IDed at line-up. Not a present sense impression.
Statement is really “this is not the guy who robbed me two weeks ago” so
is a statement about a historical event.
Describe or Explain
i. Statement must describe the actual event that it is immediate to.
1. Ex. David: Saw woman slip in ketchup and walks up calmly, saying,
“Looks like you just slipped in ketchup. Also, I wanted to tell you I told
them about it an hour ago.” Not admissible b/c the statement to be
admissible under 803(b)(1) must describe the event that the statement is
immediate to. Proponent trying to prove the notice, not the slip and fall, so
the “I told them an hour ago” not admissible (but would be under excited
utterance, b/c just has to “relate to” the event, not describe/explain).
ii. Note: For excited utterances, statements only need to relate to the event, which is
broader than present sense impression.
1. Rationale” has been w/ courts for a long time; courts believe it has a basic
premise of reliability; if startled will make true statement.
Corroboration of Event/Condition
i. Most courts are concerned about the potential of unreliability, and so require
independent evidence of the event before the statement can be admitted as a present
sense impression.
ii. Some kind of independent verification that what the declarant is saying is truedoesn’t have to be actual perception of event testified to.
iii. Can take the form of in court testimony of the D, testimony of another person who
also saw some of what the declarant saw, or simply circumstantial evidence that the
event occurred.
1. Witnesses do not have to be in the same position to observe as the
declarant. But it is necessary that the witnesses be able to corroborate the
declarant’s statement.
2. Note: Independent verification cannot come from the declarant.
iv. Declarant’s statement not usually enough to prove by a preponderance of the
evidence that the event occurred. However, the judge can consider the declarant’s
statement itself for its probative force.
v. Ex. Blakely: Ds being tried for extorting money from business ppl. Person at
restaurant at time testifies that two guys came in and started tipping over tables and
making a nuisance – proprietor was behind counter and they took him and lifted him
into the back room. Doesn’t know what happened in back room. Said in back for
about a minute. Then two guys walked out and looked satisfied. Then proprietor
came out thirty seconds later and said that just cost me $1,500. Trying to prove
108
3.
illegal transaction. Gvt offers that statement “that just cost me $1,500” as present
sense impression. Statement is admissible b/c this is circumstantial evidence –
witness can testify to his personal knowledge of circs that verify truth of
proprietor’s statement.
vi. Ex. Houston Oxygen: Statement could be verified by witness who was present in
court.
vii. Ex. People v. Watson: Two women speaking on a phone-Alice and Edna (victim). E
found murdered in her apt and Alice is witness, who wants to testify to statement E
made. A talking to E – A heard doorbell ring and E said “hold on I am going to see
who is at the door” Then I heard her speak to a man. She came back, picked up the
phone and said “the super is here I gotta go.” Now she is dead and Watson is super.
Gvt wants to admit the statement “it is the super at the door” as present sense
impression. Cannot admit that b/c A could not see who was there.
1. Note: If gvt wanted to prove that it was a man who committed the murder,
not a woman. That testimony can be introduced if A hears a man’s voice.
A doesn’t have to be there to see the man – the voice is enough.
2. Note: If she said she heard a man talking about plumbing and garbage, etc.
Then she can probably draw the conclusion that it was the super at the
door.
viii. Unidentifiable Declarant
1. If a declarant’s personal knowledge can be established through the
statement, declarant need not be an identifiable person.
2. However, important to know who declarant is or else people can make up
evidence.
Excited Utterances
a. Rule 803(2): “A statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.”
b. Situation: Something happens, you are startled, and you make a statement about that thing.
c. Rationale: You have to think to lie; when startled, you don’t have time to think.
Excited Utterance
-startling event
-does not have to be contemporaneous/immediate
-person must be startled/stressed
-relates to event
d.
e.
f.
g.
Present Sense Impression
-event does not have to be startling
-statement must be contemporaneous/immediate
-person does not have to be startled
-must describe event
Standard: Preponderance of the evidence/more likely than not.
i. Judge may consider the declaration itself in ruling on the admissibility of the
proffered statement. However, rare when the proponent must rely solely on the
declarant’s statement to establish the essential elements of an excited utterance
(usually other evidence). Judge may draw inferences from the circumstances.
Requirements
i. An exciting/startling event
ii. Followed by the declarant’s statement that “relates to” it
iii. Statement made under the influence of stress/excitement (before there was time for
reflection/fabrication)
iv. Declarant must have personal knowledge
Potential Problems:
i. Emotion and stress are associated with faulty perception.
ii. Some lies do not really take time to think them up.
Startling/Exciting Event
i. Proponent has to prove that the startling event actually occurred.
ii. Not just enough to be excited and talking–something that would shock the avg
person.
iii. Capra—Rule out from exception statements by ppl continually excited about life.
iv. Courts are flexible…
v. Obvious startling events: earthquake, physical harm, anything out of the ordinary
1. Ex. Person talking to his accountant. Accountant says your tax liability is
three times what we thought it would be. Ct says startling event.
109
h.
vi. Note: Reminders of startling events can be considered new startling events.
1. Sometimes days or months after an emotional event the declarant
encounters something or some person that vividly renews the memory of
the exciting event and reignites the emotion/nervous stress that
accompanied it.
2. The exception is applicable in situations such as this b/c its essential
requirements are usually satisfied.
3. The startling event is the shock of seeing the perpetrator or some other
trigger in such unexpected circumstances.
4. Ex. Napier: woman walking through park and gets assaulted by
perpetrator. In hospital for months. Comes out of hospital. As reading
paper, sees picture of D. the woman gets upset and yells “He killed me.”
Admissible as excited utterance. Gvt says not hearsay b/c not offered for
the truth of the fact that he killed her b/c she is alive. It is an exaggeration –
she is intending to assert that he assaulted her so hearsay. D says not
excited utterance b/c no startling event. Ct says seeing the guy in the paper
is a startling event.
vii. Expected v. Unexpected Events—some courts say that planned events are not
startling if the event occurs as planned; but ask if the factors are within D’s control
(just b/c you plan something does not mean you control it).
viii. Proof of Event: hearsay declaration may itself be sufficient, but generally more is
required.
Under the Influence of Stress/Excitement
i. Issue: whether the declarant was in a continuous state of emotional upheaval
between the occurrence of the event and the time when he spoke.
ii. Rationale: reduces the risk that the declarant is lying or consciously misleading the
listener.
iii. Cannot have reflective capacity. Proponent needs to show person was in a
continuous state of excitement from time of event to time of statement.
iv. Factors:
1. Time elapsed between the startling event and the statement
a. Excitement wears off the more time has passed.
b. Immediacy not always necessary.
i. Ex. Jennings: J on plane in coach seated next to 12 yr
old girl. He moves into middle, puts a blanket over her
and starts molesting her. Stewardess sees this going on
and gets ppl to put him in back of plane. When plane
lands 3 hrs later girl is upset and tell her mother. J says
not excited utterance b/c event ended when the
molestation occurred. Gvt says she was startled until she
sees her mother and is free since she was locked on the
plane w/ this guy the whole time.
ii. Ex. Comatose for 6 mos. Wakes up and implicates guy
who hit him. Court says excited utterance b/c comatose
time is not reflection time.
iii. Ex. Declarant unconscious during the intervening 10
hour period between accident and statement.
iv. Ex. A woman is raped at 10pm. She escapes and hides,
but hears footsteps. At 6am she calls police and says “D
raped me.” Since the whole ordeal is a starling event, the
event really ends at 6am.
2. Whether statements were made in response to an inquiry (police asks 8/9
questions prior to statement; what might qualify as excited utterance at
start might not be at end)
3. Declarant’s age (children more likely to be influenced longer).
4. Characteristics/nature of the event
a. Ex. See car ax on street that you were not involved in. Get over it
in an hour or two. However, if you were involved in it, excited for
longer period of time.
110
b.
4.
Ex. murder is likely to be upsetting for a longer period of time
than a fist fight; shootings are more startling than slip and falls.
5. Declarant’s physical/mental condition—when people are
unconscious/comatose they cannot reflect/make up lies. Statements they
make right when they wake up are admissible.
v. In some cases, easy to show—i.e. cases where someone else is there and sees the
event sees person excited between time and statement and can bring that evidence
in.
vi. Usually not that easy in situations in which there is an event and statement but no
direct evidence about what happened in interim.
1. Ex. Marrowbone: officers see declarant talking to friends on street. They
arrest him on diff matter then he starts talking about getting assaulted. Not
excited utterance b/c they have evidence he was calm at one point talking
to his friends. Only got excited when they put him in cuffs.
i. Statement Related To Event
i. Stream-of-consciousness historical statements made in the wake of a startling event
are not admissible unless they relate to the startling event.
ii. Ex. David: P slipped and fell in supermarket on oil. Evidence is fellow shopper
walking behind her and saw her fall. Shopper ran up and said “Oh my, you fell in
the oil. I told them about it an hour ago.” P wants to introduce that latter part of the
statement to prove NOTICE. D argues the part about the oil was an excited
utterance but the part about notice is not about the event. Ct says admissible (even
the notice part) b/c doesn’t have to describe startling event, just has to be under
influence and relate to startling event, which this did. Statement about notice is
substantively connected to the event.
1. Note: If she had said “Oh, you slipped in oil. I remember slipping in oil a
couple yrs ago at Whole Foods…” that would be inadmissible b/c doesn’t
relate to startling event.
j. Personal Knowledge
i. Ex. OJ case: Evidence offered is that police call Nicole’s sister and tell her, which
is startling. Sister says, “OJ did this!” She has no personal knowledge so not
admitted even though startling and under influence and related to.
ii. Unidentifiable Declarants—Not a hearsay problem, but an in-court problem.
1. Let the jury decide if the proponent is lying about an unidentifiable
declarant by cross-examination of the witness.
2. An inability to identify the declarant is not fatal, but courts proceed with
more caution when the declarant is anonymous, b/c it can be difficult for
the objector to demonstrate that the declarant lacked first-hand knowledge
or to introduce impeaching evidence.
3. Ex. Car ax. Issue is who ran light. D takes stand and says I didn’t run light,
P did, as proof introduce statement made to me by person at scene who
was startled. The person ran up to me and said, “I can’t believe that other
guy ran the light.” D says he doesn’t know who the declarant was. Then P
says I didn’t run light and as proof some guy ran up to me and said the
same thing. Problem is that they could be made up ppl.
State of Mind – Physical, Mental, or Emotional Condition
a. Rule 803(3): “A statement of the declarant's then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but NOT including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of declarant's
WILL.”
i. Statements of a person’s state of mind they have at the moment the statement is
made are admissible for their truth – to show you what the state of mind actually
was.
ii. Can use it to show declarant did love/hate this person or was fearful/angry toward
this person.
b. Rationale:
i. Based on primacy/unique perception – A principal means of learning about a
person’s bodily or mental condition is through their own statements.
111
c.
d.
ii. The declarant is usually in a favorable position to perceive and report her own
physical or mental condition.
iii. Although immediate, state of mind is interior so no way to time it – can spend time
strategizing about how you feel in an hour and say it in an hour.
1. Crim D’s can do things to get their self-serving statements in under 803(3).
2. Ex. Lawal: D coming into US in airport drugs uncovered in suitcase; D is
angry b/c so innocent and has been set up – says “I am angry and I hate
drugs.” He made up state of mind for 18 hours on flight in case got
arrested. Judge said admissible – problem for jury.
iv. Even if the declarant is not always a reliable source of information, her declarations
are likely to facilitate evaluations by health care professionals and even family
members.
v. The hearsay dangers of mistaken perception and faulty memory are inapplicable.
1. However, Capra says state of mind is not always accurate (psychiatrists put
things in people’s heads).
vi. The frequency with which state of mind is an issue in litigation adds a practical
need for this evidence.
Presently Existing State of Mind
i. Limits the excepted duration to a “then existing” condition.
1. Ex. “Today, the pain in my lower back is very acute.”
2. Ex. “I am so discouraged and depressed. For me, like if no longer worth
living.”
ii. The rule is restricted to proof of forward-looking declarations in which the declarant
states his intention to undertake a course of action in the future.
1. Ex. “I am not in this business just to be competitive—as soon as I recover,
I’m going to drive Cartwright, my last competitor, out of business.”
iii. Present State Bearing on Past or Future State – As long as the declarant’s statement
concerns a present mental state, the exception applies even though the ultimate
mental state at issue is one that pre-dates or post-dates the statement. In such cases,
admissibility turns on relevance.
1. Note that the trier of fact can make a reasonable inference that the same
state of mind existed at an earlier or later date.
2. Ex. If a declarant stated in August that he loved his gf, the trier of fact
could draw inference that he loved her in July and September (question of
probative value).
iv. Will Exception
1. The rule adopts the requirement limiting the excepted declaration to a
“then existing” condition, but suspends that requirement for statements
regarding the declarant’s will—admissible even if they are statements of
memory or belief offered to prove the fact remembered or believed.
2. The unavailable declarant is the person who presumably knows the most
about his will – typically his declaration concerns his own conduct, and
normally a testator considers the execution or revocation of his will a series
matter.
3. Ex. “Don’t try to convince me of Fred’s redeeming features! I can’t stand
the guy. When I revised my will last month I left every nephew $50,000except Fred. For him, zero.”
4. Ex. “After Emma died, I tore up my will.”
How Exception is Used
i. To prove declarant’s then existing physical condition—declarant says something
about his then existing physical condition to prove that the condition existed (truth
of the matter asserted).
ii. To prove declarant’s then existing state of mind—declarant makes a statement
about their then existing state of mind to prove the mental state asserted where
mental state is directly at issue in the litigation.
1. Statements about declarant’s past state of mind generally inadmissible.
iii. State of mind as circumstantial evidence of another fact (past or future acts)—where
the mental/emotional state is not directly at issue in the case, but rather is
circumstantial evidence of some other fact in issue, typically the other fact being a
past or future act by the declarant.
112
e.
f.
Three Cases Where Evidence is Almost Always Admitted:
i. D’s Claim of SD: when such a defense is asserted, a D’s assertion that the deceased
first attacked him may be rebutted by the extrajudicial declarations of the victim
that he feared the D, thus rendering it unlikely that the deceased was the first
aggressor.
ii. D’s Claims that Deceased Committed Suicide: evidence that the victim had made
statements inconsistent w/ a suicidal bent are highly relevant.
iii. D’s Claims that Deceased Died Accidentally: deceased’s statements of fear as to
guns or to the D himself highly relevant—to show that he would never go near D
under any circumstances.
State of Mind “In Issue”
i. Where state of mind is in issue, very little done by courts to keep statements of state
of mind out.
ii. When the substantive law itself or a defense specifies a particular state of mind –
mental state is often an ultimate proposition to which the parties address their
conflicting evidence.
1. Ex. Lawal: state of mind (criminal intent) was in issue.
2. Ex. Crimes that require a particular mens rea or state of mind.
3. Ex. IIED cases
4. Ex. The measure of civil damages sometimes depends on the mental
suffering of the victim or the malicious intent of the D.
5. Ex. The question of whether one fraudulently conveyed assets turns on his
intention.
6. Ex. The issue of whether a will was validly executed may turn upon intent.
iii. Ambiguous/Bound-up Statements 403 balancing
1. Whenever you have a problem where the state of mind exception is also
including an assertion of fact for truth, use 403.
2. If admitted, give limiting instruction that it can only be used towards state
of mind.
3. Availability of less prejudicial testimony—where there is less prejudicial
evidence available to prove the same point, the court will not admit the
more prejudicial evidence.
a. Ex. If there is a lot of evidence that W hated P (i.e. evidence she
tried to blow up his car), the portions of the statement other than
“I hate you” would be excluded.
4. Ex. Atkins: Declarant’s state of mind in issue. Mr. Atkins and Mrs. Atkins
– Mr. suing Brett for alienation of wife’s affection. Tort has two elements:
(1) alienation, and (2) causation. To prove alienation (that W doesn’t like
H anymore – goes to her state of mind), Mr. testifies to statement Mrs.
made to him: “I hate you (easily admissible bc state of mind in issue and
direct statement of how she feels right now), BECAUSE Brett is better
than you in every single way-he is a better lover than you.” Mr. Atkins
wants entire statement in. Brett is concerned w/ entirety of statementobjection to the “because” part is that the state of mind exception cannot be
extended to prove facts outside a person’s state of mind (out of court
statements offered to prove that I did commit adultery with her, etc…so
hearsay). Mr. argues that should be considered by jury b/c says something
about her attitude towards Mr. Atkins, even if that stuff is not true—Mr. is
not offering it to prove it actually happens, but to provide context for the
statement itself (I hate you) and jury should be instructed not to consider
those statements other than I hate you for the truth but only for what they
say about her state of mind when she made that statement. Brett makes 403
argument – that jury will use those statements for truth even thought they
are instructed not to.
a. Probative value of entire statement and prejudicial effect of the
assertions about out of court events  403 analysis: Ct said
alienation is one of the elements of the tort. Mr. has to prove that
and these background statements do provide context so very
probative, even though very prejudicial. So evidence admitted
with jury instruction.
113
5.
g.
Note: What happens is judge admits it, gives limiting instruction. In
closing, Mr.’s lawyer says the statements came out of wife’s mouth are
direct statements of causation. Mistrial b/c P’s council has broken the rules
– rule is that jury is not supposed to use out of court assertions of fact
(what Mr. Brett did) for their truth and P’s council directing jury to do that!
Bonehead move – jury would have disregarded instruction anyway.
6. Note: Case re-tried. Mr. came up with evidence that Mrs. hated him – tried
to hired hitmen. Mr. takes stand and says hired Joe to kill me. Said what is
the matter, and she said, “I hate you, because Mr. Brett is a better lover…”
(same statement as before). Now statement is less probative b/c cumulative
to the point of hatred (since evidence that she hired hitman). Here
probative value substantially outweighed by prejudicial effect – only
allowed to admit “I hate you.”
State of Mind As Circumstantial Evidence of Another Fact/Conduct – HILLMON +
403 Analysis
i. Statement offered not just to prove what someone’s state of mind is, but that the
person acted in accordance with that state of mind.
ii. State of mind can also serve as circumstantial evidence of behavior – a person’s
state of mind may be probative of that person’s subsequent conduct.
iii. Most commonly, proponent wants to show that the declarant had the intent to take a
certain action to prove that the declarant did in fact eventually take that action,
where whether the act took place is at issue in the case.
iv. Acting on basis of state of mind is a probative inference.
1. Ex. more likely that if you love someone you would act in a loving way 20
min later.
2. Ex. There is an issue at trial concerning whether an individual has left the
US and retuned to his native country. Evidence that he often expressed
deep affection for his homeland and declared that he intended to return
there permanently provide a basis for the inference that in fact he did.
v. Note: we do not always act according to our intentions.
vi. Hillmon Summary: Insurance case—H takes out ins policy on life and Mrs. H is
beneficiary who sues to get money, claiming her husband is dead. Body in Kansas.
Insurance co says not H. H and Walters got together and lured Walters to remote
camp ground in Kansas, murdered him, and threw him in fire so that his body would
be unidentifiable. Issue is who is dead person? H – Mrs. can collect; OR W – Mrs.
cannot collect. Offered to show it is Walters’ body is a letter from W to his gf
Alvina about going to Colorado. Ins co offers it to place him at scene b/c Kansas is
on way to CO. Letter was allowed to be brought in. Therefore, Mrs. did not recover
b/c tended to show it was W’s body. Person with intent to go to CO is more likely to
go to CO than a person w/o that intent.
vii. Hillmon Doctrine: Use state of mind to prove conduct, with the limitation of how
probative/prejudicial it is under a 403 analysis
1. In order to be admitted, the statement must be probative of the declarant’s
future conduct. It must show that the victim had a certain state of mind and
that they either acted in accordance with or contrary to that state of mind.
a. Usually in accordance w/ that state of mind and contrary to hwo
the defendant says the person acted.
2. Ex. Brown: Brown charged with killing an associate. Brown says yes I did
shoot him, but defense was that it was a tragic accident. Here is what
happened—we wanted to bond so we cleaned guns together, and my gun
accidentally discharged and shot him in the head. Offered in rebuttal the
victim’s statement made a week before the so-called event: “I think Brown
is going to kill me, he has threatened to do so because I didn’t give him the
drug money…” Not admissible to prove drug transactions occurred – state
of mind exception does not allow you to prove an event occurred (preceded
person’s state of mind). Gvt says offering it to prove that declarant
believed them to have occurred – his state of mind was fear. Someone who
is in fear of Brown would not have acted in the way Brown said he did
(wouldn’t clean guns for fun – wouldn’t go to Brown’s house to clean
114
h.
guns. Figure out probative value that person acts in accordance with state
of mind. Ct admits it – his actions that night are critical to the case.
3. Ex. In second Brown case, Brown’s defense is that I went to his house to
kill him, but when he got there, victim was already dead. Now gvt wants to
introduce fear statement – “if you find me dead, you will know Brown did
it to me.” D objects under 403. Gvt says we will give limiting instruction
about all the bad things you said D did. Not admissible b/c not probative –
if acts are not in dispute, the relevance of it goes out the window. No one
here disputing where victim was at the time he was shot (in his house,
watching news).
4. Ex. People v. Stager: Mr. Stanger (V) is found shot in his bed. Mrs.
Stanger’s prints are all over the gun. Mrs. Stanger claims that her husband
had issues about home security, so he kept a gun under his pillow and he
was killed when the gun accidentally went off when she tried to take the
gun away from him. While investigating the case, the police find a tape
labeled “In Case I Am Found Dead” locked in Mr. Stanger’s desk. The
tape contains V’s voice saying that his wife has been doing strange and
suspicious things. Govt wants to offer V’s statement as evidence that he
would not be likely to sleep with a loaded gun in bed if he was scared of
his wife. Thus, V’s state of mind is inconsistent with his wife’s version of
the story of his conduct (i.e. keeping the gun in bed). Even if all of the
statements made by V are not true, it still shows his state of mind (i.e.
fear). Again, it’s a Rule 403 issue of relevance, but the evidence is highly
probative.
State of Mind Probative of Another’s Conduct (Hillmon 2)
i. Declarant talking about his own intent and someone else’s intent/what they might
do in the future – collective action offered to prove the collective action happened.
ii. What makes a statement Hillmon 2 is mentioning how someone else will act in the
future, not simply mentioning someone else.
1. Ex. Statement offered to show location of declarant – that he went to
James’s house. Declarant says, “I am going to James’s house.” Hillmon 1
b/c about his own conduct.
2. Offering statement to prove declarant’s conduct and subsequent conduct of
non declarant 3rd party
iii. Most courts EXCLUDE Hillmon 2 statements
1. Can only admit statement for your state of mind but cannot offer it to show
meeting occurred w/ specific individual b/c shows his own state of mind as
well as your own. Cannot use the declaration by X that does not embrace
X’s conduct, but simply predicts Y’s future conduct.
2. Rationale—based on the idea that people only know of their own state of
mind and not that of another.
3. Ex. In the prosecution of husband (Y) for the murder of wife (X), the
wife’s statement, “I’m so afraid of what Y will do. He has threatened to
kill me and I know he will as soon as he thinks he can get by with it.”
Inadmissible.
4. Ex. “I am going to CO…” has no prejudice and is somewhat probative of
intent to go. End of sentence was “…with this guy Hillmon.” Impt b/c ins
co’s theory is that H got W to go with him and murdered W en route.
Exception only speaks about declarant’s state of mind (W’s intent to go to
CO). Doesn’t mean H had intent to go to CO with W. Problem b/c
declarant talking about someone else’s state of mind.
5. Ex. Pheaster: Larry says, “Going to parking lot…to meet Angelo.” Not
admissible to prove meeting occurred (that L and A actually met) – state of
mind exception allows you to talk about your own state of mind but not the
state of mind of another person. So “to meet Angelo” is cut out.
iv. Some courts admit Hillmon 2 statements with corroboration
1. Some courts will admit evidence of the declarant’s state of mind to prove
the conduct of a third party (non-declarant) if there is independent,
corroborative evidence that shows the declarant actually participated in the
activity.
115
2.
5.
Note: Capra thinks this is flimsy and its gets stuff in that otherwise would
not get in.
3. Ex. People v. James: James is a transit officer who wants to take exam that
would get him promoted. He aces exam but investigators believe the
answers were leaked. James flunked the second exam where answers not
leaked. Suspicion falls on guy in transit authority, Collins, who had access
to answers. Collins had party the night before first exam which gvt thinks
was a sharing answers party. Gvt calls James to GJ-were you at that party?
he says no I was not. Now he has been charged/indicted for lying to GJ.
Fact to be proven was that James as at party. Phone convo btwn Collins
and woman/Salazar (going to take exam next day also). Collins invites her
to party but she is reluctant to go. Collins knows she is friendly w/ James.
So he says, “James is going to be at my party tn” (to show James has intent
to go to the party)—that is offered to show James was at party. Hillmon 2
because he is talking about James’s intent to be at the party. Gvt comes up
with corroborating circs-did well on first test and flunked the second one;
what got Ct over the hump was that Collins had a positive reason to tell
truth to Salazar-he liked her so he didn’t want to lie to her. Capra thinks
that is stupid (he would lie to make her come).
i. State of Mind (Belief/Memory) to Prove Prior Acts Inadmissible
i. Rule: Courts do not admit state of mind declarations (especially statements of
memory or belief)) about past actions or events.
1. This is true whether the past action is by the declarant (“I believe I went
shopping yesterday,” “I vividly recall 2008-I was miserable”) OR another
(“I believe that Dr. Shepard has poisoned me”).
ii. Rationale: If there was a hearsay exception that you can offer a statement of
memory/belief offered to prove fact is true, that would swallow the rule. Every
statement about a past fact would be admissible for the truth.
iii. Exception: WILLS –statement of memory can be offered to prove a fact relating to
the execution, revocation, identification or term of declarant’s will.
iv. Looking backward (not allowed) v. looking forward (allowed).
1. Ex. “I went to the store yesterday” to show I went – cannot do it according
to Sheperd b/c offered to prove fact occurred. That is not your state of
mind.
2. Ex. “I am going to the store tomorrow” offered to show I went to the store.
Admitted b/c intent to go and more likely that you went than w/o this
evidence. Doesn’t prove you went but probative evidence you went.
v. Summary of Sheperd: D charged with poisoning wife. Wife says, “Dr. Sheperd has
poisoned me.” At trial, gvt offered that statement as dying declaration and admitted.
SC found that not properly admitted as dying declaration-she hadn’t given up all
hope of recovery (she was sick but not that close to dying). Now, gvt tries to get it
admitted in another way-argues that could have been admitted under state of mind
exception b/c statement is really saying “I believe that Sheperd poisoned me” to
prove that Shepherd poisoned her. Not allowed b/c offering it for the truth of matter
asserted not for her state of mind. Gvt then argues that under Hillmon can use her
state of mind to look forward to an event that occurred after the statement.
Sheperd’s defense was that she committed suicide/poisoned herself. Govt wants to
show that state of mind inconsistent w/ suicide (by saying he has poisoned me,
shows she wanted to live). But could be so depressed that husband wanted to kill
her-cuts against probative value. While govt could have introduced the statement to
prove her present thoughts/feelings, the statement cannot be used to prove an act
committed by someone else (as evidence that the declarant was dying because he
poisoned her).
Statements for Purposes of Medical Treatment or Diagnosis
a. Rule 803(4): “Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.”
116
b.
c.
d.
i. Ex. Person goes to doctor and describes his symptoms (headache, can’t sleep, etc) in
order to seek treatment. The symptomology is offered to prove it existed in a
products liability case. Dr. testifies to statements made by patient.
ii. Note: Statement doesn’t have to be made to a doctor.
1. Statements to family members and social workers have been held
admissible as long as the statements were made for the purposes of
obtaining medical treatment or diagnosis.
iii. Note: Statements made by someone other than the patient admissible.
1. A statement offered does not need to refer to the declarant’s own medical
condition.
2. If declarant relays information about another person for purposes of
treatment/diagnosis, the same guarantees of trustworthiness exist as if the
declarant was seeking treatment for himself.
Rationale: Double Guaranty of Reliability
i. Sincerity motive – persons seeking medical treatment have an incentive to be
truthful – proper medical treatment may depend on the patient’s accurate
description of his condition/symptom.
ii. Statement pertinent to diagnosis/treatment – if good enough for Dr, good enough for
jury; this is the statement a Dr must rely on in diagnosing/treating the patient.
Requirement: Statement in question be made “for purposes of medical diagnosis or
treatment” – declarant must make statements under the belief that they are pertinent to the
diagnosis/treatment sought.
i. Includes: medical history, past as well as present symptoms, and the external cause
of the patient’s condition if relevant to the diagnosis/treatment.
ii. Note: statement an be about either past or present physical sensation (ex. Before the
accident, I had no pain, and I was able to hold a full-time job doing heavy lifting).
Potential Problems
i. Statements of Causation: Depends on whether it would be pertinent to Dr.’s
treatment/diagnosis.
1. Ask: Would a doctor’s treatment/diagnosis be affected by the cause of the
injury rather than just the injury itself?
2. Judge will hold a hearing on whether statement pertinent to
treatment/diagnosis
3. Ex. The rule is broad enough to include a patient’s statement that he was
struck by a car but not that the car was driven through a red light.
4. Ex. Most doctors would want to know whether you’ve been bit by a dog or
raccoon; hit by a person or a car.
5. Ex. Person comes into Dr and says I got hit by a CAR and flew in the air
and my head landed in a wall. That is offered not just to show condition
but to show the cause of the medical condition…
6. Ex. Cook: Offered by the D. Guy on 7th floor balcony leaning against rail,
falls over, and is taken by EMS. Issue how he fell off. At trial, just says
leaning and rail gave way. Land owner says you were fighting with
someone. This guy’s gf says to EMS my bf was wrestling and got thrown
off. That is offered by landowner. One issue – not statement by patient.
However ct said she would have same motive so that is okay. Second issue
– hearing: would a Dr want to know why the person fell off the 7 th floor?
Ct said Dr wouldn’t care.
ii. Statements of Fault: Statements attributing fault are ordinarily excluded b/c they
do not further and are not pertinent to the patient’s treatment/diagnosis.
1. Ex. Patient’s statement that he was hit by a truck would be okay but the
statement that he was hit by a truck driven through a red light would not.
2. Ex. “I got hit by a speeding car,” “I got hit over the head by Owens,” “I got
sexually abused by my dad.”
3. Ask: Is the statement of fault pertinent to treatment/diagnosis?
4. Child (sexual) abuse exception
a. A statement from the child-declarant to medical personnel
concerning abuse is ordinarily admissible even when the declarant
identifies the abuser.
b. Ex. “I got sexually abused by…”
117
c.
6.
Rationale—a statement of identification is pertinent to treatment
of the child-victim; the doctor must be concerned not only with
the child’s current physical condition, but also with the child’s
future welfare, safety, and psychological well-being.
d. Note: Even if says mailman/stranger abused me, that is pertinent
b/c doctor knows that no danger putting the person back in the
home.
5. Other cases where identity of perpetrator relevant to future treatment
a. Ex. domestic abuse and sexual abuse of adult victims
b. Domestic abuse cases: when a person says I was hit by my
husband, that factors into a future course of treatment – get them
out of the house.
6. Note: whether allowed in depends on the circumstances.
a. “I was at a bar and Owens hit me with a board” – not allowed b/c
no concern about that person (two adults getting into fight)
b. “I got hit by speeding car” – problem b/c speeding is dependent
on speed limit.
iii. Therapists
1. Statements made to therapists are sometimes admissible…
2. Concern: everything (even lies) are important for purposes of treatment.
3. Issue: whether doctor focused treatment on an assumption that the
statement was TRUE.
4. Therapist sort of a lie detector machine but only way to regulate these
statements.
