I. Introduction to Evidence Law
A. The Good News and the Bad News
B. The Nature and Development of Evidence Law
C. The Anglo-American Trial
D. The Role of the Trial Judge
1. Trial Judge’s Authority
2. Trial Judge’s Discretion
E. Other Class Notes
1. Why do we need evidence rules?
2. Should a jury and bench trial be the same?
3. Other Rules
II. Relevance
A. Relevance and Irrelevance
B. Probative Value and Prejudice
C. Conditional Relevance
D. Other Class Notes
III. Hearsay
A. The Hearsay Rule and Its Rationale
1. Introduction
2. Nonhearsay Uses of Out-of-court Statements
3. Implied Assertions
B. Hearsay and Confrontation
C. Exceptions to the Hearsay Rule
1. Prior Statements by Witnesses Rule 801(d)(1) (NOT HS)
2. Admissions by Opposing Parties Rule 801(d)(2) (NOT HS)
A) Direct Admissions Rule 801(d)(2)(a)
i. Generally
ii. Admissions and Multiple Hearsay (805)
iii. Admissions and Completeness (106)
B) Adoptive Admissions 801(d)(2)(b)
C) Authorized Admissions 801(d)(2)(C)
D) Agent and Employee Admissions 801(d)(2)(D)
E) Co-Conspirator Admissions 801(d)(2)(E)
F) Admissions and the Bruton Rule
3. Spontaneous and Contemporaneous Statements Rule 803 (1) and (2)
4. State of Mind 803(3)
A) Generally
B) The Hillmon Doctrine
5. Injury Reports 803(4)
6. Recorded Recollections 803(5) and 612
7. Business Records 803(6)
A) Generally
B) Qualifying “Businesses”
C) Qualifying Records
D) Sources of Information
E) Absence of Record 803(7)
8. Public Records 803(8-10)
9. Former Testimony 804(b)(1) *804 must be unavailable!!
10. Dying Declarations 804(b)(2)
11. Declarations Against Interest 804(b)(3)
12. Forfeiture by Wrongdoing 804(b)(6)
13. Residual Exception Rule 807
D. Hearsay and Due Process
IV. Character Evidence
A. The Basic Rule and Its Exceptions R. 404
B. Methods of Proving Character R. 405
C. Other Uses of Specific Conduct
1. Permissible Purposes
2. Requisite Proof
D. Character and Habit
E. Sexual Assault and Child Molestation
1. Character of the Victim
2. Character of the Defendant
V. Other Forbidden Inferences
A. Subsequent Remedial Measures 407
B. Settlement Efforts 408 and 410
1. Civil Settlements
2. Criminal Settlements
C. Medical Payments and Liability Insurance 409 and 411
VI. Impeachment and Rehabilitation
A. Introduction
B. Character for Untruthfulness
1. In General
2. Prior Criminal Convictions
A) Admissible and Inadmissible Convictions
B) Preserving a Claim of Error
C. Prior Inconsistent Statements
D. Bias and Incapacity
E. Specific Contradiction
F. Rehabilitation
1. In General
2. Character for Truthfulness
3. Prior Consistent Statements
VII. Opinions, Experts and Scientific Evidence
A. Lay Opinions
B. Expert Testimony
1. Permissible Subjects and Scope of Expert Testimony
2. Relating the Basis of an Expert Opinion to the Jury
3. Court Appointed Experts
4. Special Reliability Requirements for Experts
A) Introduction
B) The Daubert Revolution
C) The Current Legal Landscape
VIII. Privileges
A. In General
B. Attorney-Client Privilege
1. Introduction
2. Elements of the Privilege
A) Communication
B) In confidence
C) Between attorney and client
D) To facilitate legal services
3. Waiver
4. Crime Fraud Exception
C. Spousal Privileges
D. Other Privileges
IX. Physical Evidence
A. Authentication
1. Authentication of Traditional Documents and Physical Objects
2. Authentication of Digital Evidence
B. Best Evidence Rule
1. Scope and Purpose
2. Exceptions
C. Demonstratives
I. Introduction to Evidence Law
Rule 104 Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness
is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is
not bound by evidence rules, except those on privilege.
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an
offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules
definitively on the record — either before or at trial — a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may
make any statement about the character or form of the evidence, the objection made, and
the ruling. The court may direct that an offer of proof be made in question-and-answer
form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable,
the court must conduct a jury trial so that inadmissible evidence is not suggested to the
jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a
substantial right, even if the claim of error was not properly preserved.
Rule 102. Purpose
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.
A. The Good News and the Bad News
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Evidence law dictates how and when facts may be proven or disproven at trial
It makes the process fair, accurate, conclusive
Broad judicial discretion: law matter as judges apply it (rarely reverse)
B. The Nature and Development of Evidence Law
 Formerly common law approach
 Today it is mostly statutory: federal rules of evidence (FRE) and state versions in most
states modeled after FRE
 FRE history: goal to clarify and simply existing law but not change it dramatically,
became law in 1975, amended since by congress or when proposed by advisory
committee
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o Advisory committee took to congress, debates, hearings, senate/house amended,
reports, joint committee to reconcile changes and released these rules which
became official
o Much to consider- competing legislative history, common law, advisory committee
and commentary, competing house and senate reports, case law it has developed
o Running battle of weight to common law vs. legislative history
Amended multiple times
o Substantial rewrite in 2011 supposedly to simply, not supposed to be substantive
change but often interpreted as
Evidence is statutory but FRE codifies the common law, so one must examine the
common law materials including judicial decisions and scholarly commentary
Evidence law is littered with unsuccessful attempts at codification that have an
ambiguous role in the law
C. The Anglo-American Trial
 Trial is largely custom, FRE says little about the stages
 Before trial
o Motions on how to proceed
 Often rule whether evidence is admissible or not
 Motions in limine: evidence motions heard before trial
 Some resolved before trial, some deferred
o Evidence questions may arise i.e. challenge a discovery request or subpoena
o Pretrial discovery
 Rules of evidence rarely come up, lenient, typically only with privileges
 Same with deposition: object only to form (not evidence ones like hearsay)
o Summary judgement: first think about rules of evidence
 Not use witness but affidavits
o Joint pretrial order: now really worry about evidence rules
 Think through trial plan
 Include intended trial exhibits and other side can object, may be rulings
before trial, sides often negotiate this
 Label exhibits and list depositions and witness list
 Objections need to cite the correct rule
o Final pretrial conference
 Address in limine motions (try to exclude portions of evidence)
 Can discuss questions to be asked
 In limine: short briefs, hopefully judge rules in advance, may wait to see
how trial plays out
 Move to admit all non-objected to exhibits so the parties don’t forget
 Jury Selection
o Bench trial: judge give verdict
o Voir dire: pick jury- questioned, peremptory challenges or “for cause”; not apply
FRE; Need 12
o Then preliminary instructions
 Opening statements
o Prosecutor/π goes first, then ∆
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o Only descriptive, not argumentative
o In theory rules of evidence don’t apply because this isn’t evidence
o They do apply because you can’t mention anything without a good faith belief that
that it will be in the evidence
Prosecution/π case in chief
o Physical evidence
 Marked for identification (before shown to witness, so it is part of the
record/for reference), then introduce exhibit (if the predicate established
(laying the foundation)), then ask judge to admit it into evidence
o Witnesses (direct examination), other side can question (cross examination),
redirect examination, then re-cross examination, so on
 Leading questions (suggest a desired answer) allowed for cross/re-cross but
not for direct or redirect
 Cross examination: limited to the credibility of the witness and information
raised in direct examination and redirect
o Some objections are evidence law, some trial practice
o Evidence objections are resolved in a variety of ways
 Sustain/deny, ask for a brief response, sidebar, defer
∆ move to dismiss for insufficient evidence
o No rational jury could find that π/prosecution satisfied the relevant standard
o Ask for judgement as a matter of law
∆ case
o Same as above
Prosecution/π rebuttal case
o Respond to ∆’s case in theory
o Sometimes then a sur-rebuttal by ∆ and then another response
Closing arguments: π/prosecution, then ∆, then rebuttal
o Not restricted to factual statements but is restricted to claims based on evidence
o What a lawyer says isn’t evidence
o Don’t object unless extreme overreach by opponent
Jury instructions, deliberation, verdict
o Admitted exhibits available to the jury
o No access to testimony: jury expected to remember
Anglo trial features that are important
o Jury: rules shaped by concern influence amateur fact finders; also avoid
interruptions; We also think it is best to let juries hear both sides in turn and then
apply the law
o Preference for viva voce proof- live sworn witnesses
 We assume the best was to get to the truth at trial is to examine witnesses
under oath in front of a live jury
o Lawyers have much control over conduct of the trial
 Rules of evidence sometimes strengthen this
 Much leeway to assemble evidence
 Substantial leeway to lawyers on how to present their case and then must
live with their choices
 Lawyers decide whether to object, call witnesses, etc.
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Judges impose certain constrains on lawyers based on FRE
Both sides try to get in their evidence
Judges have no independent obligation to apply FRE, only to respond to
objections: judges only rule on objections that were made
D. The Role of the Trial Judge
 Distinctive feature: central role of the judge
 Wide latitude to craft cases by lawyers but limited by judges
 Trial judges make evidence calls in the moment based on happenings before/during trial
 Reviewed on abuse of discretion standard
 Mistake- must have affected substantial rights of a party (otherwise harmless error) and
been objected to
 Plain error: if didn’t make an objection, an error affects the substantial rights of a party and
even more
o Applied- “I know it when I see it”
o If it shocks them and the result is unfair
 In a criminal trial, a constitutional error means must reverse unless can show that this
doesn’t matter (Chapman)
 You want to win on an evidence rule at trial
 Judge: authority and discretion
1. Trial Judge’s Authority
 FRE 104(a)
 Applicability of a certain rule of evidence often depends on the existence of conditions and
judges make determinations
 If a question is factual the judge will get pro and con evidence, rules of evidence don’t
apply
2. Trial Judge’s Discretion
 FRE 103
 Success on appeal of evidence is difficult: appellate courts are reluctant to reverse
 Many federal rules are not categorical- grant trial judge authority
 Disregard errors that do not affect the substantial rights of the parties
o “Substantial rights” is defined vaguely, prejudice is determined case-by-case
o Courts differ on the degree of certainty to find an error harmless
 Generally, the same standard for civil and criminal for non-constitutional
errors
 Finding of plain error has the same effect as preserved error
o Reversed if prejudicial
 Saltzburg
o Most appellants don’t get the opportunity to test the harmfulness of errors because
the deferential standard makes it extremely difficult to prove an error on an
evidence question
o Rule construction decisions: de novo, few in practice
o Mixed questions of law and fact: de novo, sometimes arise
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o Vast majority reviewed under abuse of discretion standard
US v. Walton
o High deference to the trial judge because firsthand exposure and familiarity
Bandera v. City of Quincy
o Facts: Quincy appeals the finding for the π for sexual harassment; testimony from
witnesses with penning sexual harassment claims (Coletta); prior to trial, ∆ moved
in limine to limit/exclude Coletta’s testimony because irrelevant and unduly
prejudicial (FRE 403); Judge denied; Coletta testified to her own harassment and
to π’s allegations (to which ∆ objected)
o Held: Her own experience is relevant because it shows L by supervisors as well as
a pattern; Coletta no actual knowledge about π’s events, all just opinion (FRE 701)Not an expert; shouldn’t have been admitted; If the objection were properly
preserved, then maybe reverse; Maybe it had little impact, it was mildly phrased,
but maybe reverse; Objection wasn’t properly preserved; Whether Coletta could
testify about π’s experience wasn’t resolved in limine- just whether Coletta could
testify about her own; ∆’s objections not clearly because Coletta was a lay witness
using opinions; Maybe if ∆ had explained the objection here, the trial judge would
have listened; Not preserved so plain error standard- no reversal
o Rule: An objection, if not obvious, is not preserved unless the ground is stated (FRE
103(a)(1))
E. Other Class Notes
1. Why do we need evidence rules?
 We trust the jury to listen to facts and apply the law
1. Accuracy
o Rules help a jury get to the “correct” result (in light of what lawyers present)
o Jurors may get confused/be prejudiced
o Hard for a jury to forget what they heard (why judges rule on evidence before a
jury hears it)
2. Efficiency
o Kept to an appropriate length; jurors have lives
o Gives judges discretion to force sides to pare down cases so juries not overwhelmed
3. Fairness
o We want a trial to be a level playing field
 This isn’t how lawyers think- best lawyer wins; FRE tries to combat that
o Both sides have the same rules and know the rules
4. Externalities
o Some policies are valuable to society and worth protecting
o Exclude evidence to protect policies
 I.e. privilege rules (attorney-client or marital)
2. Should a jury and bench trial be the same?
 Not employed the same in practices
 Accuracy prong: judges aren’t worries if they will be confused or enflamed by evidence
that they shouldn’t have heard
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Policy reason: in a jury trial a judge necessarily hears everything, same in bench trial- need
to see evidence to determine if it can be admitted
Often judges let evidence in a then decide later whether it should factor into their judgement
o Far more willing to let in evidence in a bench trial despite having the same rules
3. Other Rules
 Hearsay: prevents testimony when not under oath
 R 602: fact witnesses must testify from personal knowledge
 R 607: impeaching a witness
o Credibility and testimony
o Any party may impeach the witness so can call a hostile witness
o Witnesses for other side always hostile to you
 R 611B: scope of cross examination
o Can’t go out of the scope of direct examination (unless get permission)
o Can examine on credibility
 Leading
o You aren’t supposed to lead on direct (611C)
o Can lead on cross
o Can lead direct witness if they can’t remember
 “the rule”: you can ask the judge to exclude all of the witnesses from the court room until
they testify
o So that they don’t try to frame their testimony to match others
o You can’t force a party to the trial to leave- due process
 Entity can have a representative so often this is abused; choose a key witness
 611a: a trial judge has the discretion to run the trial
o Reasonable control to make (1) make those procedures effective for determining
the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or
undue embarrassment.
o Almost never overturned
II. Relevance
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the action.
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute;
 these rules; or
 other rules prescribed by the Supreme Court
Irrelevant evidence is not admissible.
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
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.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.
Rule 104. Preliminary Questions
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist. The court may admit the proposed evidence on the condition that the proof be
introduced later.
A. Relevance and Irrelevance
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Relevance rule: first building block of evidence
o 401 test relevance; 403 limits relevant evidence; 105 safety valve instruction
o ∆’s, π’s, prosecution all use 403 (criminal and civil), more typical the prosecution
wants evidence in
All irrelevant evidence is excluded, and all relevant evidence is admitted
o The first rule has no exceptions, and the second rule has many exceptions
 irrelevant evidence gets admitted by mistake (needs a substantial effect on
the rights of a party to reverse (harmless error))
 Often let cusp evidence in for bench trial and figure it out when they write
the opinion
o Evidence law: qualifications to admitting relevant evidence
Relevant: determined by logic and experience, not law
o Relevant if rationally probative in any way; needs very little probative force
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o If evidence makes a material fact at least slightly more/less likely than without
evidence, it is relevant
o Relevance is relatively low bar- it is hard to be irrelevant
o A fact doesn’t have to prove the case: a brick is not a wall
o It doesn’t have to be in dispute (may be excluded because it is a waste of time)
o If it affects a witness’s credibility it is relevant
o Evidence can make a fact more/less probably through a chain of inferences
401 advisory committee note
o Relevance is not inherent; it is relational, depends on other material
o Evidence does not need to be about a fact in dispute
402 advisory committee note
o Admit relevant and don’t admit irrelevant evidence- a presupposition of the very
conception of a rational evidence system
Knapp v. state
o Facts: ∆ convicted of murder, claimed self-defense because he heard that the victim
(cop) previously beat an old man to death in an arrest; prosecution showed that the
old man died of other causes; testimony: old man died of disease
o Issue: ∆ claims the court shouldn’t admit how the old man died because the question
is whether the ∆ heard the story not if it’s true
o Holding: admit evidence with a logical connection not just an open and visible
connection because otherwise exclude presumptive evidence; relevant here because
people tell the truth so less likely ∆ heard this story; Chain of inferences: man died
of disease  not beaten by cop  falsehood in either what was told or whether this
was told to the ∆
US v. Dominguez
o Facts: ∆ (customs officer) convicted of kidnap/kill Mitri who brought cash into the
US; prosecution entered evidence that ∆ owned a gun and that he tried to replace
the barrel after the crime due to scratches
o Issue: ∆ claims owning gun should be excluded because a customs officer must
own a gun so irrelevant and prejudicial
o Holding: relevant; the government needed to show ∆ had a gun to show that he tried
to replace the barrel which suggests guilt (because trying to eliminate features of
the gun)- logical connections; can introduce both weak and strong evidence; this is
just one piece (brick not wall)
State v. Larson
