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Outline Evidence
Law Of Evidence (St. John's University)
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Possible obstacles to evidence coming in:
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The rules on relevance: 104(b), 401, 402, 407-411
Do the character/habit rules keep it out?: 404-406, 412-415
Do the rules on impeaching witnesses keep it out?: 607-609
Do the hearsay rules keep it out?: 801-805, 807
Do the competency rules keep it out?: 602 (note that personal knowledge requirement can
apply to declarants, not just witnesses), 603
Do the rules on opinion/ expert testimony keep it out?: 701-05
Does the Confrontation Clause keep it out?
Does 403 keep it out?
If neither the FREs nor constitution keeps it out, then it comes in (402). But note that a limiting
instruction may be necessary (105).
Note also Chambers/Holmes, etc.: a criminal defendant’s right to due process/ a meaningful opportunity
to present a complete defense may require its admission, even if the rules of evidence would otherwise
seem to suggest that it should stay out.
1. General Principles of Relevance
Rule 402. General Admissibility of Relevant Evidence
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Relevant evidence admissible unless an FRE or the constitution provides otherwise
Irrelevant evidence is not admissible.
Rule 401. Test for Relevant Evidence
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Evidence is relevant if:
o (a) it is probative (i.e. has any tendency to make a fact more or less probable than it
would be without the evidence); and
o (b) it is material (i.e. the fact is of consequence in determining the action.)
 Must matter in terms of the applicable law, whether civil claim or crime being
charged
Problem 1.4—D charged with violating statute that makes in illegal to carry a gun across state lines after
being convicted of a crime punishable by more than one year. D claimed she didn’t know her crime was
punishable by more than one year.
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Is testimony that she didn’t know it was punishable by more than a year relevant?
o 401(a)—her lack of knowledge as to the prior crime’s punishment IS probative of the
fact that she had no knowledge she was committing the present crime.
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o
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401(b)—however, 401(b) requires us to think not just about the FREs, but also about the
substantive law of the case. Her knowledge about whether her crime was punishable for
more than a year is not an element of the crime. Therefore, her knowledge is NOT
material to her guilt.
The testimony is not relevant because it doesn’t satisfy 401(b)’s materiality
requirement.
Rule 104(b). Conditional Relevance
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When the relevance of evidence depends upon whether a fact exists:
o proof must be admitted sufficient to support a finding that the fact does exist
Cox v. State—Allegation that Cox killed Leonard b/c of the Leonards’ child molestation charges against
Hammer, a close friend of Cox. State wants to introduce evidence of what happened at Hammer’s
hearing 4 days before Leonard was killed.
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Evidence about Hammer’s hearing only relevant if Cox knew what happened at the hearing
o i.e. for evidence of the hearing to come in, the State must first provide evidence that
would allow a reasonable jury to find that Cox did know about the hearing
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following:
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unfair prejudice,
confusing the issues,
misleading the jury,
undue delay,
wasting time, or
needlessly presenting cumulative evidence.
Unfair Prejudice
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Likely to cause the jury to decide the case on an improper basis, e.g. based on emotion or
revenge
“In reaching a decision whether to exclude on grounds of unfair prejudice, . . . [t]he availability
of other means of proof may . . . be an appropriate factor.”
James—James was convicted of aiding and abetting manslaughter of V. James wanted to bring in
evidence that V had previously committed robbery, in order to demonstrate her fearful state of mind
when she shot him.
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This evidence was kept out under Rule 403 because the judge thought this evidence would be
used as a reason for why V deserved to be shot, rather than James’s state of mind.
Bocharski—Evidence: gruesome photos of homicide. Issue of who did it.
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No issue of relevance because dead body is relevant to homicide.
Probative under 401(a)? Probative of homicide, but not probative of who did it.
o So, low probative value. Probably a goal of inflaming the jury.
The jury reacted viscerally, but they did carefully deliberate (exemplified by how they chose F-M
instead of premeditated murder).
Therefore, prejudice didn’t SUBSTANTIALLY outweigh probative value. Just because evidence
inflames the jury doesn’t mean it can’t come in.
Old Chief—Old Chief charged with violation of statute making it illegal to possess a firearm after being
convicted of a crime punishable by more than a year. His prior crime was assault causing serious bodily
injury. He offered to stipulate that he had a prior conviction punishable by more than a year but
requested the other details be left out.
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A court abuses its discretion if it rejects a D’s offer to stipulate to the fact of a prior conviction,
when
(1) the name or nature of the prior offense raises the risk of evidence being used for an
improper purpose, and
(2) the purpose of the evidence is solely to prove the element of prior conviction.
However, the prosecutor’s choice will generally survive a 403 analysis when a D seeks to force
the substitution of an admission for evidence creating a coherent narrative of his thoughts and
actions in perpetrating the offense for which he is being tried.
Flight—a situation where 403 unfair prejudice often comes up.
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There is potential probative value in “flight” (e.g. using a false name, running from the
authorities): it may show that the person fleeing is aware of her guilt
Under FRE 403, however, there may be unfair prejudice: see, e.g., Myers, if Myers wants to
explain that his alleged actions were explained not by the robbery being charged but by a
different robbery
This would create a risk that the jury will decide the case on forbidden grounds, e.g. deciding
that he is the kind of person who commits robberies and therefore more likely to have
committed this one
The probative value of alleged flight depends on the degree of confidence with which four inferences
can be drawn (Meyers):
(1) from D’s behavior to flight;
(2) from flight to consciousness of guilt;
(3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and
o The more time between the alleged crime and the alleged flight, the less likely it is that
the flight was based on feelings of guilt concerning that crime.
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(4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged
 Flight instruction improper unless evidence gives reasonable support for all 4.
Jackson—D alleged to have committed robbery in NY. Later he’s found in Georgia and presents false ID
to officer.
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Is evidence that D was located in Georgia and used a false name when arrested inadmissible
because the danger of unfair prejudice outweighs the probative value of the evidence?
o His presence in Georgia shortly after the robbery indicates that he was attempting flight.
o Shows he likely had something to hide (guilt), chain of inferences…likely he’s guilty of
THIS crime.
o However, possibility of prejudice created by evidence of fake ID outweighed probative
value, so an agreement was reached that D would enter a stipulation that he was in
Georgia at that time but the evidence of the fake ID would be excluded.
Rule 404(b)(1).
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Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the character.
Rule 102.
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These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.
FRE 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
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If the court admits evidence that is admissible against a party or for a purpose — but not against
another party or for another purpose — the court, on timely request, must restrict the evidence
to its proper scope and instruct the jury accordingly.
o i.e. when doing 403 balancing, courts may explain to the jury the legitimate purpose to
use evidence for. Like, “You may use this evidence for this purpose but not for this other
purpose.”
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2. The Specialized Relevance Rules
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FRE 407 – Subsequent Remedial Measures
FRE 408 – Compromise Offers and Negotiations
FRE 409 – Offers to Pay Medical and Similar Expenses
FRE 410 – Pleas, Plea Discussions, and Related Statements
FRE 411 – Liability Insurance
Rule 407. Subsequent Remedial Measures
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When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
o negligence;
 e.g. if you slipped on a floor in a store and afterwards, the store installs a nonslip floor, you may not bring in the new floor as evidence of negligence.
o culpable conduct;
o a defect in a product or its design; or
o a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as:
o Impeachment, or
o If disputed—proving ownership, control, or the feasibility of precautionary measures.
Rationale: we don’t want to punish good faith efforts to mitigate danger.
Problem 2.1—Wolf attacks a beagle. The wolf owner subsequently chains up the wolf. Then, the wolf
attacks a child.
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Can the beagle owner use evidence of the chaining?
o No, the chaining was a subsequent remedial measure.
Can the child’s parents use evidence of the chaining?
o Yes, the chaining was not a subsequent remedial measure. It happened before the child
was injured.
Problem 2.3—Husband killed by Woodchipper. Wife sues maker. Maker later sells modified versions of
the machine (longer chute) to Army Corps. Maker says that the machine sold to the husband has the
safest chute you could put on the machine.
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Can she bring in evidence that the woodchipper was later modified?
o Yes, for 407 impeachment evidence. It shows an inconsistency. If the chute was the
safest they could put on the machine then why would they make it longer later?
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FRE 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction:
1. furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the
claim; and
2. conduct or a statement made during compromise negotiations about the claim —
except when offered in a criminal case and when the negotiations related to a claim by a
public office in the exercise of its regulatory, investigative, or enforcement authority.
(don’t need to know)
(b) Exceptions. The court may admit this evidence for another purpose, such as:
o proving a witness’s bias or prejudice,
o negating a contention of undue delay, or
o proving an effort to obstruct a criminal investigation or prosecution.
Bankcard—There was a contract dispute between P and D. D was accused of steering companies
towards P’s competitors in violation of K. D wanted to introduce evidence of discussions with P that
showed an understanding between the parties that the steering was okay. D wanted to use this
evidence to show a settlement had been reached.
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This did not violate 408 because the testimony showed his state of mind. It was not used to
show an admission of guilt
evidence of statements made during settlement talks only inadmissible when those statements
are offered to prove the existence (or non-existence) of liability (or impeachment by
inconsistency)
FRE 409. Offers to Pay Medical and Similar Expenses
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Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury.
Some states also keep out apologies, but not admissions of fault
FRE 411. Liability insurance.
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Evidence that a person was or was not insured against liability
Not admissible to prove whether the person acted negligently or otherwise wrongfully.
Exceptions: the court may admit this evidence for another purpose, such as proving a witness’s
bias or prejudice or proving agency, ownership, or control.
Rationale: To not discourage people from buying insurance and to not discriminate against poor
people who can’t afford insurance.
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Williams v. McCoy—P appeals personal injury action that she didn’t win enough money from. P tried to
explain that she did not hire a lawyer prior to seeking medical help because she is litigious, but because
she was advised to by an insurance agent.
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Should references to insurance have been admissible here?
o Yes, because she did not bring that evidence to show negligence or lackthereof, but to
correct a misimpression.
Problem 2.5—Lachers sue Ds after Joan Lacher falls down stairs at D’s house. D’s insurance agent took
tape recorded statement from Joan while she was hospitalized. Andersons used tape recorded
statement to impeach Joan at trial.
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Should judge exclude evidence that statement was taken by D’s insurance agent?
o Maybe admissible, if it could show bias.
Rule 410. Pleas, Plea Discussions, and Related Statements
a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against
the D who made the plea or participated in the plea discussions:
1. a guilty plea that was later withdrawn;
2. a nolo contendere plea (D does not testify as guilty or not guilty—has same effect as
guilty plea);
3. a statement made during a proceeding on either of those pleas under FRCP 11 or a
comparable state procedure; or
4. a statement made during plea discussions with an attorney for the prosecuting authority
if the discussions did not result in a guilty plea or they resulted in a later-withdrawn
guilty plea.
b) Exceptions. The court may admit a statement described in 410(a)(3) or (4):
1. in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be considered
together; or
2. in a criminal proceeding for perjury or false statement, if the D made the statement
under oath, on the record, and with counsel present.
U.S. v. Biaggi—D wanted to introduce evidence of his own plea negotiations to prove that he rejected
gov’s offer of immunity in exchange for giving up info on others. Is that evidence admissible?
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Not excluded by 410. 410 only applies to offers to accept conviction, not offers of immunity.
o Policy of 410: Plea negotiations have low probative value
 However, there is probative value here because most people would not turn
down a deal for immunity unless they were innocent.
Also, 403 did not permit exclusion (prejudice didn’t outweigh probative value) because he’d be
denied a fair trial otherwise.
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3. Character Evidence
Rule 404. Character Evidence; Crimes or Other Acts
a) Character Evidence.
1. Prohibited Uses. Evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character
or trait.