5. Ex. Adult comes into therapist, patient says things are not going that wellHilary Clinton is trying to kill me. Pertinent to treatment/diagnosis? Yes,
doctor will say you are nuts and need to be committed or be on drugs.
6. Ex. When someone comes up to you and say “my mother has been trying
to kill me” and Dr. who knows patient thinks true, form of treatment such
as get out of house.
7. Ex. Declarant tells psychologist that she is depressed b/c her son is going
to kill her. MD gives prescription. Declarant found dead. Declarant’s
statement not admissible b/c Dr. didn’t rely on its truth for
treatment/diagnosis.
iv. Statements Made for Litigation Purposes
1. Even if the doctor is retained solely to testify as a witness and no treatment
is anticipated by the declarant, statements made to that doctor are
admissible (as long as expert testimony satisfies Daubert).
2. Matter of weight and not admissibility – jury can tell if diagnosis is
unreliable.
3. Ex. Person in cab that stops short and goes to lawyer. L says does your
neck hurt, etc. L says go next door to my doctor. Dr testifies about the
work-up. Statements offered for truth.
4. Rationale—the doctor is retained for “diagnosis.”
5. This is the kind of hearsay jurors can understand and give limited weight
to—expected to figure it out.
6. Proposed Amendment: Rule doesn’t apply if patient going to Dr. solely for
diagnostic/litigation purposes. Committee said not worth it b/c everyone
would say it wasn’t solely for litigation purposes, so easily evaded.
Past Recollection Recorded (and Recollection Revived)
Present Recollection Refreshed (FRE 612)
1. present recollection exhausted
2. refreshing done by (1) leading question or by (2) a writing
3. witness looks at writing; writing taken back by counsel and
witness testifies as to present recollection
4. writing can be introduced into evidence by opposing counsel for
IMPEACHMENT
a.
Present Recollection Recorded (FRE 803(5))
1. present recollection exhausted
2. refreshing attempted and fails to jog memory
3. witness looks at writing; then writing READ into evidence
4. writing NOT admitted into evidence unless offered by opposing
counsel SUBSTANTIVELY
Note: these rules are used when the witness on the stand does not remember something.
118
b.
c.
Rule 612: Revived RecollectionIf a witness uses a writing to refresh memory for the
purpose of testifying, either--(1) while testifying, or (2) before testifying, if the court in its
discretion determines it is necessary in the interests of justice, an adverse party is entitled to
have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon,
and to introduce in evidence those portions which relate to the testimony of the witness. If it
is claimed that the writing contains matters not related to the subject matter of the testimony
the court shall examine the writing in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any portion withheld over objections
shall be preserved and made available to the appellate court in the event of an appeal. If a
writing is not produced or delivered pursuant to order under this rule, the court shall make
any order justice requires, except that in criminal cases when the prosecution elects not to
comply, the order shall be one striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a mistrial.
i. Shown Writing While Testifying: If a witness is shown a writing to refresh memory
while testifying, the adverse party is always entitled to have the writing produced
for inspection and to cross-examine the witness with respect to it.
1. Before reference to writing, W has some present memory but it’s defective
of the facts, etc. contained in the writing.
2. After presentation of the writing to the court and to opposing counsel, the
writing is shown to W.
3. After reference to writing, W’s memory is refreshed and she is able to
testify without depending on the writing.
4. No testimonial competence is demanded of stimulus to present recollection
bc stimulus is never itself evidence—it’s not evidence it’s an aid in the
giving of evidence.
5. If witness looks at doc and says refreshed now I can tell you who was
there, no hearsay problem – testifying on basis of refreshed recollection
and doc not read to jury/admitted into evidence
ii. Writing to Refresh Before Testifying: If the witness uses a writing to refresh
recollection BEFORE taking the stand, inspection and use is dependent on the
court’s finding that disclosure is necessary in the interests of justice.
iii. Writing: It may be a memo made by the witness himself, (1) even if it wasn’t made
immediately after event, (2) even if it wasn’t made of first hand knowledge, and (3)
even if witness can’t now vouch for the fact that it was accurate when made. May
be memo or writing made by someone other than witness, even if never before read
by witness or vouched for by him.
Rule 803(5): Recollection Not Revived“A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in the witness' memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read into evidence but may not
itself be received as an exhibit unless offered by an adverse party.”
i. Sometimes people made a written record of an event, shortly after the event has
occurred. Time passes and the writer’s memory of the event dims and then a trial
occurs where the event is at issue. The witness cannot testify satisfactorily about the
event because he has forgotten some of the details.
ii. Ex. Someone who prepares notes for a meeting, but doesn’t remember what exactly
went on the meeting. At the point where witness says document didn’t help I don’t
remember, proponent seeks to admit document. Doc has to be prepared by person
on the stand. Now show it was accurate when made (guaranty of reliability).
iii. Rationale: A writing made by an observer when the facts are still fresh in teir mind
is probably more reliable than their testimony on the stand at trial. Most ppl have
had the experience of observing something, promptly making a record of the
observed event, and, at a later date, having confidence that the recordation is
accurate, even though the event itself has faded from memory.
iv. Requirements
1. Lack of sufficient memory – impaired recollection
a. The witness MUST take the stand to testify to lack of present
memory for this exception to be available.
119
Does not require that witness’s memory be a blank slate of
underlying facts.
c. Rule requires lack of memory as to the facts the proponent wants
to represent.
2. Person who prepared notes on the stand to testify to ACCURACY of notes
a. Can simply ask the witness if records is accurate. If W says yes,
gets read to jury.
b. Don’t have to have actual memory of underlying facts of event to
verify that it was accurately made—can simply have recollection
of accurate record keeping without remembering any underlying
facts.
c. Two ways: W testifies that he remembers making an accurate
recording of the event in question although he no longer
remembers the fact recorded, OR if the witness has totally
forgotten the situation in which the recording was made, that he is
confident that he would not have written/adopted some
description of the facts unless that description truly described his
observations at some time (i.e. I was hired to take accurate
minutes at meetings).
3. Foundation that the witness has made/adopted a recordation of the event
when her memory was fresh
a. No requirement that record made/verified
“immediately/promptly.”
b. Must be evidence (foundation usually supplied by testifying
witness) sufficient for the trier of fact to conclude that the record
correctly reflects the witness’s knowledge at the time the record
was made or verified.
c. Witness who prepared the writing/recordation will take the stand
and supply necessary foundational conditions, such as her present
inability to recall sufficiently the event/condition in question.
d. It is not required that the witness at trial be the person who
actually made the record, so long as the witness approved or
adopted the record, after it was made, as being an accurate
reflection of his knowledge.
i. Ex. after a mtg, board member goes outside and tells his
assistant everything; assistant writes it all down and
board member signs it; record admissible if board
member takes stand.
e. Two-Person Transmission: When a declarant-observer reports her
observations to another, who then records them but does not show
the resulting recordation to the declarant for verification.
i. Both participants must take the stand and testify.
ii. Note: If no adoption in above hypo, need board member
to testify that what he told assistant was accurate, and
assistant must testify that he recorded what board
member said.
v. “Exhibit”
1. Exhibit is something the jury has access to during deliberations (ex. murder
weapon, sample of drugs, etc).
2. The recordation itself is NOT received into evidence as an EXHIBIT
UNLESS “offered by an ADVERSE PARTY (party adverse to the witness
whose memory needs to be refreshed).”
a. To reduce the chance that the jury will exaggerate the probative
force of the recordation, b/c exhibits are not only examined by the
jury when received in evidence, but also often carried to the jury
room when the jury retires to deliberate.
b. The past recollection recorded should be treated like any other
trial testimony, and trial testimony is not accessible in the jury
room during deliberations.
b.
120
c.
3.
4.
7.
The opponent would only offer the recordation into evidence if he
thought it was inaccurate.
Raises distinction between witness testimony and physical evidence (which
can be reviewed by jury during deliberations).
a. If jury wants to know what testimony was, ask for read-back and
up to discretion of judge—most judges do not allow it, but if they
do give limiting instruction (do not give it more weight, don’t take
it out of context).
b. Why distinction?
i. CL rule: most of jury a long time ago couldn’t read;
concern that if jury was allowed to look at trial transcript,
jurors who could read would take advantage of the jurors
who could not.
ii. Idea of allowing jury to go roaming through and focusing
on a little detail is not fair—would give it too much
weight and not look at all of the testimony.
Rationale: the record is testimony that substitutes for witness’s testimony
and if you allowed it to be substituted for phys evidence jury would give it
more weight (looks more formal and jury could look at it during
deliberations).
Business Records
a. Rule 803(6): “A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification that complies with Rule 902(11),
Rule 902(12), or a statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. The term "business"
as used in this paragraph includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.”
i. The record must be made “in the course” of regularly conducted activity and as a
“regular practice.” The Rule requires that the entry is routine and not one that is
made for some special, nonrecurring purpose (motivated by desire to create
evidence).
ii. The entry must be “made at or near the time” of the event, at, or observed condition
that it records. This minimizes the hearsay danger of lapsed or faulty memory.
iii. Judge can exclude an entry that appears suspicious/untrustworthy, even if regularly
maintained. Opponent must show that the “source of information or method or
circumstances of preparation” render the record untrustworthy.
iv. Purpose: these records are likely to be accurate since they are made for the purpose
of running a business rather than for the purpose of litigation.
b. “Business”
i. Not just traditional, legal money-making businesses; any regularly conducted
activity.
ii. Includes business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit. Regularity accords reliability.
iii. Can be a school, foundation, criminal organization/conspiracy (illegal activity).
iv. Diaries can be admitted if the person who wrote it writes down every time one kind
of thing happens.
v. Ex. Want to get records from school. That is a business record b/c regularly record
them when given to them.
vi. Ex. an answering services’s telephone message log.
vii. Ex. a patient’s chart in a hospital.
viii. Ex. a business’s invoice showing that a shipment was made.
ix. Ex. Gvt wants to introduce a ledger of an illegal drug cartel into evidence.
Admissible as long as the records are systematic and regularly recorded.
x. Ex. P is injured in a prison brawl. P wants to prove that he was at the prison by
introducing the prison log book. Admissible b/c prisons keep very detailed logs of
all regularly conducted activity.
121
c.
d.
xi. Ex. A businessman wants to introduce something he wrote on his desk blotter—
inadmissible b/c such entries were not regular/systematic.
xii. Ex. P wants to introduce his personal checkbook to prove that he paid for a good
that D is refusing to deliver. Admissible as long as regularly recorded.
Regularity
i. Rule: must be a regular practice of recording an event that occurs in the ordinary
course of regularly conducted activity.
ii. Business enterprises keep records in the ordinary course of business (ex. a business
typically keeps accounts of who owes money). If such routine business record is
offered into evidence as proof of the matter asserted in the record, it presents a
hearsay problem unless an exception applies. Cannot have a business for a long time
if you are not keeping good records.
iii. NOT in Anticipation of Litigation: if the sole purpose of the accident report is to
prepare for litigation, it is probably not a business record.
iv. Rationale:
1. Routine practice: regular routine of recording the occurring of events is the
heart of reliability. For example, hospitals keep records of their patients’
conditions and tests. However, there are instances when business records
are potentially unreliable (i.e. crooked set of books and sloppy notes).
2. Self interest in accuracy: businesses generally have their own interests in
keeping accurate record of transactions-cannot have a business for a long
time if you are not keeping good records.
3. Timeliness: business records are generally recorded at the time the event
occurs.
v. Just b/c in regular looking record doesn’t mean every entry in it admissible under
803(6).
1. Ex. There is a record kept by conspiracy (always says stuff about: drug
deal, date, place, buyer, amt). Then a couple entries that say “had to kill
Pablo…” Gvt cannot admit record to prove murders committed b/c not
regularly occurring.
Foundation
i. A qualified witness (QW) must establish admissibility. A receipt is not sufficient on
its own.
ii. Can you just introduce the record itself or do you need a witness to come in and say
this is the record, here is what goes on in this business, etc? No.
1. You need a qualified witness b/c business records are not self-proving!!!
2. Qualified Witness must attest to the fact that this is a record of the business
and that it occurs regularly and recorded routinely.
iii. Does witness have to come into court to testify?
1. Up until 2000, they did. Since 2000, QW can file a sworn affidavit that
substitutes for in-court testimony.
2. Ex. Medical doctor testifying on the basis of a report of a doctor of clinical
medicine at another hospital can have the report disclosed to jury if an
affidavit from the records custodian of the hospital in which the test was
done that says the record was a recording of a medical exam and recorded
in the ordinary course of the activity.
iv. Who is “qualified” to provide foundation requirements for a business record?
1. Flexible—does not need to be the person who actually prepared the record
or had personal knowledge of any particular recording.
2. Witness just needs general knowledge of the record keeping process (think
corp auditors and records custodians).
a. Anyone who has knowledge about record-keeping at place where
records are kept is fine to testify.
3. Not necessary that she know the contents of the record itself or that she
knew it was in fact accurate.
a. Ex. United States v. Keogh: blackjack dealer in Las Vegas-didn’t
declare all of his tip income as wages (tax fraud). To prove this,
gvt seeks to introduce ledger book by another BJ dealer—his tips
were a lot more. Why relevant? Shows that a relatively
comparable BJ dealer at same casino made so much more.
122
e.
Differences go to weight, not admissibility. BJ dealer who kept
records is dead so cant get him in—call his wife to stand who
testifies that whenever he came home he would go straight to the
den and record his tips. Court said she is qualified—you do not
have to have made entries or checked them.
Trustworthiness Problems
i. Even though proponent can show regularly conducted activity regularly recorded,
trial judge can exclude if circumstances of preparation in individual case indicate
untrustworthiness.
ii. Unlike other exceptions—can be excluded if untrustworthy EVEN IF fits other
requirements.
iii. (1) Transmission of Information from Outside Business – Double Hearsay
1. The business records exception does not embrace statements contained
within the record that were made by someone who is not part of the
business if those statements are offered for their truth.
2. Reliable/accurate recording of unreliable information NOT admissible.
a. Johnson v. Lutz problem: PO prepares ax report based on info
supplied to him by people present at the scene. This PO has no
personal knowledge of the events-his report based on statements
of bystanders who have no duty to report the events. Inadmissible
b/c bystander statements may be untrue, so officer’s records may
be simply an accurate recording of an inaccurate statement.
b. Note: this would be diff if the officer simply reported his own
observations rather than those of outsiders.
c. Ex. Hospital records contain someone’s statement who was in the
room.
3. Triple Hearsay
a. Flow of information in a businessEveryone in business has
business duty to report accurately. Ex. Officer ran toward ax. One
officer has duty to record accurately and fellow officer has a duty
to report accurately.
b. Triple Hearsay Three ppl involved in chain, i.e.
DriverOfficerRecorder. Ex. Officer (who records) said
Officer Smith told me he interviewed driver who said didn’t know
what happened b/c I was on phone. Can admit this statement. Ex.
Employment discrimination case-P wants to testify that she heard
from mailman who was in office of supervisor that supervisor said
we had to get rid of her I hate women.
4. Rule: To be ADMISSIBLE, informant must have (i) personal knowledge,
and (ii) must be acting under statutory duty to report accurately when he
reports.
a. If multiple levels of hearsay, must analyze both levels.
b. Report to recorder from the observer pursuant to a business duty
is okay.
i. Ex. Cop writes in accident report that another officer told
me that Car A hit Car B. Diff than J v. L b/cc there
witness giving information to officer had no duty to
report.
c. Ex. Gvt wants to prove a sporting good (basketball) was bought
from a sporting good store—address of buyer is what they want to
prove. Receipt of transaction offered indicates buyer’s address
was 255 Elm. Qualified by records custodian. Ct had a problem
w/ this record—the information sought to be proven for its truth is
not info w/in the organization that kept records. Store doesn’t
know if address is correct–relying on what buyer said, but buyer
not subject to sanctions for misinformation—no business duty to
record accurately. Why would someone lie about address? Might
not want any mailings, etc. When system is within business, have
business duty (do it correctly or get fired). Not admissible as
business record to prove address of buyer.
123
d.
5.
Ex. Govt sought to prove that D had a gun owned by R in his
possession. Govt offered a form from gun store that identified R
as the purchaser of gun-address/name on receipt. Court held the
form admissible under 803(6). Proper foundation testimony was
given by the manager of the store who testified that the employee
completing the form had knowledge of the transaction at the time
it occurred and that the form was regularly maintained in the
course of regular conducted activity. The fact that the manager
could not identify the person who completed the record was a
question of weight and not admissibility. There are rules that a
gun store has to check address/identification of person buying the
gun.
e. Ex. Vigneau: Payer at bank says name but bank doesn’t verify
name—if offered to prove who sent it, not admissible. Even if
person had to come in with an ID, Ct said verification not satisfied
(fake ID and ppl don’t look at it really).
Solution to Double-Hearsay Problem:
a. (1) Not Hearsay: If statement coming from outside business
structure is not hearsay at all.
i. Ex. Western Union Case: Wire transfer sent by a guy. D
argues use of his name on form is inadmissible hearsay.
Gvt was allowed to introduce the fact that the person
sending the money orders “called himself X”-such
evidence could be introduced as independent evidence to
show that the sender’s name was an alias of the D. Gvt
not trying to show that X was actually the sender, but
rather that someone calling himself X (which is D’s
alias) was the sender.
b. (2) Verify Information/Record
i. Ex. Bland: When the record was offered to prove that R
was the purchaser of the gun there was double hearsay
problem b/c no indication that preparer had personal
knowledge of the name of the purchaser. However, since
federal regulations require sellers of guns to verify the
names of purchasers, and purchasers are under a legal
obligation to provide truthful information, the info
provided by the buyer to the seller was considered
reliable enough to satisfy the problem.
c. (3) Use Independent Hearsay Exception
i. If some other exception would apply directly to the
statement made by the person not acting on behalf of the
business that is keeping the record, the record and the
statement it includes can be admitted.
ii. Excited utterance in business record  Ex. Car ax in
parking lot of business. Security guard required to record
accidents in log book. Smith enters: didn’t see ax, but ran
around and then saw cars crashed together—person
standing next to cars saying I am startled that driver of
blue car was on a cell phone when hit van (recorded in
log book). Admitted—excited utterance. Ex. Officer
writes that he heard bystander yell “did you see that
crazy goon driving car A go through red light?” Here
report reliable.
iii. Statement by party opponent (admission) in business
recordEx. Officer went up to driver in blue car (D) and
driver said I was on cell while driving. Officer records
this. Ex. officer writes in report that the driver of car A
said “I fell asleep at the wheel.” Any statement made
by party opponent is admissible
124
iv. 803 6 in 803 6 if one colleague who was there told
another officer who wasn’t at the scene about accident.
iv. (2) Records Made in Anticipation of Litigation
1. INADMISSIBLE IF: (i) prepared in anticipation of litigation (suspect
motivation), and (ii) are favorable to the drafter (self-serving).
a. Cannot admit own records if they are prepared once litigation has
become a legitimate probability.
b. Pre-accident reports not excluded—not made in anticipation of
litigation.
c. Post-ax reports not favorable to preparer not excluded either.
2. Rationale: companies record bad stuff before litigation to avoid accidents,
but if litigation is probable, might not record all of the bad stuff b/c it
already happened.
3. Ex. chemist lab reports in criminal case.
4. Ex. Palmer: P were spouse and estate of a person killed in a railroad
crossing accident. D, RR Co., tried to introduce statement made after the
accident by the train’s engineer in an interview conducted by RR
supervisor and member of state Public Utilities Commission at the RR’s
office. Report indicates no defect in rail. Regularly recorded-that is their
job. Ct says untrustworthy b/c made with a very possible litigation motivegenerating evidence in lieu of going to testify about it-self-serving in
anticipation of litigation.
5. Ex. Hardees: Woman buys burger and slips in restaurant. What is offered
against her is the post-ax report prepared by assistant manager—he writes I
was on the fries and heard her slip, hopped over counter and she said my
head hurts but it was my fault b/c I bought these shoes and getting used to
them (he recorded it). She says I never said that, what happened was that I
slipped on oil. Can you admit statement (that was recorded) about what she
said – that it was caused by her shoes? Ct said no b/c post-ax motivation.
Manager concerned b/c if he reports accurately he could get fired (if oil on
floor). Also, in anticipation of litigation b/c accidents can give rise to suits,
so inadmissible. Reports favorable to the recorder are inadmissible, if not
favoarable, no trustworthiness or anticipation problem.
6. Ex. Yates: Manager says woman said no I’m not okay I slipped on oil.
Then I checked around her and oil on floor. Hardee says cant bring in postax reports. Ct says can bring in post-ax reports if not self-serving. We are
worried about generating favorable evidence, not evidence unfavorable to
the party who prepared it.
v. (3) Records Containing Unsubstantiated/Unreliable Opinions – Daubert Issues
1. If opinion is potentially unreliable then there is unreliable info in a
regularly conducted record.
2. Two sets of cases: (1) Doctor’s Records (a doctor’s prognosis is an
opinion contained in a business record of a regularly conducted activity),
and (2) Accident Reports
3. Analyze under DaubertQualified, sufficient basis, proper methodology,
proper application of methodology.
4. Rationale: Would be disastrous if could avoid Daubert by putting doctor
opinions in medical records and using it under business records exception.
5. Note: If doctor unavailable, analysis based only on the record itself.
6. Note: Where opinion is held inadmissible, the rest of the business record
may be introduced if it satisfies the other requirements.
7. Ex. Patient comes in, doctor does work-up, doctor writes opinion about
prognosis/cause of injury. Concern if opinion offered for its truth (i.e.
throat polyps caused by glue in workplace). Might be in a record, but if the
person who made entry were called to testify, need Daubert inquiry. Ct
excluded b/c nothing in medical record that doctor did differential
diagnosis, relied on literature, etc.
8. Ex. Guy injured in ax. P wants to intro report of treating doctor, who has
on prognosis line “permanent residual limitation of movement” (wont be
able to walk again). D contests the opinion of P’s MD with another doctor
125
8.
9.
who testifies that the MD could not have come to this conclusion only after
one exam. Ct excluded that opinion b/c no showing how doctor came to
that conclusion-didn’t show looked at xrays, poss of phys therapy, etc. Ct
concerned that doctor saw patient a week after event while in hospital but
made opinion about what would happen in future. If his leg was off, that’s
fine…but here, need opinion on basis of info and no info in record.
9. For PO opinions, must prove that the officer is an expert based on
experience/training and then determine if the opinion would be admissible
under Rule 702.
f. Computerized Records
i. Note: If completely machine entered, do not even go to this exception. Only applies
if human process in entering information.
1. As opposed to hand-written records.
ii. Concern: Easy to tamper with-can put data entry in after the fact w/ no way of
knowing. When you do it by hand and correct it, can see that you changed it. On the
computer, you cannot see changes.
iii. Treated the same as any other record—regular practice of recording an event
which occurs in the ordinary course of regularly conducted activity.
iv. NO extra foundation requirement.
1. However, testimony of W to attest to software reliability can bolster
foundation.
2. Question of weight for the jury (i.e. bring in tech ppl, talk about programs,
etc), but do not need extra foundation to get past the judge.
3. However, might need it if other side shows manipulation.
v. Ex. P offers a printout of information into evidence. D objects on the ground that
the printout was prepared in anticipation of litigation. Here the issue is what is
meant by the word “prepared.” Printed out in anticipation of litigation is ok as long
as the information was not “inputted” in anticipation of litigation. All P needs to do
is call someone who can testify to the record keeping process. Not about when
printed but rather about when data was entered.
vi. There is no extra authentication or admissibility requirement just because a record is
from a database.
Absence of Entry in Business Record: 803(7)
a. “Evidence that a matter is not included in the memoranda reports, records, or data
compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove
the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a
memorandum, report, record, or data compilation was regularly made and preserved, unless
the sources of information or other circumstances indicate lack of trustworthiness.”
i. If a regularly kept business entry is admissible to show a fact or event, the absence
of an entry that would normally record such a fact/event has probative force to show
the unrecorded fact never existed.
ii. Ex. P merchant routinely records receipts of payments. P sues for failure to pay. D
said he paid. P is able to admit its receivables records to show no payment.
b. Same admissibility standard as 803(6):
i. Must still be regularly kept/routine business activity, and
ii. Need a foundation witness—someone has to present information that the record
keeping happens in the business and therefore an absence of record indicates an
event did not happen.
1. Ex. D (charged w/ vehicle theft) found w/ car from rental agency. Says I
rented it on a certain date. Gvt calls records custodian at Hertz office re:
rentals that day—nothing about D renting car. Witness says when ppl come
into rent cars we enter it into a database. Therefore, evidence that person
didn’t rent car admitted.
c. Requirement: Someone in the business has to certify that he made a diligent search and
couldn’t find the record.
d. Note: If record does not satisfy 803(6), cannot be used under 803(7).
Public (Government) Records: 803(8)
a. “Records, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth (A) the activities of the office or agency, or (B) matters observed
126
b.
c.
d.
pursuant to duty imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation made pursuant to authority granted by
law, unless the sources of information or other circumstances indicate lack of
trustworthiness.”
i. Ex. population consensus, national highway safety board investigation, climatic
conditions on a particular day-records of national weather service.
Admitted in almost every litigation.
i. Why? Gvt is supposed keep reliable records and we assume that they do.
Scope
i. 803(8)(A): Reports by gvt, dealing with its own business; activities of the
office/agency (most comparable with business records exception). Ex. FAA
inspection.
ii. 803(8)(B): Matters observed in the field (i.e. rainfall records of weather service, IRS
auditor, policeman’s arrest of a subject).
iii. 803(8)(C): Investigative reports (big problem area).
1. Cannot be used against a criminal D.
Public Records Exception v. Business Records Exception
Public Records
-does not have to be made as part of regular, systematic
routine
-no foundation witness requirement (“self proving”; too
costly)
e.
f.
Business Records
-routine records regularly made
-need a qualified witness for foundation
Trustworthiness Clause: We assume public records admissible to prove what they contain,
but there is a trustworthiness clause – admissible unless sources of information or
circumstances of preparation indicate untrustworthy.
i. In litigation, the party who wants to bring it in gets presumption that it is
trustworthy.
ii. Heavy burden on opponent to show that it is untrustworthy…b/c assumed that gvt
info is trustworthy.
CIVIL: Three Situations – Opponent Argues Gvt Report Untrustworthy
i. Usually involves investigative reports by the government – admissible against civil
D’s.
ii. Civil cases where gvt not just reporting but actually investigating—may be
untrustworthy b/c of biases, etc.
iii. (1) Biased Reporter/Point of View Used to Prove a Material Fact
1. What ordinarily happens is there will be review board that reviews the
facts and comes up with a report-that report offered in a civil case for
excessive force by party who it favors.
2. BIASDepends on make-up of board – sometimes review board is all
police officers.
a. Where the reporter or investigator had bad motives or bias, the
public record may not be admissible to prove the fact asserted in
the report.
b. The opponent of the public record evidence has the heavy burden
of showing the bias in order to subject the record to exclusion.
Where the court finds that the reports are biased, they can exclude
them under 803(8)(C) (trustworthiness clause).
c. Note: Somewhat similar to Palmer (litigation bias), but public
officials not being sued. However, concept of bias.
d. Even if board is biased, if report is NOT self-serving, more
trustworthy (see Wilson below).
3. Excessive Force Cases
a. Note: Report has to be consistent with biased panel – in favor of
PO (if PO review board concludes excessive force was present,
usually admissible).
b. Ex. Officer arrests suspect, who is hospitalized after. PO says he
attacked me so I was just defending myself. Police review board
127
files report—we conclude that the officer acted reasonably and
that is what the officer wants to introduce. Political or institutional
bias.
c. Ex. Review board came up with same report-officer acted
reasonably. P says that is biased report look at board – 4 POs and
one citizen advocate. Court didn’t exclude b/c presumption of
reliability, not completely stacked (citizen on board).
d. Ex. Wilson: Wilson might have committed armed bank robberyBeebe finds him and tells him to get out of the car (probable
cause). That is all fine. Then Beebe makes Wilson put himself up
on car, frisks him, and is going to put handcuffs on him. Problem
is that Beebe has rifle-can’t figure out where to prop rifle, puts it
in between Wilson’s leg while he got out his cuffs and his privates
blown off. Sues under 1983 for excessive force. 4 PO review
board comes up with report-Beebe acted unreasonably. Beebe
says cant admit b/c biased. Ct says whatever bias there was got
washed out b/c what you would expect from biased body is to say
he acted reasonably.
4. Other Case Types
a. Ex. Q about whether tire was safely designed. Fed gvt appointed a
“blue ribbon panel” of investigators. Tire reported as defected.
However, panel composed of ppl who had been driving and tire
exploded, as well as their attorneys. Too biased so reports
excluded.
5. Mixed Motivations of Report Preparer
a. Ex. Beech Aircraft: P say cause of crash was defective plane; D
argues it was pilot error. After ax, gvt brings in JAG official who
concludes it was pilot error. Admissible b/c the possible solutions
for the public official wash out b/c bias could go either way
(mixed motivations of preparer)—institutional interest in not
saying buy crappy planes but also institutional interest in not
saying they have bad pilots. Either way would be biased.
b. Gay guy example in navy who blew up boat?
iv. (2) Official Reports Relying on Extra-Governmental Sources – lack of personal
knowledge of investigating public official.
1. Arises where the investigation must rely on information from others in the
preparation of reports.
2. Double Hearsay (hearsay-upon-hearsay): Statement from non-gvt official
(private person) included in a gvt report that could be taken as true, but no
guarantee that statement is trustworthy b/c a non-public official made it.
3. Problem: if a public official is relying on people who are not themselves
public officials.
a. Like Johnson v. Lutz problem in business records – reliable report
reporting potentially unreliable information.
b. Ex. Airplane crash. The TSA investigates-had to base some
investigations on testimony from people on the ground. Issue is
whether the information provider is reliable or not.
4. Even where a public record would be admissible as a public record under
803(8), the statements contained in the report must be independently
admissible under Rule 805. Note that because of the extreme presumption
of reliability of public records, courts are more liberal in assessing these
problems. If the court finds that the person with first hand knowledge had
no reason to represent the information under the circumstances, the report
may well be admissible even though none of the solutions below were
applicable.
5. Solutions (like Johnson v. Lutz)
a. Verify the information
b. Information covered by a hearsay exception (or where 2x hearsay,
2 exceptions)
128
v.
i. Ex. driver makes admission or bystander makes a present
sense impression to officer, who writes it down.
c. Info passed from one gov’t official to another gov’t official inside
reporting structure
i. Ex. Beech Aircraft: JAG official includes bystander
reports in his report. Those are fine b/c of where the ax
occurred—all army officials who have a duty to report
accurately to a JAG official.
d. Non-hearsay purpose
6. Rationale: Public records are treated like expert conclusion, and experts
at trial are permitted under Rule 703 to rely on hearsay if that reliance is
reasonable and other experts in the field are relying on this type of
information.
a. Many times what happens is the actual bystander statements taken
out of the report—not purported to be introduced at trial.
b. Experts can rely on information that could not be admitted at trial
(Rule 703). Statements of outsiders not offered for truth, but
reports based on those statements are offered.
7. Ex. Litigation on toxic shock syndrome. CDC investigates TSS using a
questionnaire sent to MDs. A report, based on lab studies and the
questionnaires is issued and contested on the grounds that the results are
from outside the government reporting structure. Thus, the argument for
inadmissibility is that report relies on two sources of hearsay testimony –
(i) the statements made by the doctors on the forms and (ii) the statements
made by patients to their doctors which the doctors rely on in filling out the
forms. There is no problem Each level of hearsay was satisfied. I) there is
no incentive for MD’s to lie here and (ii) the statements made by the
patients to their doctors falls within the exception for statements made to
MD’s for the purpose of treatement or diagnosis under 803(4).