o Facts: ∆ negligent endangerment conviction because he was riding a “hot-blooded”
horse with a child who reared and crushed her; drunk (BAC .20-.27); prosecution
compared his BAC with the level science says will impair you to drive (0.08)
o Issue: ∆ claim BAC needed to impair to drive is irrelevant to conduct
o Holding: BAC is relevant because it shows he was impaired; the comparison is
relevant because it helped the jury evaluate his level of intoxication; prove too
drunk to drive  too drunk to ride horse more probable negligent to have child
with him more probable; Jurors understand logic- too drunk to drive then too drunk
to horse; they can fill in logical inferences; later attorneys can also fill in during
closing
Morgan: basic principles of evidence
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o X is dead, Y wrote a love letter to X’s wife, did Y kill X?
o The info makes the idea that Y killed X more likely than if knew nothing of Y
o The value of the information depends on the probability of presumed facts in the
chain of inference as well as the number of inferences
o The first piece of information can start a chain of inferences
o Chain of inferences can be long
Lilly: Introduction to the law of evidence
o Even if most links are strong, the probative force is limited by the weakest link
o Still the love letter above is relevant but whether can establish guilt different matter
B. Probative Value and Prejudice
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A trial judge has the discretion to exclude evidence that is more trouble than it is worth
o Because it impairs the jury or because of time
o More evidence is excluded on this rule than all others combined
o Discretionary law of evidence- “taint fair” rule
o Two categories
 Accuracy of the trial: prejudice, confuse, mislead
 More important on appeal
 More often occurs with jury trials than bench: judges aren’t
concerned they’ve been misled
 Efficiency: delay, time, cumulative
 Less powerful
 Often used if a judge thinks the evidence is overwhelming the jury
or at a bench trial to preserve the judge’s time
o Tilts in favor of admissible- at this stage the evidence is already relevant
 Only exclude if the probative value is substantially outweighed and unfair
prejudice (all evidence is prejudicial to the opponent)
o Unfair prejudice: inflame jury improperly (prosecution wants to do this because
people have an inclination not to want to send people to prison), lead jury to decide
on an illegitimate basis (i.e. this is just a bad guy who already is a criminal so let’s
get him off the street or assume he is more likely guilty even when it wasn’t proven,
crime so horrific that jurors feel someone must pay- owed to victim)
Advisory committee note to FRE 403
o Excluding evidence that is relevant calls for balancing probative value and harm
o Harm: unfair prejudice, confusion, mislead, time
 Not allow surprise as a ground for exclusion
o Consider if limiting instruction effective and if there are other means of proof
Swift: 100 years of evidence reform- Thayer’s triumph
o Deferential treatment/discretion benefits: economic, individualized/flexible
decision making (trial court in better position for this)
o Costs: arbitrary, unfair, ambiguous, unpredictable, no confidence in judicial system
US v. Noriega
o Facts: ∆ drug charges as commander in Panama who used his position for this and
declared war on US; eventually surrendered to US military; ∆ tried to use classified
information on intelligence work for the US to rebut unexplained wealth;
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government said no to purposes and offered saying they paid 320,000; ∆ say it was
10,000,000 and wants to say what work he did; court ruled operations irrelevant
and would confuse the jury but can give facts, amount, time, source of money from
the government; ∆ did not admit evidence on money from the government because
it wouldn’t look “credible” now
o Issue: is the information on the work relevant and admissible
o Holding: purpose of the work/money is relevant because probative value in
settling the dispute over the amount, but this value is marginal; this doesn’t aid
significantly in determining facts/amount and it shifts the focus; unfair prejudice:
not want jury distracted with these issues
US v. Flitcraft
o Facts: ∆ fail file tax returns and committed false withholding but contested that it
was willful because he read a case that made him think wages aren’t income
o Issue: ∆ tried to introduce the legal materials that he relied on; court didn’t let him
but allowed him to testify orally
o Holding: entering documents cumulative, little probative value, and is confusing
(the law is clear on this); they let him testify because due process but not want the
jury to try to decipher the tax code; limiting instruction probably not help
Abernathy v. Superior Hardwoods
o Facts: Π had a truck with logs at ∆, forklift lift logs too soon, fall on π
o Issue: ∆ entered a video of a recreation of unloading logs as a reconstruction but
the court didn’t allow sound; ∆ claims sound shows π should have heard so
contributory negligence
o Holding: sound levels are relevant to determine contributory negligence but the
recording needs minimum reliability; the microphone wasn’t where π was
standing, amateur video, volume of the video recorder issues; the court doesn’t
have to enter evidence with little probative value just because cross examination
may show weakness; juries are confused enough, trials are long enough, lawyers
may try to muddle to confuse jury; jury maybe confused by video without sound
(split the baby); probably should have excluded it all under 403
US v. McRae
o Facts: ∆ killed wife with shot; claimed accident
o Issue: prosecution entered pictures of the wife and the scene (disturbing, distasteful,
etc.- show exit wound/head broken); ∆ claim exclude because probative value is
less than the unfair prejudice; trial court said relevant to show position of victim
o Holding: not flagrantly gruesome; need unfair prejudice to substantially outweigh
probative value; rule 403 applied sparingly- not want to sanitize facts, only to rule
out information of scant probative value brought in for prejudicial sake
US v. Mehanna
o Facts: ∆ translated Arab languages to English on a website sympathetic to al-qaida
and jihad; some al-qaida generated media and supportive materials; charged
provide material support to terrorists; entered terrorist materials- extensive,
reference beheadings, took pains to minimize impact of potentially inflammatory
evidence; government claims ∆’s motive/intent material and media has probative
value: ∆ inspired by terrorist rants so travel to Yemen so materials absorbed/used
to recruit others on similar path; media show motive/intent
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o Issue: ∆ challenged government admittance of terrorism pictures, videos, and
printed materials- inflamed jury
o Holding: no clear line when evidence creates unfair prejudice; trial judge
important/wise so defer; question if evidence crossed the line is debatable so
defer; emotional but related to nature of the crimes; trials aren’t antiseptic; all
evidence is prejudicial (only disallow if unfairly prejudicial); right on the edge
here of unfair prejudice: horrendous/inflame jury; for the trial judge to make edge
calls
Old Chief v. US
o Facts: ∆ felon with gun- previously assault and serious bodily injury
o Issue: ∆ moved to not mention the name of the past conviction and just that he was
convicted because jury wouldn’t be held to their burden/unfair prejudice and
irrelevant; government/judge refuse- stated name of conviction
o Holding:
 Rare instance of a refusal to exclude reversed
 Name of offense is relevant to prior conviction element (step on the
evidence route to the fact that he shouldn’t have had a gun); not irrelevant
because alternative proof is available
 unfair evidence lures the factfinder into declaring guilt on a ground different
from proof specific to the offense charge
 Saying the old crime’s name lowers the governments burden and
jury assume “do it again” (propensity) and concern for a
preventative conviction (probably will assault so put him away)
 generalizing a bad act to bad character creates a prejudicial effect (rule 404b
supports this so 403 applies: weigh probative value)
 Calculate probative value by comparing evidentiary alternatives and
scarcity of other evidence on the same point
 401 committee notes say concession sometimes calls for the
exclusion of evidence that would be used to prove what was
confessed to
 Here the prior conviction is similar, so the risk of unfair prejudice is high
 ∆’s offer to admit to a prior conviction would have been conclusive
 The name of the offense gave no detail that was relevant that wasn’t
covered by an admission
 The government can probe a case with evidence of its own choice and ∆’s
can’t stipulate/admit out of the full evidentiary force
 Generally true- evidence has force beyond any linear scheme of
reasoning; tells a story; makes jury duty easier; looks bad to cloak a
piece of information/present it in a different way- interrupts flow; a
naked proposition is not as good as robust evidence that shows it
 BUT: this doesn’t apply when the issue is ∆’s legal status, dependent
on a judgement rendered wholly independently of the concrete
events of later criminal behavior; here choosing between varying
abstractions; issue is whether we should disclose the name of the
crime not the concrete details
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Colorful story issue is true for the current crime and not for status
issues- it doesn’t matter what the past felony is here
 Here the fact of the qualifying conviction alone matters
 Status element
 ∆’s prior charge goes to an element out of the natural sequence of what he
is currently charged with (wouldn’t leave a gap in the story)
 Here, the evidence is of the same significance, but one has risk inherent that
is absent from the other
 The risk of unfair prejudice substantially outweighed the probative value of
the record of conviction, and it was an abuse of discretion to admit the
record when an admission was available
o Dissent: R 105 provides that when evidence can be admitted for one purpose and
not another then restrict and instruct; here judge did instruct so assume that the
jury followed this; instruction offset prejudice; jury puzzled by this missing
chapter; crimes have names and the government can’t be forced to accept ∆’s
concession as proof; relied on limiting instruction that said not the consider the
past crime (this probably doesn’t work; also, the limiting instruction isn’t true
because they consider the past conviction as evidence of the status crime)
Richman: Old Chief v. US: stipulating away prosecutorial accountability?
o Read as prosecutors must accept consequences of a statute that reaches far too many
cases that don’t comport with popular notions of criminality
o Juries will take this less seriously but maybe they should
Rule 105: parallel, limiting instruction
o If a court admits evidence that is admissible on one party/purpose but not another,
the court must restrict to the appropriate scope and instruct the jury; safety valve
o “Must”- only if other party asks for it
 Might not ask for it if lawyer thinks it highlights the client is bad (if lawyer
doesn’t ask for it, can’t raise this on appeal)
o Clary seriously doubts that the jury can actually limit their view in this way
 This is why many attorneys do not ask for the limiting instruction
 It is hard to forget what you have just heard
o Attorneys may admit evidence they know will inflame because they want the jury
to hear- this is why ∆ should file in limine
 This is easy to do because by definition the evidence is relevant if it violates
403; Gives lawyers leeway
C. Conditional Relevance
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Often admissibility depends on a “preliminary question” of fact
o Whether or not evidence is relevant turns on some other fact not yet in evidence
o I.e., attorney client privilege only to “confidential” communication
o Trial judge answers most of these
Start with 104(a) preliminary question (judge decides)
o Court determine preliminary question about issues like if witness is qualified,
privilege existence, evidence is admissible; the court isn’t bound by evidence
rules except for privilege; preponderance of the evidence standard on allow
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evidence; judge decides if evidence goes to jury, jury decides what weight to give
it
This is more complicated if rule is ban on irrelevant evidence which depends on facts
o Judges allow evidence if a reasonable jury could conclude the necessary
preliminary question: sufficiency standard
o Court may admit proposed evidence on condition that proof will be introduced
later (must admit said evidence)
 Opponent can move to strike evidence if fail to make connection (must
make the motion)
o Trial judge decides only if the evidence is sufficient proof that a reasonable jury
could find the fact exists; they don’t decide if the fact exists; jury is the fact finder
Morgan basic problem of evidence
o Often two facts influence if a fact is true but neither fact alone is enough
o So, if the only objection is irrelevance, judge ensures only sufficient evidence of
each is introduced to justify a finding of its existence and jury determines the
dispute as each
Advisory committee note to FRE 104(b)
o If a judge just determines a preliminary question on conditional relevance, the
jury as a trier of fact has its role reduced
o Judges preliminary determination of sufficiency, admit evidence, then up to jury
State v. McNeely
o Facts: witness testified that ∆ told him that he admitted to murder, but the witness
couldn’t identify the ∆
o Issue: state says that the witness’s testimony was conditionally relevant
o Holding: conditionally relevant evidence is admitted if the judge determines that
it is sufficient for a reasonable jury to find the fact is true, the witness spoke to a
man who admitted murder and had met the ∆, if ∆ is the man then it is relevant, ∆
changed appearance, reasonable juror could find they spoke, unable to identify
goes to the weight of the testimony not admissibility
Ball: myth of conditional relevance
o Evidence deals with probabilities not with truths/falsehoods
o Always relevant in these cases because it slightly impacts the probabilities
D. Other Class Notes
1. Three R’s of evidence
 Relevant?
 Reliable? (almost all other rules)
 Right? (externalities i.e. privileges (backend of 400’s)) i.e. 403 integrity
 second two are qualification to the rule that relevant evidence is admissible
2. Hypo
 ∆ accused of murdering ex, ex remarried, ex not change life insurance beneficiary,
prosecution wanted to introduce the life insurance policy, ∆ object and say no evidence
that ∆ knew she was the beneficiary
o Conditional relevance: policy only relevant if wife knew about it
o What if ∆ knew beneficiary when was taken out and he never said he changed it?
 Probably still insufficient to allow a reasonable jury to conclude she knew
o What if trial judge is divorced- should he consider that a reasonable ex-spouse
expects to be taken out of the will?
 No shouldn’t include own view, judge shouldn’t testify, question is
whether a reasonable jury would believe this
 Can’t take own view into account
III. Hearsay
A. The Hearsay Rule and Its Rationale
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Primary tabs
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.
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.
1. Introduction
 Hearsay is characteristic of Anglo-American law, but many exceptions/complicated
 Factual disputes in criminal and civil cases should be decided based on live, sown
testimony, not secondhand accounts of what others said out of court: Viva Voce evidence
 Why exclude hearsay?
o Relevant but not reliable; Anglo-American trial: best way is live sworn testimony
subject to cross
o Why prefer live testimony with oath?
 Cross can prove lying, misremember, split ambiguity, etc.
 Set of rules to try to exclude otherwise relevant evidence
o 801: defines hearsay (a-c) and carves out exceptions (d)
o 802: hearsay inadmissible unless otherwise by a rule
o 803 and 804: exceptions
o 805: multiple layers of hearsay
o 806: attack declarant
o 807: new residual exception
 How do we know we are dealing with hearsay?
o What is the statement at issue?
 801(a)- statement said/wrote/nonverbal (if intended to be an assertion)
o Who’s the declarant?
 801(b)- declarant made the statement
o How does the jury know about the statement?
 Testifying witness?
o Is it an assertion?
 Matter asserted: in the statement itself, not what parties are arguing about
o Was it made out of court?
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OOC: Not at current trial, can be hearsay from a different trial (i.e. a
witness at the original trial needs to re-testify at the retrial), even if old
trial videotaped hearsay
 The form of the OOC statement doesn’t matter: we aren’t worried about
the strength of whether the statement was made (knowing it was made
isn’t enough)
o What is it being offered to prove?
 Itself? Fits into a chain of inferences?
o 1) Identify the words or conduct in question.
o 2) Identify the declarant.
o 3) Determine whether the declarant intended to make an assertion.
o 4) If there is an assertion, determine whether the party is offering the evidence to
establish the truth of the assertion, or for a different reason.
Declarant v. witness
o D: made statement; W: on stand in this trial
o Can be the same person
o Personal knowledge is required for all witnesses (except experts) and all hearsay
declarants. The only exception to this general requirement is that personal
knowledge is not required for statements by party opponents.
Trial of Sir Walter Raleigh
o High profile; contributed to the inclusion of the confrontation clause
o Facts: ∆ charged with conspire with Cobham to kill James I, Cobham signed
confession (he recanted) which was the chief evidence; 2 HS- Cobham written
confession (which he didn’t handwrite, just signed) saying they plotted to murder
and Dyer’s (witness) testimony about what Portuguese man said (that ∆ and
Cobham conspired to kill king; other man declarant, unknown, hearsay issueassertion, OOC, offered to prove truth)
o Issue: ∆ want Cobham to testify, he was nearby, the government refused, ∆ say if
I did this shouldn’t Cobham want me punished; also witness Dyer said another
man said ∆ and Cobham plot to kill king
o Holding: prejudicial to the king, when the accusation isn’t probable then you can
hear the accuser but otherwise not, fear that Cobham would retract; guilty (law
not always founded on reason and justice)
Leake v. Hagert
o Facts: ∆ drove car into rear of a plow of π, ∆ hurt and damaged property, both
claim the other negligent, dismissed
o Issue: entered evidence of testimony of an adjuster (Gross) who investigated the
accident and testified that π’s son mentioned that the small light on the tractor was
out
o Holding: this was HS, HS prohibits the use of a person’s assertions as equivalent
to testimony of fact unless brought in to testify on stand with cross on
grounds/qualifications, the son didn’t testify (in army) and wasn’t under oath and
no cross, other evidence light was damaged so not affect the substantial rights of
the parties
McCormick on Evidence
o Professor prefers this approach