Zackowitz—D convicted of 1st degree murder (i.e. deliberate and premeditated murder), sentenced to
death. Prosecutor tried to bring evidence that at the time of arrest, D had a box of weapons in his
apartment.
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Not admissible because prosecutor was going right through the “propensity box”, i.e. using the
evidence to show that because he has these weapons he must have a propensity for being
violent and so it is more likely this murder was premeditated.
Rationale: we don’t want the jury to convict merely because they think D deserves it because of
his violent propensity, rather than because of this particular crime.
(b) Crimes, Wrongs, or Other Acts.
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(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character.
o
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This is basically just a specific example of 404(a)(1)
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On request by a defendant in a criminal case, the
prosecutor must:
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(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
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(B) do so before trial — or during trial if the court, for good cause, excuses lack of
pretrial notice.
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(special carveout for timing shows that the stakes are higher in a criminal case)
Knowledge problems: Knowledge is a common justification for getting around the propensity box. But,
you still need to pass 403. Evidence that passes 404 might still fail on 403 balancing for unfair prejudice.
Problem 3.1—D hacked a computer system and admitted to doing it. He’s later accused of hacking
another computer system.
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Is evidence of the first hacking incident admissible?
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o
It could be let in to show knowledge (i.e. he had knowledge of how to hack) or maybe
opportunity…
Problem 3.2—D was charged with a drug sale. P wants to bring in evidence of a previous drug sale that D
was involved in to show he had knowledge of the drug trade. Admissible?
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Probably not. There is less probative value here than in 3.1 because selling drugs is a more
common crime than hacking.
There is a stronger prejudice risk here. It’s a dangerous crime so the jury might want to convict.
They also might convict because they think he’ll do it again.
Problem 3.3—P sued railroad, alleging that a crash was caused by the negligence of a drunken engineer.
P wants to bring evidence of the engineer’s reputation for drunkenness.
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Prohibited purpose: His reputation for drunkenness was so bad that he must have been drunk
on this occasion (right through the propensity box)
Permitted purpose: The railroad should have had knowledge of his reputation for drunkenness
and so it was negligent to continue employing him.
o Henthorne Instruction: “ You could not look to the general bad reputation as
establishing drunkenness at this particular time. It was not offered by the plaintiff
for that purpose. They claim it for the purpose of showing that his reputation was so
generally bad that it ought to have come to the knowledge of the defendant, and that,
therefore, they were responsible for his bad conduct.”
Huddleston—D charged with selling stolen videocassette tapes. D claimed he did not know they were
stolen. P wants to bring evidence that D was previously involved with selling stolen TVs. D argued that
the evidence could not be let in unless the court could make a preliminary finding that P had proved the
“other act” by a preponderance of the evidence before it submits “similar acts” evidence.
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104(b)—A court does not have to make a preliminary finding of “other acts” by the
preponderance of the evidence. Similar acts evidence is admitted if there is enough evidence for
a reasonable jury to find that D committed the similar act.
There was enough evidence for a reasonable jury to conclude that the TVs were stolen because
D could not produce a bill of sale.
Protections against prejudice in the 404(b) context:
o 404(b)(2) requirement of a non-propensity purpose;
o 402/104(b) requirement of relevance;
o 403 balancing of probative value against risk of e.g. unfair prejudice;
o 105 instruction on proper use for the evidence.
Motive
Problem 3.4—D is on trial for murdering 2 FBI agents. Government wants to bring evidence that at the
time of the killings he was wanted for attempted murder. Admissible?
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Could maybe be used to indicate he had a motive for killing (he knew he was wanted for
murder, so he’d have motive to kill the agents trying to arrest him)
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Identity
Problem 3.6—D on trial for murdering 2 FBI agents. Prosecution wants to introduce evidence uncovered
later on from a trailer home that D was in and from a car. The evidence included:
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The gun of one of the murdered agents with D’s fingerprints on it
o Possession of the victim’s weapon makes D substantially more likely than a random
person to have been at the crime scene and to have shot the agents. This comes in
under identity. And significant enough probative value that it would be ok under 403.
D’s gun (consistent with one used to kill the agents)
o A person who has such a weapon has the means to kill and is therefore more likely to be
the killer than one who lacks such means. May rouse prejudices of jury, but a rational
jury seems unlikely to convict someone of murder simply because he possessed a gun.
And if such weapons are rather rare, evidence that D possessed this gun is strongly
probative, as it places him in a fairly small group of persons with the necessary means to
commit the crime.
Other firearms, many of which had obliterated serial numbers, and other weapon stuff
o Unclear. If D and his accomplices possessed these weapons prior to the offense, they
could possibly come in under preparation or plan. But possession of those weapons
after the offense probably indicates preparation for some other offense.
Problem 3.7—D on trial for drug charges. Police find drugs in an apartment, along with a list of bets
made in illegal gambling. D denies that this was his apartment. Police want to introduce evidence of his
conviction for illegal gambling years earlier.
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Non admissible. Based purely on propensity reasoning, i.e. idea that because D had previously
engaged in illegal gambling, he was more likely engaged in illegal gambling at time of arrest for
drug offense, and it was more likely that he occupied that apartment.
Problem 3.8—same facts as 3.7, but instead of gambling stuff, it’s brochures for bicycle equipment. P
wants to bring evidence that 3 years earlier, D was an avid cyclist.
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Probably admissible. By the plain language, this DOES go through the propensity box. However,
none of the rationales for keeping out propensity evidence apply.
Note: 404(b)(1) includes “crimes, wrongs, or other acts”—not just crimes
This evidence isn’t very probative, but there’s also not much risk of prejudice.
Trenkler—D on trial for constructing a bomb. P wanted to bring in evidence that earlier, he had
constructed a VERY similar bomb.
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Admissible to show identity as the bomb maker (plus knowledge and skill)
For a similar prior act to be used to establish the identity of the defendant, the similar acts must
be: sufficiently idiosyncratic to permit an inference of pattern for purpose of proof.
o Not necessarily identical.
403 balancing:
o On probative value:
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o
 Gov’s need for evidence
 Strength of similarity of the 2 acts
On risk of unfair prejudice:
 Inflammatory nature of the evidence;
 Degree to which the evidence would promote an inference based solely on the
defendant’s criminal propensity
Stevens—D appeals conviction for robbery. He wants to bring evidence of a previous robbery that was
VERY similar to this one for which another man was found guilty.
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This is considered “reverse 404(b)”
The standard is lower for evidence used to show identity because the crime is similar to a crime
that SOMEONE ELSE committed. Rationale: less risk of unfair prejudice.
Less burden to get this evidence in than in Trenkler.
NY’s cross-racial identification instruction: You should consider whether there is a difference in race
between the defendant and the witness who identified the defendant, and if so, you should
consider that some people have greater difficulty in accurately identifying members of a different
race than in accurately identifying members of their own race, and therefore, you should consider
whether the difference in race affected the accuracy of the witness's identification.
Lack of Accident
Problem 3.11—D charged with shooting his wife. He claims the rifle accidentally went off while he was
cleaning it. P wants to bring in evidence that D shot his first wife 3 years earlier and gave the same
explanation.
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Admissible because he claimed the present crime was an accident. Any ordinary person who had
accidentally committed this crime before would be far more careful in the future to prevent it
from happening again and therefore, it is far less likely that it was an accident here.
But watch out: it would be inadmissible to show that the present act was not accidental because
he is the type of person who does this intentionally. (straight through propensity box)
Problem 3.12—D testifies that he “reflexively” tossed a dog into the street. P wants to introduce
evidence that D had once clubbed a stray dog to death.
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Inadmissible. This only shows that he is the type of person who hurts dogs. Evidence that he
once killed a dog for fun does not show that the present wrong was less likely to be an accident,
except through propensity reasoning. Also, these two acts are less similar than the two acts in
3.11.
The Huddleston Standard—conditional relevance of “similar acts” evidence
Sometimes when bringing in evidence under 404(b)(2) you need to g et past the Huddleston standard
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o
You sometimes must apply the conditional relevance test of 104(b) to see if the evidence can
come in under 404(b)
o i.e. Could a reasonable jury find he committed this similar act (a low bar)
 This is below preponderance of the evidence, which is below proof beyond a
reasonable doubt.
Huddleston—D charged with selling stolen videocassette tapes. D claimed he did not know they were
stolen. P wants to bring evidence that D was previously involved with selling stolen TVs. D argued that
the evidence could not be let in unless the court could make a preliminary finding that P had proved the
“other act” by a preponderance of the evidence before it submits “similar acts” evidence.
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104(b)—A court does not have to make a preliminary finding of “other acts” by the
preponderance of the evidence. Similar acts evidence is admitted if there is enough evidence for
a reasonable jury to find that D committed the similar act.
There was enough evidence for a reasonable jury to conclude that the TVs were stolen because
D could not produce a bill of sale.
Protections against prejudice in the 404(b) context:
o 404(b)(2) requirement of a non-propensity purpose;
o 402/104(b) requirement of relevance;
o 403 balancing of probative value against risk of e.g. unfair prejudice;
o 105 instruction on proper use for the evidence.
Problem 3.3—D on trial for alleged robbery. 2 weeks after the robbery, D was caught committing a
separate robbery against VH. However, he was acquitted at the trial for the robbery of VH.
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Does acquittal bar admissibility of VH’s testimony?
o No. Despite the acquittal, the Huddleston standard could still be met.
o Acquittal just means the jury didn’t find D guilty beyond a reasonable doubt. But
Huddleston standard is below that.
Rules 413, 414, and 415—allow propensity evidence in cases of sexual assault or child molestation
Rationale: recidivism argument—we need more ways of punishing sexual abuse because these D’s are
likely to repeat the crime, so there is strong probative value. But this could also apply to drug offenses,
so it’s not a good argument.
Rule 413. Similar Crimes in Sexual-Assault Cases
a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court
may admit evidence that the defendant committed any other sexual assault. The evidence may
be considered on any matter to which it is relevant.
Rule 414. Similar Crimes in Child Molestation Cases
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a)Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation. The
evidence may be considered on any matter to which it is relevant.
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation, the court may admit evidence that the party committed any
other sexual assault or child molestation. The evidence may be considered as provided in
Rules 413 and 414.
Kirsch—D appeals his conviction on sexual assault charges. Three young women testified at his trial,
about alleged sexual abuse. Court admitted the evidence as relevant to motive, intent, and common
plan or scheme.
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Motive argument here is just propensity reasoning
Repetitive acts of the same nature are not necessarily a scheme. To be a scheme, they must be
part of a common plan leading toward a common outcome.
However, under 413-415 you could just say “He’s a child molester! He did it then so he’s likely to
do it now!”
Rule 404(a)(2)(A): Exceptions for a Defendant or Victim in a Criminal Case.
(a) Character Evidence.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a
criminal case:
A. D may offer evidence of D’s own pertinent trait, and if the evidence is admitted, P may
offer evidence to rebut it; . . .
B. (subject to the limitations in Rule 412) D may offer evidence of V’s pertinent trait, and if
the evidence is admitted, P may:
i.
offer evidence to rebut it; and
ii.
offer evidence of D’s same trait; and
C. in a homicide case, P may offer evidence of the V’s trait of peacefulness to rebut
evidence that V was the first aggressor.
Rule 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible
(under 404), it may be proved by testimony about the person’s reputation or by testimony in the form of
an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant
specific instances of the person’s conduct.
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(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant specific
instances of the person’s conduct.
(Like if you say you were coerced into doing something , P might rebut with “you’re predisposed to do
something like this.” Specific instances of conduct may be brought in to rebut that rebuttal
SO: If character evidence is admissible under 404, it can only be proved by opinion testimony, UNLESS
on cross examination or if the trait is an essential element of claim, in which case specific instances are
allowed.
Michelson—D appeals his conviction for bribing a federal agent. D calls 4 witnesses who testify about his
character for honesty and truthfulness. Prosecution cross-examined the witnesses, asking if they were
aware that D was convicted years earlier for receiving stolen goods.