8. Ex. Investigation of Pan Am 103 – Under the Warsaw convention, a P
must show egregous negligence to recover against airline. P alleges that the
big problem with Pan-Am’s security was allowing people to check
baggage on the plane without verifying that each bag had an accompaning
person. While P showed that Pan Am did not take this precaution, he must
also show that an unaccompanied bag actually caused the explosion.
Investigator needs to figure out which bags belonged to which people in
order to get to the bottom of it all. He goes to victims families and asks
them if the bags belonged to family members. Pan Am argues that this is
no good because the testimony of the family members is hearsay and
comes from outside the reporting structure. Court held that the evidence of
bag identifications made by family members was admissiblethe familiy
members did not know whether lying or truthtelling would be more
beneficial to them. Rather than fabricate, all of the families had a greater
incentive to get to the bottom of the case.–
9. Ex. Iran Contra Investigation – government relied on people with very
shady testimony and great reasons to lie to government investigators.
(3) Inadequate Opinions in Investigative Reports
1. Comes up when there are conclusions proponent wants to introduce.
a. Ex. cause of plane crash was pilot error.
b. Ex. product safety report shows that product is dangerously
designed.
c. Ex. public study about toxic effect of drug on humans.
2. Rule: Conclusions and opinions are admissible in an investigative report if:
a. Based on factual investigation, and
b. Opinion is trustworthy
3. Factual Findings: So long as report contains some factual findings, then the
opinions in the report could be admissible.
a. Rule states that it covers “reports containing factual findings” –
sounds like they don’t want any opinions to be admitted that are
in a public record…
129
b.
4.
g.
Not intended to exclude opinions, only intended to define kind of
reports that are admissible.
c. Rarely a report where it is all opinion – usually opinions based on
facts.
i. However, some EEOC reports of lazy investigators
(employment discrim cases) are entirely opinion-based—
not admissible b/c no factual findings at all! Just say
“hostile work environment” or “discrimination.”
d. Legal conclusions excluded b/c they are not helpful to the jury.
e. Preliminary reports inadmissible b/c do not contain factual
findings.
Trustworthy—look at:
a. (i) Qualification
i. Opinion must be made by a qualified person using
reliable methods. Think about experts-reports considered
to be reports of experts…when gvt sends someone out to
investigate, they are supposed to send someone who
knows what they are doing.
ii. Have to use right methodology and investigate
thoroughlymeet Daubert.
iii. Usually problems at a low gvt level.
iv. Ex. local fire dept did a report about the cause of a fire
and it was the first fire they had ever seen.
v. Ex. case where the JAG came down to investigate cause
of ax but no training in engineering or aviation. Not
qualified.
b. (ii) Sufficient Facts/Data
i. Opinion based on sufficient information and
investigation.
ii. Ex. expert spends 4 min looking around.
iii. Ex. qualified engineer sent to Hawaii to look at nuclear
ax; scheduled 7 days to do report; weather was nice so
only spent 45 min at nuclear site.
Criminal
i. When prosecution wants to introduce public records offered against a criminal D
(such as evidence in a police report, FBI report, etc).
ii. General Rule: Law enforcement reports are NOT admissible against criminal D’s.
1. Adversarial and Evaluative Reports Excluded—matters observed by the
police at scene of crime excluded b/c made in adversarial circs and often
subjective evaluations.
2. Rationale:
a. Biasrule meant to exclude reports that are police-generated,
prepared under adversarial circs, and conducive to manipulation
by authorities bent on convicting.
b. Constitutional concernhard to confront/cross a piece of paper.
3. Note: Prob okay if used to HELP crim D’s.
iii. Exceptions: Even though bar in language of rule, sometimes LE reports admissible.
1. Depends on litigation bias.
2. When the crime hasn’t occurred yet/crime not tied to specific D =
Admissible.
a. Ex. Grady: LE report offered against Grady-serial numbers of
guns going to Ireland-tied to D. Ct says not barred. It is barred by
language of 803(8) b/c LE report. Ct saying exclusion doesn’t
mean what it says—not applied to all LE reports. Here admissible
b/c no one had been arrested. Concern of prohibition is that gvt
will be generating evidence against a criminal D that will
substitute for in court testimony—no concern in this case b/c they
don’t know who the suspects are—couldn’t write serial numbers
down in inaccurate way to implicate Grady b/c they didn’t know
130
h.
i.
who anyone was. In fact, would have hurt investigation if screwed
up numbers.
b. Ex. Orozco: Murder in San Diego on Jan 4, 3 pm. He says driving
car in Wash at the time. Gvt introduced print out of border patrol
checkpoint, which reports every car that passes into the USindicates at 1 pm on Jan 4, car bearing O’s license plate crossed
into US. That is a report of LE offered against the D. It is like
Grady b/c he hadn’t committed a murder yet, so no bias.
3. Litigation objective in forensic testing cases—geared toward particular D =
INADMISSIBLE
a. Ex. Oates: Chemist tested a substance found in Oates’ possession
after he was arrested. Report indicates positive for narcotics-that
report is what gvt seeks to introduce. Ct says inadmissible b/c law
enforcement report.
b. Ex. DNA report indicating matches sample found at scene.
Excluded b/c report prepared specifically for litigation. Compare
sample at scene to D’s sample so they have the D in mind and say
it is a match.
c. Ex. Breathalyzer test indicates D had high blood alcohol content.
Excluded b/c have someone in mind.
d. Ex. Breathalyzer test PRINT-OUT from machine—excluded? No
b/c NOT A STATEMENT – it is a machine. But if need
interpretation then it can be excluded.
4. Deportation warrant cases = Admissible.
a. They are used to document deportations, keep track of aliens,
etc…not just used to generate criminal evidence. Does not have
litigation objective.
b. Ex. D is illegal alien found in US and gvt wants to try him for
illegal re-entry. Requires that you were deported and that you
came back w/o getting permission. To prove this, have to prove
that they were deported—prove it through “warrant of
deportation”: report prepared by deportation officer saying I
escorted this person across the border (name and date of
deportation). When re-enters, deportation warrant entered to prove
deported—no witness is called. Is the warrant admissible? The
crime hasn’t occurred – crime only occurs when re-enters so hard
to argue gvt is trying to generate inaccurate warrants of
deportation.
Can you argue admissible under 803(6) (BR) instead of 803(8) (PR)? No.
i. If excluded under 803(8), untrustworthy so can’t get it in under 803(6)—both rules
have trustworthiness requirements and records prepared in anticipation of litigation
are excluded under both.
ii. Cannot solve problem by calling record keeper to testify.
iii. Ex. Oates: gvt didn’t call chemist, but the records custodian for customs service
who would testify that when substances come in they are test, report filed, etc. Gvt
trying to say maybe not public report but a business record b/c regularly
recorded/conducted. Can’t do that. Ct held that police and evaluative reports not
satisfying public records exception may not qualify under the business records
exception.
If cannot admit under 803(8), try 803(5)-past recollection recorded.
i. Past recollection recorded is a possibility as long as person who made record is
produced on the stand and cross-examined.
ii. Ex. On re-trial, called chemist and asked do you remember testing white substance
on the particular date? He says no I do not remember. Does record refresh your
recollection? No, but I know record is accurately made. Can you admit it now? Past
recollection recorded! The record-keeper can be cross-examined.
iii. If record-keeper dies, cannot get it in this way b/c cannot produce the
witness/record-keeper on the stand.
1. Note: Any other way to get this in? Yes, just get someone in who
interpreted the record OR have the test done again (i.e. a drug test).
131
10. Absence of a Public Record or Entry: 803(10)
a. If the gvt would record an event if it happened, the fact that there is no record of it is an
indication it did not happen.
i. Ex. patent filing is recorded and if it is not in records, indication that never filed.
ii. Ex. tax filing
iii. Ex. license to posses a gun
b. Allows the proponent (usually the gvt) to introduce a record of the person who checked (like
affidavit) the record in lieu of their testimony—this affidavit says I checked the record and I
didn’t find the record offered to prove there is no record.
c. Not worried about underlying records themselves but the checking of the records
d. Allows affidavits in lieu of actual testimony by public official who checked records
e. Sometimes in civil cases, i.e. mental practitioner unlicensed when did operation
f. More often in criminal cases—Illegal Re-Entry Cases: Ex. Prove that D was reported
(warrant of deportation) AND that D re-entered w/o permissionpermissions to re-enter in
ICE database. Records checker goes to ICE database and uses alien registration number,
checks their name, and files affidavit w/ court that says no indication permitted to re-enter
(instead of testifying himself). Absence of record shows illegal re-entry.
g. Requirement: DILIGENT SEARCH has been conducted that failed to disclose records.
i. It is not sufficient that the person checking the record says the search was
diligent…At minimum, the affidavit should describe the method of search and the
safeguards taken to prevent error. The circs must reflect that a diligent search was in
fact nde.
ii. Shown in the affidavit itself – indicate what was checked, whether it was crosschecked, etc.
iii. Courts have not been too particular about how much is in that affidavit showing a
diligent search. One court even admits if affidavit says “I checked and didn’t find
anything.”
iv. Note: comes out differently with Confrontation Clause issues (Melendez-Diaz), i.e.
trying not to find it.
v. Ex. Yakubov: Where D’s name was misspelled in the certificate (Jakabou), the
certificate on its face shows search of records was casual and unlikely to uncover
the relevant record, so inadmissible.
11. Ancient Documents Exception 803(16)
a. An old document older than 20 years (or did he say 30) found where you would think the
document would be found is admissible for the truth of its content.
i. Something in an old bible in a family homestead is admissible
ii. Does not look at reliability, merely looks at age
12. Learned Treatises – 803(18)
a. “To the extent called to the attention of an expert witness upon cross-examination or relied
upon by the expert witness in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the witness or by other
expert testimony or by judicial notice. If admitted, the statements may be read into evidence
but may not be received as exhibits.”
b. CL: Treatises not admissible to prove what was in them. Could only be used to cross the
other side’s expert and seek to contradict them.
i. New York is still a CL state. Experts are told never to admit authoritative b/c
otherwise could be contradicted.
c. Now: Treatises can be used by jury as proof—an be introduced to prove what it contains.
d. Requirements
i. Reliable Authority/authoritative: Idea is that there are certain publications that are
considered to be authoritative. Proponent must establish that the work is “a reliable
authority” – if so, can be introduced to prove what it contains.
ii. Ex. Physician’s Desk Reference-tells you that cannot give two drugs together, or if
this symptom check for this.
iii. Has to be done in tandem with expert on the stand testifying – either your expert
or other side’s expert
1. Expert on stand must have the opportunity to interpret or comment upon
the passages in the learned work that are read to the jury.
2. Why? Probably need some explanation from experts.
132
iv. Read into evidence, but not received as exhibits.
1. To treat them as exhibits would be to entitle the jury to use the learned
treatise during its deliberations, thereby affording these works more
prolonged jury attention than expert testimony.
2. Jury could think overly authoritative.
3. Also sometimes stuff experts need to explain (experts not in jury room).
4. Also do not want jury to go roaming through major treatise.
e. Note: Can be electronic or hard copy (says restlying)
i. Ex. Constantino: party that doesn’t want it to get in says rule only talks about hard
copy stuff. Language of the rule doesn’t take account of electronic evidence, but
courts do take account of electronic evidence—apply rules to modern day. So video
counts.
iii. The Residual Exception to the Hearsay Rule: Rule 807
1. Rule 807: A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court
determines that:
a. (A) the statement is offered as evidence of a material fact;
b. (B) the statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and
c. (C) the general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence.
d. However, a statement may not be admitted under this exception unless the proponent of it
makes known to the adverse party sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name and address of the declarant.
2. Introduction
a. Creates an exception for hearsay that is reliable but yet does not meet the admissibility
requirements of any of the categorical hearsay exceptions.
b. Intended to be a last resort.
c. Have reliable hearsay and doesn’t fit other exceptions – hard to cover all the reliable
statements out there with specific exceptions.
d. JUDGE can on a case by case basis determine that a particular hearsay statement is as
reliable as hearsay admitted under exceptions to admit it.
3. Reliability
a. Because this is a case by case approach, no ready identifiers (i.e. were they dying? under
influence of startling event? etc).
b. Best you can do is look at cases and figure out what courts look at.
c. (1) Circumstantial guarantees of trustworthiness
i. Factors
1. Relationship between declarant and person to whom statement was made
(trusted confidant more reliable than stranger).
2. Capacity of the declarant at the time of the statement (drunk/drugs cuts
against trustworthiness).
3. Whether statement was made spontaneously/voluntarily or in response to
probing (less reliable)
4. Truthfulness of the declarant
5. Whether statement appears to have been made in anticipation of litigation
or with coaching.
6. Whether declarant appeared to carefully consider his statement
7. Whether declarant recanted or repudiated the statement after it was made
(less trustworthy if recanted)
8. Whether declarant made other statements that were consistent or
inconsistent with the proffered statement
9. Whether the behavior of the declarant was consistent with the content of
the statement
10. Whether the declarant’s memory might have been impaired due to the
lapse of time between the event and statement
11. Whether the statement as well as the event described by the statement is
clear and factual versus vague and ambiguous
12. Whether statement was made under formal circumstances
133
d.
e.
ii. Ex. Child Sex Abuse Cases
1. If excited utterance, admissible under that exception.
2. Comes up when child makes not excited statement long after event and gvt
tries to admit it.
3. Ex. Child in school and is asked by teacher so how was your weekend?
Child says in an unstartled way well my daddy and I had some play time
and did sexual stuff. What would make that reliable?
a. If probing inquiry (PO, forensic examiner), cuts against reliability.
If spontaneous statement, in favor of reliability.
b. If child in midst of custody dispute, might be coached, which cuts
against reliability.
c. Kind of language child uses (“child appropriate language”); if
child using biological terms for what happened prob didn’t get
that on their own.
d. Child made statement to trusted person (child makes it to teacher),
rather than unusual person. More reliable if made to trusted
person.
iii. Ex. Triplett: Statement from mother about son admissible under residual exception.
Mother lives in duplex w/ a friend of 40 yrs, but she lives w/ her son. Other woman
says to Triplett/mother you don’t seem yourself today. Triplett says my son Ricky
tried to strangle me last night and said its only a matter of time I’m gonna kill you.
Two days later Triplett found strangled. Ricky tried and gvt wants to introduce
Triplett’s statement made to her friend. Not excited anymore (statement made the
next day), not a dying declaration (not aware of death it happened day before), and
not used for a state of mind/Hillmon thing b/c her conduct was not at issue (and
cannot make statements about other ppl’s conduct).
1. What makes it reliable? Against interest-implicating her own son; She also
made it to a trusted friend (prob diff if made it to plumber). So no
motivation to lie.
2. Not a statement against interest because must be against your penal or
pecuniary interest, not motherly interest. Declarations against social
interests do not qualify.
iv. Ex. Grand Jury Testimony: Crawford has served to substantially limit the use of the
residual exception as a means of admitting hearsay against the accused due to the
Confrontation Clause.
(2) Comparison to other hearsay exceptions (near-miss)
i. Proponent says it is kind of like some of the other exceptions since courts are more
comfy w/ other exceptions.
ii. Capra thinks that near-misses getting in under the residual rule can lead to abuses,
especially where the declarant is seriously injured, and is almost dead, but does not
get to the level of a dying declaration.
iii. Ex. Person burned. While being carried out a little later says “you shouldn’t have
burned me while I was sleeping Benny.” Ct says not excited utterance b/c EMT
took long to get there. No dying declaration b/c took her long to die. So gvt says
penumbra btwn DD and EU—court admits.
iv. Ex. Guy in diner saw something explode and wrote a record on napkin. Then he
dies. P wants to admit as past recollection recorded—says the only diff is can’t call
person to testify he has no memory but that record accurate when made b/c he is
dead. Ct allowed it. Capra thinks this is stretching the exception.
v. Ex. Gvt calls witness who has prior inconsistent statement made while not under
oath and gvt says should be admitted for truth b/c like 801d1a-only thing missing is
not under oath. Congress put in under oath requirement to exclude this kind of stuff.
Sometimes near-miss analysis is problematic.
(3) Corroboration – other evidence that indicates what declarant is saying is true
i. This type of evidence can be on its own or in addition to other things (1&2).
ii. The issue is whether or not a statement can be shown reliable enough to be admitted
as residual hearsay on the basis that other evidence corroborates it.
iii. “Cross-corroboration”: if two people say the exact same thing, more reliable even if
unreliable on its own.
134
4.
5.
iv. Ex. Child sex abuse case-gvt might use evidence that child acting in way sexually
abused children act, or maybe witness to event, or maybe medical exam of child.
v. Ex. Larez: Ct admitted newspaper account of event for its truth-event was that chief
of police had said in another case that Hispanics are not worth the money they are
recovering. Chief says never made it. They offer newspaper account that he made
statement and quoted him. Can a newspaper account of an event be reliable account
that event occurred? Newspapers have problems—a single quote from a single news
paper not reliable enough. Ct said not prepared to create a newspaper exception to
hearsay rule under 807, but was admissible in that case b/c the same quote was in 8
separate papers.
More Probative Than Any Other Evidence on the Point (last requirement)
a. The residual exception is a last resort—only use it if you need it. If other evidence to prove
point, use the other evidence.
b. Probative force exceeding that of other evidence on the same point that the proponent could
secure through reasonable efforts. The judge must decide whether other evidence can be
procured by reasonable efforts.
c. Party who wants the evidence out will say use other evidence; party who wants it in will say
I have no other evidence.
i. Note: Problematic to say use other evidence b/c you are going to provide them w/
evidence that helps their case!
d. Only comes up when person who made statement is available.
e. Rule: Generally, if the declarant is available to testify, the hearsay will be inadmissible b/c it
is not “more probative” than trial testimony.
i. Ex. Larez: Even if newspaper account was reliable, city argued that P should call
reporter (adult!) to testify b/c that is as probative or more than newspaper account.
Ct said even though report was reliable, not admissible if reporter was available.
ii. Exception: Where witness is a child (even if technically available), most courts find
that the residual exception applies even if evidence is hearsay statement.
1. Ex. Child sex abuse prosecution; D will argue you can call child to testify.
Gvt will argue testimony child will provide not as probative as
spontaneous statement to teacher. At trial, leading questions, intimidated,
etc.
Notice
a. A statement may not be admitted under this exception unless the proponent makes it known
to the adverse party with fair opportunity to prepare to meet it, the proponent’s intention to
offer the statement and the particulars of it, including the name and address of the declarant.
b. If want to introduce residual hearsay, have to give the other side advanced notice of that
intent.
c. Rationale:
i. These are unusual statements. Arguments about whether they are reliable will be
case-by-case arguments so other side needs to prepare (avoid surprise).
ii. Last resort-we do not want it to be used very often. You should think about whether
you should use it or not.
135
IX.
Hearsay: Step 3, determining whether the Confrontation Clause excludes hearsay when offered against the accused,
even though it would be admissible under a hearsay exception
a. Introduction
i. In all criminal prosecutions, the accused has a Sixth Amendment right “to be confronted with the witnesses
against him” after the gvt invokes one of the various exceptions to the hearsay rule.
ii. The purpose of this right is to allow the D to face their accusing witness in open court for truth-testing crossexaminations and to give the jury opportunity to determine the credibility of the witness through observation of
W’s demeanor (ex. jury can conclude, for instance, that the declarant’s nervous mannerisms make his
testimony suspect).
iii. The exceptions allow a declarant’s statement to be introduced against the accused for the truth of the
declarant’s assertion, yet the accused sometimes cannot cross-examine the declarant concerning the reliability
of her statement.
iv. Generally
1. Protects the accused in criminal matter – not civil
2. Only triggered when hearsay evidence is offered for its truth
3. Will only make this objection when the W/declarant is not on the stand, subject to cross
4. Not an unqualified right to cross each W and testimony presented against a D-balances D’s right to
test evidence against the prosecution’s ability to make out a case.
5. Not all hearsay violates the CC
6. Only for hearsay offered against a D, not against the govt
v. Process
1. Govt wants to admit statement
2. D will make an objection
3. Govt will respond with a hearsay exception, or claim it is not hearsay
4. D responds that although it fits hearsay exception, it violates confrontation clause and so is
inadmissible
a. CC only comes up where a statement has been admitted under hearsay already
b. D’s accuser is out of court and D wants the right to cross examine this accuser
c. But…right to cross is not absolute
vi. Conflict: The exceptions to the hearsay rule recognize that there are means other than cross-examination for
assuring the reliability of out of court statements. Some exceptions admit statements without the declarant
being present in court for confrontation and cross-examination by the D.
b. Pre-Crawford
i. Cross-Examination
1. If you can cross-examine a person who makes a testimonial statement (the declarant), you’ve satisfied
the right to confrontation.
2. If decalrant is produced to testify at the trial, there is no confrontation problem.
3. Constitution does not require perfect cross, only an ‘adequate opportunity’ to cross.
a. Note: This concept is preserved in Crawford.
4. Ex. Owens: The guard who got hit in head with lead pipe says it was Owens who killed the victim
(hearsay statement). Ct finds it admissible as statement of prior identification. But, D argued right to
confrontation was violated. Ct says not violated b/c can cross person who made the statement—the
guard is there and takes the stand. Owens then argued that sucks and still violates my CC right b/c
guard doesn’t have any memory. However, Ct said cross doesn’t mean amazing/great, just adequate.
Still good law.
ii. Not Offered for Truth
1. If a statement is not offered for the truth, it is not hearsay and there is no right to confrontation—no
reason to cross W’s (i.e. the gvt doesn’t have to produce declarant).
2. Has to be offered for its truth to implicate the CC b/c CC is all about confrontation.
3. If not offered for truth, don’t need to cross declarant b/c not trying to question declarant about the
truth of the statement.
a. Ex. Tennessee v. Street: Peele made confession (out of court statement) that implicates both
Street and Peele (“Street and I did…”). Gvt doesn’t offer confession in Street’s trial. But
Street has also confessed—issue is the validity of that confession. Street says he was coerced
into confessing—sheriff asked me about murder and I said I have no idea about the murderthen sheriff played Russian roulette w/ me and said here is Peele’s confession, I want you to
copy it (except for “Peele and I” instead of “Street and I”). Gvt introduces Peele’s confession
to show that it was different from Street’s—the two confessions do not match (to show that
Street was lying about being coerced). Street says violates CC. Ct says no right to
136
iii. Reliability Test
confrontation b/c Street doesn’t need to confront Peele—gvt trying to admit the confession to
compare the documents and show that Peele’s confession is not a copy the way Street says
things happened. Gvt is not trying to prove that those things actually happened. We do not
care what is in Peele’s confession, just that it differs.
1.
c.
Rule: The Confrontation Clause is satisfied (i.e. no cross-examination) if the proffered
hearsay/testimony is reliable.
a. Ohio v. Roberts: If a statement fit under an exception was “firmly rooted” or the hearsay
statement was attended by indicia of reliability or “particularized guarantees of
trustworthiness,” there was no CC violation.
i. Reliability is equated with cross-examination (confrontation).
ii. Result: If a statement satisfied any hearsay exception, it automatically satisfied the
CC because of its reliability.
2. Why Roberts/Reliability Test Was Wrong
a. Reliability is too flimsy and does not protect criminal D’s.
i. Too broad: it applies the same mode of analysis whether or not the hearsay consists
of ex parte testimony.
ii. Too narrow: it admits statements that do consist of ex parte testimony upon a mere
finding of reliability.
iii. It allows a jury to hear evidence, untested by the adversary process, based on a mere
judicial determination of reliability, thus replacing the constitutionally prescribed
method of assessing reliability with a wholly foreign one.
iv. Illustration—grand jury testimony was being admitted
1. Ex. W went to GJ and testifies against D. In trial, W not produced.
Evidence/testimony directly implicates D and offered under residual
exception. Cts would say reliable since W under oath, wouldn’t lie (but
scumbag also so he would), heavily corroborated (not really…).
b. Not part of the history of the CC
i. The historical concern of the CC is to assure that unexamined ex parte declarations
that are testimonial in nature are not introduced against an accused, unless the
accused has an opportunity for cross-examination
ii. Ex. Raleigh case: evidence offered against him of statements made before trialmost witnesses not produced. A person would come in and write testimony out (like
affidavit), and would sign it – offered against R at trial w/o cross. Substituting
written statement for in court testimony, but written statement made in preparation
of a trial.
Crawford v. Washington
i. Rule: TESTIMONIAL statements of witnesses who do not appear at trial are NOT ADMISSIBLE UNLESS:
(i) declarant was unavailable to testify, and (ii) the accused had a prior opportunity to cross-examine the
declarant.
1. Shifts focus from reliability back to cross-examination.
2. No matter how “reliable” the declaration is, the CC prohibits the use of the declaration at trial unless
the declarant is made available for cross-examination.
ii. Testimonial
1. Crawford v. Washington
a. Facts: Involved a prosecution for assault and attempted murder. The accused, Michael
Crawford, claimed SD. An impt factual question was whether the victim had drawn a
weapon just before the accused stabbed him. Crawford’s wife, Sylvia, was present at the
assault and participated in the alleged crime by leading Michael to the victim’s apt. However,
at Crawford’s trial she claimed her privilege not to testify against her spouse (she was
unavailable). The prosecutor responded by proffering a tape-recorded statement that Sylvia
had given to the police. Her statement described the assault in terms that cast doubt on
Michael’s claim of SD. The TJ admitted as a declaration against Sylvia’s penal interest (she
took part in helping her hubby w/ the assault) accompanied by sufficient indicia of reliability
(Roberts rule).
b. Holding: SC reversed saying the admission of the hearsay statement to the police violated
Crawford’s rights under CC. The questioning that generated the deponent’s statement, which
was made and recorded while she was in police custody, having been given Miranda
137
2.
3.
warnings as a possible suspect herself, qualified as an interrogation and therefore a
testimonial statement. Violation of CC b/c she was unable to be cross-examined.
Rule: CC right applies only if statement is testimonial.
a. Testimonial  violation of the CC.
i. Testimonial evidence against a D should only be admitted when: (i) W is absent
from trial, and (ii) D had the opportunity to cross-examine W.
b. Not Testimonial  not a violation of the CC and can be admitted.
i. If statement is not testimonial (i.e. business records) you do not need to go through
Roberts test of reliability because it does not violate the CC.
ii. If not testimonial, the only limitation that exists are the evidence rules themselves—
no constitutional rights!
Types/Definition
a. Three factors that must be triggered for the hearsay statement to be testimonial
i. (1) The primary motivation of the declarant in making the statement was that it
would be used in a criminal investigation or prosecution
ii. (2) Law enforcement officials must be involved in the preparation or making of the
statement
1. Directed at or prepared by gvt officials or bodies such as prosecutors,
police, judicial officers, grand juries, and other investigative units.
2. Statements made to friends or spontaneously, w/o law enforcement around
is unlikely to be testimonial.
iii. (3) The statement must be something more than a mere certification of ministerial
affidavit that qualifies a document that is not itself testimonial. If the underlying
info is something like a business record, which is not testimonial, a ministerial
affidavit qualifying the record is not testimonial (even though prepared for trial).
b. Four Examples of Testimonial Hearsay from Crawford
i. (1) Testimony at a Prior Trial/Preliminary Hearing
ii. (2) Testimony at a Grand Jury (what really helps criminal D’s at their trials – D’s
don’t have an opp to cross declarant at GJ hearing; so statements usually not
allowed in against the D)
iii. (3) Statements made in Interrogation by Police (Crawford itself) – that is
preparatory to trial; the whole idea of interrogating is to get information to use in
crim investigation and trial
iv. (4) Plea Allocution Between Co-Conspirators – guilty plea allocutions (usually to
the court) cannot be admitted against another D.
1. Multiple D crime; another D pleads guilty and has to allocute (make
statement to ct about their crime), in which they talk about what they did,
what they did with conspirators – used against the D (another person); gvt
seeks to admit that statement under a hearsay exception and D objects. Ct
says testimonial b/c you are in court making a statement under oath and
you know that it is usable in your own criminal prosecution.
2. Doesn’t matter whether statement directly implicates D; as long as offered
against the D and is testimonial, it will be barred. Thus, prosecution will
not be able to admit a plea allocution which has been redacted to take 2 nd
guy’s name out.
c. Need Law Enforcement Participation
i. Have to be talking to a PO = some member of law enforcement.
ii. When law enforcement not involved, not easy to prepare a statement for trial so
doesn’t look like that is the primary motivation.
iii. No federal court to date has found a statement to be testimonial if there is no
participation of law enforcement.
d. Primary Motivation Test  911 call cases: Testimonial?
i. Issue is whether statements made to law enforcement personnel during a 911 call or
at a crime scene are “testimonial” and thus subject to the CC requirements.
ii. These types of statements admissible under hearsay rule as excited utterances.
1. Ex. 911 call gf says: “My boyfriend just beat me up.” Police responds,
victim makes another statement to police, etc.
iii. Old Rule—Reasonable Anticipation: Statement testimonial if D can reasonably
anticipate the statement’s use in a criminal trial.
138
1.
If this were the test, all 911 calls would be testimonial b/c victims calling
911 have reasonable anticipation of its use in criminal trial.
iv. New Rule—Primary Motivation Test: Look at the primary motivation of the
speaker. A testimonial statement is one where the primary purpose of the
interrogation is to establish/prove past events potentially relevant to later criminal
prosecution.
1. Non-testimonial = Primary purpose is to enable PO to meet ongoing
emergency/responding to an emergency and taking care of the person
being injured.
a. Ex. typical 911 call.
b. If it looks like they are dealing with an emergency and
predominant goal is not to prepare a statement for trial, not
testimonial.
2. Testimonial = No such ongoing emergency and primary purpose is to
establish/prove past events potentially relevant to a later criminal
prosecution.
a. Ex. The typical after the fact crime scene interview with a victim.
b. Ex. Later, when sitting down answering questions of historical
fact, preparing for trial.
c. Ex. Affidavit made after person calms down.
3. Note: Limits the D’s right to confrontation.
4. Ex. Davis/Hammond: 911 call, they respond, then sit her down and say
write out account; state court said all admissible as excited utterance—not
case in a rational federal court (beginning EU but sitting down is not). SC
says 911 call and statement to first responders not testimonial. But when
she sits down and answers questions later on about what happened, that is
preparation for trial (that is her primary motivation).
5. Ex. Statements against interest: D charged with drug conspiracy and coconspirator described workings of conspiracy/everyone’s involvement;
statements made to someone that co-conspirator was trying to convince the
person to join; but that person was an undercover PO. Not testimonial b/c
co-conspirator was not aware that person was a PO so primary motivation
was not in preparation for trial.
6. Ex. Dying Declaration: person shot lying in alley. Friend comes up and
asks who did this to you, person says “I’ve given up all hope of recovery,
X shot me and I’m going to die.” Not testimonial—almost always
admissible. However, it might depend on whether it was said to PO or
friend.
iii. Regulation of Non-Testimonial Hearsay
1. Issue: Does the reliability test still apply to non-testimonial hearsay (ex. business records, public
records)?
2. Rule: Only concern under CC is testimonial hearsay. If not testimonial hearsay, CC analysis is over.
3. What is the protection against non-testimonial unreliable hearsay? Hearsay exceptions themselves!!!
iv. Records and Certificates after Crawford
1. The D has the right to demand the production of your witness if a test/lab report is going to be used
against him at a criminal trial.
a. Ex. Melendez-Diaz v. Massachusetts: drugs tested by chemist for law enforcement; report
that said positive for cocaine offered at trial. Ct found certificates to be testimonial. Why?
They were prepared for trial—the reason they do the reports is that they are offered as
evidence at trial. The Supreme Court held that a state forensic analyst's lab report that is
prepared for use in a criminal prosecution is subject to the demands of the Sixth
Amendment's Confrontation Clause. The Court reasoned that the lab reports constitute
affidavits which fall within the "core class of testimonial statements" covered by the
Confrontation Clause. Therefore, when Mr. Melendez-Diaz was not allowed to confront the
persons who created the lab reports used in testimony at his trial, his Sixth Amendment right
was violated.