o Value of evidence depends on perception, memory, narration, and sincerity of the
witness
o Conditions to testify: oath, personal presence, and cross-examination
 Hearsay ensures compliance with these conditions
o In hearsay there are often 2 witnesses
 One complies with the 3 and reports what the other said without the 3
o Oath: ceremonial and religious symbol, shows the danger of perjury
o Personal presence: credibility, harder to lie
o Cross: main justification, security for completeness and correctness of testimony
Tribe: triangulating hearsay
o Perception, memory, ambiguity, and insincerity
o Hearsay issue: forging a reliable chain of inferences from the act or utterance of a
person not subject to in-court cross to an event that the act/utterance is supposed
to reflect
o Link: act/utterance to belief it is thought to express
 Trip in the head of the declarant
o Link: declarants’ belief to conclusion about external event that is supposed to
have triggered the belief
 Trip out of the head of the declarant, matches with external reality
o Chain of inferences is suspect when the act/utterance is out of court
B: belief of actor
responsible for A
1) ambiguity
2) insincerity
A: action or
utterance
3) erroneous memory
4) faulty perception
C: conclusion to
which B points
o Prove C with A along path through B: hearsay problem and disallowed upon
objection without a reason to permit it
o A  C directly removes hearsay infirmities
2. Nonhearsay Uses of Out-of-court Statements
 Hearsay bans OOC statements (not under oath at the same proceeding) to prove TMA
o What it means to be introduced to prove the truth of the matter asserted is an issue
 Matter asserted: in the statement offered into evidence
 Evidence typically supports a series of propositions
o If anything in the chain is the “truth of the matter asserted:” hearsay
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Witness: under oath, on the witness stand v. Declarant: statement of any kind
Advisory Committee note to FRE 801 (c)
o If statement is offered just to prove the fact that it was made, then it isn’t HS
o Exclude from HS “verbal acts” where the statement itself affects the legal rights
of the parties
Key Examples of non-HS: declarants state of mind (Lyons, Parry), allowed to show
effect of words on the listener (Subramaniam) or the perception of the receiver of the
message (Feliz), show notification (BSC, Jefferson, Johnson), “words of operative
conduct”/performative utterance (Hanson, Creaghe, Montana), words evidence of a crime
(Saavedra)
o Performative utterance: rule because we don’t have to decide if sincerity is an
issue; don’t have to rely on truth of declarant
Lyons Partnership v. Morris Costumes
o Facts: π own barney and sues ∆ for costume of “Duffy the dragon” for infringing
the trademark, ∆ won
o Issue: the lower court disregarded evidence of confusion between Barney and
Duffy (i.e. principal testified that kids thought he was Barney, parents testified
that their kids thought it, newspaper) as hearsay
o Holding: not hearsay because π didn’t offer statements/articles to prove the truth
of the matter asserted (that the people wearing the costumes were Barney) but that
kids expressed belief that those people were Barney, vacate, offered to show
statement was made, π argues statements wrong, prove kids reaction to Duffy
US v. Parry
o Facts: ∆ convicted conspire sell drugs, ∆ admit did it but good faith belief helping
agents find dealers, conversation with mom shows he knew they were agents
o Issue: not let in mom’s testimony about the conversation
o Holding: should have been admitted, offered not to prove truth of matter asserted,
testimony establishes that ∆ knew they were agents not that they were actually
agents, the possibility of the jury misusing the statement not enough to keep the
evidence out (limiting instruction), new trial
Subramaniam v. Public Prosecutor
o Facts: ∆ guilt of having ammunition, sentenced to death, found wounded, ∆ claim
captured by terrorists and duress and wanted to surrender
o Issue: ∆ wanted to admit what the terrorists said to him
o Holding: error to rule out the evidence of the conversation, not hearsay if to
establish statement was made (not truth of statement), fact it was made is often
relevant, appeal allowed because statements may have made ∆ scared- goes to
duress, show effect of ∆
US v. Feliz
o Facts: ∆ convicted possess firearm further drug trafficking and possession with
intent distribute cocaine, based largely on 2 written confessions, claim they were
involuntary because threats against family to deport/take into custody, cops claim
freely made
o Issue: excluded the testimony as hearsay and admitted the confession
o Holding: not hearsay, didn’t enter the testimony to prove truth of matter asserted
but to show threats were made (of which ∆ has knowledge), OOC statement
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allowed to show effect of words on the listener, mom is allowed to enter
testimony even though not target of threats; it doesn’t matter if the cops meant
this
US v. Johnson
o Facts: ∆ convicted distribute controlled substance and mail fraud, ∆ ran clinic
with another doctor
o Issue: former employee said she heard other doctor tell ∆ to stop writing
prescriptions like that
o Holding: not hearsay because not to prove truth of matter asserted but evidence of
∆’s knowledge that he prescribed medicine without a legitimate purpose
Campbell v. Boston Scientific Corp.
o Facts: BSC made a medical device with a substance that shouldn’t be permanently
implanted, 4 women sued because of complications and won
o Issue: object to caution advice by the manufacturer that says shouldn’t
permanently implant
o Holding: not hearsay, not admitted prove its truth, show BSC notification of
concerns of safety for permanent implantation; can’t be used to prove that implant
did cause the injury
US v. Jefferson
o ∆ appeal conviction distribution of heroin/jump bond, admit letter as evidence of
notice of hearing, okay because just showed notice
US v. Saaverda
o Facts: ∆ conspire/wire fraud, wrongfully charged Western Union with money
orders to get master charge numbers, inmates call from prison to pretend to be
officers/from bank, read credit card number, call Western Union and get money
order, ∆ pick it up; victim says that declarants claimed they were cops; This is not
offered for the TMA: they weren’t cops; the words are evidence of fraud
o Issue: allow victim to testify about calls
o Holding: not hearsay, testimony wasn’t to prove the statements but to show how
the numbers were fraudulently obtained that that others were involved; I.e. yelling
fire- the words are part of the crime
Hanson v. Johnson
o Conversion, π owned/leased farm and got some corn in exchange, tenant gave
corn to bank who sold it to ∆, π testified that the tenant told him that was his corn,
language of tenant the fact that needed to be proven, verbal transaction necessary
fact, affirmed
o Performative utterance (making a statement makes it true: you can enter the fact
that the words were uttered)
o Alternative examples: wedding pronounce spouse and spouse; now married; not
matter if intend it to be true
o Words made the corn Hanson’s- words made it true because of the law on
designating portions
Creaghe v. Iowa Home Mutual Casualty Co.
o Facts: π crashed with another, claim ∆ insured the individual, ∆ claim he had
cancelled his policy before the accident
o Issue: allowed the agent and employee to testify that the individual had cancelled
and got premiums back
o Holding: not hearsay, hearsay doesn’t forbit words said for an oral contract, not
matter if words true- just that they were said, can only establish oral contracts via
testimony of conversations; “I am cancelling the K” has the effect of cancelling K
 US v. Montana
o Facts: ∆ bank robbery, drove getaway car, robber pled guilty and testified at trial
that ∆ didn’t know he planned to rob the bank, demanded money from the mom
and dad for the testimony
o Issue: allow Marshall to testify that he heard the man demand money
o Holding: admissible as verbal act (commit speaker to course of action),
performative utterances (not narrate or convey information) aren’t hearsay
because they don’t make any truth claims; not HS because it is a demand; if say
“your dad promised be 10,000”- HS; performative utterance: extortion
3. Implied Assertions
 IA: Communications without a person trying
o Something is only hearsay if it was intended as communication (statement)
 Verbal Expressions that communicate something other than intended are non-hearsay
o They are not offered to prove the truth of the matter asserted or there was no
matter asserted (Zenni- majority approach; Dullard- minority approach)
 801(a)- Statement: oral assertion, written assertion, nonverbal if intended as assertion
 Nonverbal conduct
o Substitute for verbal i.e. point
o Not obvious substitute? Sea captain hypo
 Captain inspects, loads family, sets out, storm, sinks, claim defective, ∆
wants to call someone who saw him examine boat then load family
 CL: this is inadmissible HS- captain may hate family, want insurance
 Close enough to try to say something so sincerity issue
 an assertion of the same would be inadmissible
 801(a) no HS because not intended to be an assertion (we don’t lie to
ourselves so no sincerity issue)
 Don’t need to cross if speaker not trying to say something
 Can still prove wrong i.e. drunk or bad at examination
 Verbal: oral or written
o Says one thing, should we infer declarant intend to express something else too?
 US v. Zenni (our rule)
o Facts: ∆ was a bookie, cops answered his phone and people tried to place bets
o Issue: is this hearsay?
o Holding: No, this was not offered for the truth of the words but for declarants’
belief in the fact sought to be proved; words have a 2nd probative value beyond
the obvious meaning of the words; makes it more probable that he is a bookie; not
a statement because not intend to say “you’re a bookie”
 Common Law
 Wright v. Tatham: in a contested will case people tried to set aside
a will because creator was incompetent, others tried to introduce
letters from others showing they thought him competent: HS
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If a captain inspects a boat and then sets sail with his family: HS
CL was criticized- implied assertions aren’t as vulnerable, free
from mendacity (lie)
 FRE: implied assertions aren’t hearsay; something isn’t hearsay unless it
is an assertion concerning the matter to be proved; must be intended to be
an assertion
 Risks associated with HS lower here
Why Montana not IA?
o Statement its 10k is itself statement of extortion
 A verbal act you can get in that way
State v. Dullard (Iowa state court; minority approach)
o Facts: ∆ convicted of having Benadryl to make meth, he had a note that said the
cops were watching him
o Issue: is the note HS?
o Holding: the note is HS
 No clear answer has emerged as to whether implied assertions are hearsay
(federal courts are divided)
 FRE appear to support that IA are not HS (based largely on the advisory
committee note)
 Nonassertive nonverbal and verbal conduct is not HS
 An absence of intent does not make underlying belief reliable
 Four reasons exist for the hearsay rule: erroneous memory, faulty
perception, ambiguity, misrepresentation
 Implied assertions only change the implication of misrepresentation; the
other dangers remain
 Also, the misrepresentation concern remains in the case of a
fabricated story
 Unintentional/indirect assertions are not reliable enough to avoid HS rule
 Best approach: evaluate the relevant assertion in the context of the purpose
for which the evidence is offered
 There is no explicit language that categorizes IA as non-hearsay in rules
 Rule only expressly excludes unintended conduct
 Insufficient evidence to show another exception to HS here
Tribe: triangulating hearsay
o 801a eliminates nonassertive conduct from HS
o Best justification: nonassertive conduct means no insincerity
o Ambiguity is greater, still erroneous memory and faulty perception concerns
B. Hearsay and Confrontation
 6th amendment right for criminals to confront witnesses
o Hard to say how this overlaps/diverges from HS
 Confrontation Clause (CC): only in criminal cases, only to the accused, only applies to
witnesses/declarants, and satisfied if confronted
o No impact on HS in civil cases, against the prosecution, and if declarations from
witnesses who end up testifying in court
o All courts must follow CC (HS federal rules)
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o HS rises to a constitutional violation
o Less limiting instructions used here
Ohio v. Roberts
o CC allow HS if in HS exception or carry “indicia of reliability,” particular
guarantees of trustworthiness
o Now rejected because too disconnected from point of CC, replaced by Crawford
Crawford v. Washington
o CC should deal with Sir Walter Raleigh Problem
 Testimonial: Cohman yes, Dyer no
 Demand reliability tested by cross
o Now what matters is whether the out of court statement was testimonial
o Disagreement about how far this extends and the definition of “testimonial”
o This means much of HS not excluded by HS rule is inadmissible because it is
offered on a criminal ∆
o Also important to know if banned by HS and CC to determine if there was a
harmless error (Chapman: constitutional errors must be harmless beyond a
reasonable doubt to prevent overturn)
o Exceptions: if declarant subsequently testifies, declarant unavailable and previous
opportunity to cross (i.e., retrial but witness died- wouldn’t count if at GJ because
can’t cross there), forfeiture for wrongdoing (i.e., bride declarant to leave
country), purposes other than TMA
Crawford v. Washington
o Facts: Lee stabbed, ∆ arrested, Lee tried to rape ∆’s wife so ∆ went looking for
him, they fought, disagree about whether Lee drew a weapon, ∆ claim selfdefense, the wife didn’t testify due to marital privilege
o Issue: the state tried to introduce wife’s tape-recorded statement under a HS
exception (statements against penal interest) to show not self-defense (it was
introduced, and he was convicted)
o Holding: violates CC
 Right to confront dates to Roman times and CL England
 Sometimes England used civil practices i.e. witness examined
before trial
 Civil law exam- Walter Raleigh refuse to let him face Cobham
 Then England reformed and developed the right to confront and the
important right to cross
 Colonies also used questionable examination practices, so we guaranteed a
confrontation right- amended and added
 Principal evil CC directed at: civil law mode of criminal procedure
(particularly ex parte examination as evidence against accused)
 So, CC doesn’t only apply to in court testimony, and application to
OOC statements do not depend on evidence laws
 Not all HS implicates the 6th- only on witnesses against the
accused who bear testimony (to establish/prove a fact)
 Statements taken by a cop are clearly testimony
 Similar to examination by justices of the peace in England
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Testimonial HS is the 6th amendment’s primary object and interrogations
by cops fall in that class
 Framers not allow admit testimony of witness that don’t appear at trial
unless unavailable and ∆ had a prior opportunity to cross
 6th not suggest exceptions; only CL exceptions
 Roberts test: too broad and too narrow
 Unpredictable and inconsistent
 Failure to interpret constitution- Vague standards are bad
 CC demands reliability is tested in court via cross
 Crossing wife may have cleared issues up- ambiguous
 For statements that aren’t testimonial use the HS law
o Concur: disagree overrule Roberts
 Always exceptions to exclusion, the law wasn’t settled in framers’ time
 Some out of court statements are just as reliable
 It doesn’t matter if it was testimonial
Ohio v. Clark
o Facts: ∆ lives with girlfriend, GF’s kid hurt, teacher asked, and kid said it was ∆,
other kids hurt too
o Issue: introduced child statement to teacher but child incompetent to testify
because a rule of evidence; ∆ want to exclude because CC
o Holding: an obligation to report child abuse did not make the teacher an agent of
the law and the statements weren’t testimonial here
 Crawford: didn’t define testimonial
 Hammon (statement to police after away from abusive husband):
testimonial
 Davis (call 911 during/shortly after attack): not testimonial
 Primary purpose test: statements are nontestimonial when made in the
course of police interrogation under circumstances that objectively
indicate the PP of the interrogation is to enable police to meet an ongoing
emergency; testimonial when circumstances objectively indicate that no
such emergency and PP of interrogation is to establish events relevant to
later criminal prosecution/create OOC substitute for trial testimony
 Bryant: not testimonial to say who killed him as he dies; consider all of the
relevant circumstances
 Consider if there is an emergency and the informality
 PPT is necessary but not always sufficient for exclusion of out of court
statements under the CC (ones admissible at time of founding can still be
admitted, dying declarations may be exception)
 No categorical rule for non-law enforcement (less likely to be testimony)
 Child statement not for PP to create evidence for prosecution
 Ongoing emergency, protect child (like call in Davis), informal,
spontaneous, young child (not understand CJ), not intended to
substitute for trial testimony
 Similar circumstances admitted at CL
 Teacher was not law enforcement
o Concurrence (Scalia): satisfied PP test sufficient to be testimonial
 Want CC to have more life
 Dicta can mislead
 PP test sorts out who acts as a witness; no other requirements
 Burden on prosecution to show a longstanding practice to let evidence in
o Concurrence: PP not good test to determine if testimonial (Thomas)
 Want sufficient indicia of solemnity
C. Exceptions to the Hearsay Rule
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Why does HS have many exceptions?
o Not all OOC evidence is inferior, and we want evidence
o Result: Bulky and complex HS rule
o Could do individual assessments: result in more judicial discretion, lower
predictability, harder to prepare for trial, complicated, different rules for civil and
criminal
o Now system uses traditional exceptions and those with other guarantees of
trustworthiness
1. Prior Statements by Witnesses
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;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on
another ground; or
(C) identifies a person as someone the declarant perceived earlier.
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HS exceptions fall into two categories: apply whether or not D is available to testify
(803) and apply only if D unavailable (804)
Under the FRE, a hearsay exclusion applies to evidence that meets all three of the
requirements for hearsay but, for policy reasons, is defined to be non-hearsay. If the
evidence falls within a hearsay exclusion, then it is treated as not hearsay and can be
admitted to prove the truth of its contents. FRE 801(d).
Two are exclusions are not HS: certain OOC statements by D who testified as a witness
in court under oath in the very same proceeding (typically doesn’t violate CC)
o the second is admissions by party opponents
Why would a declarant witness’s own OOC words be HS?
o a jury would be able to observe the declarant’s demeanor and to hear responses to
cross-examination about the statements
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o cross-examination at trial time may be less effective than cross-examination
would have been at the time the speaker made the statement
o If OOC statements by people who become witnesses were generally admissible,
well-organized parties would develop a practice of making records of interviews
with prospective witnesses
Opportunity for cross easy to satisfy
o It was satisfied in a case, binding on federal courts and suggestive authority
elsewhere, where a witness remembered making a statement but did not
remember the events that he had described in his statement and did not remember
any circumstances involved in his making the statement (Owens)
Inconsistent requires oath
o Greater restrictiveness concerning inconsistent statements may make sense
because the proponent of substantive use of a witness’s prior inconsistent
statement asks the jury to reject what it has heard in court and substitute a version
of reality drawn from out-of-court statements.
o In contrast, the proponent of substantive use of a prior consistent statement seeks
to reinforce a conclusion that what the in-court witness said was true.
Why allow identifications?
o The rationale of the rule is that identifications of people made prior to trials are
likely to be more accurate than identifications made during testimony, and for that
reason should be admitted for substantive use
Prior consistent statements might also be introduced to respond to other attacks on a
witness’s testimony, such as a claim that the witness has a faulty memory or a claim that
the testimony has been muddled or internally inconsistent. (no timing requirement)
Under Rule 801(d)(1)(B), comes in for TMA (all of 801(d)(1) do)
The prior statement must have been made before the witness had a motive to lie in favor
of the party whom his or her testimony supports
Albert v. Mckay and Co. (old case)
o Facts: π worked for ∆, killed at work, widow sue for negligence, most witnesses
say the machine ran continuously, π called witness who said that the machine was
running continuously but impeached with rebuttal witness who said that the first
witness said that it had not been running continuously
o Issue: does this prove negligence?
o Held: no, witness impeached by prior inconsistent statements only discredits them
as a witness, doesn’t prove negligence
Advisory Committee Note to 801(d)(1)
o HS problem where a witness made a prior OOC statement and now denies it
 Why? Still get to cross/observe
o To not be HS: D must actually testify and
 (1) It is a prior inconsistent statement as substantive evidence, require
subject to penalty of perjury
 (2) allowed to identify someone, soon after offense, memory diminishes
over time, ∆ can’t persuade π yet, more reliable closer to events
US v. Owens
o Facts: C.O. beaten, poor memory, identified the attacker a month after, CO
remembers being beaten and identifying the ∆, at trial say not remember if ∆ and
not remember if hospital visitors suggested ∆
o Issue: HS?
o Held: no, crossed here, 801(d)(1)(c), memory loss doesn’t change this, not violate
CC
2. Admissions by Opposing Parties
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:
(2) An Opposing Party’s Statement. The statement is offered against an opposing party
and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the
subject;
(D) was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority
under (C); the existence or scope of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).
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.
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part — or any other writing or recorded
statement — that in fairness ought to be considered at the same time.