Does D have right to bring in witnesses for character evidence?
o Yes, because under 404(a)(2)(A), a D may offer evidence of a pertinent trait. His honesty
is a pertinent trait, so it’s allowed in despite being character evidence.
Does prosecution have the right to cross-examine about D’s past bad acts, such as arrests or
convictions?
o Yes. Ordinarily the prosecution may not bring in character evidence like this, but since D
brought in evidence about his character, under 405(a) P may offer evidence to rebut
that, including specific instances of conduct.
Problem 3.16—D charged with shooting and paralyzed V. D claimed self-defense. D wants to bring in V’s
courtroom outburst as evidence of his violent nature.


Admissible under 404(a)(2)(B) because D is offering evidence of V’s pertinent trait (violence),
BUT
Inadmissible under 405(a) because a party may only bring evidence of a specific instance of
conduct to prove a character trait on cross-examination.
Problem 3.17—D claimed self-defense in a homicide trial. D testified that decedent had boasted to her
about killing a man and other violent acts. Is this admissible?



Admissible, but only because it is offered to show that D had a reasonable fear at the time of the
killing (i.e. that she engaged in propensity reasoning at that time).
It would be inadmissible as a specific instance to show that decedent had a violent character
and was therefore likely to be the initial aggressor here.
However, D is not asking the JURY to engage in propensity reasoning, she is only trying to show
that her fear that led to the killing was reasonable. So, this isn’t even really being used for
character evidence and it is therefore admissible.
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Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the habit or routine practice.
The court may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness.
Halloran—P was injured while using a can of refrigerant and sued the company that packaged and sold
it. D was prevented from putting on a witness to testify that P had on previous occasions used an
immersion coil to heat the water in which the refrigerant was placed (which would have explained the
explosion), despite having been warned of the dangers.

Is evidence that P used an immersion heating coil to heat the can of refrigerant admissible to
show his negligence, and that he failed to follow the warning labels?
o evidence of habit or regular usage should be admissible to prove that P followed the
same procedure the day he was injured.
o However, to bring this evidence in, D must establish that the behavior occurred on a
sufficient number of instances. This would be strong evidence to suggest it’s the sort of
thing P would do without thinking.
o Evidence of habit or regular usage… involves more than un-patterned occasional
conduct, i.e. conduct likely to vary from time to time depending upon the surrounding
circumstances. It involves a repetitive pattern of conduct and therefore predictable and
predictive conduct.
Problem 3.19—P’s estate sued P’s allergist for prescribing him steroids for decades while telling P they
were antihistamines. D’s defense is that he never prescribed steroids to P. Can P’s estate bring in
evidence that D prescribed steroids to eight other patients, while representing that they were
antihistamines and decongestants?


We would need to know not only how many patients has D done this to, but how many has he
NOT done this to.
First issue to address is regularity of his behavior. To know this we need to know how many
patients he has not treated this way. If he only treated 8 this way out of hundreds, then this
would not suggest great regularity.
Problem 3.18—D committed homicide, claimed self-defense. D brings toxicologist’s testimony which
suggests that V used cocaine, alcohol, and heroin, which have a tendency to increase the likelihood that
V was the aggressor.


Admissible. Not character evidence because D is not asking the jury to conclude from V’s drug
use that V had a violent character and acted in accordance with that trait in being the first
aggressor.
Rather, D wants the jury to conclude that shortly before his death, the victim had ingested a
combination of drugs that typically induces violence. This isn’t about the impact of character on
behavior, but the impact of DRUGS on behavior.
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
The character evidence rules pose no bar to evidence of the victim’s drug use when offered to
show the physiological or behavioral impact of those drugs while in the victim’s system. (still
need to consider 403 balancing)
4. The Rape Shield Law
Rule 412. Sex-Offense Cases: The Victim
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving
alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
**
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
State v. Smith—D convicted of “attempted indecent behavior with a juvenile.” He wants to introduce
evidence of “prior false allegations of molestation made by the victim.”

Admissible. 412 does not include allegations as sexual behavior or predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
A. evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone
other than D was the source of semen, injury, or other physical evidence
B. evidence of specific instances of a victim’s sexual behavior with respect D, if offered by the
defendant to prove consent, or if offered by the prosecutor; and
C. evidence whose exclusion would violate D’s constitutional rights.
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5. Impeachment and Character for
Truthfulness
FRE 608 and 609 impose restrictions on the use of evidence to attack a witness’s character for
truthfulness after she testifies.
But note that there are other ways to try to impeach a witness, e.g.:



By trying to attack her powers of perception, memory, or narrative accuracy (with aim of
showing an error);
By trying to contradict her testimony, whether or not by a prior inconsistent statement (might
be aimed at showing a lie or an error);
By trying to show bias (typically with aim of showing a lie).
Rule 607. Who May Impeach a Witness
o
Any party, including the party that called the witness, may attack the witness’s credibility.
o (an exception to propensity reasoning ban)
Rule 608. A Witness’s Character for truthfulness or untruthfulness
(a) Reputation or Opinion Evidence. You can bring a witness to attack or support a witness’s
character for truthfulness, but it must be reputation or opinion testimony. If it’s evidence of
witness’s truthful (as opposed to untruthful) character, you can only bring this once the
witness’s truthful character has been attacked.
(b) Specific Instances of Conduct. You can not bring in extrinsic evidence for specific instances that
show the witness is truthful or untruthful, EXCEPT on cross-examination where that’s always
allowed if probative of character for truthfulness of
i.
the witness; or
ii.
another witness whose character the witness being cross-examined has testified about.
Whitmore—D arrested on firearms conviction. D tries to bring two forms of impeachment against the
arresting officer:
1. witnesses who would testify as to the officer’s character for truthfulness (all reputation and/or
opinion testimony)
o inadmissible
2. Cross-examination of officer under 608(b)
o Admissible
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
1. For a crime punishable by death or imprisonment for more than a year, the evidence
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A. (If Witness is NOT D)—must be admitted subject to 403 in a civil or criminal case
B. (If Witness IS D)—must be admitted in a criminal case, if the probative value of
the evidence outweighs its prejudicial effect to that D (use Gordon factors here
—basically replaces 403 test) (you couldn’t have A and B—these are 2 alternate
scenarios)
2. the evidence must be admitted if establishing the elements of the crime required
proving — or the witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. Applies if more than 10 years have passed since
witness’s conviction or release from confinement. Admissible only if:
1. its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
2.
the proponent gives an adverse party reasonable written notice of the intent to use it
so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. . . .
(d) Juvenile Adjudications. . . .
(e) Pendency of an Appeal. . . .
Gordon factors—used for 609(a)(1)(B)—applies to criminal Ds—factors to consider in assessing whether
the impeachment value of evidence of a past crime outweighs potential prejudicial effect.
1. The nature of the crime (its impeachment value);
2. The time of conviction and the witness’ subsequent history;
3. Similarity between the past crime and the charged crime;
o
The more similar it is the more inclined the court should be to keep it out.
4. Importance of defendant’s testimony; and
o
The more important it is, the more hesitant the court should be to admit the
impeachment testimony of past charged crime. If it is allowed, D may be unlikely to take
the stand. If D’s only defense is his own testimony, the more important his testimony is.
5. The centrality of the credibility issue.
Difference between 403 balancing and 609(a)(1)(B) balancing:
403: Does prejudicial effect outweigh the probative value for showing guilt?
609(a)(1)(B): Does prejudicial effect outweigh the probative value for showing character for
untruthfulness
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Is a Witness Conviction Admissible to Impeach the Witness under FRE 609?
1. Is this a crime that fits the 609(a)(2) definition? If yes, it generally* must be admitted, without
FRE 403 balancing.
2. Is this a crime that fits the 609(a)(1) definition? If yes:

If the witness is not a criminal defendant, it generally* must be admitted, subject to FRE
403.

If the witness is a criminal defendant, it generally* must be admitted, unless the 609(a)
(1)(B) balancing test keeps it out (use the Gordon factors).
* Even if it falls within one of the 2 categories of 609(a) convictions, it could still be kept out under (b),
(c), or (d).
Problem 405—Defense counsel tried to impeach A’s testimony by bringing evidence of a past conviction
(punishable by max 6 months) which criminalizes (1) control without authorization; (2) control by
deception; and (3) control by theft over someone else’s property. As part of his guilty plea, he admitted
to “tampering with electric meters.” His lawyer in the civil case said that the criminal case involved him
helping restaurant owners to alter their electric meters to reduce their bills.




Does not come in under 609(a)(1) because of maximum 6 month sentence.
It will come in only if admissible under 609(a)(2). A’s past crime consisted of 3 alternative forms
of conduct, only one of which included deception by its terms. If the judge only had these
statutory elements to rely on the evidence should be kept out. But since A admitted to
tampering with the meters, he admitted to a crime that necessarily involves deceit and
therefore comes in under 609(a)(2).
The lawyer’s words, however, would not be enough because they wouldn’t allow for a “ready
determination of fact.”
We also must consider whether the past crime falls within the 10 year window but we don’t
have enough info for that.
Luce—


If a criminal D learns that the government is allowed to impeach her testimony with prior
convictions, and decides not to testify, she cannot subsequently appeal the ruling that permitted
impeachment.
So, her choices are:
o Stay silent and lose the ability to appeal this issue if convicted; or
o Testify and (presumably) get impeached; if convicted, retain the ability to appeal this
issue.
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Ohler—


If a criminal D learns that the government is allowed to impeach her testimony with prior
convictions, and decides to mention the convictions on her direct examination, she cannot
subsequently appeal the ruling that permitted impeachment.
So, her choices are:
o Stay silent and lose the ability to appeal this issue if convicted; or
o Testify and mention the convictions on direct examination; lose the ability to appeal the
impeachment ruling.
o Testify and omit mention of the convictions on direct examination; (presumably) face
full impact of impeachment on cross; retain ability to appeal the impeachment ruling..
Split in states about whether they use Luce or Ohler.
Impeachment & rehabilitation:


If impeachment of a witness involves an attack on her character for truthfulness (e.g. 608(a),
608(b), 609, or sometimes contradiction), then
o You can attempt to rehabilitate her by showing her *good* character for truthfulness,
but
o You must do so in a way permitted by FRE 608; e.g. there must be an attack first.
If impeachment of a witness does not involve an attack on her character for truthfulness (e.g.
bias or most contradiction), then
o The impeachment is not restrained by FRE 608 (e.g. you can use extrinsic evidence to
conduct the impeachment, “on a matter that counts”); and
o The other party can attempt to rebut the impeachment, and
o Is not constrained by FRE 608 (e.g. doesn’t need to wait for the witness to be attacked
before providing corroborating evidence).
Problem 4.7—Kettles is government’s witness in trial against Bonner. Bonner attacks Kettles’ character,
saying, “might have gained some advantage from cooperating with the government,” to imply Kettles
had some bias. Kettles brought 2 character witnesses who offered a high opinion of Kettles’ honesty.


Are those character witnesses admissible?
No. Evidence of bias or interest does not count as an attack on a witness’ character for
truthfulness under 608(a). 608(a) would only allow the government to bring evidence of Kettles’
character for truthfulness if Bonner had first attacked her character for truthfulness, but he had
not.
Problem 4.9—Hall on trial for conspiracy to run a drug lab. Schriner pled guilty to operating the lab and
testified that Hall had allowed her to operate the lab in Hall’s home.