2. Drug tests & breathalyzer tests are definitely testimonial b/c the only reason they are prepared is for
trial.
a. Capra says not useful b/c defense counsel will not do it – test itself answers the questions and
really nothing to ask.
139
Inconvenience for gvt – people who did the test would have to come in. All that defense
counsel would ask that person is “did you do the test?” They will say yes, I do the tests all
the time.
c. Note: after Melendez-Diaz, LE told to stay out of these tests so that they can be admitted at
trial w/o right to confrontation.
d. Melendez-Diaz -Gives defense counseling a bargaining chip because D is always sgoing to
call analyst as a witness because it's a unilateral burden that D can impose on the government
in calling the analyst to testify (analyst may be extremely far, expensive, unavailable ect.).
This increases gov’ts burden and now the government might want to bargain with the
defendant and offer a plea
i. What happens if more than one analyst works on the case?
v. Expert’s reliance on testimonial hearsay, and arguments about formality and the primary motive test —
Williams v. Illinois (2012) expert relied only minimally on gov’t’s (get notes on this from an updated outline)
1. Answered the question of whether the prosecution could introduce an analyst’s testimonial forensic
report (or transmit its substance) through an expert witness.
2. Alito analysisa. Not offered for truthi. even if what was used here was testimony hearsay (that the cellmark report was
hearsay) there’s no right to confrontation because it wasn't offered for its truth and if
its not offered for its truth, then the declarly (analyst) is not a witness for the D, and
the confrontation clause is satisfied. Alito says the case is similar to street v.
tennesee.
ii. Consider Street v. Tennessee- where there’s two guys involved in a crime, street
and peele, who are tried separately. Peel has confessed already, street has already
confessed but seeks to attack his confession at trial claiming that the sheriff
threatened him with death unless he confessed. Street stated that he didn’t know
what to confess to because he was innocent so the sheriff provided street with peel’s
confession and wanted street to copy it and just merely change names. Gov’t wants
to introduce it to show that there are actually differences in the case to show that the
sheriff did not coerce street’s confession. The court held that the confrontation
clause isn’t violated because those statements need to be offered for their truth. For
the purpose, which the confession was offered, there was nothing to cross examine
peel about. All the gov’t was trying to show was that the confession was made, not
what really happened.
iii. Flaw in argument- in street it didn't matter whether that confession was true or not,
but when an expert relies on hearsay like here, the reason they are relying is because
they think its true. That reliance assumes the truth of its fact. Its being used by the
expert for its truth.
b. Not testimonial  targeted individual test
i. Even if the lab analysis is directly entered into evidence and was offered for its
truth, its not testimonial. The definition of testimonial “primarily motivated to be
used against a particular defendant” here the lab analysis was not completed to be
used specifically against the defendant.
ii. Argument against this test
1. Historically, it did not have to be a targeted individual.
3. Justice Thomas’ View
a. Agree’s with Alito’s outcome but argues that because it was not a formalized certificate and
does not like the Marian certificates.
b. The problem of several analysts goes away under Thomas’ view
4. Ex. 8 analysis are involved in a chain of info that lead to an ultimate report and the contest is not over
the last analyst, but the D says you need to call all 7 other analysts. The previous analysts would not
be considered testimonial.
5. Allowing experts to do their own test and not relying on the analyzer’s test
a. Many states allow the gov’t to do this.
6. In one case, D was conviceted of driving while his license was suspended and gov’t tried to introduce
notice of suspension to say he had notice. D says that notice is testimonial?
a. Under Alito- it is not testimonial because it doesn't fit the primary purpose test and wasn’t
created to be used in a criminal prosecution at least
b. Latest case on the issue
b.
140
i. TO be guilty of illegal re-entry, you have to be an illegal alien. D is charged with
illegal entry and D claims he is not an alien. Statute looks to mother’s residence in
US to determine whether person is an alien. Gov’t wants to introduce an affidavit by
D’s grandmother prepared for an investigation regarding document fraud from 40
years ago. That statement was primarily motivated to be used in someone’s fraud
but not against the defendant because he was not born yet. Use broader test then,
this is a formilized document. Ct. rejected targeted individual test
d. Applied to Federal Rules
i. Note Requirements: (1) Primary Motivation, and (2) Statement made to LE (more likely testimonial)
ii. Situation: Gvt offers statement under hearsay exception and D says the statement is testimonial (primarily
motivated for making it was for its use at trial).
iii. Ask: Is statement hearsay? Is statement allowed in under hearsay exception? If so, does the declaration need to
be on the stand in order for the exception to apply – is it testimonial?
iv. 801: Defines Hearsayexpress/implied assertion, statement offered for truth of the matter asserted
1.
2.
3.
If a statement is not hearsay, there is no issue with the confrontation clause.
801(c): Statement must first be hearsay for it to be testimonial. If statement offered not for the truth
of the matter asserted, it is not hearsay and not testimonial. Not affected by Crawford. Confrontation
deals with cross-examination and if not hearsay, no right to cross-examine.
a. Ex. Tennessee v. Street
b. Ex. Offered for Context—Undercover officer with wire on him told to get statements from D
to be used at trial. O says something like “I’ve got 50,000 I’ll take 15 kilos,” D replies “not
enough money” O says “how much will it get it of drugs in violation of criminal law?” “D
says that will get you 12 kilos.” Gov’t wants to admit conversation.
i. How do the D’s statements get introduced as a matter of evidence?  party
opponent statement.
1. Is confrontation clause violated? No obviously not he doesn't need confront
himself.
ii. How will we introduce officer’s statements?  to provide context for the D’s
statement because you can’t understand one with out the other. Officer’s statements
are not admitted for its truth, but rather to make them understandable
1. Is confrontation clause violated? Officer’s statement are testimonial
because they are intended to be used at trial. But are they hearsay? No
because they are not introduced for truth.
2. If a statement is not offered for its truth it is not hearsay and doesn't violate
confrontation clause
801(d): Two categories of NOT hearsay/hearsay exceptions
a. 801(d)(1): Prior Statement of a Testifying Witness
i. Three categories—(A) prior inconsistent made under oath, (B) prior consistent
statement to rebut fabrication, and (C) prior statements of ID.
ii. No change, even though statement is clearly testimonial.
iii. Not a CC problem b/c the declarant is already on the stand.
iv. *By definition (to satisfy the exception), have to be subject to cross-examination so
cannot violate right to confrontation. Doesn’t have to be a perfect cross, just any
cross at all.
v. My notes: CC One its hearsay, testimonial, and no opportunity to cross examine.
But under here it can’t be admitted unless subject to cross examination.
b. 801(d)(2): Statements of Party-Opponents/Admissions (criminal D’s and his agents)
i. A/B: Party Admissions (Personal; D himself) or Adoptive Admissions = No change.
1. No CC issue b/c no right to confront/cross-examine yourself, so no
confrontation issue.
ii. C/D: Agents Authorized/in Scope of Authority = Usually not testimonial, but
depends on circumstances.
1. MIGHT raise confrontation issues.
2. Situation: criminal prosecution against principal and agent made statement
within scope of his authority.
3. Testimonialstatement obtained from corp agents to gvt officials
investigating allegations of misconduct.
a. Ex. agent goes to the police after work one day and says “I cant
take it anymore working for this criminal corp, every day I dump
141
toxic waste illegally on behalf of corp.” Is that testimonial? Yes!
Made to police for purposes of criminal prosecution. Admissible
under 801d2d? Yes b/c speaking about a matter w/in the scope of
authority/within job description (not whether they had the
authority to make the statement) and still employed. But NOT
admitted b/c principal would rely on the right to confrontation b/c
testimonial.
4. Non-testimonialwater cooler statement, complaining to a friend.
iii. E: Co-Conspirator statements = NOT testimonial.
1. Not testimonial (admissible) if made during the course and in furtherance
of the conspiracy.
2. Not primarily motivated to use statements in criminal prosecution b/c that
would implicate D and he could be arrested!
3. In order to further conspiracy, trying to get the drugs sold/ppl killed, etc.
4. You are not trying to generate evidence for a criminal trial.
5. Willing confession, plea allocutions, statements to police to curry favor are
NOT in furtherance.
6. Statements made to undercover cops not testimonial b/c not made in
preparation of trial.
v. 803: Availability Irrelevant (exceptions so reliable that we do not need a witness)
1. Note: under Roberts, automatically included (b/c exceptions “firmly rooted”)
2. Now you need to analyze statement by statement, not exception by exception.
3. 803(1): Present Sense Impressions
a. Statements made about an event made to a police officer as they are occurring. Could they be
testimonial? Hard to be testimonial
b. Unlikely to be testimonial b/c only testimonial if PO involvement and primary motivation for
statement to be used at trial. Also needs to be right after declarant sees the event.
c. However, testimonial if crime occurring, immediate statement, and made to police officer
involvement.
d. Ex. Gilbertson: D on trial for selling used cars b/c turned back odometers. Gvt has to show
that amt of mileage listed on certificate when sold and amt when bought. Issue is the
certificate of his purchasing it-seller writes how many miles on odometer. Gvt wants to admit
that for the fact that it was 120,000 miles (since 20,000 when sold). Is statement my car has
120,000 miles testimonial? No b/c seller intends to sell his car, not to go to court (and no
crime even occurred yet).
e. Police Officer to PO communication during a crime scene not usually testimonial because
not used for trial but rather to help eacother
4. 803(2): Excited Utterances
a. If EU, usually not testimonial—usually you have calmed down when you talk to law
enforcement. It requires a level of calculation to decide to state something to be used at trial.
b. Rationale: fairly inconsistent states of mind since to be testimonial have to be primarily
motivated to use something at trial instead of getting help.
c. Example of one case where EU and possibly testimonial prisoner put in cell w/ guy he
ratted out; officer opens door and victim on floor; D charged with causing serious bodily
harm to another fed inmate w/ intent; guard calls police to take guy to hospital 2 min later;
police keep D in cell and say on a scale of 1-10 how bad is your pain and guy says “9”
(hearsay statement offered against D to show serious bodily pain). Is it an EU? Yes b/c really
beaten down, limited time after.
i. Ct also said interesting question about testimoniality is if you compare to Davis, still
emergency when called 911, but in this case D couldn’t get victim anymore and
statement made to POs who asked a Q. so maybe testimonial.
ii. The “9” statement might be about treatment, not using the statement at trial. Maybe
not testimonial.
5. 803(3): State of Mind
a. Usually not testimonial. Most statements are made outside investigatory or criminal
prosecution context.
b. However, maybe testimonial, but only if made to POs/with criminal trial in mind—hinges on
police involvement.
i. Ex. Straiger: D killed by his wife who says “I shot him by ax, but he used to sleep
w/ gun under head w/o a safety so every night I would put it back so he didn’t know
142
6.
7.
8.
9.
I messed with it.” One night as I was putting it back I shot him by ax. Gvt does
search of victim’s office and finds tape that says in case I die play this. They play it
and it was his recount of his fear of her. Shows fearful state of mind—unlikely he
would sleep w/ her w/ gun under head. Shows unlikelihood he acted in the way the
D said. Testimonial? Gvt would say yes b/c in case I die play this at a criminal trial.
D’s response would be that it was not made to LE (it was just a tape). Gvt would
argue intended to be used in a crim trial—Capra says prob testimonial so D could
make a CC objection. Usually require police involvement to be deemed testimonial
(class notes)
803(4): Statements for Treatment/Diagnosis (mostly child abuse)
a. Statements made to a physician/nurse, if made principally for the purpose of obtaining
medical treatment or diagnosis (rather than helping to make a case against the perpetrator)
generally not testimonial.
b. Rationale: do not go to PO to get diagnosed. Typical case when you go to your own doctor
and talk about a crime/how you got hurt, which is probably not testimonial.
c. However, possible if PO does diagnosis/test of sexual abuse in preparation for trial.
803(5): Past Recollection Recorded
a. Never violates CC b/c declarant has to be there (and testify to the accuracy of the recording)
to be cross-examined.
803 (6) & (7): Business Records
a. Every business record in federal court after Davis has been found not to be testimonial.
b. Not testimonial b/c the whole point is that they are records for business purposes (not for
criminal investigations).
c. Rule automatically excludes reports prepared for litigation, so not a problem under
Crawford/Palmer.
i. Ex. Palmer: if made in anticipation to preparer and made for trial, not admissible.
ii. Ex. Hospital does tox screen. Gvt trying person for drug abuse/possession—gets tox
screen from hospital lab—hospital’s main motivation is to treat person/run tests, so
not testimonial.
iii. Note: after Melendez-Diaz, LE told to stay out of these tests so that they can be
admitted in trial w/o right to confrontation.
d. Affidavits Qualifying Business Record: problem occurs when records qualified by an
affidavit, which is prepared for litigation…testimonial?
i. There is record itself and how record gets proven…LE officer goes to record keeper
and asks that person to prepare affidavit.
ii. To prove record you can call qualified person to fill out affidavit—a substitute for in
court testimony. The record itself is not prepared with motivation for trial but you
file affidavit for trial.
iii. If affidavit does nothing except authenticate a record (not impt testimony),
doesn’t violate D’s right to confrontation.
1. BUT can also argue that that certificate does more than authenticate the
record—says this record is regularly kept, this activity is regularly
conducted, etc.
iv. Open question as to whether you can use these certificates in lieu of testimony
(Capra says this is why Melendez Diaz is stupid), but purely pro forma
ministerial affidavits are not going to be found problematic by most courts.
[end class 3/31]t
803(8): Public Records
a. Doesn’t change w/ respect to CC. Under the exclusion, records (law enforcement reports)
prepared in anticipation of litigation not admissible, so not a confrontation issue anyway.
b. Concern are LE reports prepared for criminal litigation = testimonial but NOT
admissible…so no CC issue b/c not admitted.
i. Ex. tox screens, DNA tests, etc.
c. Other public records admissible, but NOT testimonial—routine tabulations of data reported
without the intent of litigation—so not a CC issue either b/c not testimonial.
i. Ex. warrants of deportation, border patrol reports, customs, coroners– regulatory
documents.
ii. What’s admissible under this? License plate records, or sending a notice that a
person’s license is suspended - which aren’t done for adversarial circumstances. Not
testimonial because not prepared in anticipation of litigation so no problem with CC
143
d.
Grady report is problematic. Consider report prepared about serial numbers of guns that are
being run from Ireland to US.
i. Why is it testimonial?
1. Its an illegal operation and the serial numbers are written down to catch
these bad guys!
2. Why is it inadmissible anyway? Because its not targeted against any
specific defendant.
ii. Why is it still admissible against CC?
1. Because under Thomas’ approach, its not a formal approach
e. Autopsy reports
i. Many cts have held they are not testimonial because they are so importatnt to he
state, you cannot reautopsy someone, where as dna can be retested by someone else.
Plus there are many reasons to do an autopsy, including ruling out any foul play,
and they are often done without any specific defendant in mind. But, they are
formalized documents. Additionally, the medical examiners office is not in law
enforcement but is more like a hospital.
ii. Kims notes: The 2nd circuit said that Williams did not have a rule. And they
analyzed autopsy under Melendez diaz and determined that coroners have many
reasons for conducting autopsy’s. they never implicate a defendant, they just state
facts present on the body. The coroner does not make the case against a particular
individual. But they are formalized, it’s a certified report. The second circuit relied
on the fact that the coroner situation is more like a hospital not like law
enforcement.
10. 803(10): Absence of Public Records
a. Certificates of the absence of public record if prepared for litigation are testimonial.
b. Ex. Illegal Re-entry Cases = Admissible under exception, but testimonial. So right to CC.
i. Appears any record admissible under this exception is testimonial b/c prepared for
purposes of a criminal trial to show the record does not exist.
ii. It is testimonial – very reason the affidavit prepared is for criminal trial against this
specific person (don’t go to database to check unless prosecuting some for illegal
re-entry).
iii. Significance: thousands of cases where illegal re-entry by these 803(10) reports—
gvt expressed error b/c Melendez-Diaz retroactive (but considered harmless).
Melendez-Diaz says you cannot bring in a certificate against a crim D without right
right to cross.
iv. Capra: take away requirement that permission to re-enter has to be proven by gvt—
shift burden to D to show had permission to re-enter.
c. Rule has been amended, added a notice and demand procedure: I missed most of what capra
said., gov’t has to give notice D then has x amount of days to complain
i. Currently gives the prosecutor some notice as to whether the d is going to demand
presence of the analyst.
11. Ancient documents
a. Can they be testimonial?
i. Yes, an ancient document can be prepared for court
12. 803(18): Learned Treatises
a. Not testimonial b/c don’t make authoritative treatises w/ participation of law enforcement in
a criminal case. These are independently done outside of litigation.
vi. 804: Declarant Unavailable (generally, these satisfy the CC clause anyway)
1. 804(b)(1): Prior Testimony
a. No change b/c by definition their admissibility hinges on prior cross and declarant
unavailability.
b. If testimonial, D must have or have had an opp to cross-examine/develop the testimony.
c. If gvt wants to offer prior testimony from D’s prior criminal trial, that evidence admitted
against the D is testimonial but admitting it does NOT violate D’s right to confrontation.
d. By definition, cannot violate D’s right to confrontation if admitted under 804(b)(1)—
testimonial b/c need opportunity to cross at trial.
e. Ex. D tried on bank robbery. Gvt calls witnesses against him who testify against him at trial.
Then mistrial and gvt retries case. In interim, W’s who testified in first are unavailable. Gvt
wants to admit transcript of their trial testimony. Has to be similar motive/opp to develop
testimony. SC says that problem is solved by cross
144
f. In order for evidence to be admissible under 804b1 it CANT by definition violate the CC.
804(b)(2): Dying Declarations
a. Most non-testimonial
i. Ex. guy on street says to another guy “D shot me and I am going to die.”
b. Might be testimonial, but only if made to law enforcement (rare).
i. If the speaker intends or knows that the statement will be used in
investigation/prosecution, it is testimonial.
ii. Ex. PO runs up to declarant in hospital and asks “Who shot you.” V says “D did this
to me and I’m going to die.”
iii. Ex. Statement to police by V, who thinks he’s dying: “I was stabbed by Joe, my
partner; make sure you get him for this.”
c. In Crawford, discussion of exception to CC for dying declarations…
3. 804(b)(3): Declarations/Statements Against Penal Interests
a. May or may not be testimonial—turns on “currying favor.”
b. Statements that are admissible as declarations against interest under 804(b)(3) are NOT
testimonial b/c by definition they are not made to POs (Saget-Sotomayor).
i. No court has found an admissible declaration against interest was also testimonial.
c. Critical Q: Was statement made to a police officer?
i. If declarant is speaking to a LE officer (i.e. PO), not admissible under 804(b)(3),
even though testimonial. But no CC right if not admitted.
ii. Ex. Williamson: guy arrested talking to PO and PO says who did you do this with
and he says I bought drugs from Williamson-offered against W-not disserving to
guy’s situation so can’t admit against W-shows he wants to cooperate.
d. However, if statements made to friends, loved ones, etc. potentially admissible under
804(b)(3), but cannot object under the CC.
i. Ex. Declarant comes home and says, “Sorry I’m late Joe and I robbed bank.”
Statement admissible against Joe as declaration against interest. When implicate
yourself in crimes w/ others disserves you and not made to PO.
e. If made to police officers not admissible but if its made to someone other than police officer,
admissible.
4. 804(b)(6): Forfeiture
a. Rule: An accused may forfeit his constitutional right to confront testimonial hearsay by
making the declarant unavailable for trial—but only if the gvt shows that the D engaged in
wrongdoing designed to keep the witness from testifying at trial.
b. “Specific intent requirement” – need intent to commit wrongdoing and specific intent of
keeping W off the stand.
c. Giles v. California: Giles was charged with the murder of his former gf. A short time before
the murder, Giles had assaulted the victim, and she made statements to the police implicating
Giles in that assault. The victim’s hearsay statements were admitted against the D on the
ground that he had forfeited his right to rely on the CC by murdering the victim. The Gvt
made no showing that Giles murdered the victim w/ the intent to keep her from testifying, so
SC says should not have been admitted.
vii. 807: The Residual Exception
1. Pre-Crawford = reliability rule; Post-Crawford = depends on whether statement was testimonial.
2. Two sets of cases
a. (1) Grand Jury Statements
i. Pre-Crawford Law = person testifies detailed statements against D; at trial not
available; GJ testimony not admissible under any other exceptions (not prior
testimony—not on stand), so gvt would argue it was reliable. Under old law ct
would say yes. As to confrontation, ct would say reliability is confrontation.
ii. Post Crawford = GJ statements are testimonial so cannot be admitted as a matter of
constitutional law if the declarant refuses to testify at D’s later trial – D must have
the ability to cross. Hearsay GJ statements offered against criminal D’s under the
residual exception no longer applies.
b. (2) Co-D’s—Witness Testimony from one trial used in another trial
i. Pre-Crawford = Ex. two guys S and J tried for same crime but in separate trials; gvt
at S’s trial calls W (A), who testifies that he saw S and J run from bank, escape, etc.
S’s counsel crosses A and S convicted. At J’s trial, A no longer available, and gvt
wants to admit A’s testimony in J’s trial. Not prior testimony b/c D has not had opp
2.
145
e.
to cross. Pre-Crawford, admissible against J under 807 b/c reliable (testimony at
trial and crossed by someone in similar situation).
ii. Post-Crawford = Now, A’s testimony at S’s trial is testimonial b/c formal statement
made at trial prepared for trial. S got to cross-examine but that’s S’s cross not J’s
cross—cannot have a surrogate cross-examination.
1. Note: this is why you cannot have predecessors in interest in crim trials
(prior testimony 804(b)(1)).
Confrontation Issues in Multiple Defendant Cases
i. The Bruton Problem – Joint trial in which one co-D confesses and the other does not
1. Facts: Bruton and evans, evans made a hearsay statement by stating “bruton and I did the crime”
while at the police statement. The next requirement is that the next statement offerd against bruton
would violate his CC which it is does because its made to police officers. Evans does not testify at
trial because he’d subject himself to cross examination and implicate himself. Statement is offerent at
joint trial because it’s a party opponent statement.
2. The Confrontation Clause precludes the use of a confession to the police by one of the accused’s
confederates against the accused, even in a joint trial.
3. Particular fact situation that arises in criminal trial.
4. Conditions
a. (1) More Than One D Tried Together
b. (2) One D Has Made a Statement Confessing to His and The Other D’s Crime
i. Evans made statement confessing to his and Bruton’s Crime. Evans says “B and I
did it” at police station.
c. (3) Statement is Offered at the Joint Trial and The Confessing D Does Not Testify
i. Statement offered at Evans/Bruton trial and Evans does not testify.
ii. Note: If Evans testifies, not a CC problem.
5. Rule: A D (B) is deprived of his rights under the CC when his non-testifying co-D’s (A’s) confession
naming him as a participant in the crime is introduced at their joint trial, even if jury is instructed to
consider the evidence only against the co-D, A.
a. B says what will happen when statement refers to me is that jury is going to use it against me
and that is the problem.
b. E’s statement cannot be admitted against B (both parties agree to this).
c. HearsayOut of court statement, offered for its truth that E did it.
d. Reason 1: not subject to hearsay exception that covers statemen
i. Not statement against interest b/c made to LE (since currying favor is not
disserving).
ii. Co-conspirator statement? Not in furtherance of conspiracy b/c made at police
station.
e. Reason 2: testimonial so violates CC – statement made in interrogation
6. Possible Solutions to Bruton Problem
a. Limiting Instruction (bad)give jury a limiting instruction—you’ve just heard confession,
use it only against E not against B.
i. Does not work (usually). We ordinarily believe limiting instructions work, but this
statement is “powerfully incriminating” and it is hard for juries to limit these
statements.
ii. Also, instruction is not you did not hear it but you did hear it and you should use it,
but only against E—hard to follow.
b. Sever Trial (severe)A and B are given separate trials, in which case A’s prior statements
will only be admitted in A’s trial (as admissions).
i. Try the D’s separately—when E says B and I did it, they don’t have B there to use it
against.
ii. Gvt’s problem with that solution is wasting judicial resources (duplicate litigation—
time, money) and inconsistent verdicts (bad policy).
iii. Gvt also argues good for D’s to be joined b/c maybe one D could hide behind
another’s conviction and better to point finger at another scumbag.
c. Redacting/Editing Confession (less radical, but rarely workable)
i. (i) “Blank and I did it” – where D’s name is deleted but still mention of a missing
person.
146
Two D’s at same trial-not hard to figure out who other D is.
Constitutionally defective if a jury is likely to infer that the omitted name
is that of co-D B.
2. Jury can infer blank is D.
3. Ex. Gray v. Maryland: Adding a blank doesn’t solve the Bruton problem.
a. Scalia dissent: jury instructions can stop jurors from inferring
stuff. They have to draw inference-who is in the blank?
ii. (ii) “Another person and I did it.”
1. Better solution b/c jury doesn’t know it was redacted.
2. This is something you could actually say.
3. Ex. Jass: D and wife take daughter’s friend, bring her to a hotel, and did
gross stuff to her. Mr. and Mrs. Jass tried together. Mrs. Jass confesses,
“My husband and I…” Gvt says can try them both and substitute my
husband for “another person.” Ct said blank and I means you know it got
redacted and see the other person there. But another person sounds like you
could say that and there was someone else involved. Ct said that when
instructed not to just this statement against D, the jury will not do so.
4. D will argue why didn’t you just say “I did it.” Ct says that would be good,
BUT in this case not possible—unfair to the gvtmakes confessing D’s
confession look odd (case about two people doing something then D says I
did it) and tends to exculpate the non-confessing D which is not necessary
(want to make it neutral to non-confessing D).
iii. (iii) No reference to other D at all, but other evidence which links other D to
confession.
1. CC not violated by the admission of a non-testifying co-D’s confession
with a proper limiting instruction when the confession is redacted to
eliminate not only the D’s name, but any reference to his/her existence.
2. Allowable b/c jury would have to go through a string of inferences to infer
D was there (the more they have to infer, the better the limiting
instruction).
3. Ex. Richardson v. Marsh: A confesses and says I was in a car w/ B and
Marsh and we talked about having to kill guys. M says I knew drug deal
but didn’t know about shooting. A confessing D, B not being tried, and
there is M. A and M at trial, Gvt says redact—we’ll say A said “B and I
talked about guns.” SC says good redaction—no reference to M at all.
Confession no longer powerfully incriminating against the D. If you
connect up case you know M was in on the convo—they are all in car
going to drug deal. If jury puts it all together and sees statement made in
car and M said she was in the car, you can instruct jury not to go down this
inferential path.
a. Note: sometimes limiting instructions work!
d. Try the same case to two juries
i. One trial but two juries.
ii. There will be the B jury and the E jury—avoid duplicative litigation and protect B’s
right b/c E’s confession never introduced to B jury.
iii. No limiting instruction b/c B jury never hears it.
iv. Capra: manage that trial is difficult.
1. Only one jury box in courtroom.
2. Keeping confession from B jury is hard. Have to excuse when W goes on
stand and the prosecutor’s opening/closing, etc.
3. Ex. Judge said if sending B jury out all of the time and keeping E jury in, B
jury will start speculating about what E jury hears and what B jury doesn’t
hear.
Not An Issue Where…
a. Bench Trial no Bruton problem b/c judges know what to do with limiting instructions
(don’t use against B only against E). D’s right to C not violated b/c E not witness against B.
b. D Who Confessed Testifies at Other D’s Trial no Bruton problem b/c declarant on stand
subject to cross.
Face to Face Confrontation
a. D has the right to see his W.
1.
7.
8.
147
b.
c.
d.
e.
f.
g.
h.
i.
The accused and the adverse W must face each other—be in a position to have eye contact
during W’s testimony. The assumption is that face to face confrontation reduces the
likelihood that W will lie.
This requirement affects the ability of the gvt to use electronic transmission or a one way
screen in order to block the W’s view of the accused.
Rationale: As practical matter, right to face to face confrontation is about demeanor. It is
important for the jury/D to see the W’s face.
Qualified right to face to face confrontation under CC.
i. If this arrangement were always constitutionally permissible, it would be frequently
used when a young child, allegedly victimized by the accused, was called to testify.
ii. Ex. Coy v. Iowa: Under state law, have to put up opaque enclosure around D so
victim doesn’t know he is there and talk in his presence-sexual abuse case. Coy
argues I have right to face to face argument and SC agrees. So CC violated in that
case. Conviction reversed.
Blocking the child’s view of the accused is constitutionally forbidden UNLESS the gvt can
prove by clear and convincing evidence that the witness will be traumatized by testifying in
front of D.
i. Ex. Craig v. Maryland: Gvt could move for closed circuit television so you would
move D out of courtroom-D sees victim but V doesn’t know where D is. Maryland
ct said can be done only upon a psych showing that testifying in D’s presence would
create trauma to W (hold a hearing). Does NOT violate right to face to face
confrontation—right is qualified by gvt’s interest in protecting W upon specific
showing (no specific showing in Coy). Scalia dissents and says it is absolute.
Note: Some states limit procedures to children, but some states extend to anyone who might
suffer trauma upon a finding.
Methods (all prejudicial)
i. Screen/cone
ii. TV procedure
iii. One court tried to do a no-eye contact rule (make D look more guilty-D looking
down the whole time).
iv. Another line of cases that deal with in-court protective devices
1. Ex. Holbrook: D security risk so judge said shackled throughout trial. Due
process issues, but ct said reasonable trial administration.
Pro-Se DRight to Self-Representation is a Qualified Right
i. Ex. Fields: child sex abuse prosecution-D wants to represent himself and says you
cannot put me in a room since no lawyer to cross witness. Trial judge can appoint
standby counsel to cross those witnesses b/c the right to represent yourself is also a
qualified right—if it will disrupt proceedings, judge has right to appoint standby
counsel.
148
X.
Rules Governing the Treatment of Witnesses & Impeachment
a. Introduction
i. 2 sets of rules:
1. (1) general rules about how W gets called, types of questions, etc;
2. (2) impeachment of witness and rehabilitation of witness.
ii. Impeachment is when a party tries to weaken or discredit the testimony of adverse witnesses (including
hearsay declarants). It refers to all evidence intended to negate or raise doubts about the reliability of a
witness’s testimony.
iii. The attack on credibility does not necessarily mean that the witness is consciously lying. Rather, the principal
thrust of this means of impeachment is to show that the witness is wrong or mistaken.
b. Competency
i. Foundation Requirement for W to Testify
1. Oath or an appropriate substitute
2. Witness must have perceived something important to the case
3. W must recollect what was perceived
4. W must be able to communicate the testimony to fact-finder
ii. Rule 601. General Rule of Competency: “Every person is competent to be a witness except as otherwise
provided in these rules. However, in CIVIL actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision the competency of a witness shall be determined in
accordance with State law.”
1. Every person is a competent witness unless prohibited from testifying by another Federal Rule.
Generally, Ws will be competent and it is up to the jury to determine their credibility.
2. Witnesses must be competent before they can testify.
3. W presumed competent to testify (only incompetent when you don’t know where you are).
a. Ex. D says this W incompetent b/c never told truth in their entire life. Ct says not
incompetent to testify, let the jury decide.
b. Ex. W got up to testify in crim pros and on direct, W asked by pros “where were you at time”
and W talks to imaginary friend. Ct said competent to testify, it is something you bring up on
cross.
4. History
a. Under CL, there were rules that rendered witnesses incompetent to testify (i.e. drunk, drug
addicts, interested in the proceedings), based on idea that W not telling truth.
b. Drafters thought excessive b/c W’s might have something valuable to say. Many CL
questions were issues of credibility, which is a jury determination. The way to deal with
truthfulness is putting W on stand and impeaching them w/ defect.