Admission by party opponent: not HS
o When an OOC statement is offered against the person who made it, it is an
admission and not HS
o Also applies when seems right to hold the party against whom the statement is
made responsible for the statement
o Rooted in adversarial fairness, can respond on stand
o CC may come up: not for direct admissions, most coconspirator statements
probably nontestimonial but sometimes
A) Direct Admissions
i. Generally
 801(d)(2)(a): made by the individual
o Admit because of the adversarial system, not need guarantees of trustworthiness



o Can’t say couldn’t cross yourself
o Can provide an explanation
o Easy to confuse admissions with declarations against interest, admissions not
always against interest
o Not need personal knowledge (Salvitti), big exception to normal rule
o Can be oral or written
Salvitti v. Throppe
o Facts: π crashed car, claim ∆’s employee negligent driving, sued ∆
o Issue: π claims ∆ and employee visited and admitted fault and claim will take care
of it, HS?
o Held: No, party acknowledged fault, and this is admissible as a declaration against
interest, not matter if ∆ no personal knowledge
US v. Mcgee
o ∆ bank robbery, made statements to police about journey to and from bank, not
HS because doesn’t have to be inculpatory to be non-HS
US v. Phelps
o ∆ had drugs, ∆ want to introduce own statement about bad with drugs, the
codefendant objected, not allowed because a statement of a party may only be
introduced against the party, adversarial system
ii. Admissions and Multiple Hearsay (805)



Reed v. McCord
o Π sued for death because ∆ negligent, entered coroner's statement that ∆ gave
information about circumstances and cause of accident, ∆ not present for accident
o ∆ statements were party admissions against interest and evidence for adversary
o It would be different if the ∆ had said he had heard it happened this way (2 layers
of HS); ∆ said X is a fact
Foster v. Commissioner of Internal Revenue
o HS within admission is HS unless an exception
o Still admit even without personal knowledge
o Difference between party saying, “X is a fact” and saying “A said X is a fact”
One level being exempt from HS does not mean other levels are exempt
iii. Admissions and Completeness (106)


Beech Aircraft Corp. v. Rainey
o Facts: plane crashed, 2 died, spouses sued plane manufacturer for defect, ∆ claim
pilot error, π written letter about crash to LT who claim pilot error, statements in
letter contradict π’s theory, π want to enter whole letter
o Issue: enter whole letter?
o Held: yes, distorted impression of letter, whole letter challenges LT’s theory, rule
of completeness, becomes relevant/admissible
Only for context, not for TMA
B) Adoptive Admissions 801(d)(2)(b)




To adopt or acquiesce to another’s statement is the same as admitting
o Sometimes silence is enough- would a reasonable person have objected? Trial
judge assess this
US v. Fortes
o Facts: ∆’s convicted of armed robbery because of Ward’s testimony, Ward said ∆
was present at a conversation wherein another claimed that they and ∆ performed
the robbery, ∆ didn’t interject
o Issue: HS?
o Held: No, adoptive admission, didn’t deny it, ∆ heard and understood it
Southern stone co. v. Singer
o Facts: π not paid for rock given to ∆’s, π wrote a letter to ∆ saying that ∆’s agent
claimed they owed money and if incorrect advise them
o Issue: Adoption?
o Held: no, failing to respond does not mean they adopted unless reasonable to
expect a response, no reasonable expectation here, agent not there to discuss
matter of letter and didn’t respond because not involved with company anymore\
Moss v. Commonwealth
o Facts: Victim killed at ∆’s house, ∆ told 911 that victim attacked so he shot him,
wife of dead yelled you shot in back for reason, ∆ didn’t reply
o Issue: Admit?
o Held: no, failing to deny the accusation is not admitting guilt when no call to
contradict it, not want to debate wife here (also, once ∆ is in custody, can’t rely on
silence)
C) Authorized Admissions 801(d)(2)(C)
 Hanson v. Walker
o Facts: woman hit by truck, π attorney sent ∆ letter saying ∆ couldn’t see π
o Issue: admit?
o Held: yes, attorney can make admissions directly related to managing the case
 Not require communication to an outsider
o For example, a party’s books/records are usable without intent to disclose to
others
 Trial judge determines if it was authorized
D) Agent and Employee Admissions 801(d)(2)(D)
 Vicarious admissions: not the same security
o Without them, lose valuable and helpful evidence
o Hard to prove conspiracy without
 During time in agency/employment
 Trend towards admitting statements related to a matter within the scope of the
agency/employment
 Mahlandt v. Wild Canid Survival and Research Center
o Facts: child attacked by wolf, in neighbor’s yard, gentle wolf, boy went in yard,
nobody saw how he was injured, maybe the fence, note by employee and words of
employee said wolf bit and board meeting
o Issue: admit ∆’s employee’s statement and board minutes?

o Held: Yes, words/note by employee not HS on employee because manifest belief
and on employer because within scope of employment (not need personal
knowledge); board minutes admit against employer because authorized statement
but not employee, could try to argue 403 exclude board minutes because
repetitive and confuse jury because only on one ∆, “my neighbor said Sophie bit
kid” 2 layers of HS and inadmissible
Sea-land Service v. Lozen International
o Facts: π sue over a shipping K, ∆ counterclaim that π failed to timely deliver, only
the counterclaim went to trial and π won, internal company email by π employee
and forwarded to ∆ by another of π’s employees with “yikes”
o Issue: exclude?
o Held: no, admission by a party opponent, e-signature okay, π employee and in
scope of employment, 2nd employee agreed with email when forwarded (manifest
adoption), 2 layers of HS- both admissible because both employees and second
one adopted the statement (probably still admissible without the yikes)
E) Co-Conspirator Admissions 801(d)(2)(E)
 Must be in furtherance of/in the course of the conspiracy; Made by CL
o Includes joint venturers
 Statement itself can be part of the consideration of if a conspiracy existed if it was made
by the party’s coconspirator during and in furtherance of the conspiracy
o But not itself establish, need something else
 Same logic as agency theory; conspiracies are hard to prove
 Rarely CC issue because when questioned by police not in furtherance of the conspiracy
 Odd exception
o Rationale: co-agents so liable for each other’s declarations (agency actually used
for against whom and not why admit evidence), trustworthy (same interest, but
not make sense for aims/members- may have motive to lie)
o True reason: probative need for testimony
 Bourjaily v. US
o Facts: informant sold coke to L, L said call friend to distribute coke and that
friend was interested, gave drugs to ∆, introduced call about “friend” participating
o Issue: 1) must a court determine by independent evidence that the conspiracy
existed and that D and ∆ members 2) quantum of proof 3) whether a court must
examine circumstances of such a statement to determine its reliability
o Held: 1) No 2) preponderance of evidence 3) no
 Need evidence of conspiracy between ∆ and D and statement
course/further conspiracy
 Existence and involvement preliminary questions of fact for the court to
resolve with the preponderance standard
 Previously, couldn’t bootstrap (needed independent evidence)
 FRE: can make a preliminary fact determination by considering any
evidence (not just admissible evidence), trial courts need to evaluate OOC
declarations by co-conspirators for their evidentiary worth as revealed by
the circumstances of the case


Coconspirators statements can be probative of the existence of a
conspiracy
 Here statements corroborated by events
o Dissent: need independent evidence to ensure reliability and act as a safeguard
Advisory committee: codified Bourjaily and courts can consider contents of D’s
statement in determining the existence/participation of conspiracy, contents of D’s
statement alone do not suffice to establish a conspiracy in which D and ∆ participatedneed other circumstances, extend Bourjaily to 801(d)(2) c and d
F) Admissions and the Bruton Rule
 In a situation where two ∆’s are tied, a statement by one will be admissible against the
one but not against the other without violating HS and CC, typically limiting instruction
but not in case of incriminating statement by a co∆
 Bruton v. US (pre-crawford)
o Facts: ∆ and Evans joint trial, convicted robbery, admit Evans confession, later
determine the confession was wrongfully admitted so set aside for Evans but not
for ∆ because instructed jury not to consider it against ∆
o Issue: substantially prejudice ∆?
o Held: yes, risk jury looked to the incriminating extrajudicial statements in
determining ∆’s guilt, violates the right to cross
 Overrules Delli Paoli
 In Jackson, determined a jury cannot reliably ignore a confession
 A jury cannot forget this information, government windfall
 There are other ways to get to the truth
 Speed/efficiency do not override liberty
 Jury can follow instructions sometimes but is limited
o Dissent: confession not that powerful because from other ∆, juries disregard
confessions when instructed, juries told to ignore a wide variety of HS
 Gray v. Maryland
o Facts: Bell and ∆ tried for murder, Bell confessed and said beat with ∆, trial
included confession but said “delete” every time ∆’s name, cop say arrest ∆
because of the confession, Bell did not testify, judge said use confession only on
Bell, both convicted
o Issue: Bruton issue?
o Held: Yes
 Richardson: limited Bruton, trial murder, redacted confession, allowed in
because it required a link (not incriminating on face, can incriminate
inferentially), confession eliminated ∆’s name and existence, no issue if
redact all references to co-∆
 Here, the confession refers to the existence of the non-confessing ∆
 A confession that replaces a ∆’s name with deletion falls under Bruton:
too similar to Bruton’s unredacted statements (jury similar reaction and
realize that the deletion refers to ∆, may call attention to the removed
name, functions the same grammatically- directly accusatory)
 Richardson depended on kind of inference not just existence of an
inference- here an easy inference, policy reason of protecting confessions
does not apply because most confessions allow for additional redaction to
meet this standard, not lead to too many mistrials
 Must make sure this doesn’t violate the rule of completion
 Could try the ∆’s separately
o Dissent: law assumes juries follow instructions, Richardson declined to extend
Bruton to inferentially incriminating confessions, here not facially incriminate
anyone but the speaker, issue whether incrimination so powerful that we must
depart from normal presumption that juries follow instructions (line should be at
facial identification), compromises the ability to find/convict, should use D’s
words, risk of freelance editing
3. Spontaneous and Contemporaneous Statements
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.
(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.




Two categories of HS exceptions: 803 and 804
o Most exceptions to the HS rule because the OOC statement is reliable, whether or
not D can testify
o 803: whether or not D available as witness, 23 exceptions
o 804: only if D unavailable (5 categories)
If exception, potentially admissible
o Other party can argue irrelevant, 403, etc.
803: 1 and 2 from the CL, allow statements made contemporaneously with the events
they describe which typically causes emotional strain, FRE allow exceptions for both
contemporaneousness and emotional strain (still must consider CC)
o 1: so fast its reliable, no time to lie, during/immediately after, short time, describe
event, descreased concern with memory loss
o 2: excitement means less likely to lie, can be loner period as long as under stress
of excitement event caused, broader (related to event)
o D needs personal knowledge of what is in the statement but not need to know
more than the contents of the statement, statement may indicate personal
knowledge but if not need more evidence to show this (judge decides this)
o The nature of the circumstances in which the statement was made theoretically
make it more reliable than in-court testimony by the declarant. Therefore, we
don’t impose the additional requirement of declarant unavailability, which applies
to those hearsay exceptions that are considered somewhat, but not very, reliable.
Advisory committee note 803: sometimes HS is reliable based on CL, D is always a
witness with firsthand knowledge; (1)- contemporaneousness eliminated deliberate
misrepresentation, short time lapse, describe/explain event; (2)- excitement makes it
harder to lie, may also impair observation, for the duration of excitement, related to
event/condition, D not required to be a participant in the event (can be bystander)






US v. Obayagbona
o Facts: ∆ tried to sell H to FBI, in a black and white dress, ∆ claimed had nothing
to do with it and the other person had H, tape of FBI said girl in black and white
dress handed over the H, made contemporaneously with arrest
o Issue: HS?
o Held: No, 803(2)- here excited by bust, 803(1)- near contemporaneously here
(within 15 minutes, made at first opportunity) and that’s okay, both exceptions
apply
People v. Cummings
o Facts: men shot by gunman, called 911, in background said it was ∆
o Issue: HS?
o Held: Yes, D needs to personally observe the events and we can’t tell that here,
fact D unknown not dispositive, what is significant is personal knowledge
o Concurrence: the excited utterance exception shouldn’t exist, hard to recall
traumatic events
US v. Elem
o Facts: ∆ firearm as felon, in custody said to cops that it wasn’t his gun
o Issue: Exclude?
o Held: Yes, not excited or spontaneous (Res gestae- verbal act and spontaneous,
not apply here)
Res gestae: part of the thing done
o Verbal act, independent legal significance, significant because it was said
o RG sometimes used for excited utterance, not way you should do this
Problems with this approach
o Folk psychology of evidence
o Statements made under emotional distress shouldn’t be trusted
o Perceptions clouted
o Not want to lie, but power of observation diminished
Wigmore said that contemporaneousness not sufficient, need shock
o As a result, shocked statements accepted, and contemporaneous statements
languished even though more reliable
4. State of Mind
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:
(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.
A) Generally

OOC statements explicitly describe speaker’s state of mind: “I think it’s Barney” or “I
hate him” or “I feel terrible;” essentially a specialized application of 803(1)





Rationale: When people say what they think about something or say how they feel
physically or emotionally, there are no perception or memory problems likely to diminish
the accuracy of what they say; the statement deals with the declarant’s present state of
mind; Necessity is also a factor, since, when a party’s state of mind is in issue (e.g., to
prove intent), such statements will often be the only way to prove that state of mind.
The mental state exception allows proof of a person’s statement of fact to show that the
person believed the fact to be true but prohibits the use of a person’s statements of feeling
to prove that a remembered fact is true
o A declarant said, “I saw Bill yesterday,” would be inadmissible if offered to prove
that the declarant did see Bill on the day before he spoke
o Admissible to show that at the time the declarant said it, the declarant thought he
had seen Bill on the previous day
Comes in for TMA as opposed to Parry which didn’t come in for TMA
Includes current knowledge as a SOM
US v. Harris
o Facts: conspire to sell H, dealer worked with government and pretended to buy, ∆
said knew an informant and played along because afraid
o Issue: Parole officer wanted to testify and say that ∆ knew the government was
trying to set him up
o Held: admissible as not HS (if say “they are setting me up,” not for TMA but
circumstantial evidence of state of mind) or under then existing state of mind
exception (if say “I believe they are setting me up,” HS exception 803(3), allowed
to come in for truth under 803(3))
B) The Hillmon Doctrine



Allow statements of intent to prove D did what they said they would do
Circumstantial evidence for TMA
Mutual Life Insurance v. Hillmon
o Facts: π (wife of deceased) sued insurance for death money, ∆ claim he isn’t dead
and conspire to defraud, π evidence husband accidentally shot and buried, ∆ claim
it was body of Walters, ∆ introduced evidence of letters from Walters to his sister
(lost) and fiancée which said he expected to leave Wichita with Hillmon
o Issue: HS?
o Held: No, okay to admit because evidence of intent, intent makes it more probable
that it occurred, can prove feelings, offered to prove D did what he intended to do,
hard to prove intent without this, intent increases the probability it happened but
not proof that he actually did travel with him (jury can draw inferences), if
Walters had said “I have left with Hillmon” then recount past and excluded as HS
o Commentary: hard to justify holding; difference between a HS account of a past
fact and a personal expression of then present intent, intent but not after the fact
statement of fact because of how the jury hears it- juries know they are drawing
inferences for statements of intent, they need to know how many inferences are
drawn, intent inherently weaker evidence compared to statements of fact
(definitive), high water line on statement of intent to jury; crime novelist thinks
Walter faked it, body of Hillmon




Shepard v. US
o Facts: ∆ tried for killing wife, poison, nurse said wife said husband poisoned her,
government said this showed state of mind of lack of suicidal intent
o Issue: HS?
o Held: Yes, this is evidence to prove an act by someone else, too great a risk of
confusion if let in for state of mind, cannot be a declaration of memory- pointing
backwards, spoke to a past act here, difference between intent and declarations of
memory of past, state of mind can’t prove past, if instead said “my husband is
going to kill me” probably admissible (403 may keep it out, I think it would)
Exclude memories to prove past because otherwise there would be no HS rule
o Evidence inherently weak so let in and jury can tell this
Circuit split
o Advisory committee note: Hillmon undisturbed v. House judiciary committee:
only own future conduct, not of others for some
o Adopted as written by advisory committee
o Majority view: you can use for non-declarant (Houlihan)
o Professor: Houlihan correct reading since the passed rule didn’t change the
advisory committee’s language
US v. Houlihan
o Facts: victim dead, told sister was going to meet Herd
o Issue: HS?
o Held: No, circumstantial evidence of meeting, FRE not change Hillmon, OOC
statements of D can prove conduct of others
5. Injury Reports
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:
(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.