Hall wanted to call 2 witnesses:
1. Parker would testify that Schriner once had “falsely accused him of possessing
methamphetamine to divert authorities’ attention from her to Parker.”
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


2. Mikolash would say ”that Schriner threatened to report him to the Division of Criminal
investigation [for alleged drug crimes] if he refused to fix her car.
Shriner’s past lies are specific instances of past conduct, so if they are offered to show he is a liar
by nature, then 608(b) would keep them out because they were not offered on crossexamination.
If offered to show a motive, then Mikolash’s testimony would be inadmissible because Hall was
not claiming that Schriner still wanted her car fixed.
Parker’s testimony might be admissible to show motive because Hall could argue that the
same motive that allegedly prompted Schriner to testify against Parker (diverting authorities’
suspicions of narcotics violations) still might have been motivating her to testify against Hall. If
so, Parker’s testimony would tend to show not that Schriner was a liar by nature, but that she
had a reason to lie and that this same motive had proved in the past powerful enough to move
her to lie. Butttt it’s still propensity evidence--that Schriner tended to respond to this sort of
pressure by lying. Again, Rule 608(b) bars extrinsic evidence of such a lying tendency.
6. Competency of Witnesses

Being qualified to give testimony at trial
Rule 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state
law governs the witness’s competency regarding a claim or defense for which state law supplies the rule
of decision.

When do rules provide otherwise?
o Evidence is irrelevant under 401
o 602—no personal knowledge
o 603—unwilling to take oath to tell truth
o Rebuttable presumption that children are competent (created by congress In the 90s)
Rule 602. Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of
the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
Rule 603. Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form
designed to impress that duty on the witness’s conscience.
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7. The Rule Against Hearsay
Basics of Hearsay analysis:





Do we have hearsay under the definition of 801(c)? If no, hearsay analysis can end.
If yes, is it a statement that the rules drafters have said under 801(d) is not hearsay (Prior
statements, or opposing party’s statement)? If yes, hearsay analysis can end.
If no, does the statement fit into one of the exceptions to the hearsay ban contained within 803
or 804? (Note that the 804 exceptions apply only if the declarant is “unavailable” as defined in
804(a)).
If no, does the statement fit under 807 (the “residual exception”)?
If no, 802 usually keeps it out (though if a criminal defendant wants it in, Chambers offers a
long-shot constitutional argument).
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:



a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Rule 801. Definitions
The following definitions apply under this article:
a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.
b) Declarant. “Declarant” means the person who made the statement.
c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Assertion: “A person's speaking, writing, acting, or failing to act with the intent of expressing a fact or
opinion.”

It’s only hearsay if there’s an assertion and there’s only an assertion if there’s an intention to
communicate, which means there must be an audience in mind.
Fisher paraphrase: Hearsay is “an out-of-court statement offered by a litigant to prove what the
declarant [i.e. the person who made the statement] asserted.”
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Written Assertion
Problem 7.1—P sues SUV maker for rollover hazard and brings witness affidavit showing that the
maker’s tests demonstrated that hazard. Is the affidavit hearsay?

Yes. The affidavit was made out of court, and it is being offered to prove the facts recorded
within it. It is also a written assertion, which falls within the 801(a) definition of statement.
Nonverbal conduct
Problem 7.2—P wants to prove D was short of cash and calls D’s friend as a witness. The friend testifies
that she asked Jeffrey “Why don’t you replace that beat-up carcass of a bicycle?” and that afterward he
held up his right hand and rubbed his thumb together with his index and middle fingers. Is the testimony
about that gesture hearsay?

Yes. It was an assertion because it was intended to answer the friend’s question. The gesture
said, in effect, “Money is the reason I don’t replace the bicycle.”
Statement not by a “person”?
Problem 7.4—D arrested for DUI. Police sent D’s blood to lab for testing. Prosecution offers print-out
from lab showing that his blood contained certain drugs at the time it was taken. Is this printout
hearsay??




No.
801’s definitions of “statement” and “declarant” confine hearsay to statements of “a person.”
Hence information generated and printed exclusively by a machine cannot be hearsay. The
question is whether the analysis results printed by the lab equipment in this case were
generated exclusively by a machine.
Well a lab technician must review and analyze the results and know how to operate the
machine…and someone had to program the machine, thereby certifying that its results were
accurate
Most courts would regard the technician’s and programmer’s role as too distant and diffuse and
the technician’s role as too routine to consider the human input hearsay rather than just
authentication.
Statement offered to prove falsity
Problem 7.8—D charged with lying to customs by saying he brought no other items with him when he
actually brought firearms. D wanted friend to testify that during the customs inspection D had said “I
have some more items to declare.”

Was the officers’ testimony that White “denied having acquired other items abroad” hearsay if
offered to prove that he lied?
o Not hearsay. It was offered to show that D lied, but hearsay only includes statements
offered for their truth.
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
Was friend’s testimony hearsay?
o Not hearsay. He’s not offering this evidence for truth of statement that he had more
items to declare (this isn’t at issue—of course he had more items to declare), but he’s
offering it to show that he tried to declare them.
Public v. private statements as assertions
Problem 7.9—Ship sank, killing passengers. Ship’s owner wants to show the ship was seaworthy, so he
brings dockworker to testify that after the captain made a careful inspection of the ship, he escorted his
family on board and set sail.

Probably not hearsay. The dockworker was not making any kind of assertion. There was no
audience, no one he was trying to prove anything to.
Problem 7.10—Chairman of the Atomic Energy Commission wanted to prove that site of blast was safe,
told reporters that he was taking his wife and daughters with him to the site of the blast. Would
testimony of an observer describing chairman’s trip be hearsay if offered to show chairman’s opinion
that the site was safe?

It is hearsay—he was making this trip to make an assertion to an audience that the site was safe.
EXCEPTIONS pt 1—801(d)(2)—opposing party’s statement
Rule 801. Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
*
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
 Sometimes silence can be an adoption. Must meet 4 elements:
1. the adopted statement was heard and understood by the
party against whom it is offered;
2. the party was at liberty to respond;
3. the circumstances naturally called for a response; and
4. the party failed to respond (or, often, responded but failed
to deny or rebut).
(C) was made by a person whom the party authorized to make a statement on
the subject;
 Must determine whether party really authorized declarant to make that
statement.
 Judge must look at the statement itself. But, the statement itself is
never enough to establish that authority
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(D) was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed; or . . .
 Statement can be considered to determine scope of relationship (not
enough by itself)
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.
 The statement must be considered but does not by itself establish . . .
the existence of the conspiracy or participation in it under (E).
Hoodstrapping—using evidence to show that same evidence should come in
801(d)(2)(A)—was made by the party in an individual or representative capacity
Problem 7.11—P sued airline for injuries that caused her to miss work. D offered records signed by P
that showed she still worked many hours.


Hearsay under 801(c) – it’s a verbal assertion of “this is how many hours I worked” and it’s
coming in for that statement’s truth, BUT
Comes in under 801(d)(2)(a) exception—if she exaggerated the number of hours she worked,
then she can’t complain about her own statement coming in against her.
801(d)(2)(B)—is one the party manifested that it adopted or believed to be true.
Problem 7.13—At D’s trial, P called officer to testify about drug deal. Officer was sitting with Monroe
and D and Monroe said “you can get another from my buddy,” and that at that moment D got up and
fetched more drugs. Did D adopt that statement by his silence?





Yes
2nd and 4th conditions are met.
For 1st condition, we can’t know for sure whether Beckham heard and understood Monroe. But
his actions immediately after her statement—getting up, retrieving a bag full of drugs, and
beginning to open the bag—suggest he heard her clearly.
For 3rd condition, it’s trickier. But because Beckham got up and retrieved a bag of drugs
packaged in $50 units as Monroe suggested, the question whether the circumstances naturally
called for a response essentially drops out of the case. By his actions, Beckham did respond—
and did so affirmatively. His actions effectively adopted and ratified Monroe’s suggestions that
he was her buddy and that Dunston could get “another” from Beckham.
So yes, he was found to have adopted the statement through his silence and actions. So not
hearsay and the rules of hearsay don’t keep that statement from coming in against him.
Problem 7.14—D was on trial for the murder of an 8-year-old 21 years earlier. P brought D’s daughter as
a witness who testified that after telling him that she was following his instruction to tell the truth, he
responded by pointing to a nearby sign: “Notice. This station may be monitored.”


Does D’s silence here count as an adoption of his daughter’s implied accusation?
1st and 4th conditions are easily met. Franklin’s response in pointing to the sign suggests he
understood the inculpatory quality of his daughter’s statement, and he made no attempt to
rebut her accusation.
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

Was he at liberty to respond? Yes, he was allowed to, but perhaps his lawyer advised him not to
discuss the case in a monitored area.
Even if he was at liberty to respond, warnings from his lawyer would make his response less
natural. Miranda warnings would also make his response less natural.
801(2)(C)—was made by a person whom the party authorized to make a statement on the subject



If you authorize a statement, that statement can come in against you.
You authorize a statement by specifically giving someone the power to speak on your behalf.
A statement made by an agent of a company can come in against the company if made within
the scope of the employer relationship.
Mahlandt—The note left by Mr. Poos and the statement that he later made were admissible under the
statement of a party opponent exception to the hearsay rule. Moreover, they are admissible against the
corporate defendant because Mr. Poos was an agent of the corporate defendant at the time.

Statements can come in when offered through an opposing party’s spokesperson.
Problem 7.15—P suing condo company after slipping on ice. After his fall, his friend called the
management company, complaining about the ice. A man with a shovel and bucket eventually arrived,
and stated “Those guys on the day shift were supposed to shovel and salt, but they bagged it and went
home early.” D wants his friend to testify about this statement.




His complaint about his coworkers’ failure to shovel and salt concerned “a matter within the
scope of that [employment] relationship.”
But was he an employee? Several facts suggest he was, e.g. he arrived shortly after the call, he
carried a bucket and a shovel, and his statement about his coworkers amounted to a claim that
he worked at the condo complex.
Could that statement itself be used as evidence of its own admissibility? (i.e. “bootstrapping”)
o Yes, it may be considered but does not by itself establish the existence of an
employment relationship.
This can come in against the company.
801(d)(2)(E)—was made by the party’s coconspirator during and in furtherance of the conspiracy


Under certain circumstances, a coconspirator’s statement may come in against the Defendant.
A coconspirator is someone who:
o Knows of the Defendant’s scheme; and
o Intended to be part of it
Rule 805. Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
o Both the top and bottom layers of the hearsay must be subjected to a hearsay analysis.
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Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by
evidence rules, except those on privilege (don’t worry about privilege for the exam).
o The court can look at anything it wants in determining whether evidence can come in
(regardless of whether jurors can look at it).
o A party can use evidence to show that evidence itself is admissible.
Bourjaily—D convicted of conspiracy to distribute cocaine. D objects to admission of Lonardo’s
telephone statement regarding the participation of his “friend” (apparently D) in a cocaine transaction.



The court must first look at 104(a) to determine whether 801(d)(2)(E) applies:
o Whether there was a conspiracy involving the declarant and the party against whom the
statement is being offered; and
o Whether the statement was made during the course of and in furtherance of the
conspiracy.
The standard to be applied to those questions is that the offering party must satisfy them to a
preponderance of the evidence (104(a))
The contested statement itself can be evidence going toward these questions. (FRE rules
drafters have expanded on this point.)
Another example 0f 104(a) is excited utterance—must decide whether declarant was under stress or
excitement—can use the statement itself
Problem 7.16—Undercover agent bought heroin from N, cousin of Y, and arranged to buy more. Y gave
the agent a case containing more heroin; all 3 then boarded a flight. N acted as an interpreter on the
flight, and when the agent asked about the quality of the heroin, Y responded (according to N’s
translation) that it was so strong that when he packed the heroin it had made his nose bleed.
Prosecution wants agent to testify about N’s translation of Y’s statement.