5. Competency v. Credibility
a. A witness is disqualified only when he is shown to be incapable of perceiving, remembering,
or describing the event in question—the fact that the witness may be, e.g. a drug addict, an
unstable person, biased, or a liar, are issues for the fact-finder.
b. Competency—not being able to appreciate that you are in a courtroom, under oath, or the
consequences of lying.
c. Demonstrable liars, crazy woman who sees people, etc—credibility of W and they are still
competent to testify.
d. Legal rules affecting competency are Federal Rules of Professional Responsibility: L cannot
testify at trial if he is acting as a lawyer in it.
6. Interplay With State Laws
a. 601 bows to state law when state law provides the rule of decision in a diversity case—only
in CIVIL CASES.
b. When a federal court is applying state substantive law, it should also apply those state
procedural rules that potentially could have a significant impact on the outcome of the trial.
c. NY’s Dead Man Statute – determines competency: prohibits a living party from making
fraudulent claims against the estate of a decedent; in civil cases, a party claiming an interest
in a transaction can’t claim what was said to them by someone who is now dead if there was
no other witness to the statement; therefore, the party claiming an interest is incompetent to
testify to that matter. Party w financial claim against estate cant testify about personal
transactions/communications w the decedent (living party is biased)
d. No Dead Man’s Statute Under the FRE – prevents witnesses from testifying and kills claims
made against estates. Capra argues that the jury should be allowed to make the decision on
149
the credibility of interested parties testifying to what the dead person said. With a Dead
Man’s statute, the aggrieved party has no recourse once the other party dies.
7. Non-Evidential Rules Affecting Competence: Rules of Prof. Conduct—lawyers cannot be witnesses
in cases where they served as counsel.
iii. Juror as Witness
1. Rule 606: Competency of Juror as Witness
a. At the Trial. A member of the jury may not testify as a witness before that jury in the trial
of the case in which the juror is sitting. If the juror is called so to testify, the opposing party
shall be afforded an opportunity to object out of the presence of the jury.
b. Inquiry Into Validity of Verdict or Indictment – upon inquiry into the validity of a verdict
or indictment:
i. Juror can’t testify about:
1. Any stmt occurring during the course of jury deliberations, or
2. About anything on that or any other juror’s mind or emotions as
influencing the juror to assent or dissent from the verdict/indictment
3. Re: juror’s mental processes
ii. Juror may testify about:
1. Whether extraneous prejudicial info was improperly brought to jury’s
attention
2. Whether any outside influence was improperly brought to bear upon any
juror
3. Whether there was a mistake in entering the verdict onto the verdict form.
c. Note: Juror’s affidavit or evidence of any stmt by juror may not be received on a matter
about which the juror would be precluded from testifying.
2. Situation: Counsel goes to interview juror and juror says something happened during the
deliberations. Party wants to attack verdict through jurors affidavit/testimony.
3. Rule: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any
matter or statement occurring during the course of deliberations or to the effect of anything upon that
or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict
or indictment.
a. A juror is incompetent to testify by way of affidavit or testimony about what went on during
deliberations/some defect that went on during deliberations.
b. Rationale: there is a social policy that favors keeping jury deliberations secret. If jury
deliberations were freely admissible, there would be no such thing as a final verdict or
judgment. Allowing juror deliberations to be brought in to question the validity of a verdict
or indictment would open up a pandora’s box. If jury verdicts were not secret, it would have
a chilling effect on jurors that might change the nature of deliberations. Furthermore, there
are policy reasons favoring juror’s privacy and keeping them free from harassment and
annoyance.
4. Cannot Testify To:
a. Bad deliberations (throwing a dart at dart board for damage calculation)
i. Ex. Juror says to counsel well you had a strong case but we just wanted to leave so
we picked numbers out of a hat. Can that be testified to? No b/c internal
deliberations.
b. Inattentiveness or Drug/Alcohol Use
c. Judges instructions were Ignored/Misunderstood
i. Ex. Capital case; jury votes that D gets death penalty. Juror says I was the only hold
out and they were talking to me and I figured I wouldn’t persuade them all so I gave
up. Juror says I didn’t hear instruction that I could just hold out and get my way.
The fact that jurors didn’t hear instructions just goes to deliberations, it is not an
outside influence.
d. Prove that the jury reached a compromise verdict
e. One juror threatening another juror
f. Racial Bias
i. Most courts say racial bias is internal.
ii. Ex. Trial is case with African American D allegedly assaulted white woman.
Counsel gets info that jurors during deliberation using racist comments w/ respect to
the D. Not admitted b/c no external forces.
iii. Ex: D is black. Wants to call jurors to testify that other jurors said “I want to convict
this guy because I hate blacks.” Can that be proven? Can get people that know the
150
5.
6.
jurors to come in and testify that juror is racially biased. But would need to prove
the statement made in jury deliberation and that you couldn’t do.
Exceptions (what jurors can testify to):
a. External/Outside Influence jurors can testify about external prejudice/outside influence.
i. Ex. prejudicial trial publicity (juror read something in the media), juror bribed by
one of the parties, listening to bailiff’s comments.
ii. Rationale: does not speak to deliberations.
iii. Note: jurors can testify that the outside influence occurred, but not about the effect
that it had on the jury or an individual member of the jury.
b. Clerical/Ministerial ErrorCan inquire of jury if appears to be error in verdict form.
i. Rationale—not inquiring about deliberations, just what the verdict was.
ii. Very limited exception; only ask whether there was a mistake/clerical error in
entering the verdict on to the jury form.
1. Limited to a situation where jury foreperson wrote down, in response to an
interrogatory, a number different from that agreed upon by the jury, or
mistakenly stated that D was guilt when jury agreed he was not.
2. Ex. trial for damages and jury returns verdict for P with amount line$12,260,00.000. Dispute about meaning of verdict. Can you ask jurors
what is the verdict? Yes.
3. Ex. Form said guilty-checked wrong box. Clerical error so could hear it.
iii. Does not cover misunderstandings of judge’s instructions.
1. Ex. PI case. First part verdict which finds D liable in amount of 40% and P
negligent 60% (P can recover reduced by 60%). Judge says figure out amt
of damages, but total amount and I will reduce it. Return a verdict of
$40,000. P’s counsel asks juror what happened, and juror said $100,000
and we reduced it, BUT that juror didn’t hear that the judge was going to
reduce it. P says clerical error should have been $100,000 and put $40 on
form. Not clerical error if misunderstood instructions, didn’t listen, etc and
that is deliberation. The actual verdict they entered was $40,000.
c. Note: Even if juror is allowed to testify b/c of exception, only allowed to testify as to how
that occurred and not how it affected the jury.
Voire Dire
a. Rule does not bar inquiry into whether juror lied during voir dire.
b. Material misrepresentation like racial bias impt b/c that juror should have been struck from
the case.
c. The Oath
i. Rule 603. Oath or Affirmation: “Before testifying, every witness shall be required to declare that the witness
d.
will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness'
conscience and impress the witness' mind with the duty to do so.”
ii. There is no standard form of oath. All that is required is that W realize the significance of taking the oath. So
long as the modified oath or affirmation tells W that they must tell the truth and that there are consequences for
lying, the court must accept it.
Sequestration
i. Rule 615: Exclusion of Witnesses
1. “At the request of a party the court SHALL order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order of its own motion.”
2. “This rule does not authorize exclusion of: (1) a party who is a natural person (named party to the
action), or (2) an officer or employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the
presentation of the party's cause, or (4) a person authorized by statute to be present.”
3. Any party to a case has the right (judge does not have discretion) to have an order sequestering the
W’s who are going to testify at trial.
4. Sequestration: witness not allowed to sit in the trial before their testimony.
5. Rationale: Concern that a W by sitting at trial will tailor their testimony to what other W’s say, which
wouldn’t be able to do if not at trial. Root out inaccuracy of testimony.
6. Mechanics: On the motion of a party, the court HAS TO witnesses excluded so that they cannot hear
the testimony of other witnesses. However, the judge may sequester on his own motion.
ii. Beyond 615: Don’t-Talk Order/Judge Gag Orders
151
Sequestration may not be enough to keep two W’s apart—once they leave, they may not talk to each
other.
2. This is not regulated under 615, but judge has the power to grant a gag order—“anyone who testifies
is gagged from telling anyone else what they testified about.”
3. Judges often grant no-talk orders authorized by TJ inherent authority to control courtroom.
4. Discretionary on part of judge.
5. If violate order, contempt…
iii. Exceptions: despite order, these ppl have the right to remain (can’t be excluded on grounds going to be
witnesses)
1. Named Parties To the Action– right to attend trial overrides 615
2. Present as Authorized by Statute – i.e. Victims (who are witnesses)
a. Victims’ Rights Legislation gave V’s right to sit through trial even if going to testify
3. Essential to the Presentation of the Case (such as expert witnesses who need to counter other expert
witnesses).
Trial Judge’s Discretion
i. 611(A): Control by Court: Court shall exercise a reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to
1. make the interrogation and presentation effective for ascertainment of the truth
2. avoid needless consumption of time and
3. protect W’s from harassment or undue embarrassment
4. Rule: trial court has discretionary power on a case-by-case basis to deal w/ presentation of witnesses:
a. pretty wide power
b. prevent W’s from being harassed, prevent argumentative questioning, change order of proof,
allow rebuttal
c. most objections, such as “asked and answered” “harassing the witness” “argumentative
question” are not provided for in FRE, but is allowed under this rule
d. regulates power points, charts, summaries
ii. 611(B): Scope of Cross-Examination
1. Cross E should be limited to
a. subject matter of the direct examination and
b. matters affecting W credibility
2. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct
examination
3. Ex: Wrongful death action for wife of P who was run over by D. next door neighbor testifies that hw
saw wife be run over by D. D’s counsel wants to ask “have you ever heard the P argue with the P”
a. General rule- not allowed
b. D wasn’t allowed to bring up evidence about damages (if they fought he would get less)
where W testified to liability
4. Timing Rule Only: Each party is entitled to their own order of proof, such that the D can ask these
questions by calling the W during his or her case
5. Safety Valve: judge can circumvent the rule under his discretion, Ex – not to inconvenience the W.
iii. Leading Questions
1. Leading Question: suggests to the W the answer desired by the questioner.
2. Should not be used on direct examination of a W except as may be necessary to develop the W
testimony
3. Should be permitted on cross-examination
4. When a party calls a hostile W, an adverse party, or a W identified with an adverse party,
interrogation may be made by leading questions
5. Issue here is whether WITNESS IS ADVERSE
a. Adverse- you may lead them
b. Not adverse- can’t lead them
6. HOW to decide ADVERSITY?
a. judges discretion
b. voir dire can be held or
c. W may be adverse in parts but not others
d. kids can be asked leading questions usually
i. questions which suggest a yes or no answer
7. Remedy- oral rephrasing, re-phrasing it as an open question- then W will track the leading question
Impeaching Your Own Witness
1.
e.
f.
152
i. Common Law: a party cannot impeach her own witness.
1.
2.
3.
g.
Exception: if you thought W was credible and then they surprise you, you can attack W credibility.
Rationale: by calling a W to testify, a party “vouched for” her character and credibility.
Problem: You do not vouch for credibility, you call Ws b/c you have to! Also could call a W that says
mostly god things but some bad.
ii. Rule 607. Who May Impeach a Witness: “The credibility of a witness may be attacked by any party,
including the party calling the witness.” Under FRE, you do not vouch for your own witness and you may
freely attack the credibility of any witness.
1. Rationale:
a. Strategy—call D in their own case and attack right away.
b. If you know W is adverse, but you think you can crack him.
c. When favorable W, but you need to bring out negative aspects on direct.
2. Common Situation-Removing the Sting: D wants to call a favorable witness who has an impeachable
background. Under Rule 607, D may call W to the stand on direct and bring up impeachment
evidence before the prosecution brings it out on cross-examination. This is an example of “removing
the sting” because when the negative information is brought out on direct, it is less damaging to W’s
credibility because the jury does not make the inference that D was hiding something about W.
3. General Rule: Cannot Call W Solely To Impeach
a. 403 balancing test  protect W from undue embarrassment (keep prosecution from
badgering the witness).
b. Counsel cannot call W, knowing he will give unfavorable testimony and then impeach him
with
c. Cannot call a W to bring in inadmissible hearsay under guise of impeachment, in order to
admit evidence that would not otherwise be admissible—cannot use 607 in bad faith.
i. Ex. Prosecutor cannot call W, knowing he will give unfavorable testimony, and then
impeach him with a prior (unsworn) inconsistent statement that he jury is not
supposed to use for its truth.
ii. Ex. D charged with a murder. Prosecution has a W who they have spoken to
previously (not under oath). Prior statement: “I saw the D kill the V.” Pros
preparing case and calls up W on phone—says I am going to call you to testify. W
says don’t call me to stand I don’t want to testify and if you call me I’m going to
repudiate. Pros calls W anyway (bad faith). W says “I didn’t see anything.” Pros
says didn’t you previously say you saw D kill victim, which D objects to bc hearsay
(out of court statement offered for its truth-that D shot V). Pros says prior
inconsistent statement and I can impeach witnesses I call. That cannot be done b/c
what Pros doing is using 607 for a bad purpose—pros is calling W solely to
impeach him (W said he would repudiate his statement and his prior statement is
otherwise inadmissible b/c hearsay).
1. Pros can argue I didn’t know what W was going to do when he took the
stand (“I thought he might do the right thing”). If the prosecutor was really
acting in good faith, the information will likely be allowed in.
4. Exception #1: Good Faith: With a good faith reason to call W, can impeach with inadmissible
evidence.
a. In order to call W the party must think that there is something helpful in the W’s testimony.
b. Look to prosecutorial motivation—cannot call W knowing you will impeach him right away.
c. Claim of surprise must be credible (cannot just say you thought he’d change his mind).
d. Cannot be a mere hope that they will ‘see the light’ and change course on the stand.
e. Capra: gvt can usually make an argument about good faith so mild prohibition.
5. Exception #2: Falls Under Hearsay Exception: Where statement is admissible on its own b/c of
hearsay exception (prior inconsistent statements), this rule does NOT apply (the good faith standard).
a. Ex. W said I saw D kill V at Grand Jury proceeding and prosecution wants to call W in
subsequent case. W says I will repudiate/I will not testify so don’t call me. Hearsay
exception 801(d)(1)(A) to bring that statement in—prior inconsistent statements made under
oath admissible for truth despite fact that hearsay (instead of admitting to impeach witness).
Prosecution is not trying to bend hearsay rule by calling witness to bring prior statement in.
Trial Court Control, Scope of Cross-examination, and Leading Questions
i. Rule 611: Mode and Order of Interrogation and Presentation
1. (a) Control by court. The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation
153
2.
3.
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
a. Witnesses—W is being harassed on cross. TJ can prevent with “asked and answered.”
b. Form of Testimony—In a complex toxic tort case, the judge had all of the experts sit for a
roundtable discussion and the judge made a ruling at the end.
c. Demeanor of the Court—An impt W has tourette’s syndrome. TJ allowed video testimony
with curses, etc. edited out.
d. Lack of Control—W is on opium while testifying; reversed because TJ should have done
something to control W.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the
direct examination and matters affecting the credibility of the witness. The court may, in the exercise
of discretion, permit inquiry into additional matters as if on direct examination.
a. Issue is what an opposing party may ask of witnesses on cross-examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness
except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be
permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by leading questions.
a. Friendly Witnesses—on direct, you may not lead witnesses that are “friendly” because
favorable witnesses are led too easily. If you could lead such witnesses, the lawyer would
substitute their words for W’s.
b. Hostile Witness, Adverse Party, W identified w/ adverse party—leading questions can
generally only be asked of adverse W’s. Leading questions are not per se limited to cross b/c
a party may impeach their own W. If attorney’s could not use leading questions with adverse
parties, there would be disastrous results.
c. Remedy for Leading Questions—rephrasing the question.
d. Exception/Leeway—where a party has trouble understanding questions, leading questions
may be permitted to allow the party to “develop the witness” testimony (i.e. child witnesses,
idiots, bad memory, etc.)
e. TJ Discretion—this is a TJ ruling, so rarely reversed.
154
h. Ways to Impeach a Witness
i. (1) Attacking W’s Character for Veracity/Truthfulness (W is a liar)
ii. (2) Prior Inconsistent Statements
iii. (3) Contradiction (By Other Evidence) (ex. contradict expert witness-other people do operation in another
way)
iv. (4) Bias or Motive to Falsify: W has some motive to falsify in the case (i.e. financial stake in action, feelings
toward one of the parties)
v. (5) Lack of Capacity (W doesn’t have the mental/sensory capacity to testify truthfully, i.e. W with someone
i.
on shoulder); can come out on the stand and it is an issue for the jury, not the judge – goes to weight, not
admissibility). Capra says this would be governed by 403.
Character Impeachment—Bad Acts and Convictions (Character for Veracity)
i. Introduction
1. Rule/Purpose: A W’s character for truthfulness can be attacked—show a person has a propensity to
lie which makes it more likely that the person would lie on the stand.
2. Three Modes of Attack on W’s Character for Truthtelling
a. (1) Opinion and Reputation Evidence – 608(a)
b. (2) Bad Acts – 608(b)
c. (3) Prior Convictions – 609
3. Distinguished from Rules 404/405: Under 404/405, where D is accused of a crime, P offers evidence
of past crime against D (not for character purpose) as proof that D committed the crime charged, NOT
to impeach D by attacking his character for truthfulness.
ii. Rule 608: Evidence of Character and Conduct of Witness
1. Some indication the W is a liar so jury can infer that the W may be lying on the stand.
2. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
a. Can attack W’s character by calling a character W about that W by opinion or reputation
evidence. Specific Acts excluded.
i. Ex. W1 testifies. You can call W2 who will say I know W1 and W1 is a liar OR I
am a member of W1’s community and he is known in his community as a liar.
b. Very rarely done…
i. Conclusory-who is W2 to say W1 is a liar? W2 not necessarily credible.
ii. Cannot bring in W1’s specific acts of lying through W2 (just reputation/opinion-not
very useful).
iii. On cross of W2, can admit W’s good acts (did you know…).
iv. Timing problem-D doesn’t get to introduce W2 right after W1 takes stand.
Proponent of W2’s testimony has to wait for presentation of case. When W2 is
called to trash W1’s credibility, it refreshes the jury as to what W1 said on direct.
3. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' character for truthfulness, other than conviction of crime as
provided in rule 609, may NOT be proved by EXTRINSIC evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of another witness as to which character
the witness being cross-examined has testified. The giving of testimony, whether by an accused or by
any other witness, does not operate as a waiver of the accused's or the witness' privilege against selfincrimination when examined with respect to matters that relate only to character for truthfulness.
a. Can question W1 directly about bad things he has done that indicate he is a liar.
b. Why better than 608(a)?
i. Timing—happens when W1 is on the stand.
ii. Bad acts—bad acts/W’s history better for a jury as opposed to an opinion that the
person is a liar.
iii. Door stays closed—by bringing up W’s bad acts on cross, does not open the door
for the introduction of W’s good acts to show not a liar.
c. Good Faith: there is a judicially imposed requirement that the cross-examiner have a goodfaith belief that the event he inquires about actually occurred. The attorney who intends to
inquire about a prior bad act must take reasonable steps to confirm its existence.
155
d.
i. The party questioning the W must have good faith proof that the question being
asked is based in fact. Therefore, you cannot simply accuse a W of past bad acts just
to get the W to deny them on the stand in front of the jury. This is b/c W will look
bad even if statements untrue.
ii. Do not need to prove bad act—just some evidence to back up the accusation.
403 Test: Bad act evidence can be introduced to impeach W’s character for veracity unless
the probative value of such evidence, as it bears on the veracity of W, is substantially
outweighed by the prejudicial effect to the party that the jury will associate with that W.
i. In considering whether to be able to address W bad act, balance how probative is it
of W’s likelihood to lie on the stand with how prejudicial is it to party who is
benefited by W’s testimony.
ii. Relevance/Probative Value Factors
1. Dishonest nature of act/Type of bad act
a. Some acts more probative of lying than others (lying acts such as
perjury more probative than violent acts).
b. Murder not a crime of dishonesty.
c. Ordinary acts of drug use not admitted.
2. Remoteness of act—the older, the less likely it says about the W’s current
propensity to lie on the stand.
3. Importance of W’s credibility—the more impt the W’s credibility is to the
case, the more permissive the court should be in allowing inquiry into the
W’s character for truthfulness.
4. Impeachment on other grounds—if the W has already been impeached by
other methods, then use of bad acts becomes less probative.
5. Similarity of the bad act to the issue in the case—risk of prejudice acute if
the W’s bad act is similar or identical to the issues disputed in the case.
6. Relationship of W to the case—if the W is simply unaffiliated fact witness,
the only prejudice suffered by the party is that the W’s testimony may be
unfairly disregarded by the jury; but if witness is affiliated with the party,
the prejudice derived from the W’s bad act is greater b/c jury may not
merely disbelieve W.
iii. Prejudice Prong
1. Inflammatory nature of act
a. Some acts more prejudicial (lying on gvt form less prejudicial
than stealing money from orphans/sex crimes; lying on
applications not as bad as being child pornographer).
b. Drug activity more likely to be admitted than aggressive acts, but
not actually lying.
2. Who is being impeached? Impeaching D’s star W may damage case more
than impeaching ancillary W. Impeachment of bystanders not very
prejudicial. Where party is W, impeachment has direct and substantial
prejudicial impact.
iv. States of Prejudice (low to high) – Party connection to W
1. Bystander unaligned w/ parties (W to car crash)
2. Witness affiliated w/ a party (brother who stole money from orphans)
3. Affiliation and similar acts (D charged w/ extortion and wants to call W
who has done extortion)
4. Party is W and is being impeached (draws negative inference)
5. Party is a W and is impeached for truthfulness w/ bad acts similar to acts
v. Pertinent bad acts
1. Faking insanity defense
2. Use of aliases
3. False credit card apps
4. D’s failure to report political contributions
5. False excuses for job absence
6. Lying about marital status on marriage license
7. Forgery, bribery, suppression of evidence, cheating, embezzlement
vi. Generally NOT allowed
156
Drug use (not admissible to impeach W’s character for veracity, but could
be used for impeachment if impeacher could show drug use reflected on
W’s capacity)
a. Ex. D on trial for assault. D calls W to testify that D did not
assault V. Pros wants to intro evidence that W abuses drugs.
Inadmissible.
2. W prostitution
3. Soliciting bribes
4. Litigiousness (that W has a propensity for bringing false suits)
5. Bankruptcy
e. Extrinsic Evidence Inadmissible Upon Denial of Bad Act
i. Examples of Inadmissible Extrinsic Evidence
1. A second W cannot be called to testify that the first W committed the bad
act
2. Documents cannot be introduced to show W’s bad act
ii. Situation—W denies doing bad act and cross-examiner wants to say I can prove you
did it (by introducing a document, report, calling another W, etc). Can the crossexaminer bring in evidence that the act happened when the W denies it? NO.
iii. Rule: “Extrinsic evidence” of bad acts cannot be introduced when the W denies the
acts occurred.
1. You can ask the Q but you have to accept the W’s denial (leave it w/
having asked the Q). Compromise—allowed to ask the Q but when they
deny it you cannot do anything.
2. Do no want to have a trial w/in a trial on whether bad acts occurred.
3. “Extrinsic evidence” = Anything other than W’s own admission it
happened.
a. Ex. report, document, etc.
iv. Note: Extrinsic evidence can be used to show bias/motive to lie and for prior
inconsistent statements (see Abel below). The only time extrinsic evidence is
absolutely barred for impeachment purposes is for character truthfulness.
f. Rule only applies when W is attacked for untruthful character
i. The bar on extrinsic evidence imposed by 608(b) is applicable only when the
impeaching party is attacking the W’s character for truthfulness.
ii. Extrinsic evidence can be used for impeachment via bias or prior inconsistent
statement.
iii. If you have any other purpose besides truthfulness to impeach, 608(b) is not a bar to
admit extrinsic evidence.
iii. Rule 609: Impeachment of Evidence of Conviction of Crime
1. Convictions present special issues more probative of W’s lack of veracity.
2. Bad Acts v. Convictions
a. In 609, if you ask a W have you been convicted of perjury and they say no, you can disprove
it by introducing judgment of conviction even though this is extrinsic evidence.
b. Why? Easy to do…proving conviction that has been denied is easy b/c just bring in judgment
of conviction. Also, a person under 608 might honestly think he didn’t do a certain act b/c act
disputed. However, under 609, hard to be unsure of conviction.
3. Note: Details of conviction cannot be brought up. Can only bring in date, fact of conviction and name
of crime.
4. (a) General rule. For the purpose of attacking the character for truthfulness of a witness, (1) evidence
that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule
403, if the crime was punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been convicted of such a crime
shall be admitted if the court determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime
SHALL (judge has no discretion to exclude) be admitted regardless of the punishment, if it readily
can be determined that establishing the elements of the crime required proof or admission of an act of
dishonesty or false statement by the witness. (b) Time limit. Evidence of a conviction under this rule
is not admissible if a period of more than ten years has elapsed since the date of the conviction or of
the release of the witness from the confinement imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs its prejudicial effect. However,
1.
157
5.
6.
7.
evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of
pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible
under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent crime that was punishable by death
or imprisonment in excess of one year, or (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 juvenile adjudications is generally NOT admissible under this rule. The
court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other
than the accused if conviction of the offense would be admissible to attack the credibility of an adult
and the court is satisfied that admission in evidence is necessary for a fair determination of the issue
of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
How to Determine Prior Conviction Admissibility?
a. Step 1: is the crime one of dishonesty or false statement?
i. If yes, automatically admitted under 609(a)(2) – stop here! (ex. perjury)
ii. If no, go to step 2.
b. Step 2: Crime is not a crime of dishonesty/fraud, but is felony—609(a)(1)
i. W is someone other than the accuseddoes prejudicial effect substantially
outweigh probative value (403)?
ii. W is the accuseddoes the probative value outweigh the prejudicial effect? (favors
exclusion).
General Rule:
a. For purposes of attacking credibility of a W (FELONY convictions NOT involving
dishonesty or false statements)
b. Evidence that any W has been convicted of a crime SHALL be admitted if it involved
dishonesty or false statement, regardless of punishment (applies to misdemeanors AND
felonies).
c. One method of impeaching a witness is to show that he has been convicted of a crime, with
the desired inference that a person who has committed a crime is likely to give false
testimony.
d. The chain of inference is that a conviction indicates a propensity to lie, and the propensity to
lie is probative of whether the witness is lying on the stand.
e. Proof of Conviction By Extrinsic Evidence Admissible: Unlike 608(b), if W denies
conviction, the opposing party may introduce extrinsic evidence as proof of the conviction.
This is because such proof is easy because it is on the record. The only evidence that may be
introduced is the fact of the conviction (date, court, nature of crime), but not
details/circumstances of the crime.
False-Based Convictions—Involving Dishonesty/False Statements: 609(a)(2)
a. If W convicted of one of those, can always bring it up when addressing that W if recent—
always admissible to impeach W’s character for truthfulness.
b. Convictions MUST be admitted (judge has no discretion to exclude). 403 inapplicable.
c. Justification: high probative value.
d. Doesn’t matter if felony v. misdemeanor as long as lying based—can be either a
misdemeanor or a felony under (a)(2).
e. No limitation on number, doesn’t matter who witness is, etc.
f. If trying to impeach W you want convictions that are false-based b/c automatically
admissible.
g. False Based 609(a)(2) Crimes: Cannot be convicted w/o lying—crimes involve deceit,
falsification, untruthfulness.
i. Ex. Perjury, turning back odometer, embezzlement, passing counterfeit money,
lying on gvt form, consumer fraud, meter tampering, mail fraud, knowingly
transporting forged securities, knowingly passing worthless check, lying on income
taxes, false pretense, sometimes obstruction of justice.
ii. Test: Whether the elements of the crime for which the witness was convicted
“required proof or admission of an act of dishonesty or false statement.”
1. Requires the proponent to have ready proof that the conviction required the
factfinder to find, or the D to admit, an act of dishonesty or false statement.
158
2.
8.
Ordinarily, statutory elements of the crime will indicate whether it is one of
dishonesty/false statement.
iii. Note: if judge says not automatically admissible under 609(a)(2), try 609(a)(1) or
404(b)-priors for not-for-character purpose.
h. Non-False Based: Most courts have found that these are NOT false-based b/c jury didn’t
have to find that you lied to commit any of those crimes. Therefore, subject to judicial
discretion.
i. Drug convictions
ii. Theft convictions
iii. Smuggling
iv. Fencing stolen goods
v. Willful failure to file tax return
vi. “Going behind the conviction” to determine if W lied to commit crime
1. W was convicted of a crime that does not itself contain an element of
deceit, but the crime was committed in a manner that involved deceit.
2. Ex. murder contains no statutory element of deceit, but a particular D may
have acted dishonestly in order to get the victim to a certain place where
the murder would occur.
3. Ex. cross-examiner says to judge your honor W was convicted of murderevidence shows W wanted to murder wife but he brought her somewhere
on pretense of having picnic (she was blind); she fell off cliff. Says it was
murder by lying b/c she was blind and he didn’t tell her they were on cliff.
4. Old Practice: judge looks at facts underlying crime to see if lying was used
while committing the crime.
a. Problem of combing prior conviction to determine what happened
instead of just looking at conviction itself—speculative inquiry.
b. Inefficient and costly; prejudicial.
c. Every crime involves some level of lying so all were admitted
under a2 automatically.
5. New Rule: a conviction is automatically admissible “if it can be readily
determined that establishing the elements of the crime required proof or
admission of an act of dishonesty/false statement by the W.”
a. Ex. evidence that a W was convicted for a crime of violence, such
as murder, is not admissible even if the W acted deceitfully in the
course of committing the crime.
b. Rejects the notion that court should always go behind the
conviction to try to determine whether some of the underlying
facts were dishonest/deceitful.
c. Meant to preclude full scale inquiries into nature of conviction
(look to indictment of jury charge, sentencing guidelines, crime
charted, date deposition, etc). Compromise with DOJ, who was
concerned about obstruction of justice b/c some kinds are “lying
kind” and some kinds are not, and “lying kind” should really be
admitted like crimen falsi. Look to see if lying obstruction of
justice case or any other kind.
Other Felony Convictions: 609(a)(1)
a. Addresses serious crimes and opens the possibility of using the conviction of one of these
felony-grade offenses as an impeachment tool.
i. Ex. murder, assault, etc.
b. TIP: If trying to protect W from impeachment, you want convictions to be considered “other
felonies” (non-false based) instead of false-based crimes so you can argue not automatically
admissible.
i. Also, more protection for W when they are crim D’s.
c. Must be a felony: Misdemeanor non-false-based convictions NOT admissible (although
misdemeanor false-based convictions are admissible).
d. Convictions of Criminal D’s v. Other W’s
i. When criminal D is the witness  admissible “if the probative value (in
showing D is not a truthful W) outweighs the prejudicial effect to the accused
(that since D is generally bad, he should be convicted)”
1. Reverse 403 minus “substantially”
159
Favors exclusioncriminal D’s have better chance of keeping evidence of
prior convictions out
3. Rationale: Want crim D’s to testify - allows criminal D’s to testify w/o fear
that priors will paint them as scum bags.
a. If close case, cannot introduce conviction.
4. Why give crim D’s a better test than everyone else? They have a
constitutional right to testify—do not want to mess with that.
5. Ex. Brackeem: criminal D wants to testify and gvt wants to show liar by
way of armed robbery; on trial for armed robbery; ct found probative value
of armed robbery conviction not that high on his propensity to lie on stand
and prejudice is high b/c it is the same crime – jury will think liar and that
he committed this crime b/c he committed prior robbery. Capra says if 403,
many judges would let it in.