803(4) exempts statements to doctors or for the purpose of a medical treatment/diagnosis
o Self-interest keeps people honest, want effective treatment
o Debate on diagnosis for litigation and in sex abuse cases
o This doesn’t include statements as to fault
o Person doesn’t have to be a doctor, patient doesn’t have to make statement
o Applies for medical experts (not reliable in the same way), practicality basis
o Typically, not for statements of fault but some allow in for cause
(assault/molestation cases), cause needed for medical treatment
o CC: PP test determine if testimonial, PP patient care then not testimonial
o Statements about the inception of a symptoms or sensation are admissible under
the rule (for TMA)




Exception requires statement be made to a medical professional; medical professional can
be not only a doctor, but also allied medical personnel (nurse, EMT, or ambulance driver)
Details about causation of a person’s health problem are covered by the exception only if
they are reasonably pertinent to the medical worker’s task
Rock v. Huffco Gas
o Facts: ∆ hurt ankle at 2 oil rigs (reinjured), no witnesses, told doctor about how
hurt and gave a history of the injury to his ankle, he later died (related)
o Issue: statements to Doctor HS?
o Held: yes, not necessary to treatment so not necessarily honest, same as hit by car
but HS say because someone ran a light, only needed to know that ∆ twisted his
ankle but not how
Ward v. State
o Facts: ∆ hit his girlfriend, GF said attacked when treated by paramedic and nurse
o Issue: HS/CC?
o Held: No CC/HS issue (non-testimonial, PP medical treatment, PP test but
domestic violence an exception to the rule that typically can’t attribute fault for
medical diagnosis and not have to be an ongoing emergency, treatment here,
assess psychological injuries), identifying the attacked serves a primary medical
purpose, standard of care for medical treatment for domestic violence beyond
physical injuries/medication (mental/psychological harm), PP test show is not
pretext for admit testimonial HS, medical purposes
6. Recorded Recollections
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:
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to
testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if
offered by an adverse party.
Rule 612. Writing Used to Refresh a Witness
(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.




If a witness wrote down recollection, allowed for TMA (separate from trying to jog a
witness’s memory) v. present recollection refreshed- just used to refresh memory,
anything can be used to jog memory (shown to other side first)
o 803(5): trustworthy because made when fresh in mind, witness needs impaired
memory for this to prevent preparation of such documents
o Past recollection recorded is a HS exception v. present recollection refreshed is
live testimony
o 803(5): D must be a witness at trial and on stand (in 803 because didn’t know
where else to put rule); not violate CC; testify cannot remember to lay foundation;
read to jury but jury can’t look at it (evidence but not an exhibit because substitute
for live testimony so can’t be better form)
o 612: witness on stand but momentarily forget, examiner show thing to help
remember, not shown/read to jury, not evidence, witness reads and gives
substantive testimony as evidence
o Who decides 803(5) v. 612 if both apply- 1st instance examining lawyer, if
objection then trial court (probably prefer 612 because lives testimony more of an
impact)
The person with firsthand knowledge, and the person making the record of the matter,
may be two different people (as long as the former causes the latter to make the record
while the former’s recollection is fresh). At least one of the two will have to “sponsor”
the record by testifying that the above requirements for the rule are satisfied.
o If someone other than D made the notes, and right after the accident D read them
and stated (or, probably, even thought), “Yes, that’s what happened,” then the
notes would still be admissible; under the FRE, as long as D adopted the written
notes when made, they are just as admissible as if he had made them himself.
Fisher v. Swartz
o Facts: K for labor/materials, π refreshed recollection with an itemized statement
of charges for labor/material and was entered into evidence
o Issue: allowed?
o Held: record of past recollection so may be entered as evidence, Bendett not
helpful/not follow it, no harm to ∆
US v. Riccardi
o Facts: ∆ steal goods, many antiques, victim testified and used a list of
goods/values to refresh memory, lists not received in evidence, doubt as to
whether actually present recollection refreshed
o Issue: allowed?
o Held: Yes, not HS, here present memory revived because remember (can’t recite
all items but recognizes them), not matter not written contemporaneously, primary
evidence oral, ∆ could test witness’s recollection
7. Business Records
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:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted
by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) neither the opponent does not show that the source of information nor or the
method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not
included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of the information
nor or other circumstances indicate a lack of trustworthiness.
A) Generally
 803(6) used all the time, records regularly conducted activity, 6 elements- business
(defined in B), regularly maintained, prompt (judge determines), knowledge, supported
by in court testimony (certifications count, not require custodian witness), trustworthy
 CL roots allow prove commercial transactions with records (reliability of records and
practical necessity)
 803(6): business records unusually reliable, systematically checked, precise, relied upon
o Businesses financial incentive to keep accurate, regularly made, need practically
(businesses large, simplest way)
o Opposing party can demonstrate lack of trustworthiness (Palmer- accident report
looks like a put up job, self serving)
 Flow through a variety of sources (i.e., email chain)
o Business duty doctrine: all same business and all action in regular course then all
layers covered (Zapata one was outside of the chain-sister)
 The custodian or other qualified witness need not herself have actually made the record
or even seen it being prepared; the witness (or person preparing the certification
document) must merely know generally how the records were kept.
 Business, organization, calling: Keogh and Gibson count (courts stretch this concept)
 803(7): absence, relevant evidence that missing event didn’t happen
o Need enough records of similar events to show should be one for this event
o Advisory committee says not need this because absence not HS- no statement
o Can still try to prove lack of trustworthiness
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o Gentry how you use an absence of the record (probably not even HS)
State v. Acquisto
o Facts: ∆ sexual assault, claim alibi- home because of a strike, records say at work
that morning (vouchers)
o Issue: vouchers okay as business records?
o Held: yes, CL required anyone in contact with vouchers testify, FRE now require
someone in charge verifies, a lot rides on records, here Mrs. Judge custodian, not
matter prepared in advance of the payroll
Amendment: can satisfy requirements without foundation witness
B) Qualifying “Businesses”
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Insufficiently reliable if made out of the scope of “business” activities, must be regular
“business” activity
Includes institutions and associations like school, churches, and hospitals
Keogh v. Commissioner of Internal Revenue
o Facts: ∆ dealer, tax evasion for not report tips
o Issue: introduce a diary by Whitlock to show tips?
o Held: yes, diary personal but kept in course of business activity, reliable if
systematically checked and maintained, wife can verify, no reason to lie
US v. Gibson
o Facts: H trafficking
o Issue: introduce co ∆ ledger, record of drug transactions?
o Held: yes, record of most large transaction, regular practice, contemporaneous,
relied upon, incomplete/out of order does not matter, not reason to lie
C) Qualifying Records
 Palmer v. Hoffman
o Facts: RR crossing accident, engineer statement internally before died
o Issue: business document?
o Held: no, excluded, not made in regular course of business, would be too easy to
get documents in, not trustworthy, calculated for use in court
 Lewis v. Baker
o Facts: π hurt at RR job, handbrake did not hold, ∆ claim π negligent because work
before and after
o Issue: introduce personal injury and inspection reports?
o Held: yes, made in course of business because required, here no motivation to lienot involved in accident so Hoffman not control, trustworthy (business rely on
them)
 Advisory committee: now business records may include opinions, emphasize routineness,
hinge on motivation, hard to define when okay so records made in regularly conducted
activity will be taken as admissible but subject to authority to exclude if
sources/circumstance lack trustworthiness
D) Sources of Information
 Advisory committee: tricky if supplier of information does not act in the regular course