Hearsay within hearsay issue613
Bottom layer—Y’s statement: “This heroin is very strong”
o Comes in under 801(d)(2)(A)
Top Layer—N’s translation of Y’s statement: “Y said, ‘This heroin is very strong.’”
o If Y understood English, we could conclude that he adopted N’s translation by not
refuting it. But there is no evidence Y understood what N was saying on the plane.
o Could come in under 801(d)(2)(C)—N was acting as Y’s “spokesperson” because Y had
authorized N to make a statement on the subject of the heroin deal.
o Could also come in under 801(d)(2)(E)—N was Y’s coconspirator and the statement was
made during and in furtherance of the conspiracy.
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Exceptions pt 2—Inconsistent statements offered to impeach—Rule 613
Rule 613. Witness
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the
witness’s prior statement, a party need not show it or disclose its contents to the witness. But
the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if
o the witness is given an opportunity to explain or deny the statement and
o the non-impeaching side is given an opportunity to examine the witness about it, or if
justice so requires. This subdivision (b) does not apply to an opposing party’s statement
under Rule 801(d)(2).
So this rule really isn’t a hearsay exception, but part of the impeachment rules. This places some limits
on impeachment by prior inconsistent statements. It’s in the hearsay section to show that prior
statements used to impeach by inconstancy are not hearsay because they’re not coming in for their
truth. Judge can give a limiting instruction to that effect.
Hypo—In a robbery case, the P testified that because she had been robbed, her boyfriend had to pay
the fare when she got home. Defense counsel cross-examines the cab driver with evidence that he
previously had told the police that she paid the fare.


If the prosecution asks for a limiting instruction in connection with that prior statement, what
might it say?
o This evidence should only be used to show the cab driver had made an inconsistent
statement, not to prove the truth of what the cab driver asserts, i.e. that P had paid that
fair.
If the cab driver denies making the prior statement, can defense counsel call a police officer to
testify about it?
o Yes, because it would be used only to show the inconsistency, not to show the truth of
the statement.
Barret—D convicted for selling stolen postage stamps. At issue is the exclusion of the testimony of 2
witnesses offered by D, both of whom would say that they’d heard Adams (a key witness against D) say
that D was not involved.


Admissible under 613(b)
This would be hearsay if it was coming in for its truth, but the testimony is only coming in to
show the inconsistency of Adams’ testimony.
Problem 7.17—Raymond tells police detective that she saw D fire the fatal shot. At D’s trial, the
prosecution calls Raymond and she testifies that she was nowhere near and has no idea who shot the
victim. When questioned about her prior statement, she denies having made it. The prosecutor calls the
detective, who testifies about the interview.

The prosecution rests with no other evidence of the shooter’s identity; should the judge grant a
motion for a directed verdict of acquittal?
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o
Yes. The evidence of the prior inconsistent statement is admissible under 613. Now that
Raymond has made inconsistent statements about who the shooter is, there is no other
evidence about the shooter’s identity. So the judge would have no choice but to enter a
directed verdict of not guilty.
Ince—D charged with assault for shooting at trucks. Friend told a cop that D admitted to the shooting.
Prosecution calls friend who says he can’t remember what D said. Prosecution calls cop who describes
the friend’s statement.

Is cop’s statement admissible to impeach credibility of friend?
o Yes, technically, BUT it’s still impermissible.
o This is subterfuge—the cop is bringing in a statement about what the friend said to
impeach the friend, but his real purpose is to show the jury this statement for its truth.
 This impeachment testimony is highly prejudicial and is an impermissible
loophole to the rule against hearsay.
Using Silence as Impeachment:
Fletcher v. Weir—Weir is tried for murder, testifies that it was self-defense and an accident. But he
didn’t say that to the police pre or post arrest. Convicted of manslaughter



impeachment using pre-arrest silence is not a constitutional violation
Impeachment using silence following miranda warnings is a constitutional violation (you have
right to remain silent and anything you say may be used against you)
But what about impeachment using post arrest silence where there is not indication that
miranda warnings were given?
o Can be used to impeach
Solinas—D not in custody but being questioned—silence could come in against D under theory that D
adopted statement
D not in custody
May silence be an
“Adoption” under
801(d)(2)(B)?
May Silence be used to
impeach?
Split
D in custody/ PreMiranda
Split
D in custody/ PostMiranda
No
Yes (Fletcher)
Yes (Fletcher)
No (Fletcher)
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Exceptions pt 3—801(d)(1)—Prior Statements
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not
hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to crossexamination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
o This is different from 613 impeachment because here it IS coming
in for its truth.
(B) is consistent with the declarant’s testimony and is offered:
i.
to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying; or
ii. *
(C)
identifies a person as someone the declarant perceived earlier.
801(d)(1)(a)—inconsistent prior statements
Problem 7.19—at grand jury FT testified that father of child hit her in eye. At assault trial she says it
occurred accidentally from door. Transcript of grand jury testimony comes into evidence. If no further ev
offered on cause of injury, should judge order a directed verdict of acquittal? (i.e. has there been any
substantive evidence that Robinson was the cause?)



No. Grand jury proceedings qualify as “hearing[s]” for purposes of Rule 801(d)(1)(A).
If FT’s grand jury testimony was admitted under Rule 801(d)(1)(A), it came in
as substantive evidence of the facts F.T. related to the grand jury.
Given that a reasonable juror could find D guilty beyond a reasonable doubt, most judges would
(and should) decline to direct a verdict of acquittal.
Problem 7.20—Same facts as 7.19, but what if FT testified at assault trial that she didn’t recall how she
got injured because the injury damaged her memory.


Was she subject to cross-examination about the prior statement? Yes
Does saying she doesn’t remember count as inconsistency? Courts could come out either way. It
would have to be genuine to come in for inconsistency. A person could argue that the fact that
she could remember is inconsistent with statement that she can not remember, so this is
inconsistent.
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801(d)(1)(B)—consistent prior statements

Can come in if:
o To rebut an express or implied charge that declarant lied or acted from an improper
motive or influence for testifying
Tome—Mother and father fight over custody, mother loses. A year later, child tells mother that father
abused child and mother reports that claim. D argues allegations were concocted to stay with her
mother. Prosecutor brings 6 adult witnesses all bringing evidence of child’s prior statements about
sexual abuse.

801(d)1(B)(i)—the alleged statements need to have arisen before alleged motive arose. These
alleged prior statements must predate the existence of this alleged motive.
801(d)(1)(C)—prior statements of identification
Owens—Foster was attacked, severely impairing his memory. He wasn’t able to remember who attacked
him but he eventually identified his assailant as Owens. He could not explain how he came to that
conclusion or remember if anyone had suggested that.





Was he subject to cross-examination about this prior statement as per 801(d)(1)? Yes.
Because he wasn’t able to remember how he came to ID Owens, he wasn’t meaningfully subject
to cross examination about ID
However, the constitutional right to confront witnesses doesn’t mean we’re entitled to perfect
witness. So no confrontation clause violation.
This ID statement can come in even if he can’t remember how he came to Id assailant as Owens.
Ordinarily witness is subject to cross examination if he’s under oath, on the stand, and responds
to questions. We have all those elements here, so Owens doesn’t get a new trial.
Problem 7.21—At Robinson’s assault trial, FT testified that her eye injury occurred accidentally when
Robinson pushed the bathroom door open. The trial court admitted testimony of the treating nurse who
said that FT told her that “[M]y kids’ dad came over drunk; got to argue with me and then [with an]
open hand slapped me really hard on the face.” Robinson was convicted.

Is this alleged statement admissible under 801(d)(1)(C)?
o If we focus on language of identification, at the very most “my kids dad” comes in.
Probably couldn’t get the other stuff in under this provision.
o Another argument to make as a defense attorney—we have this exception for cases
where we’re uncertain about identity. Here no one is contesting identity
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Exceptions pt 4—804. Declarant Unavailable
Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the
declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the
court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity,
physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)
(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule
804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
Former Testimony
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in
interest had — an opportunity and similar motive to develop it by direct, cross-, or
redirect examination.
Problem 7.22—FT went to hospital for her eye injury. At Grand Jury trial, with prosecutor present, she
testified that Robinson hit her. Later, at Robinson’s trial, she refused to testify. Is there a hearsay
problem with the transcript of the grand jury testimony coming into evidence?


Can’t come in under 801(d)(1) because she is not “subject to cross-examination about her prior
statement”
Under 804(a)(2) she is unavailable, but it’s not admissible under 804(b)(1). If the declarant is not
now subject to cross-examination by the party against whom her past statement is offered, she
must have been subject to cross-exam by the party when the past statement was made. FT was
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not. So, D did not have opportunity to cross-examine this statement (the only people usually in a
grand jury room are the jurors, the prosecutor, and the witness.)
Problem 7.23—Crewing and Morgan collided in an intersection. Morgan sued crewing. At trial Morgan
testifies and was cross-examined by Crewing. Later, Crewing was on criminal trial for drunk driving and
Morgan was unable to attend because of a head injury. Should the judge be able to permit the
testimony given by Morgan at the first trial?


Morgan is unavailable under 801(d)(1)
But, did Crewing have similar opportunity and motive to develop that testimony at the first trial?
o Yes to opportunity—Crewing had chance to cross-examine at first trial
o But similar motive? We’d need more facts, but it seems that Crewing had less motive to
develop Morgan’s testimony at the civil trial (because he was only facing incarceration
at the criminal one). Therefore, the testimony should probably be kept out.
Duenas—D convicted on drug, firearm, conspiracy counts after a raid. He objects to testimony of Officer,
given at earlier hearing to suppress D’s statements, being admitted after officer’s death.

Officer was unavailable, but D did not have similar motive to cross-examine. Both hearings were
too distinct. (you don’t have to look at the motive of the statement itself, but the motive of the
lawyer at that stage of the hearing)
Predecessor in interest
Lloyd v. American Export Lines—crew members A and L got in a physical fight on a ship owned by D.
Coast guard held hearing in which L gave testimony about the fight. Then, A sued D for negligence in
employing L. L could not make it to this trial. D wants to bring L’s testimony from the coast guard
hearing to show that A had initiated the fight.


L is unavailable.
Question under 804(b)(1)(B) of whether the party that the unavailable witness’s testimony is
being brought against (A) had similar motive and opportunity to cross-examine at the coast
guard trial.
o A wasn’t at the coast guard trial, so no, BUT it’s still admissible if the Coast Guard is A’s
“predecessor in interest”
o Coast Guard was A’s predecessor in interest because they both shared a “community of
interest”—i.e. they were both trying to establish culpability.
Statements Against Interest
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
(2) *
(3) Statement Against Interest. A statement that:
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(A) a reasonable person in the declarant’s position would have made only if the person
believed it to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s
claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it
is offered in a criminal case as one that tends to expose the declarant to criminal liability.
***
Williamson—W convicted of cocaine charges. Harris made statements admitting is involvement in the
cocaine transaction but says he acted at W’s behest. Harris refused to testify at W’s trial. Prosecutor
wants to bring Harris’s statements under 804(b)(3)


Harris’s statement must not be analyzed as “a report or narrative” but as a series of “single
declarations or remarks.” With regard to each declaration or remark contained in the statement
we must ask whether it is sufficiently against his penal interest that a reasonable person in his
situation would not have said it if it weren’t true.
The parts of Harris’s statement where he admitted involvement were admissible, but the parts
where he tried to shift the blame were not.
Problem 7.24—Police investigate robbery of truck allegedly committed by a man and woman and charge
Magnolia. Detective asks Barton’s mother about it and she says “Did you rob that truck? Don’t lie to
me!” He says, “Ask Magnolia, it was her idea!” Barton refuses to testify at trial and is thus not available.