6. Note: Montana has rule that criminal D’s cannot be impeached by prior
convictions.
a. Criminal D is self impeached (the most biased W b/c his life
depends on you believing his testimony) and want to encourage
D’s to testify.
7. One Professor thinks criminal D’s should never be allowed to be
impeached based on prior convictions b/c they will not testify even if
innocent based on idea that their prior convictions could be brought up.
8. Criminal D’s not overly-protected  D’s have fighting chance to get it
excluded but not automatically excluded.
a. Ex. Hayes: Drug smuggling was old crime (not false based). D
says not a false-based crime. Judge says probative value
outweighs prejudice to your client. Probative value of smuggling
conviction is high-shows you live a life of deceit. Also, prejudice
is not that high b/c being charged w/ a violent crime. Most crim
D’s are worried that jury will think I did this since I was
previously convicted with a similar crime. Here, however, once a
smuggler always a violent person does not make sense. Still
prejudiced b/c jury will think he was bad person but not that bad
b/c crimes very diff.
b. Ex. Gant: D is testifying and is impeached w/ prior drug
conviction and ct says no error b/c D’s credibility was impt to the
case.
ii. When W is not the accused/criminal D  Rule 403 – admitted so long as
probative value not substantially outweighed by prejudice.
1. Presumptively admissible.
2. Consider whether W can be impeached by other means, the extent that W
will be associated w/ D and the crime, how inflammatory the conviction is,
how similar the crimes are, etc.
iii. Note on Similar Crimes: evidence of similar crimes to one D is currently accused of
on D’s character for veracity generally excluded. For ex, prior conviction for assault
says little about likelihood that D telling truth, and also prejudicial when jury
determining whether or not D committed another assault.
1. Note, however, that such evidence of similar crimes admissible under
404(B) to show intent (not for character purpose).
Old v. New Convictions: 609(b) – 10 yr rule/reverse 403
a. Once conviction reaches certain age (10 yrs), probative value is diminished.
b. Things that happened a long time ago less probative of how the person will act today. A
conviction that occurred 25 yrs ago has less probative value that one occurring 2 yrs ago.
c. After 10 yrs since conviction date or release from confinement (whichever is later), the
conviction falls off.
i. If a W was not imprisoned for the prior offense, the 10 yr period began to run on the
date of the conviction.
ii. If W was imprisoned, 10 yr period began when the W gets out of prison.
iii. Ex. D convicted of drug smuggling in 96, then served a 5 yr term. The trial takes
place in 2009. This is not more than 10 years because got out of jail in 2001.
2.
9.
160
d.
Reverse 403 Testif MORE THAN 10 YRS has elapsed, the judge may nevertheless admit
the conviction “in the interests of justice” if the probative value of the conviction
substantially outweighs its prejudicial effect (plus notice to adverse party).
i. While not an absolute bar, this is a strict test.
ii. Old convictions are not going to be admitted to impeach a witness unless three
factors are present: (i) lying or deceit was an element of the conviction; (ii) the W’s
credibility is very important to the case; and (iii) the W is not subject to
impeachment with any other evidence (e.g. a newer conviction, bad act, prior
inconsistent statement, etc).
10. In Limine Determinations – Procedure
a. In Limine Motion: Ask the judge in advance of trial to rule on the admissibility of
impeachment evidence.
i. An accused has a constitutional right not to take the stand. Of particular concern to
an accused who is considering taking the stand is whether she can be impeached by
a prior conviction.
ii. In order to make an informed decision about whether to testify, he will often seek
by a motion in limine an early ruling on the admissibility of prior convictions,
tendered by the prosecutor for the purpose of undermining the accused’s credibility.
b. Initial Determination Not Binding
i. An in-limine ruling, which the judge may provide in the exercise of her authority to
manage the trial, is subject to revision until the accused actually testifies at trial.
ii. Not a right—judge can say no I want to wait until trial.
iii. Judges aren’t bound by this ruling. However, good indicator of how judge will rule
at trial.
iv. These early rulings by the trial judge are not final—that is, they are subject to
revision during trial.
c. Appealing In Limine Determination
i. An accused files a motion in limine seeking an early ruling by the trial judge that his
prior conviction cannot be used to impeach him and the trial judge determines that
the prior conviction may be used…If the accused then testifies and the prosecutor
introduces the prior conviction for impeachment purposes, the D, if convicted, can
appeal the judge’s ruling.
ii. Step 1: Evidence Admitted At Trial – Actually Impeached
1. You cannot appeal an in limine determination unless objectionable
evidence is admitted against your witness at trial (and W on the stand).
2. On the other hand, if the accused declines to testify, the accused waives
his right to appeal the judge’s in limine ruling. You must actively take the
stand and be impeached with the evidence.
3. Luce v. United States (SC): if don’t have W to take stand to be impeached,
cannot complain about in limine ruling because no showing of cause and
effect—don’t know it was judge’s in limine ruling that kept the D from
testifying.
a. Rule: In order to preserve your claim that there was an error, W
must actually testify and be impeached!
b. Rationale: (i) the accused has nothing to appeal b/c no
objectionable evidence was actually admitted against him at trial;
(ii) there is no way to verify the accused’s argument that his
reason for not taking the stand was his fear of impeachment by the
objectionable conviction—the accused may have had many
reasons for deciding not to testify; and (iii) the Ct was concerned
that an accused might have decided from the outset not to testify,
and yet would move in limine to exclude his prior convictions—
hoping that the trial court would make an error that the accused
could then use on appeal.
c. Significance: Few 609 appeals b/c you have to invest-bring up W,
have them be impeached (and prob convicted). In order to
preserve, get D convicted by calling them to stand which is costly.
iii. Step 2: Introduced by the Other Side
1. In order to appeal about admission of objectionable evidence, the
ADVERSARY must bring it in.
161
2.
If you introduce impeachment evidence, you waive your right to appeal
(Ohler-to preserve right, suffer negative inference).
a. Faced with an in limine ruling that an accused’s prior conviction
will be admissible if he testifies, defense counsel will sometimes
call the accused to the stand and, during direct examination, have
him admit that he has a specified past conviction in order to
“remove the sting.” You wave your right to appeal.
3. The idea is that by frankly admitting the prior conviction, the jurors will
not judge the D as harshly as they would if this evidence were revealed by
the prosecutor during impeachment.
4. This may be a useful trial tactic, but carries a cost—the D waives the right
to appeal the judge’s earlier ruling that the prior conviction is admissible,
b/c the D himself introduced this evidence.
iv. Step 3: Objection (Rule 103(a))
1. Must be a contemporaneous objection when objectionable evidence is
introduced.
2. If not definitive in limine ruling, you need to renew it.
j. Impeachment By Prior Inconsistent Statements
i. Rule 613: Prior Statements of Witnesses
1.
(a) Examining witness concerning prior statement. In examining a witness concerning a prior
statement made by the witness, whether written or not, the statement need not be shown nor its
contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to
opposing counsel.
2. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior
inconsistent statement by a witness is NOT admissible UNLESS the witness is afforded an
opportunity to explain or deny the same and the opposite party is afforded an opportunity to
interrogate the witness thereon, or the interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in rule 801(d)(2).
ii. Introduction
1. Rule: Prior inconsistent statements CAN be admitted to prove that there is something wrong w/ the W
testimony.
a. If under oath and person is on the stand, admissible for the truthSee 801(d)(1)(A).
b. If not made under oath, admissible only for impeachment purposes – to show inconsistency
(because you’ve said something inconsistent w/ in court testimony you’ve shown flaw in
your believability).
2. A frequently used impeachment technique is to introduce evidence that a testifying witness has made
prior statements inconsistent with his testimony. Evidence that W got something wrong before.
3. The prior statement might be contained in a writing or it might have been an oral remark.
4. Its impeaching value is obvious—unless the witness has a convincing explanation as to why he gave
an earlier contradictory account, the force of his trial testimony is weakened.
5. It suffices that the previous statement is sufficiently at variance with the witness’s trial testimony to
weaken/undermine it—a blatant, irreconcilable contradiction is not required.
6. Better form of impeachment than character.
iii. How To Determine if Statements are “Inconsistent”
1. Facial—you say he didn’t do it but he did.
2. Silence: Prior silence inconsistent w/ later declarations
a. The failure to mention something in circs where it would be reasonable to be mentioned
could be inconsistent with the later mentioning of it.
b. Say something now that you said nothing about before.
i. Ex. W says Mary June and Bob robbed bank. Previously Mary and June robbed
bank. If Bob is D Bob can bring in inconsistency.
ii. Ex. No evidence of something in custom agent’s notes as inconsistent with
statements made at trial.
c. Standard: Ask if that kind of fact is something you would have put into your previous
statement, had it occurred at the timesilence can be inconsistent with testimony on an issue
162
if it is an IMPORTANT/MAJOR POINT that someone would have mentioned if it really
happened.
i. Ex. DEA agent going to get drugs, and says he was held up at gunpoint during bust.
In report, just mentions buying drugs and no gun. This is a major event, so
statements inconsistent. However, if forgot to write down the color of the wall, not
inconsistency b/c minor detail.
d. Exception: Post-Miranda Silence – cannot use silence as inconsistent statement
i. Cannot ask D why he didn’t say anything when apprehended by police, because he
has a right to remain silent—you cannot later impeach him if he speaks on the stand.
ii. It is a due process issue (even though based on Miranda warnings).
iii. Ex. D takes stand and says I have alibi. Prosector says when we arrested you, you
didn’t say anything.
iv. Ex. Doyle v. Ohio: Inconsistent statement was silence in response to Miranda
warnings. Ct said cannot consider prior inconsistent silence after Miranda warnings
to impeach D’s testimony today—that would violate DP rights when gets Miranda
Warnings, told right to remain silent and anything he says can be used against him.
v. Exception: Pre-Miranda Silence
1. If someone was never apprehended and was never read his Miranda rights,
silence can be inconsistent with something said at trial.
2. Ex. someone claims SD at trial but he was at large for 3 months and said
nothing about SD.
3. W’s testimony is “I do not remember”
a. W gets up testify and is asked were you at scene. W says I don’t remember. Wants to
impeach w/ statement w/ details. Inconsistent when in court testimony is I don’t remember?
b. Reason to say I do not remember is b/c it is difficult to try W for perjury.
c. Rule: Trial judge has discretion – depends on whether W has a legitimate reason for not
remembering.
i. Real/honest memory loss = not inconsistent and no impeachment
ii. Fake memory loss (convenient memory loss) = inconsistent and can impeach
iii. Ex. Rogers: If a TJ believes W hiding behind lack of memory, then that W can be
impeached with prior inconsistent statements. In this case, W says I don’t remember
anything, including his name. Ct found that to be false and therefore prior statement
inconsistent could be introduced.
iv. Extrinsic Evidence Allowed (if W denies prior inconsistent statement) – 403 Analysis
1. If the D denies that she has made an inconsistent statement, the cross-examiner would then want to
proffer extrinsic evidence (another W or a document or recording) to prove that the W made the
alleged inconsistent statement.
2. Rule: If W denies previous inconsistent statement, extrinsic evidence can be used, BUT the judge
must apply Rule 403 and determine whether the probative value of the proffered extrinsic evidence
(its bearing on the W’s credibility) is substantially outweighed by prejudice.
a. Note: Extrinsic evidence bar of 608(b) not applicable here b/c the prior inconsistent
statement is not being offered to prove the W’s character for untruthfulness—it’s offered to
impair the credibility of the W’s trial testimony on the ground that he has been inconsistent
in his account.
3. Bottom Line: If the prior inconsistency concerns an incidental/collateral matter, extrinsic evidence
will be forbidden, as it doesn’t sufficiently advance the credibility inquiry to justify the risk of
confusion and delay involved in proving the statement at trial.
4. Ex. W makes statement at trial-gvt witness: “I saw D commit crime.” On cross, defense counsel says
isn’t it true that you previously made statement in which you said you weren’t at the scene. W says
no. D says I have statement in my hand, written by you, that says you were there. Issue is extrinsic
evidence.
5. Ex. W says I was at a diner and had a window view saw D run past victim steal purse and run away.
Says I was eating lunch at the time. Cross-examiner says isn’t it true that in prior statement you said
you had a diet coke? Says no I only have coke. Judge would say do not allow prior inconsistent
statement in.
a. However, statement that says you were there at dinner not at lunch and you testify that it was
lunch time might be admissible if issue was when a crime occurred.
v. Opportunity to Deny/Explain the Inconsistent Statement
1. Rule 613: If there is an inquiry about a prior inconsistent statement, the party must give W an
opportunity to explain, repudiate, or deny the inconsistency.
163
a.
2.
A witness who is impeached by extrinsic evidence of her prior inconsistent statement must
ordinarily be afforded an opportunity to deny or explain it.
b. It suffices that a W had an opportunity at some point in the trial to address her prior
inconsistency and to respond to questions about it by the attorney supporting her credibility.
Rationale: things that appear inconsistent might not actually be inconsistent.
a. Ex. Criminal D on trial. W testifies that he saw D shoot my next door neighbor w/ machine
gun. D counsel says didn’t you make statement inconsistent w/ that a day later. W says I did
can I explain. Explanation is that D threatened to kill W’s children the night before
inconsistent statement was made.
k. Contradiction
i. Impeachment by contradiction involves demonstrating that something asserted by a witness in her testimony is
ii.
iii.
iv.
v.
vi.
untrue. The inference is that if the witness is not accurate in one respect, the witness may be inaccurate in
others as well.
1. Contradiction evidence offered to impeach not hearsay b/c not offered to prove the contradicting
point’s truth.
Often contradiction is accomplished by the introduction of extrinsic contradictory evidence in the form of
another witness, documents, or other evidence, showing that the witness’s story is not true in some or all
respects.
1. Note: prior inconsistent statements are “self-contradiction,” while contradiction is when another
source contradicts W’s account.
2. Kind of like inconsistent statements (self-contradiction), but info that shows you are not correct comes
from an OUTSIDE SOURCE.
3. Use of extrinsic evidence subject to a Rule 403 test.
Typical situation: employed by the cross-examiner who, unable to get the witness to modify her testimony,
attempts to impeach her (admit she lied or was mistaken on a particular point) by the introduction of extrinsic
evidence that contradicts that testimony.
Rule: Extrinsic evidence is not admissible to contradict on a collateral issue, but is admissible to contradict a
non-collateral issue.
Extrinsic Evidence Permitted, But Governed By 403
1. How do you bring the evidence up?
2. 403 Test: If you want to introduce extrinsic evidence, depends on how important the contradictory
fact is in terms of believing W’s testimony. Probative value must not be substantially outweighed by
prejudice, confusion, delay, etc.
3. If it is an unimportant issue, court will likely not allow evidence
a. Ex. Beauchamp: W testifies that she lives at 235 maple. Defense counsel says no you
don’t—I can bring in the lease, etc. Ct said cool it, you can ask the question/challenge where
they live, but that is about a minor detail and is not impt to her testimony. Can introduce
extrinsic evidence of such a minor fact.
b. Ex. The fact that W was wearing a blue blazer instead of black is not probative of his ability
to recall, observe, etc (when identification not an issue).
4. If it is an important issue integral to testimony, court will likely let extrinsic evidence in
a. Ex. Suing for cigarettes w/ asbestos in the filter, claiming he smoked Kents during the 50’s
and has to prove he did. Says I remember smoking them b/c they had blue filters; every time
I smoked I thought about my dad b/c he had blue eyes. D wants to contradict that dad had
blue eyes-w/ driver’s license (extrinsic evidence). Allowed b/c necessary for determining
whether to believe W.
b. Ex. I saw D commit the crime and I remember the day clearly b/c it was snowing in April.
Weather report from that day used to contradict W.
Can Use Inadmissible Hearsay Evidence (subject to 403) To Impeach
1. Ex. James: D being tried for part in gang fight; identified by witnesses as being leader. Problem is
that the guy they saw at gang fight is diff than James as he looks now b/c diff hair color/style. To
discredit witnesses, D wants to show he has never changed his hair color/style. Problem for James is
that when arrested, found in beauty parlor under hair dryer and when arrested he said “I am under the
hairdryer because I am changing hair color” (hearsay). If James were to take the stand and say the hair
color is same as always been, could be impeached w/ hair dryer statement, so he doesn’t take the
stand. He calls mother to stand to say I’ve known him all his life and the hair color now is the same as
it has always been. She can be impeached w/ hairdryer statement b/c it contradicts HER testimony—
some other source of info indicates her testimony is inaccurate.
164
Ex. Character evidence: D says “those were not my drugs, I would not know drugs if I saw them.”
Prosecution then introduces evidence that D was drug addict in and out of rehab. Here evidence might
not have been inadmissible otherwise, but admissible to contradict D’s testimony.
3. Ex. SRM: D says “this was the best model for safety,” and P can impeach by saying, “Oh yea, then
why did you change it after I had my ax.”
a. Two ways to impeach with SRM:
i. (1) D makes an aggressive claim – “extravagant testimony about safety”
1. Ex. Colt Industries: D makes guns and P had a gun that went off when he
dropped it. D put on safety lock after the accident. CEO of D took stand
and testified on direct that product P used was safest product ever made by
D. P can bring in evidence that the product was changed by the company
two months later to show that witness was not credible when said safest
product.
ii. (2) If D/D’s witness lies and says we never changed it at all, but D actually changed
it a month later.
1. P can bring in evidence that D did change it to undermine credibility.
Bias (Motive to Falsify or Partiality)
i. The term “bias” denotes a variety of mental attitudes (conscious or unconscious) that may incline a witness to
give misleading or false testimony.
ii. In general, bias signifies a witness’s interest in the outcome of a trial, including a friendly or hostile association
with one of the parties that could induce him to shade, distort, or falsify his testimony.
iii. The cross-examiner can expose the witness’s probable bias by probing to discover links between the witness
and the case.
iv. There is no FRE specifically addressing impeachment by bias, but it is uniformly acknowledged in both federal
and state courts.
v. Note: offers of compromise are allowed in to show bias (exception to R. 408).
vi. Examples of questions to show bias
1. An expert asked “how much are you getting paid to testify?”
2. A W for the defense is asked “isn’t it true that the D bank in this case is your employer?”
3. W testifies on D’s behalf in criminal case. Prosecution asks, “isn’t it true that you were also arrested
for taking part in the same crime, and you’re waiting trial, so you have an incentive to help get D
acquitted?”
vii. 4 categories
1. Bias—predisposition in favor of someone (relationship, experts, etc).
2. Prejudice—predisposition against someone.
3. Interest—witness with a stake in the outcome of the litigation (ex. Prosecution W has deal with gvt).
4. Corruption—signifies such things as taking a bribe.
viii. Extrinsic Evidence Allowed (Subject to 403)
1. Rule: The cross-examiner probing the possible bias of a witness does not have to “settle for” or “take”
the witness’s answer on cross (if W denies bias), but can produce extrinsic evidence through other
witnesses or documents.
a. 608(b) bars extrinsic evidence only when attacking W’s character for veracity. However, can
get into extrinsic evidence for other forms of impeachment such as motive/bias (never a
collateral issue).
b. When bias associations are denied, that denial can be disproven subject to rule 403.
i. Courts require the W be asked about bias before extrinsic evidence is allowed.
2. Rationale: Stronger, more indicative that W is actually lying than just a general character attack, ways
to limit EE. Bias is a potent form of impeachment, so if denied you can prove it.
3. Biased Associations
a. Ex. Abel: D member of a prison gang (Aryan Brotherhood). D calls W who testifies in his
favor that D didn’t commit crime. On cross, gvt seeks to impeach W by asking him “are you
not a member of the Aryan Brotherhood?” and W denies the association. Gvt wants to bring
in extrinsic evidence of membership to impeach/show bias. D says barred by 608(b). Ct says
extrinsic evidence is permitted here. Reasoning is that 608(b) bar applies only if the attack on
the W is only for their character for untruthfulness/veracity. The attack here was for two
things. When you ask someone that question, first thing is showing they are liars b/c you
have to be a liar to be in the AB (it is in their articles of confederation); idea is that you have
to lie whenever necessary to protect a brother. Also attacking they have an interest in lying
b/c D is a fellow member. Abel makes argument that just b/c members of same association,
2.
l.
165
m.
n.
that cannot be bias. Ct says depends on association—if members of the book of the month
club, no evidence of bias…but this is blood oath swear to lie on behalf of any other member.
b. Ex. W bystander in car ax and says blue car ran light. That W on cross could be asked: “are
you a member of the AB” if he denied it the cross examiner cannot disprove denial. Only
reason attacking for membership is b/c he is a liar. But in Abel it was that he was a liar in
favor of the very D who is a member of the brotherhood so motive/bias.
c. Note: 403 is a limit—can prove member of AB w/o bringing in 6 hr video – long,
cumulative, and inflammatory. Judge under 403 limits the extrinsic evidence.
Other Forms of Impeachment
i. A witness’s CREDIBILITY may be attacked by showing that the witness suffers from some incapacity making
it difficult/impossible for them to tell the truth.
ii. Religious Beliefs or Opinions (Rule 610): “Evidence of the beliefs or opinions of a witness on matters of
religion is NOT admissible for the purpose of showing that by reason of their nature the witness’s credibility is
impaired/enhanced.”
1. Rationale: to guard against the prejudice which may result from disclosure of a witness’s faith.
2. Permissive use:
a. To show employment and damages—Ex. Ct allowed cross of P’s in a PJ action about their
positions as ministers in the Jehovah’s witness sect on the question of lost earning power and
damages.
b. To show hardship—Ex. In a products liability case, one ct allowed evidence of the hardship
encountered by the P attending church in his injured condition.
c. To show motive—Ex. Ct allowed evidence of the D’s involvement in the religious sect of
Reverend Sun Yung Moon in order to show D’s motive to threaten Pres. Reagan.
d. To show bias—Ex. Disclosure of affiliation with a church which is a party to the litigation
would be allowable.
iii. Perception/Bad Memory (403 Analysis)
1. Sensory Defect: impairments that hinder a witness’s ability to accurately observe, remember, and
relatethe availability of extrinsic evidence to prove a sensory defect is governed by FRE 403. The
general practice is to permit extrinsic evidence unless the W’s admission during cross renders
unnecessary any further proof.
a. Common impairments are poor eyesight, defective hearing, intoxication, drug use, and
memory loss.
b. The sensory defect may range from mild impairment (the witness wasn’t wearing her
glasses) to total incapacity (psychosis).
c. Drug use sometimes admissible to impeach, BUT should be limited to evidence indicating
the use of those substances at the time of perception or at the time of testifying.
2. Evidence of Insanity/Mental Stability sometimes admissible to impeach credibility (depends on level
of impairment). Courts, applying 403, permit it sparingly.
Impeachment of Hearsay Declarants
i. Rule 806: Attacking and Supporting Credibility of Declarant
1. When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted
in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any
evidence which would be admissible for those purposes if declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's
hearsay statement, is not subject to any requirement that the declarant may have been afforded an
opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls
the declarant as a witness, the party is entitled to examine the declarant on the statement as if under
cross-examination.
ii. Rule: Hearsay declarants can be impeached by anything they could be impeached with were they to testify at
trial.
1. If the party against whom a hearsay statement has been admitted calls the declarant as a W, the party
is entitled to examine the declarant on the statement as if under cross.
2. Usually you impeach the witness, who heard the declarant say something. This rule allows you to
impeach the declarant who actually said the thing.
3. Opponent of hearsay evidence has information that if person testified, you’d be able to bring in.
a. Ex. Person who made dying declaration previously convicted of perjury.
4. Evidence is admissible that the declarant was convicted of a crime, with the same restrictions that
apply to an in-court witness’s impeachment.
166
5.
o.
Evidence is admissible showing that the declarant had a bias that could have affected the statement as
well as evidence relating to the declarant’s ability to have perceived what he spoke about.
6. Evidence can be introduced showing the character of the declarant for untruthfulness, and also for
truthfulness in instances where evidence of character for untruthfulness is first introduced.
a. Inquiry is not permitted during cross about past bad acts that did not lead to a criminal
conviction but that still might reflect on the W’s truthfulness b/c hearsay declarants are not
present in court and cannot be asked about their past conduct (unless declarant is available).
7. Note: For prior inconsistent statement (W has to have opp to explain/deny) admissible for
impeachment purposes even though declarant has no opportunity to explain/deny.
a. Rationale: The declarant is generally not at trial, so if an opportunity had to be afforded, few
inconsistent statements would ever be admitted to impeach a hearsay declarant.
iii. Justification: when hearsay is admitted b/c it is subject to exception, it substitutes for W testimony so should be
treated for impeachment in the same way.
Rehabilitation
i. Introduction
1. Only allowed after W’s credibility has been attacked and is limited to area of attack.
2. Witness are presumed to be truthful until they have been attacked and therefore their testimony is may
not be bolstered until such an attack overcomes that presumption.
3. When the attacking party impeaches by evidence showing an untruthful character, the party
supporting the witness is entitled to respond with evidence designed to rehabilitate the witness’s
character for truthfulness.
4. At the other extreme, when the attacking party questions the witness’s perception (i.e. sensory defect),
he is not assailing the W’s character, and there is nothing that will rebut the evidence of the sensory
impairment.
5. Occupying the middle ground are impeachment techniques such as bias, prior inconsistent statements,
and contradiction—the TJ must decide if the tenor of the impeaching evidence strikes at the witness’s
character for truthfulness.
ii. Rule 608: Evidence of Character and Conduct of Witness
1. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
2. After a W has been attacked for his character for truthfulness, non-impeaching party may call a W to
reassure jury that the W is really truthful.
3. Danger
a. Impeaching party may now ask the rehabilitation W about specific instances of conduct
(opening the door kind of). So be careful when you are trying to rehabilitate a witness.
b. Also, the rehabilitation must rebut the specific attack.
i. Ex. W says he saw D shoot victim. On attack, cross shows that he was convicted of
perjury. On rehabilitation, wants to show he told the officer that he saw the D shoot
him. This is not admissible b/c doesn’t qualify as an “attack.”
4. What Constitutes an “Attack”?
a. Character W who is called to testify to the untruthfulness of the W.
b. A showing of bias alone may be insufficient, but when coupled with the implicit charge of a
corrupt purpose it may constitute an attack.
iii. Prior Consistent Statements – Can Be Offered for Truth: 801(d)(1)(B)
1. When can you introduce these statements to rehabilitate your W?
2. Under 801(d)(1)(B), a statement is not hearsay if declarant testifies at trial and is subject to cross, the
statement is consistent w/ the declarant’s testimony, and is offered to rebut an express/implied charge
of recent fabrication or improper influence/motive.
3. These statements cannot be introduced on direct.
4. Some attacks can be responded to by PCS and some cannot.
5. Prior statement must be probative to rebut the attack—must be relevant to attack.
6. Not admissible to respond to:
a. impeachment for perjury conviction
b. prior inconsistent statement impeachment (if it’s just to have him testify he told 5 other
people the same statement)
7. Admissible…
167
a.
8.
To explain inconsistencies
i. Statement adds weight to the explanation.
ii. Ex: how come you told police you didn’t see anything and now you are testifying
that you did? Response: at time I was, didn’t want to get involved, but I told my
wife what I saw (prior consistent statement) and decided I should come forward.
b. Witness attacked for motive to lie and PCS precedes motive to lie
i. Prior Consistent Statements can rehabilitate the W if it PRECEDES bad motive
ii. Ex: hit and run case, D said (BEFORE ARREST) my car was stolen, and now he
says it again on the stand.
iii. BiasEx. Tome: P suing former employer for negligence, attacked w/ following
motive: “isn’t it true you were fired by this employer” P says yeah, and it would
appear I have a vendetta, but I MADE an accusation of work conditions 1 year
before I was fired--this is admissible, predates motive to falsify. If it was last
WEEK, this is inadmissible, still under same ‘cloud’ of vendetta he has now.
1. Note: also admissible for its truth b/c made under oath
Rule 106: Rules of Completeness
a. “When a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered contemporaneously w/ it.”
b. Rule 106 has sometimes been invoked to allow the admission of a prior consistent statement
of a testifying witness. This can occur when the witness is impeached with a prior
inconsistent statement, and counsel argues that another statement consistent w/ in court
testimony will serve to explain away the alleged conspiracy.
c. The argument is that an inconsistent statement was taken out of context and that a consistent
statement must be introduced in order to alleviate the misimpresison.
d. Has sometimes been invoked to allow the admission of a prior consistent statement of a
testifying witness
e. Sometimes, PCS can be PART of the explanation you are entitled to of why you issued a PIS
168
XI.
Privileges
a. Introduction
i. Rationale: privileged communications are excluded (even if reliable) b/c their disclosure would harm a gvt
interest or a personal relationship that courts and legislature deem worthy of preserving.
1. Utilitarian/instrumental: privileges are justified b/c their existence encourages behavior that is socially
desirable.
2. Personal autonomy/privacy: certain intimate relationships should be protected from governmental
intrusion/prying.
ii. Rule 501. General Rule: Except as otherwise required by the Constitution of the United States or provided by
Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a
witness, person, government, State, or political subdivision thereof shall be governed by the principles of the
COMMON LAW as they may be interpreted by the courts of the United States in the light of reason and
experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.
1. Preclude evidence that would be otherwise admissible
2. Rule is not meant to exclude unreliable evidence…The exclusions for privileged information are
about social policy—even though evidence is relevant, reliable and not particularly inflammatory,
evidence excluded to comport w/ some higher policy (higher than search for truth).
3. Legal question—must be shown to judge that criteria exists by party who wants to keep evidence out.
4. Privilege rules not handled in detail by the FRE.
5. Federal law of privilege is based on federal common law.
a. The rule authorizes federal courts to define new privileges by interpreting “common law
principles in the light of reason and experience.”
6. For civil diversity cases, federal courts use the state law on privilege. (Erie).
b. Attorney-Client Privilege
i. Introduction
1. Rule of evidence, not ethics.
2. Party seeking to impose the privilege must meet the criteria.
3. Purpose/Rationale: to promote full and candid confidential communications between client and
attorney so as to facilitate the rendition of legal services.
a. Intended to protect communications between lawyers and clients.
b. Lawyers need accurate information to be the best advocates for their client.
c. If there were no ACP, clients would lie to their lawyers and lawyers would have info deficit.
d. However, Capra says clients lie to lawyers all the time.
e. You don’t want lawyers to be witnesses for their clients in every case.
f. Also puts a premium on value of lawyer services—economic incentive.
4. Difficulties
a. Client may wish to conceal physical evidence, or hide his identity—privilege inapplicable.
b. Communications with third parties
c. SHs in a corp sue management on behalf of the corp
d. Lawyer represents several clients on a common matter and they subsequently become
adversarial.
5. Requirements:
a. Seeking legal advice
b. From a professional legal adviser in his capacity as such
c. Made in confidence by the client
d. Are at his instance permanently protected from disclosure by himself or by the legal advisor
e. Except that protection may be waived.
ii. Legal Advice
1. The privilege requires that the client must be seeking legal advice from the lawyer—that requirement
emphasizes the fact that not everything said to a lawyer, even in confidence, is privileged.
2. Consulting a lawyer but not seeking legal expertise is not protected. Distinction is between legal and
non-legal (not legal and illegal).
3. Standard/Rule: Cannot pay a lawyer to do something that a non-lawyer could do and hope the
communications are privileged.
a. Ex. Consult w/ lawyer to prepare a tax form—not privileged. But if being audited by
IRS/sued by IRS and having strategy session with L on how to pitch a defense, that is
privileged b/c legal advice.
169
b.
Ex. L being used as messenger boy/delivery boy.
i. Example. L is L for family in mafia. L has good relations with other family.