Wilson v. Zapata Off-Shore Co.
o Facts: π sue for sex discrimination/emotional distress, hospital records of sister to
social worker said π is a liar
o Issue: business record?
o Held: No, source of information is an outsider so not allowed, double HS, not
exempt for medical diagnosis because general, harmless error
E) Absence of Record
 Advisory committee: if a record doesn’t mention a matter which would ordinarily be
mentioned, evidence of nonexistence
 US v. Gentry
o Facts: ∆ claim pin in an M and M, lied
o Issue: introduce testimony from employee of manufacturer that no other reports of
pins?
o Held: okay to show nonoccurrence
8. Public Records
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:
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) neither the opponent does not show that the source of information nor or other
circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported
to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that
a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record
or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides
written notice of that intent at least 14 days before trial, and the defendant does
not object in writing within 7 days of receiving the notice — unless the court sets
a different time for the notice or the objection.
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Includes: the activities of the government entity; matters observed and reported under
legal duty by police and law enforcement personnel; matters observed and reported under
legal duty by public employees other than police and law enforcement personnel; and
factual findings resulting from legally authorized investigations
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Rationale: they are exactly like ordinary business records when their topic is the internal
workings of a part of the government and are therefore likely to be reliable because the
organization that makes them also uses them in its day-to-day work.
Advisory committee to 803(8): assumption that public officials do their duty and with not
remember details without a record, okay for own acts or matters observed, evaluative
reports are controversial- consider (1) timeliness (2) skill (3) hearing (4) motivation
(assume admit but cane escape)
Conclusions and opinions are okay
Each narrower than the business record exception
o 803(8)(a)(ii) i.e., rainfall records (seems wrong but this is what I wrote)
o 803(a)(iii) i.e., legally authorized investigation
 Only civil or against government in crim (CC)
Blood report tests
o Before Crawford, got in
o Is it testimonial, now exclude reports
o Melendez-Diaz: testimonial, analyst must be available to cross
o Bullcoming: CC issue, need analyst who signed certification, certification had
been dropped off the morning of
o Not matter if report sworn: still testimonial
Business records can’t be a backdoor to 803(8) rules
o Davis: not a matter observed, interpretive conclusion, created for evidence
Beech Aircraft Corp v. Rainey
o Facts: pilots crash and die, spouses sued because defect, ∆ say pilot error, LT
report on accident (gave possible account of what occurred)
o Issue: can conclusions/opinions in public investigation report be admitted?
o Held: yes, fact-based conclusions/opinions not excluded from 803(8)(c), “factual
findings” not just facts, rule says reports setting forth factual findings are
admissible (not “facts”), rule does not differentiate between fact and opinion,
legislative history unclear- disagree, provision for escape for trustworthiness
(safeguard), language of rule/intent does not call for distinction, hard draw line,
okay because only based on fact investigations and trustworthiness provision,
broad approach
Melendez-Diaz v. MA
o Facts: ∆ arrested for coke deal
o Issue: are affidavits of forensic analysis showing coke testimonial?
o Held: yes, violate CC, testimonial (identical to in court testimony) and for
evidence, entitled to confront witnesses, not matter need be taken together with
other evidence to be inculpatory- witness against, not matter unconventional
witnesses or that it is “neutral science,” constitution guaranteed confrontation,
confront to deal with bad science, case here illustrative- could be mistake in
science, not business record (produced as evidence for trial) and even so CC
apply, clerk’s certification narrow exception (clerk subject to CC if can’t find
certification), subpoena inadequate, not matter easier without this and won’t shut
down the system
o Dissent: nots of people involved- who do you confront, if all then no more
science, formalistic and pointless- here didn’t challenge analysts (pro forma
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objection), not serve CC purpose, analyst no reason to lie, disrupt forensic
science, CC for witnesses against and analysts aren’t this, only traditional
witnesses, framers allowed copyists without confrontation
Bullcoming v. NM
o Facts: ∆ DWI, use BAC, 0.21, mention procedure/no flaws
o Issue: called not analyst who signed certification but another familiar with the
procedure who didn’t work on ∆’s case, actual analyst on leave, okay?
o Held: No, violates CC, testimonial, not just a machine generated number (follow
protocol, etc.). requires cross, even if reliable still CC, surrogate testimony not
helpful, right to confront actual analyst, not matter unsworn in determine if
testimonial, like Melendez-Diaz, not matter if undue burden, could have retested,
notice and demand procedures can reduce lab burdens, sky hasn’t fallen from
rulings
o Concur (Sotomayor): PP evidence, not a supervisor or a connected individual
here, not an expert asked for an independent opinion, not just a machine
o Dissent: this extends Melendez-Diaz, knowledgeable representative testified and
crossed here, hollow formality, ∆ can still challenge, link to rigid HS rules and not
most important application (ex parte statements)
US v. Torralba-Mendia
o Facts: ∆ conspire to smuggle immigrants
o Issue: introduce I-213 immigration forms (records of aliens) to show how many of
detained passengers were deported?
o Held: yes, in Lopez allow verification of removal- here same principles, objective
observations, non-testimonial
State v. Davis
o Facts: ∆ given BAC test
o Issue: machine operator sworn statements to prove it was working okay?
o Held: no, not business record, rules excluded by public record exemption can’t be
backdoored with business record, only use public record rule
US v. Lundstrom
o Facts: ∆ bank fraud
o Issue: report by employee of office of thrift supervision as business records?
o Held: Okay, can admit government reports in criminal cases (Williams) i.e.,
fingerprints by cops, sound/complied with law, created for administrative affairs
and not trial, authors testified and crosses, 803(8)(a)(3) only apply to cops at
scene/investigating and not other government reports
9. Former Testimony
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 thenexisting infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under
Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent
the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether
given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose
predecessor in interest had — an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
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Previous exceptions we’ve seen under Rule 803 don’t turn on availability of
witness/declarant – the rationale is that they’re reliable either way. Rule 804 works
differently – for these exceptions we acknowledge a preference for live testimony but use
hearsay as the next best thing if witness is unavailable for trial.
804: D unavailable to testify
Depends on if second proceeding is criminal or civil
o Criminal: only allow 804(b)(1) if ∆ part to 1st proceeding and opportunity/similar
motive to cross
Advisory committee 804: HS (which is not of equal quality to testimony on stand) may
be admitted if D unavailable and meet specified standard, testimony on stand > HS > loss
of evidence, former testimony is only missing the presence of the trier and the opponent
(demeanor evidence) and is the strongest HS, not have to be in same case but required to
be substantially identical, want similar motive/interest
Example: reversed on appeal and new trial and witness unavailable- admit previous
testimony
o 2 layers of HS: court reporter (public record) and witness (former testimony)
If defendant takes 5A, he makes himself unavailable to all other parties, but he can’t turn
around and introduce his own prior testimony himself. See the last sentence of Rule 804.
o Bollin, govt. offered defendant’s past grand jury testimony, but defendant who
took 5A couldn’t offer the exculpatory parts of his own grand jury testimony
because he had chosen to make himself unavailable.
The proponent of the testimony has the burden of showing the declarant is unavailable.
o Kirk, party bringing the prior testimony didn’t even try to contact the D to bring
them in as a witness. Inadmissible, because they didn’t establish unavailability.
We’ve already seen four other ways one might use prior testimony:
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o Use prior inconsistent testimony to impeach a witness/declarant testifying at the
current trial
o If declarant is the opposing party, the prior testimony can come in as a party
opponent admission under 801(d)(1)(B)
o If the declarant-witness is on the stand and momentarily forgot something,
attorney can use a transcript of their past testimony (or anything else) to refresh
their memory under 612
o If the declarant-witness can’t be refreshed, use prior testimony under the past
recollection recorded exception
So why do we need 804(b)(1)?
o D is not the opposing party and is not available to testify at the current trial. Prior
testimony under oath is the next best thing to live testimony.
The opposing party must have had the opportunity and similar motive to develop the
declarant’s testimony through cross-examination, etc.
o They need to have had the opportunity but don’t need to have taken the
opportunity. Motive is key.
o If circumstances at the prior trial were such that the witness’s testimony was
unimportant or that the whole suit was unimportant to the party, then it would be
unfair to permit use of the former testimony by that witness against the party in a
new case where the topic of the testimony is important or where the consequences
of losing the case are far more costly than in the prior case.
In a criminal trial, opportunity/motive element is measured as to the specific party against
whom the current testimony is being offered.
In a civil trial, it can be a predecessor in interest.
o The narrow, minority approach would say they must be “in privity” with the
current party. The majority view, which Clary strongly believes is correct, is
broader. The court will be “realistically generous” and allow the testimony in if
the party in the prior trial had “like motive” to develop testimony on material
facts.
US v. Bollin
o Facts: ∆ fraud scheme
o Issue: prosecution admitted part of ∆’s GJ testimony but not other parts
o Held: no abuse, use the 5th not to testify then made yourself unavailable and can’t
use 804(b)(1), not necessary for completeness
Kirk v. Raymark Industries
o Facts: wife sue for husband’s death from asbestos at shipyard, doctor expert
testimony show most asbestos-mesothelioma because of crocidolite asbestos to
show not ∆’s fault
o Issue: allow read doctor’s prior testimony at an unrelated trial where he said the
opposite of this? (for π)
o Held: HS, not authorized to make a statement/admission, no “reasonable means”
to find doctor by π so he would testify at the trial- didn’t contact him
Clay v. Johns-Manville Sales Corp.
o Facts: π sue for asbestos, ∆ manufacturer
o Issue: want to include old testimony from old asbestos case by dead doctor,
predecessor in interest?
o Held: Yes, predecessor in interest generous, okay if similar motive to cross and
adequate opportunity to cross, here similar motive
 Volland-Goland v. City of Chicago
o Facts: π arrested with force, acquitted, sued city, died and sister tried to use
testimony from criminal trial
o Issue: admit under 804(b)(1)? Did state have similar motive to cross/ predecessor
in interest?
o Held: yes, not privity, more forgiving standard here, state’s stake commensurate
with ∆, interests different in kind but neither weightier, identical factual questions
(physical force/reasonableness)
 Weissenberger: not define predecessor in interest, inconsistent interpretations
 US v. Salerno
o Facts: ∆ in crime family, fraud, cedar park executive exculpatory testimony at GJ,
prosecutor didn’t cross-examine those witnesses fully at the GJ and protests that
he didn’t have a “similar motive” to develop their testimony before the GJ
o Issue: can criminal ∆ use GJ testimony of a witness use uses the 5th at trial?
o Held: No, need to show similar motive, not matter adversarial fairness, no forfeiture
here, can’t create an exception to 804(b)(1) here, remand to determine if similar
motive
o Concur: similar motive factual inquiry, not always or never similar motive
o Dissent: same interest show testimony false, may just choose not to act on it
10. Dying Declarations
Rule 804. Hearsay Exceptions; Declarant Unavailable
(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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Viable post-Crawford: not matter if testimonial, constitutional originalism
Allow because of reliability and practical necessity
o Mystical and arbitrary?
o Originated as a religious concept – you wouldn’t want your last act before
meeting your maker to be a lie, so it’s reliable. That logic has lost its force but it’s
still an exception, mostly for practical purposes (need for evidence).
Requirements:
o Applies in prosecutions for any civil case or criminal homicide cases
o D must believe own death imminent (they don’t necessarily have to actually die)
o The statement must be about the cause/circumstances of the imminent death
o The declarant must have personal knowledge of the cause/circumstances of the
imminent death, not just be speculating. That’s partly why the victim’s statement
in Shephard wasn’t allowed in – “my husband has poisoned me” was speculation,
no direct knowledge.
Shepard v. US
o Facts: ∆ tried for kill wife, wife say to nurse he poisoned her
o Issue: dying declaration?
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o Held: no, need no hope of recovery and shadow of impeding death, not hopeless
yet, need to show her state of mind as hopeless, need personal knowledge and not
conjecture
US v. Sacasas
o Facts: bank robbery
o Issue: new evidence co-∆ said while dying that ∆ didn’t do it
o Held: DD inapplicable because not follow homicide or prosecution for homicide,
also wasn’t a statement about the declarant’s cause of death.
Advisory committee: psychological pressure present, CL require victim for homicide, but
theory applies in civil/other crimes
House committee: limit to civil/homicide
Davis v. State
o Facts: ∆ murder while robbing agency, one victim spoke to cop while awaiting
airlift, badly burned, identified ∆, said going to die
o Issue: allow victim’s words?
o Held: yes, DD viable post-Crawford, unique nature/purpose- unique ability to
speak to circumstances, unlikely falsely incriminate, dire conditions here, think
going to die, allow in, DD was around in the eighteenth century, so it’s
“incorporated” into the Sixth Amendment, a dying declaration made to a police
officer, even for testimonial purposes, is admissible and doesn’t pose CC problem
11. Declarations Against Interest
Rule 804. Hearsay Exceptions; Declarant Unavailable
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only
if the person believed it 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.
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Applies to statements by anyone against D’s interest, not just by/attributed to the party
against whom they are introduced
o Not the same as a prior statement by a party opponent, D not need to be a party
o Must be obviously contrary to D’s interests, objective standard (RP)
o Proprietary/pecuniary or criminal/civil L (not just for social ridicule- too broad)
To subject ∆ to criminal L, need corroborating evidence by the proponent
o Want this because of concern of false confessions by non-∆ to help ∆ because D
unavailable
o Jackson: concern false confession
Point made in connected casebook: the question is whether the statement was against
Karl’s penal interest at the time he made it. Here it was not, because Karl did not expect it
to be repeated to the authorities.
o If Greg is on a fishing trip with a buddy he trusts not to narc on him, Dwight’s
lawyer could argue it’s not really against his interest to say something that could
expose him to criminal liability.
o RC thought it would probably be considered against interest but there would be a
fight about it
Advisory Committee: people don’t make statements damaging to themselves unless they
think they are true, go farther than CL (pecuniary/proprietary interest), requires
corroboration
House committee: includes criminal L and those tending to make D subject of hatred,
ridicule, or disgrace; eliminating latter category
US v. Duran Samaniego
o Facts: boxer’s belts stolen by I who apologized for stealing, OOC apology
o Issue: HS? I apologized and asked for forgiveness
o Held: No- admissible, not state of mind because offered to show stole (can’t say
what induced a state of mind), but okay for 804(b)(3), SAI because subject to
civil/criminal L and unavailable, need to show steps taken to prove unavailable,
comes in not against D though contrary to D’s interest, whole statement comes innot parsed like in Jackson
US v. Jackson
o Facts: ∆ try sell coke with Brown
o Issue: Brown confessed but said not supervise ∆, HS?
o Held: Yes, Brown unavailable, government not similar opportunity/motive to
cross (804(b)(1)), need corroborating evidence to exculpate, Williamson:
804(b)(3) not allow non-self-inculpatory statements even if in broader selfinculpatory narrative, not self-inculpatory to Brown, no corroboration, parse
through and only admit parts contrary to D’s interests
12. Forfeiture by Wrongdoing
Rule 804. Hearsay Exceptions; Declarant Unavailable
(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.
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Advisory committee: prophylactic rule to deal with bad behavior, not need to be criminal
action, preponderance of the evidence standard
o Wrongfully cause unavailability (only if criminal intent to stop testifying),
prosecution burden of proof
o Well established CC exception even though testimonial
o Because this rule is not based on the likelihood that those statements will be
reliable, it can be used to introduce those statements only against a party whose
conduct the rule was meant to deter—a party who was responsible for the absence
of the witness.
Giles v. CA
o Facts: ∆ shot GF, introduce evidence that GF said to cops there was domestic
violence a few weeks earlier
o Issue: does forfeiture by wrongdoing violate CC?
o Held: yes, only applies when conduct was designed to keep a witness from
testifying i.e., Woodcock, cannot strip ∆ of constitutional right because of a
judicial assessment of guilt, not a tradition to admit prior statements on a
forfeiture theory when the ∆ hasn’t committed acts to prevent testifying, CL
exclude unconfronted inculpatory testimony when ∆ accused of killing victim but
not to prevent testify, no special rule for domestic violence
o Concur (Thomas): No CC issue here
o Concur (Alito): no CC issue here
o Concur (Souter): dissent not that wrong
o Dissent: rule’s objective indicate that it should apply here, ∆ knew a murder
would keep the victim from testifying (shows intent), taking advantage of crimes
13. Residual Exception
Rule 807. Residual Exception
(a) In General. Under the following conditions, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not admissible under a hearsay exception in
Rule 801 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness—after
considering the totality of circumstances under which it was made and evidence,
if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party
reasonable notice of the intent to offer the statement—including its substance and the
declarant's name— so that the party has a fair opportunity to meet it. The notice must be
provided in writing before the trial or hearing—or in any form during the trial or hearing
if the court, for good cause, excuses a lack of earlier notice.
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Exception for reliable and highly probative HS
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Advisory committee: must try other exceptions first, if it is a “near miss” take why into
account (shouldn’t just get around congress’s intent), determine trustworthiness with
circumstances/corroboration and not witness credibility, more probative than any
evidence the proponent can reasonably obtain
Compromise between flexibility and certainty
US v. Slatten
o Facts: ∆ contactors providing security, shootings kill Iraqis
o Issue: co∆ admit he initiated, HS?
o Held: Admit under 807, sufficient circumstantial guarantees of trustworthiness,
essential to the defense and to prove ∆ didn’t start it, not 804(b)(3) (not
inculpatory enough because self defense) or 803(6) (not in regular course of co∆
business), use this rarely but this is an exceptional case: D immunized and
criminal to lie, corroborating evidence, no better evidence, notice given
US v. Boyce
o Posner wants 807 to swallow 801-6 (exclusions, exceptions, notes), HS too
complex; HS should be allowed when reliable, when the jury can understand its
strengths and weaknesses, and when it will materially enhance likelihood of
correct outcome
Gold: residual not that rare, often invoked but let in less than excluded
o May violate reason behind codification of the rules
D. Hearsay and Due Process
 Constitutional constraints on HS: CC and DP of the 5th/14th amendments
o DP can require admissions of some evidence offered by a criminal ∆
o DP exception: very limited, developed in Chambers, only in criminal cases
o Not all evidentiary errors are constitutional errors
 Chambers v. Mississippi
o Facts: ∆ murder cop, cops in car to arrest man, crawl, cop shot, then shot ∆,
McDonald also there and confess to ∆’s attorney and friend (Williams), later
repudiated and said persuaded and was released, defense: ∆ didn’t shoot him and
that McDonald shot cop, witnesses confirm this
o Issue: violation of DP to allow admission of these confessions?
o Held: yes, denied a fair trial and violated DP
 Didn’t let ∆ cross McDonald because not “adverse” (can’t impeach own
witness- voucher rule), didn’t let in the confession because HS (3 separate
confessions)
 DP: right to a fair trial, cross, and call witnesses
 Voucher rule doesn’t make sense here and is harmful, witness was adverse
to ∆
 HS: many exceptions, declaration against interest does not apply to
criminal cases in Mississippi, HS here has many assurances of reliability
(spontaneous, to friend, soon, corroborated by other evidence, multiple
times, self-incriminating, against interest), could have been crossed by the
state
 Fundamental right to present witnesses
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Here: trustworthy, rationale for exception, critical to defense: HS cannot
mechanistically defeat justice
 Today: probably all come in under FRE, McDonald not unavailable so
only to impeach or under 807 for TMA (trustworthy, probative, to friends,
soon, etc.)
Fortini v. Murphy
o Facts: ∆ murder, claim self-defense, exclude evidence victim assaulted 4 men
right before the confrontation
o Issue: violate chambers?
o Held: no, chambers rarely used to overturn and only in an extreme situation, state