Those words are admissible against Barton under 801(d)(2)(A). but are they admissible against
magnolia?
Not a coconspirator’s statement because they were not in furtherance of the conspiracy.
It’s a statement against his interest because he made the implication that he was involved in the
robbery. But, according to Williamson, we need to separate the statement into its parts.
o The statement cannot be separated, but the meaning can. There are two halves to the
statement: (1) I helped rob the truck, (2) It was Magnolia’s idea.
o The first remark is against Barton’s interest, but the second is not.
Also, prosecution still needs corroborating evidence…
Belief of Imminent Death
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
*
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case,
a statement that the declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstances.
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*
Problem 7.28—D on trial for Mullen’s murder. Mullen’s physician testifies that Mullen was in a normal
state of mind when he told Mullen “the chances are all against you.” Defense counsel wants to bring
evidence that Mullen then said D did not shoot him.


Dying declaration under 804(b)(2)? He is unavailable because he died, and the statement was
made about the cause or circumstances of his death and is offered in a homicide prosecution.
Issue is whether Mullen at that time believed his death was imminent.
o Requirement is that he had “spoken without hope of recovery and in the shadow of
impending death.”
o Judge could come out either way. Doctor’s opinion is not Mullen’s own so we have no
direct evidence of Mullen’s state of mind at the time. So it would depend on how
seriously Mullen took the doctor’s opinion.
Shepard v. U.S.—Shepard appeals conviction for murdering his wife. Prosecution wants to bring
testimony from wife’s nurse that wife asked if there was enough liquid left in the bottle to be tested and
that “Dr. Shepard had poisoned me”


To be a dying declaration the declarant must have no hope of pulling through.
Declarant must have personal knowledge—602—602 applies to witnesses but may apply to
declarants under 804 exceptions.
Rule 602. Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of
the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
*
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully caused — or acquiesced in wrongfully
causing — the declarant’s unavailability as a witness, and did so intending that result.
U.S. v. Gray—D convicted on counts relating to receipt of insurance proceeds following the death of her
husband, Gray, and lover, Goode. Prosecution wants to bring statements made by Gray before his death
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
This case gives us 3 factors to see if evidence should be let in under this rule. Court must find by
a preponderance evidence that:
o D engaged or acquiesced in wrongdoing
o That was intended to render the declarant unavailable as a witness and
o That did, in fact, render the declarant unavailable as a witness
Exceptions pt 5—803—whether or not declarant is available
(1)Present Sense, (2)Excited Utterance, (3)Then-Existing Mental, Emotional, or
Physical Condition, (4)Statement Made for Medical Diagnosis or Treatment,
(5)Recorded Recollection
Rule 803. Exceptions to the Rule Against Hearsay
The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.

(does not require startling event—declarant can be perfectly calm)
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused.
Problem 7.29—Woman killed by dog. Smith testified that Victim had spoken to her on the phone earlier
and said:
o
o
o
“That dog just bit me”
“I told noel that he needed to control his dog” (same call as first)
“As I was walking by the dog lunged at me. I put my hand out, and the dog bit me…
thank god I had my sports watch on.” (When Smith got home)
Could it come in under 803?


The first two would probably come in under excited utterance. Victim’s claim that it “just”
happened, together with Smith’s claim that she sounded “agitated” suggests she was under
state of excitement cause by the bite (also potentially present sense impression.)
3rd one probably wouldn’t come in because several hours had past and she had probably calmed
down sufficiently to regain “the capacity of reflection and produce utterances of conscious
fabrication”
Problem 7.30—Woman who lived across the hall from whipple made 911 call and said”
o
“We have two dogs rampaging out in the hall…even owner can’t control them”
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o
“Oh, I think they’re attacking the owner too. She’s screaming and I don’t dare open the
door because the dogs are huge”
D (the owner) wants these statements in to show she struggled in vain to control them

Might be excited utterance or present sense impression, but under 602 she did not produce
sufficient evidence to show she had personal knowledge about who the screams were coming
from.
Problem 7.31—Officers found Lori crying and upset and she told them that her husband had knocked
her down and pushed her head into a wall. Officer saw her knees were scraped and lori said it happened
because her husband knocked her down. At trial She denied that her husband did anything. Was the
judge right to allow an officer to relay her alleged statements?



Could not be admitted under Rule 801(d)(1)(A) or Rule 804(b)(1) as past inconsistent statements
or past testimony because they weren’t made under oath at a proceeding.
They could come in to impeach probably, but then her words could not be evidence of
husband’s guilt.
Excited utterance? When police arrived she was crying and upset and rubbing her head—
indication that injury was recent—probably still under stress of excitement caused by attack.
Problem 7.32—Woman testified that She heard a gunshot and then a scream. She called an ambulance
and then asked who shot the gun. Someone yelled out, “Joe Puleio”


Almost anyone would be upset after seeing a shooting. But without more facts besides the
shooting and the short passage of time, the judge could go either way.
If the judge finds the needed state of excitement there is still the issue of personal knowledge.
By answering the question the declarant asserted knowledge (although maybe not firsthand knowledge)
and that he was in the surrounding area immediately after the shot. Could be enough to show
excitement and personal knowledge.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing
state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

This should not be used to prove a past fact, only to show the declarant’s state of mind at that
time (could be a mindset about future plans)
Hillmon—Mrs. Hillmon is suing the insurance company for money related to husband’s life insurance
policy. The Insurance Company doesn’t believe he is dead and believes he conspired to fake his own
death. Hillmon wants to introduce letters that Walters wrote to husband where they discussed going on
a trip.
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

The letters were admissible because they were proof of Walter’s intention to travel with Mr.
Hillmon and showed that it was more probable that he did go
This case is pre-FRE 803(3) and is therefore no longer good law. Now, the letters could be used
to show Walter’s intention to go on the trip, but not to show that it’s more likely that he did go
on the trip.
Problem 7.33—Adell left friends in restaurant, saying “I’m going to go meet Angelo but I’ll be right back”
and walked into parking lot, but he never returned. At Angelo’s trial, prosecution wants to introduce
Adell’s statement
(a) Should that testimony have been admitted to prove that Adell did not disappear voluntarily?
 Yes, his statement that he’d “be right back” is admissible because he was speaking of his
present intention to do some future act.
(b) Should that testimony have been admitted to prove that Angelo was among those who
kidnapped Adell from the parking lot? Do Hillmon and 803(3) answer the question in the same
way?
 Not admissible under 803(3) because even if he somehow knew Angelo would kidnap
him, this would be present mindset about someone else’s future conduct
 Admissible under Hillmon court because under Hillmon standard this evidence could be
used for either purpose—future acts of oneself or another person.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their
general cause.
Statements as to fault would not ordinarily qualify under [the ‘general cause’ language]. Thus a patient's
statement that he was struck by an automobile would qualify but not his statement that the car was
driven through a red light
Does NOT need to be statement to medical professional. Statement to someone else (member of family)
can count if it’s in a way that’s saying “you need to get me a doctor” or “you need to tell a doctor about
these symptoms” as long as there’s a desire to pass that information on to a doctor.
Problem 7.34—Browning called his lawyer to report that on the previous day his caretaker, Maples, had
pushed him and that he had fallen and hit his head. Later that day, he visited his doctor, reporting the
same events. At Maples’s trial, the prosecutor offered the following evidence:
1. Lawyer’s testimony that Browning said he had fallen & hit his head;

Can’t be excited utterance because Browning didn’t call lawyer until the next day.
2. Doctor’s testimony that Browning said he had fallen & hit his head;
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
Admissible under 803(4) because it’s a statement for medical diagnosis. The rule covers
statements describing “inception” and “general cause” of symptoms and pain.
3. Doctor’s testimony that Browning said Maples had pushed him.

Could go either way. Generally, these statements aren’t admissible to show fault, but a
doctor could reasonably conclude that his duty to provide preventive care extends to
discovering that an elderly patient’s caretaker had assaulted him.
U.S. v Iron Shell—D objects to testimony from doctor about conversation with 9 year-old where doctor
said “What happened” and the child said D had taken her clothes off.

2 Part test—
1. Is Declarant trying to get medical treatment (is motive of declarant
consistent with getting the truth as to medical diagnosis?)
2. Is it reasonable for doctor to rely on this info for diagnosis or
treatment?
o This info wasn’t reasonably pertinent because he would’ve
given the same diagnosis either way. But court says it was not
an abuse of discretion for this to come in. most doctors would
have asked for the kind of info this doctor asked for.
Problem 7.36—going back to Tome—Prosecution wanted to bring statements that 5-year old made to
doctor. D object on the basis that no one told the child about the importance of being truthful with
doctors or that doctors are there to help them. Should this affect testimony under 803(4)?


Well a 5-year old is probably old enough to grasp (without being told) the self-interested reason
to tell doctors the truth. There’s always the presumption of truthfulness with statements to
doctors like this.
But, a reasonable court could come out either way if they focus on the risk that suggestible
children might lie at the encouragement of parents or police and prosecutors.
Problem 7.37—Monica’s husband is sick in bed. “I think I ate some bad meat,” he says, pointing toward
a Downtown Deli carton. “You’d better get me a doctor.” After his death from arsenic poisoning, Monica
is suing Downtown Deli. Can any of these survive a hearsay objection?:
(1) Monica’s testimony about her husband’s statements and gesture—offered to prove that he had
eaten food from Downtown Deli.

Personal knowledge problem? He can’t have known for sure that’s what made him sick.
But usually when a person says bad food made them sick they just mean there was a
temporal correlation between eating and getting sick. Probably no personal knowledge
problem

Is it okay that he’s attributing fault to the bad food? Probably fine because a doctor
would want to know that it was food poisoning because he’d probably treat that
differently than something else.
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
Statements made to family members are included in this exception if the declarant
believes that the family member will then relay that message to the doctor.
(2) A nurse’s testimony that when Monica called the doctor that day she said “My husband told me
he ate some bad meat from Downtown Deli” – offered to prove that he had eaten from there.

Hearsay within hearsay (805)

Top layer: Monica’s statement to the nurse;
o

Probably admissible—although the committee’s explanation of
rule’s rationale is “the patient’s strong motivation to be truthful”
courts have generally included statements by family members
within the definition.
Bottom layer: her husband’s statement to her
o
Admissible. (see previous statement)
(3) Monica’s testimony that upon reaching their home the doctor said “This has all the signs of
arsenic poisoning. We’ll have to hospitalize immediately” – offered to prove that he showed
signs of arsenic poisoning.

Generally, courts have interpreted doctor-to-patient statements to not be included in
this rule.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully
and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
o Can this be shown by a preponderance of the evidence? It’s enough for the witness to
certify that it’s accurate.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an
adverse party.
Recorded information may be read into evidence under 803(5), but can’t be admitted as an exhibit
unless offered by the adverse party (i.e. the physical document couldn’t be admitted)
Rule 612. Writing Used to Refresh a Witness
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(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh
memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in
a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion that relates to the
witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court
must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered
to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered,
the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the
court must strike the witness’s testimony or — if justice so requires — declare a mistrial.
(this is NOT a hearsay exception)—you can kickstart memory with anything, doesn’t have to be a
document.
(A) This should be attempted BEFORE resorting to 803(5)—otherwise it’s hard to show witness
“now cannot recall well enough to testify fully and accurately”
What conditions do you need?