Subpoenaed to testify to what was said between two families. Not privileged b/c he
was just a messenger boy.
ii. Example. Gives L documents to delivery to GJ not privileged.
4. Multiple Motivations
a. Primary Motivation Test: If the dominant intent of the client is to seek legal advice, the
privilege is not lost if advice is also sought on related business, financial, or other not strictly
legal matters.
i. Ask client—what is the primary motivation for seeking L’s advice?
ii. Good idea to set up intentions of parties w/ memorialized agreement, such as
retainer, indicating primary motivation is seeking legal advice.
b. Multiple Motivation Examples
i. Business v. legal problem in in-house practice (lawyers working in corps) – see
what exactly the lawyer is working on.
1. The closer you get to working on some litigation matter, the more likely it
will be legal advice. The closer you get to some business plan, the less
likely it will be privileged.
2. Ex. Rossi: Rossi is Dr who gets patients paid for by Blue Cross. BC sends
patients letter saying not paying for R’s services b/c not properly
authorized to do procedure. R says good medicine and you have to pay. R
calls up BC and speaks to someone in legal dept. Guy in legal dept checks
with BC and sent letter to head of legal dept that said we sent inaccurate
letters. R wants the letter and says person was in a corp, talking about the
business. Ct said legal advice b/c R told BC he was going to sue them and
lawyer was responding to that as part of the in-house legal dept.
ii. Usually privileged if work lawyer does is in response to a lawsuit, even if policy
involved
1. Ex. County of Erie: County has policy that says if custodially arrested,
strip searched. Woman arrested for pooper scooper and is strip searched.
She sues on grounds that violates constitutional right under 4th amendment.
County guy asks county attorney about this-attorney says through emails
this is bad policy-we shouldn’t have gvt to strip search everyone. P says
not privileged email b/c mostly about policy. Ct says privileged (btwn city
and lawyer). Do not want your attorney to just “do law” and not think
about policy. Primary motivation was in response to lawsuit.
iii. “Factual Investigator” Cases – Lawyers Employed by Corporations
1. When lawyers do the report/factual investigation for a company (do
internal investigations), usually considering corporation’s legal liability. In
that case, ACP applies.
2. Ex. Corp believes agents engaged in illegal activity, such as cooking
books. Hire firm to investigate (alleged internal corp misconduct). Firm
files report with BOD on results of investigation. A party wants that report
(party suing corp), and argue that this was not legal advice. Argument that
it was not legal advice is that we hired firm not as legal advisor but as a
factual investigator—why didn’t you just hire a private eye? However,
BOD’s argument is that a firm gives you services a private investigator
could not give—private investigator is not qualified to determine facts
relevant to a litigation, which is a possibility.
3. Note: no privilege if private investigator could have done what the lawyer
did.
iii. Communication Between Lawyer and Client
1. Introduction
a. Client must be making/receiving the communication. If L learns something from someone
other than the client, not privileged.
i. Ex. L hears from client that client breached a K. that is potentially privileged. A L
hears from someone else that client breached K. not privileged.
ii. Easier when individual client rep.
b. Note: The privilege is applied to the confidential communications of both the client and the
attorney.
170
2.
Corporate Agents/Clients
a. Who is the client when communicating to corp L?
b. Any agent of a company who is entitled to speak to counsel regarding something having to
do with his job is considered a client.
i. Ex. Upjohn: lower level operatives who have allegedly committed misdeeds
communicate to corp L and gvt takes position not priv b/c agents not the client of
the corp attorney – the corp is client. Gvt says only certain agent sin corp that rise to
level of being the “client” – those in the “control group.” Ct rejects control group
test as being under-inclusive. Low-levels would not confess b/c it wouldn’t be their
privilege. When a low-level violates the law, they get into the corp L’s office
because someone above them says to talk to corp L. Gives corps a privilege they
would have anyway. B/c mandatory reporting requirements, these statements will be
made regardless of privilege.
ii. Rule: low level agents are speaking on behalf of the corporation when they speak to
corporate lawyers and when they do so, as a result of authority coming from above,
that communication is privileged.
c. Communication between a corp employee and the corp’s lawyer is privileged if:
i. Topic relates to employee’s work.
ii. The purpose of the communication is to facilitate the providing of legal services to
the corp, and
iii. Communications are confidential.
d. Low Level Agents
i. These agents end up in council office at the direction of the “control group” (people
in the corp who are agents/protected); they are directed to come in and speak.
Unless you make them part of the corporation, then corp lawyer would never bring
them in for an interview—to obtain real info from low level employees, we must
protect these communications
ii. Note: if as a L you think a LL EE did something illegal, you would have to
investigate even though it may not be privileged b/c you want to protect corp future,
and sentencing guidelines ratchets up if you don’t do an investigation
e. Company Protected but Agent Not Protected
i. The corp owns the privilege and therefore can waive the privilege in order for the
gvt to use the lower level agent’s statements against the lower level agent.
ii. Model Rule PR 1.13: A corp L in speaking to agents must delineate what the L’s
role is—L is the L for the corp and not for any agent in particular. Should the
corp waive the privilege, individual has no protection.
1. “Upjohn/Corp Miranda Warnings”
a. Ex. agent directed to come to corp L’s office and say what they
did when they were bribing. Agent says before I tell you I want to
know if it is privileged. Yes is wrong answer. No personal
privilege.
2. Rationale—Later on, corp could sell the individual agent out by using the
information against him.
iii. Represent Corporation and Agent Simultaneously?
1. L cannot represent both the corp and the individual agent—conflict of
interest.
2. L should say “no, I cannot represent you” to the individual agent.
3. If you tell agent you will rep him, you cannot use information against him
later…lawyer will be disciplined and it is not client’s fault (reasonable
expectation he had a lawyer). If L uses words that cause the client to
reasonably believe there is an A/C relationship, then it would be protected
and lawyer would get into trouble.
4. Ex. AOL case: Agent wanted to know if L could represent him. L said “I
could rep you until a conflict arises.” So Agent talks. Then corp tries to go
after Agent, who claims ACP. Ct said no ACP b/c L said we “could” rep
you not we “are” or “do” rep you. Ct said you are a big boy who should
have known this wouldn’t have been possible—trying to take advantage of
bad Upjohn warning.
f. Non-Lawyer Advisers
i. Can “lawyer” include non-legal assistants assisting L’s as part of ACP.
171
g.
h.
i.
ii. Statements to non-lawyers MAY be protected.
iii. Kovel Doctrine: Courts have held that the non-lawyer must be necessary to the legal
representation for communications to or from the non-lawyer to be privileged.
1. So long as agent is NECESSARY to the LEGAL REPRESENTATION,
not just helpful, their presence at communications does not destroy
privilege—they are within the attorney-client relationship.
2. Not just helpful, but necessary to the legal representation.
3. Note: Necessary agent must be hired by the attorney.
iv. Agents Part of the A/C Relationship
1. Ex. secretary, private investigator, stenographer, translator, accountant, etc.
2. Ex. Kovel: K in trouble w/ gvt for financial tax transaction. K goes to L
and they have a dialogue. L says I think we need an accountant to help me
crunch these numbers. I’ll hire him and I want you to talk to him. Gvt takes
position that comm. btwn K and accountant not protected b/c no
accountant-client priv. Ct said protected by ACP b/c L’s sometimes need to
have agents in on the communication in order to be more effective L’s.
a. Important that the lawyer hired the accountant, not the client
b. NOTE: if the client foes to an accountant first and the accountant
foes to the lawyer, this protection is not afforded
3. Ex. environmental case-environmental engineer.
4. Ex. toxic tort case-toxicologist.
5. Ex. expert on how to prepare regulatory response.
6. Ex. people who help you pick the jury.
v. Controversial Agents = Public Relations Agents
1. PR agents “sit in” on communications between attorney and client.
a. Can even be an email from client to L cc’ed to PR agent.
2. Sometimes necessary to legal rep. Ex. Martha Stewart case, necessary to
spin her positively to avoid indictment.
3. Otherwise, just good image and not necessary to legal representation, so
destroys the privilege.
a. Ex. Calvin Klein case: CK employs firm, who says need PR agent
to help ‘spin image.’ PR agent kept in all communications
between L’s and CK execs. Judge said having PR agents in on
communication destroyed privilege. Was not necessary to the
legal representation.
Facts Not Protected
i. The privilege protects communications, not factual information that was the subject
of the communication between the lawyer and the client.
ii. Information obtained from the question, “what did you say to your lawyer?” would
be protected, but information obtained from the question “tell me about this
incident” would not.
iii. If you are subpoenaed, you still need to answer questions about an event.
Acts/Physical Facts Not Protected
i. Forensic/physical evidence (i.e. Ted Kaczynski letter) is not a communication.
ii. Acts are NOT protected.
1. Ex. L rep P in PI action. P in body cast. L goes to Aspen to ski and sees P.
L doesn’t confront P but withdraws from rep. Insurance co/counsel seek to
call L to testify to what he saw on slopes. Privilege doesn’t protect all
negative information a L learns about client. What is protected is
communications-not physical facts. Seeing your client skiing is not
privileged. However, if you discussed skiing with him, that would be
privileged.
2. Ex. L confers w/ criminal D/client. When L comes out of room he has a
black eye. D is convicted and at sentencing proceeding, gvt asks L to
testify about what went on in that room. L says that is privileged. Ct said
not privileged b/c it was an activity.
Facts Proven Through Communication Protected
i. Factual statement derived from communications is protected.
ii. Ex. L rep dead-beat dad. Lawyer on other side trying to find guy. Asked “where is
your client?” we just want that fact. L said it is privileged. Depends on how he
172
would come to know where client is. If L knew by walking down street and seeing
client in coffee shop, not priv. However, if client told L (i.e. sent him a postcard),
that is privileged. If facts proven through communication, then privileged.
j. Pre-existing Documents Not Protected
i. The privilege does not apply to letters, documents, or other inscribed items that
were not prepared for the purpose of facilitating current legal services.
ii. If an attorney gives confidential legal advice to a client that is based on the
attorney’s review or analysis of unprotected documents, the communication from
the attorney to the client is protected by the privilege, while the underlying
documents are not.
iii. Not protected b/c not prepared for or by the lawyer seeking legal advice.
iv. Rationale—clients cannot manufacture a privilege by giving their documents to
their lawyers. If evidence alone was privileged just by giving it to a L, discovery
would be pretty quick-could just hand over everything to L in order to hide your
case.
v. Ex. Disney case: Indiana Jones ride—report on frequency of brain seizures. After
report, P sues. Disney turned report over to L’s—it is communicative. However, Ct
says report was pre-existing so not privileged.
vi. “I’m thinking of kidnapping and want to know the best way”
1. they are using this forensically, tying the typewriterbut there has to be
CONTENT
3. New shit
a. ∆ and speaking with lawyer; prosecutors see ∆ lawyer come out of room and they see that he
looks like he got in a fight
i. ∆ guilty, and at sentencing hearing they want to call the lawyer to show that ∆ beat
up lawyer so as to aggrevate him
ii. can they call the lawyer and ask the lawyer what happened
1. JUST informationnot a communication, not for communicative value
b. ∆ hit by bus and is in body cast
i. lawyer sees the dude rolling around in the body cast,
ii. plaintiff wants to call the lawyer to say he saw the dude active
iii. but seeing the client doing an action, not a communicative content, are not
protected by the privilege
c. Product blown up engineering group sent out to scene to write up a report
i. Sued, then the crop sends the report to the lawyer
1. And then take the position that it was privileged
ii. The first communication preexists the lawyer’s rep; and it wasn’t made to the
lawyer
iii. Also, if you could just always send everything to lawyers to make it privileged
discovery would never happen or mean anything
iv. Reasonably Anticipated To Remain Confidential (stays and seceret between client and lawyer)
1. Rule: If the communication is made in front of people that are not a party of the A/C unit, it is not
reasonably anticipated to be confidential and the ACP does not protect that communication.
2. Reasonableness Test: Must have a reasonable anticipation of confidentiality at the time of
communication that the information will not go beyond the lawyer.
a. Ex. If client tells L something they expect to be disclosed, not privileged.
b. Ex. Not privileged if client tells lawyer something in public that other ppl can hear.
c. Ex. Say to L here is all the info for the report you will give to SEC-no expectation of
confidentiality.
d. Ex. Throwing something in a public waste-basket is not protected.
e. Ex. Cell phones—depends where being used. C calls L on cell phone as opposed to land line.
Reasonable expectation of confidentiality? Problematic if C is speaking loudly in a public
place.
f. Ex. Emailing/mailing privileged, BUT if client communicates w/ L from their office by
email, not privileged b/c office communications can be monitored and client knew that. Also
if it is a joint account that is not privileged.
g. Ex. Client and L working on memo to sent to other side. Client does first draft and L takes it
and edits it, saying certain things are privileged. Word document—other side could track
changes. Ct said not reasonably anticipating confidentiality—it is obvious that computers can
track changes so not privileged. Capra says PDF it.
173
i. Word documents can easily be tracked, the changed can be tracked at least via track
changes
3. Common Interest Rule: Agreement to Pursue Common Interest
a. Rule: Parties independently represented communicating in confidentiality w/ their own
lawyers on a matter of common legal interest can pool their information and maintain the
privilege as long as they have common interest agreement.
i. Must AGREE on common interest and agree to share information.
ii. Does not have to be in writing, but should be.
b. Upside—Sometimes it is beneficial to pool information to increase effectiveness of legal
representation.
i. Ex. EPA suing for clean-up of industrial site, owned by major corps. Three corps
A,B,C being sued by EPA. Maybe a good idea for A, B, and C to collectively pool
the information in order to put up a defense.
c. Downside—Later Suitlater on if one party sues another, free reign to use all
communications made between them all.
i. Capra says that makes sense b/c they assume RISK when enter common interest
arrangement. No anticipation earlier that it would be confidential from the other
party you had a common interest agreement with later on. Pooling now helps you
but later on could hurt you.
1. Only between themselves that the confidentiality is lost, third parties still
wouldn’t have access to this
ii. How to deal with the risk—“handcuff agreement”parties can agree to
communicate now but if parties end up in lawsuits against each other, all agree not
to use comm. from this trans.
iii. Note: This does not apply in criminal cases. Criminal D’s who were once in
common interest cannot testify against each other.
d. Enticing a Third Party to Join—if someone who has not officially agreed to the agreement
sits in on privileged communication, it is no longer privileged since person was not in full
agreement and you had no reasonable anticipation of confidence.
4. Is client’s name and amount of attorney’s fees paid privileged?
5. Note: Name/Fee generally not privileged
a. Exception when the name/fee will disclose why the client sought the lawyer.
b. Shargel- criminal defense attorney. There’s a form that the treasury dept. requires you to fill
out if you get paid more than 10k in cash. He fills out form saying he’s a lawyer, how much
he got paid, and in the part where they ask who paid him, he writes privileged. Is the name of
the client and the amount of fees they pay privileged? The answer is generally no. You
cannot reasonably anticipate that you would keep your identity confidential. If you’re
litigating, your identity will eventually be exposed. Further, that's the kind of information not
necessary to the representation. It is not information about the matter.
c. Only time name or fees are privileged is it it directly states thereby what the problem is.
i. Example: a lawyer gets paid in cash for services rendered. He takes the cash and
goes to pay the laundry bill. Cash turns out to be counterfeit. Gov’t wants to figure
out who the counterfeiter was. Lawyer says identity of client is privileged. Is
disclosing the client’s name disclosure of what the legal problem was? No
ii. This is really not what the priv is for; a legal problem; your name and your fee
(preliminaries or incidents of rep are not part of that)
1. Name and fee are not part, but if disclosure of that information would
disclose your problem (that you saw the lawyer is not the communication,
but why you saw the lawyer is)
a. But the court says, we don’t look at it like that—could have been
seeing the lawyer for any reason, wills, real estate, whatever
iii. The amount of money paid to a lawyer doesn’t show what the client went to the
lawyer to see
v. Asserting the Privilege/Scope
1. Privilege certainly survives the attorney-client privilege
2. Held by the client, but in practice often not invoked by the client—usually invoked by the lawyer.
3. Often, someone seeks information directly from the lawyer, then it is up to lawyer to invoke privilege
on behalf of client.
4. Sometimes attorney and client are no longer in contact. Privilege survives the relationship between the
attorney and client.
174
5.
Privilege even survives death of client (criminal and civil cases).
a. Privilege extends even after death of client because clients do not act as lone actors.
b. L cannot testify to what deceased D/client said to him before client killed himself or died.
c. The issues involved are those pertaining to protection of deceased’s loved ones or business
interests.
d. Criminal—Ex. Swidler: lawyer had to invoke ACP even though client (someone in Clinton
admin) died. Attorney says in criminal case info should not be used because person is dead,
so do not have to worry about criminal consequences. However, ct said something you say to
a lawyer while you are alive might implicate someone else who you carried out a crime with.
i. Reputation damage…though not a great point
ii. Its’ really the incriminating of other people
e. Civil—When you die, might give your business to ppl (something you said might have
financial impact on business).
vi. Exception #1: Waiver
1. Privilege at time it was made but something has happened btwn time it was made and now that
constitutes a waiver.
2. Distinguish btwn communications that were never privileged (statement made in public) and where
there has been a private communication on a legal matter but some subsequent action taken to let that
privilege go (this is where waiver comes in).
3. Ask: (i) Confidential in the first place? (ii) Some subsequent decision/act to disclose what was once
confidential? (iii) Was the waiver voluntary? If yes to all three, then waiver of ACP.
4. Voluntary Waiver
a. Has to be a voluntary act. Privilege cannot be waived by compulsion.
i. If a party requires you to turn something over to them in order to do business w/
them and you do it, that is voluntary and info is no longer privileged (cost-benefit
analysis).
1. Ex. John Doe: JD having underwriting transaction. Underwriter says look
at internal reports prepared by counsel. Underwriter says then I’ll walk
away if you do not allow me to. Corp says well fine it has to do with so
much money. Corp argues later on no waiver, beause they were holding the
functional equivalent of a gun to our head, because we had to get the deal
done. 2d Cir said too bad, it was a voluntary waiver. Even though costbenefit analysis, still voluntary.
a.
ii. If Gvt (DOJ/SEC) demands doc as part of “cooperation,” this is still voluntary and
privilege is waived.
1. Ex. Corp who has done an Upjohn report-something has gone wrong so
they have a lawyer to do an internal corp investigation. Gvt investigating
(i.e. SEC, DOJ, etc). Corp enters into negotiations w/ gvt agency and
agrees to turn over a report about what went wrong in the corp. Privileged
at the time made. Now corp has turned it over to the gvt, which is a
voluntary waiver—reason turning it over is to cooperate.
2. Corps have argued that gvt demanding those things on pain of indictment,
so not really voluntary.
3. Corps don’t have to do it and it is not pleasant but feel like they should and
usually do it voluntarily.
a. New rule: don’t take it into account either way (turn it over, or
not)
b. Getting an advantage, some favor or consideration from the
government is not the same as involuntary
b. Note: If court subpoenas a report, that turnover would not be voluntary—you must do it.
c. Note: Forfeiture = waiver by conduct (disclosure to third party, etc).
d. Kim’s note: In deciding whether to indict a corporation you cannot take into account whether
or not they hand in the report. This is not helpful because the virtues of cooperation do not
matter. Indicting a corporation is discretionary. But in practice when you turn in over you get
a credit
5. Scope of Waiver
a. Question is how far waiver extends.
b. Subject Matter Waiver
175
6.
i. 502(a): When client is trying to unfairly use some privileged communications to the
client’s advantage, other side can fully inquire into all communications.
1. Capra says similar to rule of completion (Rule 106).
2. If you do not provide for SMW, allowing client to use the privilege as a
sword rather than a shield.
3. Cannot pick and choose what you want to disclose.
ii. Advice of Counsel Defense
1. A waiver can be found where the client relies on the advice sought from
counsel as a defense.
2. When you rely on advice of counsel defense, you waive not only what you
explicitly disclose, but all communications on that subject matter.
3. You cannot bring up the advice, then refuse to say what counsel told you—
otherwise you could hide behind advice of counsel.
4. Risk is that if we allow D to testify the way he wants just w/ his select
communications, that is unfair to the gvt. To allow D to bring in his
advantageous and poss misleading privileged information w/o gvt to be
able to inquire into the full body of that information.
5. Selective disclosure is an abuse of the privy: using as both a sword and the
shieldbut there is an open the door principle; if you say that, the waiver
includes all related communications with the lawyer about the subject
matter
6. Ex. D being tried for securities fraud b/c put together transactions that gvt
contends are fraudulent. D takes stand to testify at trial that before put
together tax shelters, sought advice of counsel-counsel told him that they
were compliant w/ law so in good faith and didn’t willfully violate law
(“advice of counsel defense”). Waiver b/c referred to communications with
counsel and disclosed communications. On cross, prosecution asks can you
give us a complete account of what you said to lawyer and what lawyer
said to you. Ct said the waiver extends not just to what you disclosed (all
you’ve disclosed is one statement-its okay to do this transaction).
iii. Malpractice Suit
1. If a client sues a L for malpractice, the L can disclose communications that
are relevant to a defense.
iv. My notes:
1. If you put something at issue in the privileged communications that ….?
Missed this. We don't want the privilege to be used unfairly
2. If you affirm introduce yours lawyers advice to take a position then you
have to disclose all of it
Selective Waiver
a. Issue: can you waive privilege to one party and still say to another party who wants it I’m not
giving it to you?
b. Generally Not Valid—pretty much every court (except for one) has said there is no such
thing as selective waiver—when you waive to anyone, it is a waiver to everyone. When you
turn priv doc over to gvt, private parties can get it—waiver for all purposes.
c. Rationale for rejection: looks like you are messing w/ privilege when argue in favor of
selective waiver.
i. Proposed Rule 502 was going to allow for selective waiver, but no one liked it so
cut out.
ii. P’s hated selective waiver—couldn’t get info the gvt gets.
iii. State courts wanted a rule that applied to state and federal courts. If selective waiver
only in federal courts, plaintiffs would just sue in state court and get the report.
iv. Corps didn’t want selective waiver protection b/c can’t bargain about why they are
not turning over the report.
v. It looks strategic, you’re using the privilege in an unfair strategic way kind of like
the advice of counsel thing mentioned above.
vi. Promot
d. Policy argument in favor of selective waiver: corp might not cooperate with the gvt b/c of the
extra cost of turning it over. Less coop w/ gvt means more gvt expense b/c gvt investigating
what went wrong in companies—factual investigation of their own if they don’t get the one
done by counsel.
176
i. There would be people who would not otherwise give information to gvt.
1. Capra says most corps give privileged docs to gvt today in a regime w/o
selective waiver protection (after cost-benefit analysis). However
miserable their lives will be w/ class-action P’s, that is nothing compared
to what gvt can do if they do not cooperate.
e. Ex. Corp turns over privileged document to cooperate w/ gvt. Then some other party wants
that report and argue privilege has been waived.
f. Ex. Westinghouse: DOJ/SEC investigating W, who turns over report prepared by outside
counsel about poss bad things they did. Now, W is being sued by Philippine gvt for damages
and gvt wants report. W says privileged. Gvt says you waived by turning it over to DOJ.
Does waiver to DOJ mean waiver to P gvt?
i. W argued that waiving to US gov’t doesn’t mean waiving to private parties.
Questions is whether wavier is selective.
ii. No selective waiver. If you waive to anyone, you waive to every party. As soon as
there has been a waiver civil parties will come in and get that information.
7. Mistaken Disclosure: Rule 502
a. Usually in discovery. Usually something like turn over all emails that deal with a certain
employment decision/transaction. Then someone is looking through emails and do not catch
all privileged emails, which are put on a disk and turned over to other side.
b. “Quick Peek” Agreement: initial cut on matter, but you can tell us what you want and then
we will do a line by line review.
c. “Claw-Back Agreement”: if you see something we let go by mistake you send it back and we
do the same; however only enforceable between the parties.
d. Used to be draconian—there were cases that said if you have one document mistakenly
disclosed, that was a waiver of the document itself and also a subject matter waiver—strict
liability. Costs of e-discovery going through the roof. Then Rule 502 was drafted and got
through Congress.
e. How to regulate cost of pre-production privilege review?
f. Proposed Rule 502: Two major provisions
i. 502(b): does away with strict liability approach—says that if you take reasonable
steps to prevent a mistake and once you find that there has been a mistake you
reasonably/promptly try to get it back, your disclosure will NOT be a waiver.
1. Applies to privilege and work product.
2. Ex. software, proper record keeping, etc.
3. Ex. if the whole production done by one paralegal that is not reasonable
steps, but if expend efforts that show some word search software, priv
review, etc. that is prob sufficient.
4. Discover an error by being notified by other side or in deposition other side
gives answer that could only have come from priv info.
5. Must act reasonably promptly b/c if you didn’t you could use it as a sword,
save it for right before trial, etc.
ii. 502(d): allows a court to enter an order in its action providing that any mistaken
disclosure of privileged info in that action is NOT a waiver; that order is
enforceable in every court in the US (state and fed).
1. Order says that any disclosure of privileged information in this matter is
not a waiver in this action and any other action.
2. Parties can ask for order (when they have relatively equivalent discovery
obligations).
3. Sometimes parties are not in agreement about the order. In that case, court
can enter the order on its own.
4. Problem—with a 502(d) order other side can see docs but cannot use them
at trial; so if you pay more for searches, less information can be seen by the
other side, but the information still cannot be used.
5. Cannot use 502(d) as a way to get around the rule against selective waiver
vii. Exception #2: Crime-Fraud Exception
1. Statements made by the client to the attorney, even though in confidence, are NOT privileged if the
purpose of the communication is to further crime or fraud.
2. Client has shown that they have communicated in confidence on a legal matter with a lawyer and
claim it is privileged, but party who seeks info says when you communicated to L you were doing so
in order to perpetrate a plan of crime/fraud. If client was doing so, client loses privilege.
177
a.
c.
Ex. If seeking advice on which docs to do do paper a fake transaction/want a memo from L
about which docs relevant to matter so you can destroy them, those comms are not priv.
3. Triggered when the party seeking the information provides prima facie evidence that the client was
seeking the attorney’s advice and services in furtherance of a preconceived plan of wrongdoing.
4. The exception can apply even if the client never actually committed a fraudulent or criminal act. The
exception is triggered when the CLIENT communicates with the attorney with the INTENT to further
a plan of crime/fraud. Focus is on the intent of the client (not the intent of the lawyer).
a. Not limited to situations in which you go to your L and say I want to defraud can you help; L
does not have to be knowingly involved.
b. The L does not have to be a conspirator or even aware of the client’s intent.
5. Justification—want client comm. to L for legal advice but not for advice on how to violate the law.
6. Two distinctions
a. A client who goes to L to determine whether what they are going to do will violate the law—
that is privilege (you want a client in doubt to go to lawyer) VERSUS a client who knows
they want to violate law and are getting L’s help to do it—within exception, not protected.
b. If a client tells his lawyer about a past crime, that is protected; however, if a client is using
the lawyer’s services to commit future conduct, that is not privileged.
i. Ex. client has destroyed docs and says I destroyed docs can you help? Protected b/c
crime has already occurred.
ii. Ex. if client says I’ve destroyed docs but asks to help destroy more, not protected.
Marital Privilege
i. (1) Adverse Testimonial Privilege (Trammel)
1. Rule: Prohibits testimony by one spouse against another in a criminal case. A spouse does not take the
stand to testify to any information that is adverse to the other spouse.
2. Rationale: designed to protect marital harmony at the time the testimony is demanded. We want to
preserve marital harmony where it exists; if didn’t have one, one spouse would get up to testify
against the other which hurts marital harmony.
3. Controlled by the W-spouse, not the litigant spouse.
4. Applies where W refuses to testify and invokes her privilege not to testify.
a. W cannot be thrown in jail for refusing to testify.
5. Doesn’t apply if W wants to take the stand.
a. What if W wants to testify against H? Should he be able to keep her off stand?
b. Privilege has to be held by W spouse. D cannot keep W off stand.
c. If seeking to protect marital harmony, if W willing to testify against H/D, no harmony to
protect.
d. Ex. Trammel: PO came into T’s house and saw W and H cutting up drugs. PO said go to jail
or testify against H. W chose freedom over marital harmony so it was voluntary.
e. BUT we can’t compel her to testify by pain and contempt but you could offer her less jail
time for testitfying
6. Dependent upon a marriage at the time of trial/testimony.
a. If the witness and the litigant are divorced or permanently separated (“dead marital
relationship”) at that time, the privilege will not apply. Privilege also does not apply to
“significant others” who are not married.
b. Ex. D charged w/ tax fraud. Gvt calls W, who says I refuse to testify. Gvt points out that no
longer married. She says true but I was married to him and I like him better now than when I
was married to him. Can they throw her in jail? Yes. At this time of testimony, they are not
married.
c. Ex. Carter: W is Geneva. D is Robert-fraudster and she knows. It is 1988 and they married
in ’53. In ’54 he left her but amicable. In ’56 he started living w/ another woman calling her
his wife. G and R never divorced or legally separated, even though he is living w/ someone
else. She gets subpoenaed and says I do not want to testify. 2d Cir says we can make you
testify b/c even though not legally separated, your marital relationship is dead.
1. What if they subpoena the new wife? No privilege b/c not legally his wife.
d. Note: “Sham Marriage” Exception (but rare!)
i. Ex. Couple in car, man in road rage incident. D says let’s get married now. W
subpoenaed to testify. Gvt takes position that no real marriage. Case law discusses
possibility of “sham” marriages. However, D wouldn’t marry for this b/c cannot
even keep W off the stand.
7. Spousal Hearsay
178
Prohibits forcing spouse to come to stand to testify against her spouse…if W not forced to do
anything, no privilege.
b. Does not ruin the marriage because W isn’t forced to testify
c. Ex. W looking out window and sees H shoot neighbor. W calls her mother and tells her. W
refuses to testify. Gvt calls her mother, who wants to testify and D objects on hearsay
grounds (excited utterance – admissible) AND privilege argument. Adverse Priv doesn’t
apply b/c while her words being used against him, no one is forcing her to testify.
8. Joint Participants Exception
a. Can a W who is a joint participant in H/D’s crime invoke adverse testimonial privilege?
YES.
i. Gvt’s arg is that no harmony in marriage if partners are violating the law.
ii. No JP exception in 2d Cir. (See Rosenberg case ?)
1. Arguments: If there is JP exception, swallows privilege itself.
2. Capra and courts says this is not true—might make the couple more
harmonious.
b. Ex. In Trammel, even though wife was cutting up drugs, could still assert testimonial
privilege – they cannot force her to testify against her husband.
c. Ex. US v. Koecher: K and wife is H. Gvt takes position that K is a spy for Czech gvt-charged
w/ treason. Believe H has info about K’s doings-think H is co-conspirator. Gvt subpoenas H
to testify at K’s GJ hearing. H refuses and invokes the priv. H has 5 th Amend Privilege, but
gvt gives her immunity; that doesn’t protect her testimony against K. Got up to SC, which
said no privilege for joint participants. However Ds disappeared so the opinion never came
down because it became moot.
i. SC has never taken another case like this and doesn’t like privilege.
d. When spousrs are together in a joint crime, that is not a marital harmony, that is a criminal
conspiracy. Not a marriage worth protecting
9. Harm to Child Exception (under Federal Common Law): Privilege doesn’t apply if D accused of
harming a child. If there is harm to a child in marriage, spouse forced to testify.
a. Why need this? It is not W who harms child, it is the D.
i. Need this to force the spouse to testify; might not want to b/c maybe afraid to get
hurt by D. However, if force her, the husband might go after her!
b. Who’s a child? Must be a child in the home, not necessarily in the marriage
10. Note: Does not apply in civil cases. In civil case, W can be forced to take stand and testify against H
b/c bump on marital harmony not that great. We have insurance to protect against liability but not
insurance against jail
11. Note: ½ states do not have Adverse Testimony Privilege –spouses forced to take stand even in crim
cases (state law trumps). Ny does not have one.