exclusion prevails unless arbitrary or disproportionate and infringes upon a
weighty interest of the accused, here- strong argument evidence should have been
admitted (state of mind), maybe wrong to exclude but not every ad hoc mistake in
applying state evidence rules violation of DP, needs to be egregious: evidence
here wasn’t important enough, hard to predict the evolution of chambers
IV. Character Evidence
A. The Basic Rule and Its Exceptions
Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the character or
trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions
apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor
may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s
trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under
Rules 607, 608, and 609.
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Cannot prove character to show one acted in conformity on a particular occasion
o Propensity evidence unduly prejudicial
o Only barred to prove conduct in conformity with trait (if character “in issue” then
this doesn’t apply)
o 3 exceptions: character of a criminal ∆, character of a victim/alleged victim of a
criminal offense, and character of a witness
 First two must be invoked by a criminal ∆
o Not an issue of relevance
o Can use limiting instructions
Character at issue: A common mistake in this situation is to notice that embezzlers are
usually corrupt and deceitful people and to jump to the wrong conclusion that “deceitful
character” is an element of the charged crime. To put you in jail for embezzlement, the
prosecution does not have to show that you are generally a lying or stealing type of person.
All the prosecution is required to do is show (beyond a reasonable doubt) that you took
money that didn’t belong to you.
The cases where character constitutes such an element are limited to defamation, negligent
entrustment, negligent hiring or retention, child custody, and criminal cases in which the
defense is entrapment.
o In a defamation case, the defamatory words must be false and truth is a defense.
o In a negligent entrustment, hiring, or retention case, the fact that the defendant has
entrusted responsibility to someone with inappropriate character demonstrates
negligence
o In a child custody case, the character of the parties seeking custody is of obvious
importance
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o In a criminal case where the defense is entrapment, the defendant must show that
he had no predisposition to commit the offense and only did so under pressure or
unreasonable entreaties by a government agent.
o A party may not use specific acts to prove character other than in those narrow
circumstances.
o When character is at issue, under FRE 405(a) and (b), all three types of character
evidence are admissible: reputation, opinion, and specific acts. (In common law
jurisdictions, the modern trend is also to allow all three.)
If ∆ in criminal trial introduces evidence of character, prosecution rebuttal evidence can
be in the form of either reputation or opinion evidence.
People v. Zachowitz
o Facts: ∆ killed a man for harassing his wife, went back to the scene with a gun,
question to state of mind: premeditation or sudden impulse
o Issue: is showing ∆ owns 4 weapons character evidence?
o Held: Yes, not connected to the crime, shows vicious/dangerous man, only
relevant to show disposition, policy issue
Cleghorn v. NY Central and Hudson River RR Co.
o Facts: accident because careless switch man
o Issue: admit intemperate habits of switchman?
o Held: previous intoxication would not establish omission to give signal but okay
to show habit and that company knew and had power to fire- notice
Berryhill v. Berryhill
o Child custody, character at issue, asked dad if he had ever killed
Larson v. Klapprodt
o Claim slander, issue whether statements damaged reputation, evidence of
standing/misdeeds okay because show if slander/extent of damages
US v. Baez
o Felon had/sold gun, okay to show predisposed if raise entrapment defense
(predisposition factor)
Advisory committee: two times character arises- character at issues or to show act
consistently with character (circumstantial), 3 exceptions (∆ show good character, ∆
show victim’s character, witness character for credibility), slight probative value but very
prejudicial (why not extend to civil)
Doubt may be because of unfair prejudice, i.e., white collar easier to produce character
witnesses (asymmetry), make think victim got what deserved
Counter argument: People actually determine a personality through interactions/situations
and not traits, should let jurors evaluate and decide how much to credit it, would
legitimize system
B. Methods of Proving Character
Rule 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of the character witness, the court may allow
an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
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Exceptions apply only to certain kinds of evidence of character- testimony about
reputation or a witness’s own opinion about character
Opinions have lots of HS rolled up, but otherwise a total detour
o HS exception
Rule 405 does away with the “are you aware” vs. “have you heard” distinction, and the
inquiry into specific conduct in cross-examination of a character witness is permitted
under 405(a)
Michelson v. US
o Facts: convicted bribe IRS agent, claim entrapped, ∆ use 5 witnesses to show a
good reputation
o Issue: can prosecution ask if witness has heard that ∆ was arrested for receiving
stolen goods? (with a limiting instruction)
o Held: Yes, ∆ can bring up character but only use HS (what heard in community),
using direct testimony is too complicated, but once ∆ brings it up then the other
side can rebut (opened), open to cross, trial judge discretion, limiting instruction
always confuse- workable but clumsy
o Dissent: try ∆’s whole life and cannot rebut, question makes jury assume this
Advisory committee note: specific instances compelling so only when character in issue,
if circumstantial only reputation/opinion
Government of the Virgin Islands v. Roldan
o Murder conviction, family called by government and said ∆ not bother people,
redirect ask if knew of previous conviction, by ask about social habits put
character at issue
US v. Krapp
o ∆ false entries to deceive US as a postmaster, character witness says ∆ honest,
cross say husband filed false taxes, objection sustained because prejudicial but not
enough for mistrial, prosecution had good faith according to trial judge
US v. Setien
o Facts: ∆ conspire cocaine, witness coke importer say offered let ∆ help and said
no, inadmissible, evidence of good conduct not negate criminal intent
US v. Ford
o Wire fraud, ∆ want testimony that helped FBI with investigations of other identify
theft scheme, not let in- can only use opinion or reputation
C. Other Uses of Specific Conduct
 Often evidence of uncharged misconduct comes in to prove something other than ∆’s
character
1. Permissible Purposes
Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. 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.
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to
offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends
to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for
good cause, excuses lack of pretrial notice.
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404(b)(1) tracks 404(a)(1)
404(b)(2): almost always used by prosecution of uncharged criminal conduct, used often,
lots of leeway
o ∆ entitled to a limiting instruction, but juries don’t understand this
Reverse 404(b)- proof of someone else’s prior bad acts to show you have the wrong ∆
Recent change to notice provision: counsel doesn’t have to ask
In order for modus operandi evidence to be admissible to prove identity, the M.O. must
be truly idiosyncratic.
When evidence of other crimes, wrongs, or acts is offered under Rule 404(b) there are
always four questions that you must answer:
o Is there a risk that the evidence leads to an inference that the person had a
propensity to behave in a certain way as a result of his character?
o Is there another purpose for which the evidence could be offered, other than the
propensity inference?
o How effective will a limiting instruction be in containing the risk of unfair
prejudice?
o Will the risk of unfair prejudice substantially outweigh the probative value of the
evidence?
US v. Beechum
o Facts: postman had stolen a coin, said plan to give to boss, state introduced two
stolen cards in wallet
o Issue: Admit?
o Held: Yes, extrinsic offense is evidence relevant to intent- probative force, 2
steps: 1) relevant to other issue? 2) probative value not substantially outweighed
by undue prejudice?; cards here relevant to intent with coins and high probative
value, jury instructed on limited use of information
US v. Boyd
o Facts: convicted of pot trafficking
o Issue: admit personal use of pot/coke?
o Held: yes, indicates a motive to sell, probative value not substantially outweighed
by prejudice- not more serious than the crim charged
US v. DeJohn
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o Facts: charged with cashing a stolen check
o Issue: admit evidence ∆ found behind the YMCA desk? And had other checks
which he claimed he got from the YMCA and was holding for safekeeping?
o Held: yes, show opportunity to gain access to mail/checks; ∆ had claimed it
wasn’t him
Lewis v. US
o ∆ rob post office, evidence rob store that night too, okay because establishes
plan/intent (took materials for the crime), shows preparation
US v. Crocker
o Facts: ∆ bank theft conspiracy, drove friend to bank
o Issue: introduce evidence of prior arrest with co∆ co similar crime?
o Held: yes, probative of knowledge
US v. Dossey
o Facts: ∆ bank robbery, teller describes robber but says can’t identify the ∆ but it
looks like the robber, evidence ∆ in Little Rock that day
o Issue: can one testify that ∆ admitted to other robberies in Little Rock and
Minnesota
o Held: admit to prove identification for the Little Rock ones but not the Minnesota
ones (didn’t wear same disguise there), important due to inability to positively
identify the ∆, prior part in a bank robbery with the same look/disguise show
identity here
US v. Wright
o Facts: ∆ sell coke to cop, later cop identified him and arrested
o Issue: play recording from a wiretap that says he is a dealer?
o Held: no, didn’t admit to this crime, not an issue of intent and doesn’t show
identity, doesn’t show he did this crime, 404(b) exclude relevant evidence, rejects
record of other crimes to show identity- different from Dossey because trial
judges have a lot of discretion, in the eyes of the beholder
US v. Davis
o Facts: ∆ coke in car, convicted of intent to distribute
o Issue: government used 2 prior convictions of possession of coke to show that he
recognized the substance in his car as coke, okay?
o Held: No, not show coke looks the same, not relevant to knowledge/intentpossession and distribution are different, may look/smell different, past
experience may not make more likely to recognize, different intents
US v. Ekiyor
o Facts: intent to import/distribute coke, coke in suitcases with his name and he had
the key
o Issue: compel information about baggage handlers smuggling?
o Held: no because evidence one handler has smuggled to show other did violates
404(b), “reverse 404(b)” evidence- some courts allow because it doesn’t violate
the purpose of 404(b) but here not allow, no other probative value, even generous
standard not let in here, probative value < risk confuse/mislead/delay
Advisory committee: typically, the prosecution introduces this evidence
Proper as a rule of inclusion or exclusion?
o Presumption should be exclusion
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o Split: Wright (exclusions) v. Dossey (inclusion)
Commentary: often let in evidence of other acts, some courts want to minimize this by
restoring 404(b) as a rule of exclusion- reverse scale to favor exclusions because big
impact on juries
Commentary: 404(b) 1st and 2nd sentences inconsistent, makes more sense if interpret as
only a ban on propensity only when character
Commentary: previous conduct relevant for intent but not in predicting if a particular
individual will commit a crime
Needs to be for a proper purpose, relevant, can argue prejudicial, limiting instructions
2. Requisite Proof
 Offeror does not have to prove the misconduct actually occurred, only if a reasonable
juror could find that it occurred
 104(b) analysis, reasonable juror
 Huddleston v. US
o Facts: ∆ sold stolen goods, issue if know stolen, introduced similar acts, seem to
sell other stolen goods, but government didn’t show the past goods were actually
stolen
o Issue: need to prove other acts by a preponderance of the evidence standard
before going to jury?
o Held: no, inconsistent with the structure of the FRE and language of 404(b), 40412 addresses specific types of evidence that have generated problems and then
limit the purposes for which that evidence may be admitted, this would impose
too much judicial oversight, inconsistent with legislative history, should use
typical rules of admissibility (undue prejudice compared to probative value), only
allow relevant evidence- relevant if a reasonable juror could conclude that it
actually occurred and ∆ did it (using the 104(b)) standard that the jury could
reasonably find the conditional fact by a preponderance of the evidence)
D. Character and Habit
Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove
that on a particular occasion the person or organization acted in accordance with the habit or
routine practice. The court may admit this evidence regardless of whether it is corroborated
or whether there was an eyewitness.
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Evidence of habit is admissible
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Advisory committee: habit is specific- meeting a particular kind of situation with a
specific kind of conduct, highly persuasive, character is the sum of one’s habits, no
precise standard, much evidence is excluded because it fails to achieve habit status
Character is general disposition, different; Habit: regular response to a specific situation
(probability) and semiautomatic/nonvolitional (psych)- both definitions of H embraced
o Although the dividing line between habit and character may be blurry in particular
instances, remember that character is a generalized description of a person’s
disposition, whereas habit is more specific: Habit is a regular response to a
repeated, and fairly narrowly defined, situation. Note also that under FRE 406,
evidence of the routine practice of an organization is treated just like evidence of
a person’s habit.
Organizations can have habits/routine practices
House: not have to prove habit by opinion/specific instances, left to courts
Class: Whitmore v. Lockheed- tend to fly planes self, seems volitional
Courts have held church attendance is nonvolitional (lack of coherency)
Agreement habit is reliable/admissible, but character isn’t
o Habit more predictable and less likely to lead to unfair prejudice, typically
morally neutral v. character morally tinged
o Lying typically is character and not habit
Kornberg v. US
o Facts: π ear surgery, damaged nerve, loss of taste, claim not given sufficient
information on the risks
o Issue: error to admit evidence of routine of doctors/medical center?
o Held: no, regular practice to discuss the risks (habit under probability but not
psych)
Ortiz v. NY
o Facts: π ambulance to hospital for intoxication/violence, claim wrongful assault to
be taken
o Issue: admit medical records of the hospital for intoxication of this time and the
past?
o Held: Yes, habit specific, alcoholism is a disease so let in expert testimony
o Courts are split on something like alcoholism (habit v. character); other case
alcoholism character (RR switchman) but another okay as notice
Commentary: 406 has room to maneuver, there are psychological and probability theories
of habit, both require regularity, psych: Pavlovian/not volitional, probability regular
response to a specific situation, two theories to allow flexibility
E. Sexual Assault and Child Molestation
 Rape shield laws: curtail victim’s character to show consent
 Allowed to show evidence of ∆’s character in such cases
1. Character of the Victim
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.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to
prove that someone other than the defendant was the source of semen, injury, or
other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s
sexual behavior or sexual predisposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. The court may admit
evidence of a victim’s reputation only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a
different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or
representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in
camera hearing and give the victim and parties a right to attend and be heard. Unless the
court orders otherwise, the motion, related materials, and the record of the hearing must
be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
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412 victim, 413 defendant, 414 defendant criminal, 415 defendant civil
o 412: criminal and civil, no evidence to show victim have other sex/predisposition;
includes sexual harassment
o 412(b)(2) different from normal 403 weighing
o 412(c) victim protective
Specific rules for specific cases (i.e., Cosby and Weinstein)
o Before same rules as any other criminal case: not let in ∆’s character but yes to
victim’s character (404), frequently ended up in a trial of the victim
o Traumatized victims, juries mislead, discouraged victims
Formerly, victim’s character/chastity used a lot in rape cases
o Juries overvalued and misused this
Wigmore: non-consent is a material element; chastity shows likely to consent in this case
1970’s rape shield laws: states then federal
Graham v. State
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o ∆ wanted evidence that victim not chase, ∆ claims there was no sex between he
and the victim (so not a question of consent), relevant still here as evidence that
she may have started a fight and how she got hurt
o Let in reputation even though no consent defense
Holtzman: rape victims humiliated/harassed, decreases reporting
Advisory committee: rule safeguards victim’s privacy and protection from
embarrassment, encourages institution of legal proceedings, bars evidence related to
victim’s sexual behavior except when the probative value significantly outweighs harm,
criminal and civil cases, includes all activities that involved actual physical conduct, also
excludes evidence with a sexual connotation, reverses 403 burden to the proponent, more
stringent than original rule, adds “harm to victim” to the scale
Olden v. Kentucky
o Facts: 2 black ∆’s accused of rape, victim white, in KY to exchange a gift with
Russel (black boyfriend), rapes in car finding a friend, inconsistencies in the
story, witnesses say victim said wanted to have sex with black men, ∆ claim
victim lied to protect relationship (they live together now), constitutional issue
o Issue: evidence relevant to show motive to lie?
o Held: yes, violated CC to exclude, can cross to impeach, this evidence may
change view of witness’s credibility, limit here beyond reason, testimony here
central, weak case
US v. Willis
o Facts: ∆ sex abuse with 17 year old, claims consent, victim lived with cousin and
was babysitting, ∆ claims victim had sex with BF right before, issue of consent
o Issue: introduce evidence sex with BF? Motive to lie?
o Held: no, state not try to show physical evidence that originated exclusively with
the ∆, not apply because ∆ admits to the sex, could present other evidence of
potential motive to lie, not influence consent with respect to ∆, not relevant under
401
US v. Thompson
o Facts: ∆ sex trafficking, run sex business, use coercion to force sex and then takes
the money
o Issue: evidence that the victims were prostitutes before and after with ∆?
o Held: no, falls in R 412, not violate DP (can’t offer irrelevant evidence), not
violate CC- reasonable limits to cross i.e., irrelevant and impeach value <
embarrassment/prejudice, can show during time voluntary (DP) but not
before/after period ∆ charged with, 412 trumps normal impeachment rule
Polo-Calderon v. Corporaction Puterorriquena De Salud
o Facts: π clerk sue employer for sexual harassment and firing
o Issue: introduce evidence of π sexuality and texts with other men?
o Held: no, not show probative value > prejudice, no reason to include private
dating life, can ask about this relationship, not matter that he may welcome sexual
advances from others, private sex doesn’t waive sexual harassment
2. Character of the Defendant
Rule 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the
court may admit evidence that the defendant committed any other sexual assault. The evidence
may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected
testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime
under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object —
and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of
another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or
physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Rule 414. Similar Crimes in Child Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any other child molestation. The
evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor
must disclose it to the defendant, including witnesses’ statements or a summary of the expected
testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
(1) “child” means a person below the age of 14; and
(2) “child molestation” means a crime under federal law or under state law (as “state” is
defined in 18 U.S.C. § 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a
child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body — or an object — and a
child’s genitals or anus;
(D) contact between the defendant’s genitals or anus and any part of a child’s
body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily injury,
or physical pain on a child; or
(F) an attempt or conspiracy to engage in conduct described in subparagraphs
(A)–(E).
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual
assault or child molestation, the court may admit evidence that the party committed any other
sexual assault or child molestation. The evidence may be considered as provided in Rules 413
and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it
to the party against whom it will be offered, including witnesses’ statements or a summary of the
expected testimony. The party must do so at least 15 days before trial or at a later time that the
court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
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413 not protective of ∆
o Criminal trial, permitted: any other sexual assault, any matter to which relevant (broad)
o Allows pattern witnesses
o Prior assault does not need to be prosecuted/charged
o No time limit
o Has its own definition of sexual assault: contact without consent
o Prior sexual assault probative
o In theory 403 still applies, frequently unsuccessful because presumption in favor of
admission (LeCompte and Majeroni split in what to do with 403, still both prior behavior
admitted)
o Highly criticized when proposed
414: same concept but with child molestation (same logic- highly probative of propensity)
415: civil case similar acts (sexual assault or molestation)
413-15: maybe push balance too far
o Courts say congress decided this, not for us
o Not concerned about distractions/minitrials
opinion and reputation evidence is generally admissible to prove character under the Federal
Rules, but not under Rules 413–415.
A move to cover domestic violence as well