Witness on stand
Witness says she can’t remember X
What does thing that refreshes memory need to be?
FRE Provision
What can be used
Can it be admitted as an exhibit
(and thus shown to the Jury)?
Does witness memory lapse
need to be shown first?
Aim in using the document
Recorded Recollection
803(5)
A record that meets the
standards for 803(5)
Only if the other side moves it
into evidence
Yes
Refreshing a Witness
612 for writing
Any writing (but also “a song, a
scent, a photograph…”—p. 432)
Only if the other side moves it
into evidence
Yes
To get contents read to the jury
To trigger memory, and thus
live testimony
Problem 7.38—R is suing B, alleging that B killed R’s husband while driving and failed to stop. To prove
license plate number of fleeing car, R offers testimony of M and S.
o
o
M says he called out the number to S that he observed during the collision
S says she went home and wrote the number on an envelope.
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(1) S testified that she never saw the plate, but she immediately wrote down the number when R called
it out, though she no longer remembered it. R’s counsel showed her the envelope she wrote the
number on and she confirmed she had written it but it did not refresh her memory.
o
Hearsay within hearsay
o Top layer: what S wrote
 Meets all prerequisites for recorded recollection under 803(5)
o Bottom Layer: What M told her
 Could be admitted as excited utterance [803(2)] b/c of short time gap. Also
could be present sense impression [803(1)]
(2) M said he had memorized the number by saying it over and over. When R’s counsel asked him the
number he said he couldn’t remember, but when he was shown the envelope he was then able to recite
it without looking.
o
Once a witness has said his memory is exhausted, a lawyer may attempt to refresh his memory
with just about anything. There is no requirement that M himself have made the writing used to
refresh his memory. True, a witness’s claim that his memory has been refreshed with regard to
the name of a distant acquaintance is typically more believable than a claim that he now
remembers a license plate number he once saw. But this is probably okay.
(3) After the events of (1) the judge refused to admit the envelope as an exhibit. After M’s testimony R
tries to get it in again.
o
o
o
o
After M’s testimony there’s no longer a problem with the bottom layer of hearsay.
It’s not a business record. And 803(5) bars introduction of the envelope itself.
612 allows the envelope to be used to refresh memory but doesn’t make the envelope itself
admissible.
Therefore, the envelope may not be presented to the jury, but its contents may be read into
evidence after M and S’s testimony have qualified it as a recorded recollection under 803(5).
Johnson v. State—Johnson appealing murder conviction. T had made a written statement about how
victim was killed, saying “I have read this statement and it is the truth.” At trial he refused to
acknowledge the statement’s accuracy, but admitted it was his signature. It was read into evidence
under 803(5).
o
o
(5)(A) was satisfied and (B) was also satisfied
5(C) was not satisfied because there was no present confirmation that it accurately reflected his
knowledge. Also no evidence he had first hand knowledge.
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(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis
if:
(A) the record was made at or near the time by — or from information transmitted by — someone
with knowledge;
o Record must be made by someone with personal knowledge, OR the person filling out
record must have gotten info from someone with personal knowledge.
(B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
o Not just offices—can include nonprofits, government agencies…
(C) making the record was a regular practice of that activity;
o not just the record but also the activity was regular
(D) all these conditions are shown by the testimony of the custodian or another qualified witness,
or by a certification that complies with Rule 902(11) or (12) or with a statute permitting
certification; and
o i.e. you need the right way of showing (A), (B), and (C). 3 ways to satisfy this
i. Have person bring business records to court to show they comply with A, B, and
C
ii. Have anyone come in to court who has personal knowledge of how those
records are kept (since records may not be physical)
iii. Have a document that says “I have knowledge of how documents at this
business are kept, and I hereby certify that they comply with A, B, and C”
(E) the opponent does not show that the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Problem 7.39—Donahue suing mower’s mfr for injuries she sustained when the pull cord came loose
(1) At trial she seeks to offer 2 merchandise-return records from garden depot that show returns of
other mowers of the same type, and include a notation that the reason for return was a loose pull cord.
o
o
Manager was qualified witness under 803(6)(D) because he claimed he was familiar with record
keeping practices of the service counter. The manager’s testimony also satisfies the rule’s other
prerequisites—(A) the records were made around the time the merchandise was returned and
the maker of the records had personal knowledge of the return; (B) accepting returns was a
regularly conducted activity of Garden Depot; and (C) making such records was Garden Depot’s
regular practice. The records therefore are admissible to show that the two mowers were
returned and that each customer claimed the cord had come loose.
However, they’re not admissible to show the cords actually came loose. Hearsay within hearsay:
o Top layer: Clerk’s notations
o Bottom layer: Customer’s claims about what was wrong with the mowers. –business
records exception does NOT extend to customers’ reports because the customers
were not part of the business. (rule does not specify that the person “with knowledge”
who made or informed the record must have been a member of the business, but courts
have read such a requirement into the rule.)
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(2) Defendant wants to offer the form relating to Donahue’s return on which the clerk wrote Donahue
stated a clogged chute as the reason for return.
o
Also hearsay within hearsay. (Clerk’s note/ What Donahue said). Only admissible if some
exception cover’s Donahue’s statement. Could come in under party-opponent rule—801(d)(2)
(A).
U.S. v. Vigneau—D appealing conviction for money laundering—he objects to admission of bank’s “To
Send Money” forms, with sender side of the form including the Defendant’s name, address, and phone
number.
o
o
o
o
The part of the document with his name was a statement coming in for its truth, so hearsay…
The statement was made by D himself, not the bank, so it doesn’t come in under business
records exception.
If his personal info was redacted, or the document wasn’t coming in for its truth it could have
been okay. It also could have been okay if the bank regularly checked the identity of senders.
If a business record is embedded with statements from someone not part of the business, you
need to do a separate analysis.
Problem 7.40—Bonds is prosecuted for perjury with allegation that he lied about taking steroids. God
needs to prove that the positive drug results from BALCO labs did in fact come from Bonds. BALCO
employee testifies that Bonds’ trainer brought the samples to the lab and said they came from Bonds.
Bonds said that when Trainer asked for the samples he said they were to test nutritional deficiencies.
Gov offered log sheets on which Balco recorded results of drug testing under Bonds’ name.
o
o
Similar hearsay within hearsay problem as Vigneau. It’s a business record with an embedded
statement from someone outside the business. Top layer: test results from lab. Bottom layer:
The name of Bonds provided by the trainer. So the fact that they were Bonds’ samples could not
come in under business records exception.
Bottom layer could maybe be admitted under 801(d)(2)(D)—an opposing party’s statement—if
trainer could be found to be an agent or employee of Bonds. Court found he was an agent.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a
matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally
authorized investigation; and
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(B) the opponent does not show that the source of information nor or other circumstances indicate a
lack of trustworthiness.
Beech Aircraft Corp. v. Rainey—Spouses of dead navy pilots sue manufacturer of plane. Ds offered Navy
investigative report showing the plane was safe. The report had sections labelled “findings of fact,”
opinions,” and “recommendations.”
o
This is admissible as long as it is trustworthy. merely because author went into opinions doesn’t
mean report can’t come in if it was based on factual findings.
Exceptions pt 6—807—Residual Exception
Rule 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or
804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
o a.k.a. it is relevant
(3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including the
declarant’s name and address, so that the party has a fair opportunity to meet it.
Dallas County v. Commercial Union Assurance Co.—after collapse of clock tower, insurers claimed it was
not the result of lightning, but of a long ago fire that weakened the structure. Ds offered newspaper
article from 1901 describing the fire.
o
o
o
o
The newspaper was admissible because it was trustworthy
807 is not limited to newspapers/ newspapers are not limited to 807
Newspapers may contain hearsay within hearsay.
If a court viewed newspapers as business records, the top layer could be a business record and
the bottom layer could be an exited utterance…
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7. Confrontation and Compulsory Process
Amendment VI.
“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor”
o
o
o
Gives protections ONLY to criminal Defendants
Neither the hearsay ban, nor the confrontation clause offer any protection for statements
coming in for their truth
Both bans have an exception relating to forfeiture by wrongdoing
o 803(b)(6)— a hearsay statement may come in against you for its truth if you
intentionally made the declarant unavailable as a witness.
o Under Supreme Court precedent (Giles), a criminal defendant forfeits her confrontation
right if she intentionally made the declarant unavailable as a witness.
 Under both forfeiture rules, person must have acted with the PURPOSE of
preventing the testimony
Crawford v. Washington—Crawford on trial for stabbing man who tried to rape his wife. Wife refused to
testify, but prosecution offered tape recording of wife describing the stabbing, contradicting Crawford’s
statement that he did in in defense of her. Crawford claimed that playing the wife’s statement with no
chance for cross-examination violated confrontation clause.
o
Supreme court held that the admission of this statement violated confrontation clause.
o
6th Amendment Confrontation Clause gives a criminal defendant the right “to be confronted
with the witnesses against him.”
o
Confronted = cross-examined
o
Witnesses = those who bear testimony

Testimony = “a solemn declaration or affirmation made for the purposes of
establishing or proving some fact”

An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an
acquaintance does not
What has Supreme Court found to be testimonial?—statements made with purpose of establishing facts



Tape-recorded statement, taken while under interrogation and in police custody
Lab reports
o Melendez-Diaz—Certificates of analysis sworn before a notary, asserting that a tested
substance was cocaine
o Bullcoming—certified forensic laboratory report asserting that D’s BAC was above DWI
limit
Domestic violence complainants’ statements to police (Davis—primary purpose test)
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o
Statements in response to police interrogation are testimonial when there is no ongoing
emergency and the primary purpose of the investigation is to establish or prove past
events relevant to criminal prosecution
What has Supreme Court found to NOT be testimonial?—statements made to resolve emergency



Statements in response to 911 operator’s questions when the questions were related to an
ongoing emergency.
A dying gunshot victim’s response to officers about who shot him (Bryant)
3-year old’s statements to teachers about abuse from mother’s boyfriend (Clark)
Ohio v. Clark—Clark convicted of assaulting his girlfriend’s children. He objected to the admission of the
3-year old’s responses to his teachers who were mandatory reporters.



Primary purpose of teachers was most likely to protect the child—i.e. resolve an ongoing
emergency.
Also, young child is unlikely to be speaking with the purpose of establishing evidence
mandatory reporting statute does not convert a conversation between a concerned teacher and
a student into a law enforcement mission aimed primarily at gathering evidence for a
prosecution.
Problem 8.4—2 weeks before death, Jensen gave sealed envelope to neighbor, saying to give it to the
police if anything happened to her. Letter expressed her suspicion that her husband was planning her
murder. Husband is on trial for murder. Is there a confrontation clause issue with the letter coming in?
(ignoring hearsay issues)

probably testimonial because she most likely intended it to be used as evidence if she got killed.
Problem 8.5—D charged with strangling V. Carabello testifies about conversation with Glanville where
Glanville said that he and D broke into V’s house and D started choking V. Glanville refused to appear in
court. Does Carabello’s testimony violate confrontation right?


No hearsay issue because it comes in under the “statement against interest” exception.
Is it testimonial? Not a casual statement between friends…hard to say admitting complicity in
murder is a casual statement. However, it also was probably not made with the purpose of
establishing trial evidence.
Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.