(2) Confidential Communications Privilege
1. Rule: Prohibits disclosure, in civil and criminal cases, of confidential communications from one
spouse to another where adverse testimonial privilege doesn’t apply. One spouse’s confidential
comm. to another spouse cannot be introduced against that communicating spouse. Protects the
husband’s communication to the wife that is made in confidence that is meant to be used against the
H.
a. Defendant holds the privilege
2. Rationale: designed to protect and further marital intimacy as of the time the communication is made
between the spouses.
3. Confidential Communications VS. Adverse Testimonial Privilege
a.
ii.
Adverse Testimonial
-non-litigant spouse holds privilege
-broader – protection against testifying to anything
-married at time of trial
4.
Confidential Communications
-Defendant 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)
Communications are Protected, NOT Actions
a. Ex. guy comes home after robbing bank and wife wants to testify that: she was sitting in
living room, saw him come in door and throw a ski mask out of his pocket, take money and
throw that, and he also told her he robbed bank. What is admissible are the first tow actions
(what he threw out of his bag) b/c they are actions not communications—he cannot keep her
off the stand. However, when he tells her he robbed bank he can keep that confidential—she
cannot testify to that.
179
Ex. Costanzio: Charged w/ sexual assaults; gvt calls his wife to testify (NY doesn’t have
adverse testimonial privilege). His defense is that he is impotent. Gvt wants her to testify to
various acts of lack of impotency during this time. He says not admissible b/c confidential
comm…ct said an action so not privileged.
In the hands of the litigant/communicating spouse, who wants to keep his communication out of
evidence.
a. Triggered by the D – D is the communicator, so it is the D who invokes the privilege to
prevent his spouse from testifying.
b. Privilege can be invoked by the litigant spouse to prevent disclosure of his/her confidential
communications made during the marriage, even if the other spouse is willing to testify.
i. This is b/c even if there is no marital harmony at the time of the testimony, the
communicating spouse had the right to rely on marital intimacy at the time the
confidential communication was made.
ii. Where a spouse is willing to testify, he or she can testify about acts and nonconfidential communications, but not about confidential communications made
during the marriage.
c. Turns on intent of the communicating spouse at the time of the communication.
d. Ex. Someone charged of committing murder wants to keep telling his wife he did it a secret.
Parties must be married at the time of communication, but need not be married at the time of trial (like
adverse testimonial priv).
a. Take snap shot at each time a communication is made.
b. If divorced at time of communication, not protected.
c. If married at time of comm. (even if divorced later), comm. privileged.
i. The privilege does not die w/ divorce.
ii. Ex. In 2005, D communicates to wife, divorce in 07 and trial in 08. Gvt calls wife to
testify and argue CC priv doesn’t apply b/c they are divorced. Does not matter that
later divorced, they were married at time of comm…so privileged.
iii. Like attorney client privilege
d. If permanently separated at time of communication, no privilege.
i. Ex. Carter: married in 53, perm separated in 54, now its 1980. They kept meeting
up every couple of yrs and he communicated about tax fraud. Ct said no priv b/c
made comm. when perm separated.
ii. Difficulties for court – look at how permanent the separation really is.
iii. Note: In NY, you are entitled to protect confidential comm. to spouse UNTIL
legally separated or divorced. So if separated but not legally (before papers filed),
comm. protected.
1. Rationale: want to foster people getting back together; marriage not dead
until it is formally dead.
2. Ex. Fediuk: Wife moved in with another guy but papers were not filed yet.
Husband goes to W and W’s bf’s house and kills her bf. H says I felt good
killing that guy to W. She wants to testify. Ct says no confidential comm.
since papers not filed yet.
Spousal Hearsay: unauthorized disclosure by a non-holder does not waive the privilege.
a. Ex. Wife in upstairs bedroom. Husband comes home and has an arg w/ neighbor about bush.
H shoots neighbor in head. H walks in house and W says what was that noise and H says I
killed neighbor. W calls he mother and tells mom that H told me he shot neighbor. Can
mother testify? HWMother (on stand). Mother can relate what W said b/c W making
excited utterance. W can testify against H b/c H made party admission. So hearsay prob is
taken care of, BUT what about the spousal privilege? H holds the privilege, not the W—
unauthorized disclosure by non-holder cannot waive the privilege. Therefore, the privilege
does exist—when he communicates to W confidentially, right to expect that comm. would be
protected and she cannot waive that for him. Mother cannot testify.
b. 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.
Reasonable Anticipation of Confidentiality
a. Ex. H put confidential comm. on fridge (going to rob a bank). Forgot that he had his in-laws
over that night. That is not a confidential communication b/c not reasonably anticipated to
remain confidential. He knowingly had people over.
b. Cannot dictate to secretary a letter to your spouse.
b.
5.
6.
7.
8.
180
c. Cannot tell your spouse something in public so that other people can hear.
Exceptions
a. (1) Statements intended to further crime/fraud
i. Ex. guy comes home and says robbed a bank – protected. But if he says I robbed
bank, can you destroy some evidence? The part “can you destroy some evidence” is
not protected, but the beginning of the sentence is since second part has intent to
further crime/fraud.
b. (2) Harm to Child
i. Ex. if H says to W, “I just abused our child,” that comm. even though in confidence
is not protected.
ii. Rationale: idea that when it is a child involved, those cases hard to prove, seems
conspiratorial, not good.
iii. CL idea (not statutory), so courts vary as to who is the “child.”
iv. Some federal cts say the exception covers any statement about “harm to a child in
the home at the time of the harm.”
1. If occurs in home, then any child who is harmed is covered (people
sleeping over, staying over for a week, etc).
v. Some cts (9th Cir) think harm to child exception too broad. Ct says in order for
exception to apply, has to be “actual child of one of the spouses” OR the “functional
equivalent of a child” (of the marriage; wouldn’t cover ppl over for sleep-overs,
etc).
1. Ex. Grandfather had grandchild over and took gross pics, then admitted it
to grandmother. Grandmother wanted to testify but ct found she could not
b/c grandchild was not functional equivalent of child of both/of the
marriage—he visited, but didn’t live there.
vi. Note: depends on allegation—any statement relevant to the charge would not be
confidential.
Privilege For Communications To Clergy
i. 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.
1. Prevents clergy from having to testify against their religious followers.
2. Exists under common law.
ii. Rationale: Social value in these communications and difficulty cleric would be put in by violating oath of
maintaining confidence and if no privilege would go to jail for refusing to testify.
iii. Requirements: Privilege applies to communications made…
1. To a clergyperson
2. In his/her spiritual and professional capacity (must be seeking spiritual advice, not investment advice,
etc)
3. With a reasonable expectation of confidentiality
iv. Presence of Third Party (not related by blood/marriage): depends upon whether the third party’s presence is
essential to and in furtherance of a communication to a member of the clergy.
v. Note: Courts have been developing a crime-fraud exception, esp post 9/11 (i.e. even spiritual advice about
blowing up stuff).
State Secrets Privilege
i. Rule: Privilege protects sensitive gvt information, the disclosure of which would harm national security. Harm
to security interests of the US demand that this information not be put forth in public court.
1. Existed under common law.
ii. Due to this privilege, what happens is that actions get dismissed for failure of proof if one party have to prove
case through state secrets.
1. CRIMINAL CASE: Gvt who has to disclose state secrets-it is their choice whether or not to bring
charges. Cannot take away D’s defenses if you do not want to bring out state secret information-gvt
needs to absorb the costs.
a. Ex. Oliver North charged w/ conspiracy in Iran controversy. North wanted to introduce docs
to defend himself. Gvt said you cannot introduce docs b/c state secrets priv. Ct said let him
introduce them or claim is dismissed.
2. Ex. Landowners in Nevada suing for environmental damage to land from missiles. Case dismissed on
ground that proof of claim would involve proof of where missile silos are.
9.
d.
e.
181
Ex. Sterling: Member of CIA brings employment discrim claim on grounds he didn’t get cool spy
things to do b/c Af American. Ct said cannot bring action b/c you would have to indicate sensitive
stuff you weren’t able to do and those are hidden. So claim dismissed on the merits.
4. Ex. 9/11 ex: P sues airlines for being subject to “rendition”- claims taken w/o consent to another
country to be tortured. Gvt poses state secrets defense-if proof has to come out about where you went,
who was interrogating you, etc that blows all of our secrets. P said everyone knows about rendition
program b/c in movies. Ct said not everyone knows about details of rendition program and those
would be introduced in your case so case dismissed.
5. Ex. Wire Tapping Cases (NSA): P’s have brought actions saying violates rights. Most cases
dismissed. Except one now in N.D. Cali – doesn’t mean in a particular case that case has to be
dismissed (even though there is a state secret).
6. Wikileaks has changed this and makes states secrets less likely to be invoked.
iii. Debate between Congress, DOJ, and the Courts
1. Congress thinks Bush administration over-invoked the states secrets privilege. Obama is doing the
same thing now. Also, concerned that cts dismissing cases that could be brought w/o having to
implicate state secrets.
2. DOJ new guidelines on invoking the privilege—now has to go through more vetting in DOJ itself to
determine whether priv will be invoked and will only be invoked at highest levels.
Newsreporter/Journalist Privilege
i. No long common law history (unlike clerical/state secrets).
ii. Issue is whether journalists can keep their sources confidential. Idea is that if I cannot protect confidentiality, I
cannot have source and public wont have the right to know.
iii. No First Amendment constitutional right to protect sources.
1. Ex. GJ is entitled to journalists’ confidential sources.
2. Ex. Branzburg: Public’s right to know outweighs whatever interest that exists under First
Amendment to protect sources.
iv. Rule: Qualified privilege that allows journalists to keep their confidential sources a secret (under federal
common law).
1. You have a right to shield the source unless the gov’t can make a case that they need the evidence
2. If gvt needs to know info (i.e. must give up info in GJ investigation) they get it; if civil P needs to
know it they get it; if crim D needs it they get it (constitutional right outweighs CL privilege).
3. Journalist must show that the source was ensured secrecy and w/o this privilege, the source would not
have divulged information.
4. Ex. 2d Cir: Gvt proceeding against 2 Muslim charitable orgs (fronts for Hamas) and wanted to freeze
assets. News reporter got info and called foundations and said how do you feel about this? Gvt called
reporter b/c info got leaked. Ct said CL right to protect sources but here gvts interest so outweighs
your interests—gvt needs to know who mole is who is informing terrorist orgs about poss asset
freezes.
5. Congress working since 2001 for statute protecting journalist sources. Capra says will probably still
be qualified privilege.
Privileges Related to Mental Health/Shrink Privilege
i. 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 under Rule 501 of FRE.
1. Patient holds the privilege.
2. Includes licensed social workers/clinical therapists b/c not everyone can afford a shrink.
3. Note: there was no federal shrink-patient privilege under CL (however, was in state statutes).
ii. 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.
iii. No federal shrink-patient privilege under common law (and also no doctor-patient privilege).
iv. However, Jaffee ct said courts can develop new privileges “in light of reason and experience.” Established
shrink-patient privilege as a matter of federal common law.
1. Ex. Jaffee: Issue was whether statements a PO made to her therapist (clinical social worker) during a
counseling session after she shot and killed a man are protected from compelled disclosure in a
federal civil action brought by the family of the deceased. Victim’s estate brought an excessive force
case. Victim’s estate sought access to therapists’s notes concerning the sessions for use in crossexamining the PO. PO/State claimed that notes protected against involuntary disclosure by a
3.
f.
g.
182
h.
psychotherapist-patient privilege. Court held that the conversations between the PO and her social
worker were protected from compelled disclosure.
a. Lower court held that privilege was qualified: if other side really needs it and can’t find
other info that could help them, have to give up information.
b. SC said this is absolute privilege. Why? Cannot rely on it if it is not. Will not be truthful
with shrink if it is maybe privileged (depending on what other side needs). Has to be
predictable or not worth much.
v. How Federal Courts Establish a New Privilege
1. Process Steps:
a. Look to the initial draft of privilege rules that advisory comm. proposed to Congress—see
whether the privilege you are evaluating was in that list (those people were smart!).
i. That list did include shrink-patient priv, but not doctor-patient priv.
b. Look to privilege’s acceptance in the states—is it accepted in widespread basis in states?
That means general acceptance of it, which is entitled to deference at federal level.
i. Psych-patient privilege was applicable in all states.
2. Cost-Benefit Analysis
a. What is the cost of protecting the information versus what are the benefits of protecting this
information?
i. Cost of protection = reliable evidence in important cases will be excluded.
ii. Benefit = encouraging ppl to be truthful to mental health professionals.
vi. Questions Post-Jaffee
1. Medical doctor-patient privilege?
a. Not protected at the federal level.
b. Why not?
i. Not as communication based as shrink-patient privilege—based on combo of
communication and physical things.
ii. Not part of the advisory committee list but accepted by states.
1. However, in diversity cases, law of privilege is state law (Rule 501), so
would be protected.
2. Dangerous Patient Exception?
a. Ex. Tarasoff
b. Ex. Patient says I am depressed b/c I have to kill my mother tn.
c. If D already killed the person, there is no prevention of any crime anymore.
i. 9th Cir: says no exception, even if communications were threats of future violence.
Why? Issue is whether evidence should be admitted at trial. At trial, not protecting
anything b/c person already dead. Only time exception would work is if litigation
were let me out of mental hospital so I can kill my mother.
d. Only applies in a commitment proceeding; when determining whether or not to commit
patient, doctor will need to disclose that the first thing the guy will do when he gets out is kill
spouse.
e. Expectation of confidentiality lost when warn patient you will tell.
i. 5th Cir: said when guy communicating to shrink, shrink said don’t tell me this stuff
b/c I have to tell but patient just told anyway and killed people. Not protected by
priv b/c there was no expectation of confidentiality (knew shrink would tell but told
him anyway); so not b/c of dangerous patient exception. When you got that
warning, no expectation of confidentiality remaining.
3. D is being tried for a murder. Single witness against him (eyewitness). W has been in and out of
psycho therapy for a long time. Has indicated that he or she has trouble with seeing reality correctly
and sees crimes that don't occur. D wants to inqure about these but privilege blocks him. D will seek
to use his constitutional right to critical evidence (right to effective defense). Rules of evidence vs.
constitution, constitution wins. Not allowed to go fishing but where D has info that's critical to
impeaching a star witness, then constitutional right comes into play. Privilege is not absolute.
“New” Privileges
i. Never recognized under federal common law.
ii. Have NOT been adopted at the federal level!!!
iii. How Federal Courts Establish New Privileges
1. Process Steps:
a. Look to the initial draft of privilege rules that advisory comm. proposed to Congress—see
whether the privilege you are evaluating was in that list (those people were smart!).
183
Look to privilege’s acceptance in the states—is it accepted in widespread basis in states?
That means general acceptance of it, which is entitled to deference at federal level.
2. Cost-Benefit Analysis:
a. What is the cost of protecting the information versus what are the benefits of protecting this
information?
iv. (1) Peer Review
1. Doctor does something bad and peer review of what doctor did.
2. Rejected – case has not been made that benefit greater than cost; not in advisory committee rules and
not prevalent in states.
v. (2) Self-Analytical Internal Corporate Reports
1. Rejected – no privilege.
2. Ex. Women on carnival cruises and get sexually assaulted by employees; Carnival sends investigators
(not lawyers-that would be Upjohn) and come back w/ report. P wants report and Corp says priv. Ct
said no.
vi. (3) Parent-Child Privilege
1. Rejected – too much cost, not enough benefit.
Executive Privilege
i. The E an talk to member of the E branch an they cant come to trial.
ii. The privilege is not absolute but is rather qualified by the govt’s interest in prosecuting so it is rarely invoked.
iii. Not an important privilege because it is so qualified that it’s hard to invoke.
b.
i.
184
XII.
Authenticating Documents (note: not really going to be tested on)
a. Introduction
i. Rule 901: Requirement of Authentication or Identification
1. 901(a). General Provision: The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.
2. Standard: Enough for a reasonable juror could believe that it is what you say it is.
a. All judge needs to determine is whether someone could reasonably believe it’s the real thing.
3. Rationale: Jury should be able to determine whether or not it’s a forgery.
ii. Rule 902. Self Authentication.
1. Provides situations where certain documents are presumed authentic.
a. Ex: Government patent that has a seal.
b. Ex. Certified copies of public records.
c. Ex. Official publications, newspapers/periodicals.
2. Circumstantial Indications of Authenticity: allows authentication in any reasonable way, including
circumstantial evidence.
a. Ex. D being charged with taking part in drug conspiracy. Gvt wants to intro hand-written
notes indicative of drug trans (found in dumpster outside D’s apt building-common
dumpster). Can call handwriting person but expert couldn’t identify as D’s handwriting
(wrote left handed for incriminating stuff). To authenticate, the gvt says in bag we also found
7 empty OJ containers then went into fridge and found same OJ (high pulp, low calcium);
also the notes ripped out of spiral notebook, which was found in D’s apt-we put them
together. Circs indicated that reas juror could decide authentic.
b. Relevance: When a party seeks to intro evidence, there is sometimes an issue about whether it is authentic—is it really
what you say it is? If it is not the real piece of evidence, then it is not relevant.
i. Argument is that it is not what you say it is b/c you cannot connect it or it has been forged.
1. Ex. Fraud case some alleged fraudster has kept an account of all the bad stuff he did; P who has been
subjected to fraud wants to introduce that document. Only reason that it is relevant is if D wrote it.
ii. Like 104(b) – conditional relevance  useful in case only if evidence is what you say it is.
1. Ex. Steroids case w/ Barry Bonds. They have list of dates and times that seem to indicate steroid use.
If it is a list of his steroid injections, great evidence in case. Maybe forged doc, steroid injections of
someone else, etc.
c. Rule 901 – Proponent (upon objection) must show enough foundation for a reasonable juror to believe by a
preponderance of the evidence that it is what the proponent says it is.
i. Usually comes up with documents and physical evidence.
1. Ex. Gvt wants to introduce a letter that the D wrote to his cousin confessing the crime. It’s hearsay but
it is admissible as an admission. But is it indeed a letter written by the D?
ii. All the judge needs to determine is whether someone could believe it’s the real thing.
iii. “Prima facie standard” – low standard.
iv. Court shouldn’t do much, just keep out stuff which is clearly inauthentic.
v. Only keep stuff from the jury that will waste everyone’s time.
d. Examples
i. Testimony: the most basic method of authentication is a witness who gives testimony that it is what it is
claimed to be.
ii. Tape Recorded Conversations/Voice Identification
1. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under circumstances connecting it
with the alleged speaker.
2. Familiarity with D’s Voice: get someone who knows the voice. Does not have to be an expert, can
even be the person who recorded it.
3. Tape Is Not Altered: get an expert who can tell the difference.
4. Ex. In crim case, gvt wants to intro tape that has incriminating convos about conspiracy—“we have to
do the drug deal now.” Tape surreptitiously recorded. D concern about the tape is that if it is not me
talking, this evidence is not what you say it is (how to do that? Call someone who knows the D’s
voice, including officer who recorded the tape); also concerned that the tape could be from a prior
incident (authenticate it by time stamps or direct testimony from person who did tape); also whether
the tape was edited (establish authenticity by calling guy who recorded it to testify that he didn’t edit
it).
185
5.
Ex. Was Mr. Parker the one who made the statement? Witness who called the Parker home spoke to
Mrs. Parker. Then she hears a guy come on the phone who said “don’t mess with my old lady or
else.” Is the telephone conversation an authentic piece of evidence? Yes because of the phrase “my
old lady” and it is enough for someone to find that it is authentic.
iii. Handwriting
1. Jury can compare with someone else he has written/signed
2. Handwriting expert
3. Call someone familiar w/ his handwriting
iv. Drugs – “Chain of Custody”
1. Establish a “chain of custody” – find out how it got from the trunk to the chemist
a. Ex. D charged w/ drug crime. Gvt at trial introduces a drug test done by chemist. Chemist
says I tested the substance. D argues I don’t know whose substances you were testing-how
do you know it was mine?
2. Gaps in chain go to weight, not admissibility
a. Juror could still find it to be authentic.
b. Ex. Grant: tack package out of his trunk, weighs it in his trunk, PO in own car, later tested
positive by chemist 6 weeks later + weighed. Test, not drugs introduced at trial. D says have
to est chain. Problem is that there was a 6 week gap – officer carrying it around. Ct said gap
in chain goes to weight, so still admitted. Was not just a package in D’s car, it was a package
of white powder found in wheel well under spare tire. Don’t put sugar under spare tire. Also
package weighed at scene and came out to same amt as when weighed at chemist – if there
was a big conspiracy to alter the stuff – must have done a really good job + it’s in the same
container.
c. Ex. OJ case
v. Electronic Evidence
1. WEBSITES
a. Ex. P claims defamed on website. At time of trial, website doesn’t have the defamatory info
anymore. How to prove they put something on website on particular day? Introduce screen
shot  got it from way back machine. Pictures of what website looked like on particular
date.
b. Archives can be used to prove the website is what you say it is. Establish through testimony
at trial – that company that archives it = reliable, etc.
c. Also, can have person who was on website at that time say he was on it and provide the URL
– say this is screen shot I saw.
2. CHAT ROOMS
a. Ex. D says you are saying I said that in a chat room, but how do you know I am the one who
said it?
b. Some courts say IP address is enough, but D says that just means it was my home computer –
maybe my kid was downloading child porn. Usually govt has more – guy uses nickname in
real life.
c. Some courts rely on other circumstances
i. Ex. D claims wasn’t him was his wife (she was using my comp). His chat name is
“cessnut.” Gvt introduces circumstantial evidence—pic of D with a t-shirt that says
“cessnut,” also other ppl testify it is his nickname.
3. EMAILS
a. Ex. email sent from one fraudster to another, person said that’s not my e-mail, how to
authenticate?
b. Many emails are signed by person at the bottom, or have your name at the end.
c. If it has your email address on it, prob enough, anything beyond that  goes to weight.
d. Also look at circs of email itself – what is said in email accords w/ what you think person
would know.
e. Fact that your name is in e-mail = sufficient to get by authenticity. Usually proponent adds
identifying factor in e-mail, etc. Civil case – turn over all e-mails, you turned them over,
can’t now say they aren’t the e-mails of the custodian, production itself = authenticates emails.
4. DISCOVERY
a. When electronic information produced in discovery, that itself is an authentication. Since the
other side turns it over as a result of a production order, it is an admission from the other
party that it is authentic.
186
b.
vi. Photographs
Ex. D gets discovery request to hand over emails about a particular employee in discrim
case. Whatever in DVD is fine b/c D produced it. By handing it over is admitting that it is
what they say it is.
1.
Ex. Pic taken of ax scene; need to prove on objection that photo authentic. Objection would be
photoshop.
2. If mere possibility of photoshop was enough to make everything inauthentic, there would be no
chance of admitting digital photos.
3. Unless it looks really photoshopped, possibility of photoshopping becomes a jury argument.
vii. Recordings/Videos
1. Ex. Surveillance camera outside warehouse and gvt says it is D. It is grainy. Gvt says we have
enhancement program to fix it  then it’s perfect picture of D. D argues you altered this. Govt needs
to qualify software to show it’s reliable.
2. So long as software is explained to the court and then to the jury this information does not raise
authenticity question—not an alteration, it is an enhancement.
Balko: Says it was Barry Bond’s urine. Have to prove that through admissible evidence. Judge’s role in this
situation = minimal. Question = conditional relevance. It is relevant if it is the thing I say it is: could reasonable
person believe proponent as introduced enough info for person to believe it is what I say it is? Not to many
authenticity issues because such a low standard. Judge’s role – limited screening idea to keep out stuff that’s
clearly inauthentic to the jury. Usually presents little questions. Bonds: Didn’t have admissible evidence that
connects urine sample to Bonds, in most cases you have it.
Ex: Govt wants to introduce something as D’s, D says it’s not mine  chain of custody. Gaps in chain of custody
= questions of weight.
XIII.
XIV.
The Best Evidence Rule  NOT ON EXAM
a. If question is what does the document say, you need to bring in the original.
b. But if question is was there a K, there are many ways you can prove that – you do not need actual K.
c. Copies are considered the original – copy machines do not mess up.
d. If you have a good excuse (ex. I lost it in a fire, the other side has it, etc) for having neither copy or original, can prove
the document however you want (1003/1004).
e. Only makes a diff when someone is “up to no good.”
If want to introduce, document / photo / recording, to prove the contents of document / photo / recording,
then have to introduce original unless there is exception.
First divider: trying to introduce contents of something or just trying to prove event? Prove you bought a car –
don’t have to introduce K of sale, just testify “I bought the car”
Want to prove lemon law statement in K = binding, then have to prove up K – proving contents of K – when Best
Evidence Rule applies.
Rare event that there is a problem because even if you have to prove contents – don’t really need original. Copy
will be fine unless there is some clear indication that copy is fraudulent. Wanted to prove terms of K – 1682 –
written on sheepskin. Someone said – maybe we should make a copy, write it out again. Copying – was fraught
with error back when but no longer fraught with error anyone. Rule lost all it’s futility.
Problem – don’t have original or copy, rule says – need good reason for not having one or other – making stuff up,
weird to not have copy, need good reason for not having either, rule actually precludes proof in very small number
of cases where proponent is trying to show contents – don’t have copy, don’t have original, don’t have good reason
for not having neither. Of all these cases – like 5 where best evidence has actually precluded proof of testimony.
Case: P claims that MJ stole his song. He did recording, MJ took it. What song – Billy Jean. P says dog ate all my
copies of my song. One left – earthquake got it, etc. Will do as substitute – play my song, know what song sounds
like – court says no – this is rife with fraud. Should have had a copy, don’t have reason for copy, now you’re going
to recreate this – won’t work.
**Underwhelming nature of both rules for excluding evidence**
187
Table of Contents for Chelsea’s Big Evidence Outline
1.
2.
3.
4.
5.
6.
7.
Introduction
a. Purpose of Evidence Rules
b. Rule 105: Limited Admissibility
Introduction to Relevance
a. Rule 401: Definition of Relevance
b. Rule 402: Sources for Excluding Relevant Evidence
c. Rule 403: Balancing Probative Value Against Prejudice
d. Stipulation
e. Abuse of Discretion
f. 403 Factors/Examples
i. Inflammatory Victim Info
ii. Evidence of Injury (day in life, gruesome photos, injured P in courtroom)
iii. Alternative Perpetrators
iv. Negative Info about Accused, Guilty Pleas of Co-Conspirators, Similar Circs
v. Demonstrative Evidence/Recreations
Special Relevance Rules
a. Rule 407: Subsequent Remedial Measures
b. Rule 408: Offers of Compromise (when there is a “dispute”)
c. Rule 409: Payment of Medical Expenses
d. Rule 410: Guilty Plea Negotiations
e. Rule 411: Liability Insurance
Character Evidence, Prior Bad Acts, and Habit
a. Civil Cases
b. Criminal Cases
c. Rule 404(b): Other Crimes, Wrongs, or Acts
i. Testing Character Witness
ii. Not for Character Purposes
1. 403 Analysis
d. Rule 406: Habit
e. Rule 412: Rape Shield (Info about Victim)
f. Rules 413-415: Info about Defendant in Sexual Misconduct Cases
Opinion Testimony
a. Rule 701: Lay Opinions
b. Lay v. Expert Testimony (2000 Amendment to Rule 701)
c. Rule 702: Expert Opinions
i. Scientific Testimony/Daubert
1. Methods
2. Application of Method
ii. Non-Scientific Experts
iii. Probability and Statistics
iv. Rule 703: Bases of Opinion Testimony
v. Qualification
vi. Proper Subject Matter (Helpful To Jury)
vii. Rule 704(a): Ultimate Issue Testimony
Hearsay
a. Definition of Hearsay
b. Not Hearsay (Not Offered for Truth)
i. Verbal Acts
ii. Effect On Listener
1. 403 Analysis
c. Implied Assertions
Hearsay Exceptions
a. 801(d)(1): Prior Statement of Testifying Witness
i. 801(d)(1)(A): Prior Inconsistent Statements Made Under Oath
ii. 801(d)(1)(B): Prior Consistent Statements to Rebut Attack
iii. 801(d)(1)(C): Prior Identifications
b. 801(d)(2): Admissions (Statement of Party Opponent)
188
1
1
1
1
1
3
3
4
5
6
6
6-7
8
9
10
12
12
15
17
17
19
20
21
22
24
25
26
30
32
34
36
39
39
41
42
42
43
46
48
49
51
52
53
54
56
56-57
57
57
58
59
60
63
63
63
64
65
66
i. 801(d)(2)(A): Personal
ii. 801(d)(2)(B): Adoptive (Conduct or Silence)
iii. 801(d)(2)(C): Speaking Agent With Authorization
iv. 801(d)(2)(D): Agent Within Scope of Authority
v. 801(d)(2)(E): Co-Conspirator Admissions
c. Declarant Unavailable [Rule 804]
i. 804(a): Definition of Unavailability (Privilege, Refusal, Lack of Memory, etc)
ii. 804(b)(1): Prior Testimony
iii. 804(b)(2): Dying Declarations
iv. 804(b)(3): Statements Against Interest (Inculpatory/Exculpatory)
v. 804(b)(6): Forfeiture
d. Availability Irrelevant [Rule 803]
i. 803(1): Present Sense Impressions
ii. 803(2): Excited Utterances
iii. 803(3): State of Mind
iv. 803(4): Statements for Medical Treatment/Diagnosis
v. 803(5): Past Recollection Recorded
vi. 803(6): Business Records
vii. 803(7): Absence of Entry in Business Record
viii. 803(8): Public Records
ix. 803(10): Absence of a Public Record/Entry
x. 803(18): Learned Treatises
e. The Residual Exception [Rule 807]
8. Confrontation Clause
a. Crawford/Testimoniality
b. Applied to Federal Rules
c. Bruton Problem: Joint Trial of Multiple Defendants
d. Face-to-face Confrontation
9. Rules Governing Witnesses
a. Competency
b. Jurors as Witnesses
c. Sequestration
d. Impeaching Your Own Witness
10. Impeachment of Witnesses
a. Character Impeachment (Character for Veracity)
i. 608(a): Opinion and Reputation Evidence of Character
ii. 609(b): Specific Instances of Conduct (Probative of (Un)Truthfulness)
iii. 609(a)(2): False-Based Convictions
iv. 609(a)(1): Other Felony Convictions (Non False-Based)
v. 609(b): Old v. New Convictions (10 year rule)
b. In Limine Determinations
c. Impeachment By Prior Inconsistent Statements
d. Contradiction
e. Bias
f. Capacity (Attacking Credibility)
g. Impeachment of Hearsay Declarants
h. Rehabilitation
11. Privileges
a. Attorney-Client Privilege
i. Legal Advice
ii. Communication Between Lawyer and Client
iii. Reasonably Anticipated to Remain Confidential
iv. Asserting Privilege/Scope
v. Waiver
vi. Crime-Fraud Exception
b. Marital Privilege
i. Adverse Testimonial Privilege (Trammel)
ii. Confidential Communications Privilege
c. Clergy Privilege
d. State Secrets Privilege
189
68
68
69
70
71
76
76
78
79
83
87
88
89
90
93
97
99
102
107
107
112
112
113
116
117
119
123
125
127
127
128
129
130
133
133
133
133
136
137
138
138
140
141
142
143
144
144
146
146
146
147
150
150
151
153
153
153
154
156
156
e. Newsreporter/Journalist Privilege
f. Shrink-Patient Privilege
g. “New Privileges”
12. Authenticating Documents
13. Best Evidence Rule
157
157
158
160
162
190