Eliminates Voucher rule—i.e. the old rule that says you can’t impeach or cross-examine a
witness that you brought yourself.
Chambers—Voucher rule here violated D’s confrontation clause right. The Court also held that the
hearsay statements were not untrustworthy evidence but were a crucial part of Chambers’ defense and
could have led the jury to a different decision. you could always bring a constitutional argument if D isn’t
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given right to cross examine. But, you’ll have a hard time doing this unless you show the testimony was
critical.
14th Amendment Due Process Clause
“Nor shall any state deprive any person of life, liberty, or property, without due process of law. . .”
Holmes—If you can show that the way evidence being kept out is contrary to rule’s purpose.
Crane—3 rights that could be violated—consider whether the purpose rule that keeps evidence is out
when balanced against these rights:
1. Due process
2. Compulsory process
o The right to force witnesses to come to trial and testify on your behalf
3. Confrontation clause
8. Lay Opinions and Expert Testimony
Lay opinions: Result from a process of reasoning familiar in everyday life
Expert testimony: Results from a process of reasoning which can be mastered only by specialists in the
field
Some witnesses can give both lay and expert testimony. Experts have much more leeway to give
testimony not based on personal knowledge
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
o If it doesn’t help the jury or it’s something they’d already know then it can’t come in.
But it can come in if it adds to the juror’s knowledge
o A low bar—reasonably reliable and ties to an issue in the case
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
o May require a little more to satisfy the court that you’re not spilling over into expert
testimony.
o It’s useful to ask how they got to that opinion. Particularized knowledge is different from
specialized knowledge
 Is it from a process of reasoning familiar in everyday life or process of reasoning
which can be mastered only by specialists in the field?
o Advisory committee: a lay witness could testify that a substance appeared to be a
narcotic, so long as a foundation of familiarity with the subject is established. Such
testimony is not based on specialized knowledge, but rather a lay person’s personal
knowledge.
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Problem 9.1—witness said person “sounded depressed”



Witness had first-hand knowledge of how person sounded.
Helpful to the jury? Yes, it could give some information about guy’s mindset
Based on scientific, technical, or specialized knowledge? Nah, he’s describing tone of voice,
which is included in “appearance” or “manner of conduct” which is fine
Problem 9.2—Witness said “She looked about 20 to 21”



Were the witnesses’ opinions rationally based on their perception? There are many rational
bases on which a person may form an intelligent (if not always correct) opinion of another
person’s age. Prosecutor may demand that the defendant’s witnesses explain on what bases
they formed their opinions. The court should consider these bases when deciding whether each
witness’s opinion was “rationally based.”
Were the witnesses’ opinions helpful to the factfinder? Sure
Were the witnesses’ opinions based on specialized knowledge? No. The advisory committee says
that opinions of “appearance of persons” are admissible.
Problem 9.3—lay witness testifies that she found a white powder and that it tasted like cocaine. She
testified that she had tasted cocaine on many occasions and had developed a cocaine problem. Her
opinion was based on taste and sight.
(a) Witness both looked at and tasted the powder, so unless the visual appearance and taste of
cocaine cannot give someone “rational” bases for judging what it is, the conditions of Rule
701(a) were met.
(b) Helpful for the jury who could not have known themselves whether it was cocaine
(c) Few jurors would have shared her capacity to identify it as cocaine, but tasting a substance a
few times and gaining the ability to identify it requires no education, training, or specialized
knowledge.
Problem 9.4—Detective testified about his method of deciphering a code used in a phonebook by
figuring out which symbol corresponded to which numeral. He was not qualified as an expert
cryptographer.

While cryptography is a realm of expertise, the code he cracked was very simple and did not
require a specialized knowledge or training. This should be let in as lay witness testimony.
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Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
For (c) and (d)—turn to the Daubert factors for guidance:
Daubert factors:





Whether the expert’s technique or theory can be or has been tested
Whether the technique or theory has been subject to peer review and publication
The known or potential rate of error of the technique or theory when applied
The existence and maintenance of standards and controls (standards to control the technique’s
operation)
Whether the technique or theory has been generally accepted in the scientific community
Problems dealing with whether expert is “qualified”:
Problem 9.5—Government wants to prove this marijuana is from Colombia. A witness testifies that he
could tell it’s Colombian because of the smell and appearance and because he had smoked and sold
marijuana so many times.


Can he testify as a lay witness under 701? Probably not. His opinion goes beyond the one in
Problem 9.3 (the white powder). The difference is analogous to that between saying a sampled
beverage tasted like wine and saying it was a Bordeaux. This is more rarified knowledge.
Can he testify as an expert witness under 702? His experience was substantial—he had smoked
it more than 1,000 times and been called on to identify it more than 100 times and sold it more
than 20 times.
o His experience with smoking and selling it doesn’t tell us about his ability to identify it.
o But he also had substantial experience with identifying it, so he’s probably qualified.
Problem 9.6—Was a cop who had listened in on hundreds of wiretaps qualified in the field of narcotics
trafficking regarding use of words and codes used by narcotics traffickers?

The bulk of his experience seems sufficient to raise his level of knowledge substantially above
that of the average layperson or even of the average police officer.
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Problems dealing with 702(a):
Problem 9.7—Trademark dispute over whether “Match” trademark would cause confusion because it’s
similar to “macho”. A professor of English was brought in to show that the spellings and sounds were
sufficiently similar as to cause confusion.

Not helpful because the jury could easily decide for themselves whether these words are similar
enough to cause confusion.
Problem 9.8—two African Americans argue Fair Housing Act violated by advertisements only depicting
white people. They bring expert—psychologist, statistician, marketing person—to show the effects of
ads. He used focus group to determine effects of these ads


This kind of social research, which would demonstrate the way one of the most important
industries in our country actually operates, would have given the jury a view of the evidence
well beyond their everyday experience.
Jurors’ common wisdom might know that ads with all white actors might have less appeal to
African Americans, but if the expert could quantify the decreased interest, or explain any
unusual impact such advertising has on housing, this could be helpful.
Problem 9.9—Slip and fall on cruise ship. A floor safety expert testifies about how slippery certain types
of floors can be under various conditions.
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This is helpful in letting the jurors understand how slippery the floor was because they couldn’t
walk on it themselves.
The expert said the floor was “not reasonably safe” which is a legal conclusion, but the judge
could restrict the expert to his non-legal conclusion that under wet conditions the ceramic tile
surface is at an inadequately low coefficient of friction.
Rule 704. Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
o i.e. the fact that the fact-finder must determine
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the
crime charged or of a defense. Those matters are for the trier of fact alone.
Other exceptions not stated in the rule:
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701(b)—Must be HELPFUL—If a lay witness is so much doing the jury’s job that it’s not helpful,
court may keep this witness out
702(a)—Same with expert testimony—testimony that says “Defendant was negligent”—jurors
are supposed to get to that finding!
 Or, testimony that sets out a legal standard—that’s the judge’s job!
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Testimony that says a witness was or wasn’t credible—not helpful because
that’s a function jury must serve.
Testimony that wastes time
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Can judge give a limiting instruction here to disregard an inadmissible part? No. A limiting instruction is
when evidence could serve more than one purpose and only one purpose is permissible (Rule 105). May
not be used to keep out one part of testimony but let in another.
Problem 9.10—guy had shopping lists with ingredients for meth. He had an explanation for each one.
Issue was whether he had intent to make meth. Expert witness—a forensic chemist—testified that the
purchases led him to the opinion that he intended to produce meth.
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Violates 704(b) ban on expert testimony as to whether criminal defended had requisite intent
for the crime charged.
“Intent” is a legal term of art and experts do not have authority to instruct jury…
Even though it’s not in the rule, courts don’t want to let in expert testimony about a defendant’s
credibility, because jurors are equipped to asses that for themselves. –such opinion testimony
could unfairly prejudice jury under 403
Hygh v. Jacobs—P sued police force for unnecessary use of force (injured his face with flashlight).
Brought law enforcement expert who gave a definition of deadly physical force (different from NY’s
definition) and said the conduct was not justified under the circumstances.
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the testimony pointed to an ultimate legal conclusion, and therefore, “crossed the line”
between admissible opinion testimony and inadmissible testimony; it should have therefore
been excluded.
State v. Batangan—D accused of sexual contact with daughter. She waited a while to report, then
recanted, then renewed allegations. Expert witness testified as to how he evaluates whether a child is
telling the truth about being sexually abused. Also testified that daughter was believable and that she
had been abused.
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Common knowledge of jury might assume that a complainant who’s telling the truth would
come forward immediately and stick with her story. So testimony about behavior of sex abuse
victims may be helpful to the jury.
However, testimony that this particular witness is believable is unhelpful.
State v. Guilbert—D convicted of murder and assault. He’s appealing exclusion of his expert witness
identification testimony. This Connecticut court had precedent that jurors understood the factors
affecting eyewitness ID and that expert testimony here invades the province of the jury.
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Expert may not say whether eyewitness testimony is reliable, but expert may provide info about
factors that may affect reliability.
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Sometimes eyewitness expert testimony can be helpful—not to say eye witness was credible,
but to talk more generally about factors that have an adverse effect on eyewitness ID. Must be
factors relevant to case at hand.
P775—things that could affect eyewitness identification
o There’s a weak correlation between a witness’s confidence in their eyewitness
testimony and its accuracy
o Reliability of ID can be diminished by a witness’s focus on a weapon.
o Stress may reduce witness’s ability to accurately perceive
o Cross-racial ID’s less accurate than same-race ID’s
o A person’s memory diminishes rapidly over a period of hours, rather than days or weeks
o Id’s are likely to be less reliable in the absence of a double-blind, sequential
identification procedure
o Post-event or post-identification info about the event or ID may cause witness to
develop unwarranted confidence in their ID’s
o Accuracy of eyewitness ID may be undermined by seeing a person in one context and
confusing them with a person seen in another—“unconscious transference”
Court turns away from Connecticut precedent.
Problem 9.12—K robbed at gunpoint. She gives description to police that roughly matches Patterson,
she identifies Patterson in a photo array. There is also other evidence against Patterson. Patterson’s
lawyer offers expert witness ID testimony. Should the judge admit it?
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Probably would waste time and provide little probative value
Different from Guilbert because here there’s less risk here that she “retrofitted” her memory to
match an image
Rule 703. Bases of an Expert.
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An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed.
o Leaves the door open for hearsay
If experts in the particular field would reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for the opinion to be admitted.
o Experts may rely on inadmissible hearsay if it’s the type of information that an expert in
the field would normally rely on
But if the facts or data would otherwise be inadmissible, the proponent of the opinion may
disclose them to the jury only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
o Usually 403 balancing weighs against this hearsay evidence coming in.
o Even if jury ends up hearing the inadmissible hearsay because it satisfies the balancing
test, jury must be told it’s coming in to justify the expert’s conclusion, not for its truth.
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Rule 705. Disclosing the Facts or Data Underlying an Expert
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it —
without first testifying to the underlying facts or data. But the expert may be required to disclose those
facts or data on cross-examination.
Problem 9.14—P sues hospital for negligence during operation. Only proof is note from doctor that says
his aortic cannula was accidentally out for 40-60 seconds. He brought an expert witness to form an
opinion on what occurred based on the note. Should expert’s testimony have been admitted?
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Reliance on note is permissible if the note itself is admissible
o Could be admissible under 801(d)(2)(D) as statement by D’s employee. But probably not
because it’s hard to say where the information came from.
 But is there personal knowledge?—602—for party opponent exception personal
knowledge isn’t needed.
If the note is inadmissible, the reliance is only permissible if expert’s in his field would
reasonably rely on something like that note.
o Unattributed material like this is probably not usually a part of such reports.
Frye v. U.S.—Frye appealing murder conviction. Expert testimony of scientist who conducted a “systolic
blood pressure deception test”. Court held that this was too new and too niche to meet general
acceptance standard.
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Must be “sufficiently established to have gained general acceptance in the particular field in
which it belongs”
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Only about 10 states still follow this standard. Other states have turned to Daubert.
Daubert factors:
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Whether the expert’s technique or theory can be or has been tested
Whether the technique or theory has been subject to peer review and publication
The known or potential rate of error of the technique or theory when applied
The existence and maintenance of standards and controls
Whether the technique or theory has been generally accepted in the scientific community
Besides scientific knowledge, 702 includes “technical or other specialized knowledge”…
Kumho Tire Co. v. Carmichael—holds that Daubert standard also applies to technical and specialized
knowledge in addition to scientific knowledge because the rule doesn’t distinguish. District Court acts as
a gatekeeper—gets a lot of discretion from appeals court
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