FRE regarding prior similar misconduct for sexual assault/molestation represent a rejection of
typical concerns
o Lots of condemnation, too political?
Molinari: house sponsor, supersedes 404(b), authorizes admission of uncharged offenses if
relevant, protects the public, cases distinct, child abuse: unusual interest/young victim, sexual
assault: consent unusual defense, presumption to favor admission, time lapse okay
Judicial conference: many comments on the new rules, overwhelming majority of
judges/lawyers/legal organizations oppose, advisory committee on evidence thought FRE already
deals with this concern, diminishes safeguards in criminal prosecutions, advisory committees on
criminal/civil rules oppose
Saltzburg: congress refused to reconsider or adopt proposed changes
US v. LeCompte
o Facts: abuse 11-year-old niece
o Issue: admit evidence of prior uncharged sexual offense on another niece?
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o Held: yes, must apply 403 to let 414 serve its intended effect, probative not substantially
outweighed by prejudice, substantially similar offense, congress overruled excluding
such evidence due to the unique stigma of child abuse
US v. Majeroni
o Facts: ∆ possess child porn
o Issue: introduce evidence of previous conviction of possession of child porn?
o Held: Yes, okay under 414, must still pass 403- not matter the time passed, agree with
government that prior conviction is highly probative, highly prejudicial but not unfair
prejudice
Note: circuits conflict on how to use FRE 403 with 413-15, some say use 403 lightly to effect
congress’s intention, some use the same standard as in other contexts, some use special criteria
(i.e., balancing test)
Lininger: CA waived the ban on propensity evidence for domestic violence (following OJ), some
in congress want 413/14 to apply to all violence on women like CA, criticisms of 413/14:
prejudicial, inconsistent with 404(b), no evidence showing higher recidivism for sex offenders,
and disproportionate impact on Native Americans
US v. Cunningham (Posner)
o Propensity evidence and motive evidence overlap when crime motivated by a taste for the
crime as opposed to pecuniary gain i.e., sex crimes, most people have no taste for sex
crimes, history of this distinguishing motive, firebug same idea: motive revealed by past
crime, 404(b) allows evidence of prior wrongs to establish motive so we don’t need 41315
V. Other Forbidden Inferences
 Issues come up enough to need their own rules
A. Subsequent Remedial Measures
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
 negligence;
 culpable conduct;
 a defect in a product or its design; or
 a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or - if disputed
- proving ownership, control, or the feasibility of precautionary measures.
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Advisory committee: not an admission and want to encourage safety
To use for other purpose ∆ must contest, can ask for a limiting instruction
Another party makes the SRM- not a 407 issue
the time of injury is what counts, not the time of manufacture or sale of the product.
Changes made before injury can be admitted for any purpose.
Clausen v. Storage Tank Development Corp.
o Π hurt at work, admit ramp repair, okay to center repair to show who controls the
ramp but not fault
In Re Asbestos Litigation
o Π sued due to dead husband’s asbestos, can’t enter evidence that they later put a
sign to warn on products, can’t enter to prove “feasible” unless ∆ contests that
Diehl v. Blaw-Knox
o Π hurt by ∆’s widener, evidence late added a cover/moved the backup
alarm/added a warning at rear, the re-designer wasn’t a party to the suit, policy
not implicated when measure by non-party, no support that the redesign would
confuse/mislead jury, admit
B. Settlement Efforts
1. Civil Settlements
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party —
either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise negotiations about the claim —
except when offered in a criminal case and when the negotiations related to a claim by a
public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct
a criminal investigation or prosecution.
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Advisory Committee: evidence irrelevant and public policy to promote compromise/settle
Trial judge determines if it was created for settlement
The language of Rule 408 covers evidence of a compromise settlement between the
defendant and another party,
courts generally hold that as long as the potential plaintiff has threatened litigation, and
the potential defendant makes a payment offer that is contingent upon the would-be
plaintiff’s giving up his right to sue, that’s enough to establish a “disputed claim,” and to
trigger the application of FRE 408.
a collateral statement made during the settlement negotiations is — like the basic
settlement offer — inadmissible to prove negligence, liability, or a claim’s value.
Dubious probative value
Rule 408 covers only statements and conduct in connection with claims that are disputed
either as to validity or amount
US v. Davis
o ∆ steal from frat, offer to split 29K to make it go away
o offers to settle excluded even if no settlement negotiations follow
Ramada Development co. V. Rauch
o Π sue for building K, ∆ said defects and offers report of defects as basis to settle,
document didn’t exist without settlement, other ways to show π on notice, not
admissible
Carney v. American University
o Π fired, claim discrimination, separate severance issue- attorney wrote and said
may be entitled, never got it, can be admitted because offered to prove separate
wrong (condition benefits on waiver of her rights), offered for another purpose
PRL USA Holdings Inc. V. US Polo Association Inc.
o Sue for trademark infringement, evidence of prior case where agreed that this
logo okay, admit because offered to establish estoppel defense, not matter in
compromise negotiations because entered for another purpose
2. Criminal Settlements
Rule 410. Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible
against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of
Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a laterwithdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be considered
together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record, and with counsel present.
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Advisory committee: if a withdrawn plea is admissible essentially means cannot
withdraw a plea, need compromises
US v. Mezzanato
o Facts: ∆ not honest in PB when prosecution said had to be, as condition to
proceeding ∆ agree that statements made during meeting could be used to
impeach
o Issue: can you waive 410?
o Held: Yes, typically you can waive rights- presumptively available, some are
fundamental so cannot waive but not here, not necessarily decrease use of PB,
government can say you must waive 410 if you want to deal for impeachment
o Dissent: unequal bargaining power, exception swallow the rule, slippery slope of
waivers
US v. Mergen
o Facts: deal fell through because concluded ∆ lied in debriefing, government tried
to enter statements in plea allocution because said ∆ waive
o Issue: waive 410 to use statements as evidence against ∆?
o Held: yes, circuits broader than Mezzanato which only allowed for impeachment,
enforce waiver, lower courts apply waivers for the truth, government can force
waive 410 to deal and then use everything as the case in chief
Waivers are common
Issue: imbalance in power discussions (like a K of adhesion)
Not much of 410 left to cover discussions
Strong: adversarial system- parties have a lot of latitude in how they assert their rights,
FRE assumes party responsibility and parties must see that the rules are applied, rules not
insisted upon by a party are waived
C. Medical Payments and Liability Insurance
Rule 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether
the person acted negligently or otherwise wrongfully. But the court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or
control.
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Advisory committee 409: payment typically because a party is humane, not admit L
Advisory committee 411: would otherwise induce juries to decide cases wrongly
o Limited probative value and policy (want people insured)
o Can lead to over L for insured and under L for uninsured
o Jurors probably assume ∆ insured so maybe wrongly decided anyway (maybe
prejudices uninsured ∆’s)
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In the event that the court admits evidence of insurance for other purposes, the judge
should give a limiting instruction to the jury that the proponent cannot use the evidence to
prove negligence or wrongdoing by the defendant.
Paying medical bills could show bias
Charter v. Chleboard
o Facts: π injured by a doctor, had another doctor testify that it was due to
negligence, ∆ had a witness who worked for ∆’s insurance company say that the
other doctor had a bad reputation
o Issue: Admissible that ∆ had L insurance?
o Held: yes, can use the existence of L insurance to show other purpose like bias,
evidence of ∆’s insurance employed the witness shows bias
Higgins v. Hicks
o Facts: Π hurt on highway, ∆ K with state
o Issue: introduce evidence of state L insurance to eliminate juror bias because they
are taxpayers?
o Held: no state L insurance not relevant to any issues in this case
Commentary: critical of 411, L insurance can be relevant, insurance companies are
permitted to litigate disguised as insured, better ways to prevent excessive verdicts on
insurance companies
VI. Impeachment and Rehabilitation
A. Introduction
Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.
Rule 806. Attacking and Supporting the Declarant
When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has
been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by
any evidence that would be admissible for those purposes if the declarant had testified as a
witness. The court may admit evidence of the declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.
If the party against whom the statement was admitted calls the declarant as a witness, the party
may examine the declarant on the statement as if on cross-examination.
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Are they testifying- then impeachment land (if not, then character evidence land only)
Impeachment and rehabilitation are ways in which evidence can be relevant
o Impeachment: suggests a witness lacks credibility, typically on cross of a hostile
witness (but no vouching rule now- can call hostile witness)
o Rehabilitation: rebuts impeachment, typically redirect
o Go to- gets a lot in
Article 6 witnesses
o 608 character, 609 impeach, 610 religion
Can impeach witness A with witness B or with an exhibit, happens a lot if OOC comes in
because of a HS exception
Intrinsic: via testimony of the witness
o While on stand, asking questions
Extrinsic: via other evidence, witness left stand
McCormick: attack witness’s credibility with prior inconsistent statements, bias due to
emotional influences, character, defect in capacity to observe/remember/recount, specific
contradiction; 2 ways- elicit facts from witness or through extrinsic evidence
Clary: dishonesty (character to lie), inconsistency (change story), bias, incapacity
(Vinny), specific contradiction (always extrinsic evidence, show part of testimony untrue
so conclude other parts untrue)
o All also subject to normal rules of evidence
B. Character for Untruthfulness
 A variety of character evidence
 Witness lie because in nature to lie- typically prohibited but okay to impeach (exception
to character evidence rule)
1. In General
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But evidence of truthful character
is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness or untruthfulness
of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination
for testimony that relates only to the witness’s character for truthfulness.
Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the
witness’s credibility.
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Advisory committee 608: exception to 404(a), just for veracity, allow opinion/reputation
and not specific instances- conforms with 405
Advisory committee 610: can use to show interest/bias
608(b)
o The prior act or conduct must be probative of the witness's "character for . . .
untruthfulness," not merely of the witness's general "bad character." (So, for
instance, acts of dishonesty qualify, but acts of violence usually don't.)
o The evidence must be brought out solely in cross-examination of the witness
being impeached (and is subject to the court's giving permission for it to be
brought out on cross). That is, the questioner must "take the answer of the
witness," as the common-law saying goes. In other words no "extrinsic evidence"
of specific prior non-conviction bad acts - evidence from sources other than the
witness's own words (e.g., a document, or another witness) - may be used for this
impeachment purpose.
Can introduce character to impeach
US v. Lollar
o ∆ testified in own defense, state called witness and asked it would believe ∆,
witness said no, allowed because testified in defense so character for truth in issue
o If on stand prosecution can attack character as impeachment
Glaze v. Childs
o Inmate sued correctional officer for failure to protect, evidence ∆ resigned in lieu
of termination, excluded as propensity evidence, resignation didn’t involve deceitgave cigarettes to inmates
US v. Rosa
o ∆’s wanted to cross witness against them, allowed to question witness on
conspiratorial oath of loyalty to a crime family to the extent it bore on truthfulness
and a fraudulent insurance claim, didn’t allow a question of bribery because
doesn’t involve truthfulness
o Fraud yes, bribe no
o If use intrinsic evidence of specific instances, then must take the answer (no mini
trial)
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US v. White
o Want evidence of extrinsic offense of witness (previously offered to lie to
decrease charges), only allowed on cross and not from an extrinsic source, cannot
use extrinsic evidence for specific instances
o Keep trial focused
US v. Aponte
o Want to include a witness’s past lie, cannot with extrinsic evidence
o Keep trial focused
2. Prior Criminal Convictions
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant;
and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court
can readily determine that establishing the elements of the crime required proving — or
the witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10
years have passed since the witness’s conviction or release from confinement for it, whichever is
later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it
so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is
not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding that the person has been
rehabilitated, and the person has not been convicted of a later crime punishable by death
or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only
if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s
credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is
pending. Evidence of the pendency is also admissible.
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defendants are deterred from testifying in cases where a proper application of the rule
would expose them to impeachment based on proof of past convictions and are also
deterred in cases where a ruling allowing that type of impeachment might well be wrong.
The deterrence occurs in the latter type of case because a defendant will only be able to
challenge the ruling allowing that impeachment by testifying and allowing the jury to
hear it.
A) Admissible and Inadmissible Convictions
 609 gloss on 608, impeach with a criminal conviction
 Felony must come in criminal or civil and witness isn’t the ∆
 Reverse 403 if felony and witness is the ∆
o Probative value greater than prejudice, not use term substantial, tougher for
prosecution that standard 403
 Crimen falsi (lying crime) must admit
o No balancing/403, no discretion (Wong)
o Requires dishonesty, shows propensity to deceit i.e., perjury
o Crimes that involve dishonesty or false statement include perjury, criminal fraud,
and embezzlement.
o For the conviction to meet the requirements of this rule, the ultimate criminal act
must involve deceit.
 If ∆ testifies at own trial, Crimen falsi comes in and probably all felony convictions
come in too
 US v. Wong
o Facts: ∆ accused of mail fraud, testified,
o Issue: introduce past fraud convictions?
o Held: evidence of a crime is admitted if it involved dishonesty (no balancing of
prejudice and probative value), no discretion
 US v. Estrada
o Facts: narcotics trafficking, impeach witness
o Issue: if it’s impeachment with a crime that doesn’t involve falsity say name?
o Held: Yes, do not limit to fact/date, name offense, essential facts are required,
different felonies bear on credibility in different degrees, all felonies somewhat
probative of truthfulness but all felonies not equally probative and many are
significantly probative, many felonies (i.e., violence) not probative, gradations
among 609(a)(1) crimes in terms of bearing on truthfulness, crime here bears on
truth, justified to exclude violent crimes with no bearing
 US v. Amaechi
o Witness brough ∆ a case of drugs, tried to impeach witness with plea to
shoplifting, a sentence of supervision is not a conviction, shoplifting isn’t
dishonest
 US v. Sanders
o Facts: ∆ attacked an inmate and had contraband, claimed self defense
o Issue: introduce past convictions of assault and contraband?
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o Held: No, allowed because it is a felony and falls under 609(a)(1) but highly
prejudicial so inadmissible, not relevant to intent (404(b)), reversed conviction
US v. Oaxaca
o Facts: ∆ testified in own defense
o Issue: admit evidence convicted of burglary and bank robbery to impeach?
o Held: yes, more probative than prejudicial, theft more indicative than violence
US v. Hernandez
o Facts: ∆ kidnapping, testified it wasn’t against the victim’s will
o Issue: admit evidence of prior conviction of possession of coke/pot?
o Held: Yes, similarity between crimes because here to get money for a drug deal so
be cautious, but okay because credibility is important
Friedman: character impeachment doesn’t influence a rational jurors assessment of ∆’s
inclination to lie, should eliminate character impeachment of criminal defendants and all
other character impeachment evidence should be discretionary
Roberts: innocent ∆’s don’t testify if they have a prior conviction, implicit stereotyping
(racial) so it’s important to be able to testify
B) Preserving a Claim of Error
 SCOTUS: you don’t preserve improper impeachment with prior conviction unless
impeached
 Luce v. US
o Facts: ∆ didn’t commit to testifying and asked to preclude his past conviction if he
does, rejected (609(a))
o Issue: can this be reviewed?
o Held: no, when a ∆ doesn’t testify then a higher court won’t review an in limine
ruling- speculative harm, can’t tell if government would have impeached this
way, to preserve improper impeachment ∆ must testify
 Ohler v. US
o Facts: ∆ pot possession/importation, impeached with prior drug conviction, ∆
admitted on direct to the prior conviction to take the sting out
o Issue: can this be appealed?
o Held: no, waived claim of error to admit prior acts for impeachment, must make
choices as trial progresses, can’t deny prosecution their decisional process
C. Prior Inconsistent Statements
Rule 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about
the witness’s prior statement, a party need not show it or disclose its contents to the witness. But
the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness is given an opportunity to explain or deny
the statement and an adverse party is given an opportunity to examine the witness about it, or if
justice so requires. This subdivision (b) does not apply to an opposing party’s statement under
Rule 801(d)(2).
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;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another
ground; or
(C) identifies a person as someone the declarant perceived earlier.
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Must be given the chance to explain/deny extrinsic evidence of prior inconsistent
statement
Advisory committee- not have to show to witness before cross, if witness is unavailable
then judicial discretion
US v. Lebel
o Facts: ∆ heroin conspiracy, Laws failed to identify him at the first trial
o Issue: ∆ wants to introduce evidence of that failure at the 2nd trial
o Held: introduce, no time requirement, can admit whenever
US v. Truman
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o Facts: ∆’s son burned his own building, witness on dad, couldn’t do it
o Issues: read son’s testimony from other trial?
o Held: yes, not HS, subject to cross, inconsistent, refusal to answer inconsistent
with prior testimony so admit
US v Ince
o Facts: ∆ tried for assault for firing a gun at trucks, friend says ∆ admitted it, at
trial friends can’t remember so called cop said what friend had said
o Issue: admit cop’s testimony?
o Held: no, state trying to circumvent HS rule, can’t impeach as subterfuge to get
evidence in, prejudicial, value for impeachment is 0 here
US v. Webster
o Facts: ∆ helped King rob bank, state called King and King said ∆ didn’t help him
o Issue: admit King’s prior statements to the FBI?
o Held: yes, no subterfuge because didn’t expect king to testify that way
People v. Freeman (CA law)
o Facts: ∆ driver of robbery, claims was home, witness says saw ∆ with co∆,
investigator says she said more than that
o Issue: admit?
o Held: yes, “Hi Norman” isn’t HS, admit investigators version not to impeach but
to support the truth, bring in D for false version to open door to actual events
D. Bias and Incapacity
 No special rules for impeachment for bias/incapacity, but they may run afoul of other
FRE
o Bias: reason to lie/slant testimony
o Incapacity: memory/perception unreliable; must be careful to not allow character
impeachment in guise of incapacity
 US v. Abel
o Facts: ∆ robbed a bank, other robber testified against ∆, ∆ offered another witness
to impeach the other robber with statements of his intent to lie
o Issue: can the government show they are all members of a gang?
o Held: yes, favorable witness’s bias to ∆ probative of willingness to lie for him,
evidence of gang probative of bias, bias is relevant (makes the testimony less
probable), allowing testimony about the type of organization not unduly
prejudicial because type of organization relevant to show bias (didn’t say the
name and a limiting instruction was offered), since this is admissible to show bias
it doesn’t matter that it would be inadmissible to show character, this was
extrinsic evidence
 US v. Sasso
o Facts: ∆ traffic guns, ex GF testified
o Issue: evidence that GF is depressed because she killed someone to impeach?
o Held: no, depression expected, not delusional, no evidence on Prozac at time
 Henderson v. Detella
o Facts: ∆ murder and attempted murder, victim identified him
o Issue: evidence victim uses drugs okay?
o Held: No, okay to ask about drugs at the time but this was not related to this night,
this would only impeach character, drug use not impact ability to identify
E. Specific Contradiction
 Collateral evidence rule: only to impeachment by specific contradictions (particular part
of what a witness testified to is false), bans extrinsic impeachment for specific
contradiction on collateral matters, could it still be proven for any matter other than
contradicting the witness- if no, then collateral
 Intrinsic evidence of collateral matters is okay
 This keeps the trial focused on what matters
 Simmons v. Pinkertons
o Facts: π sued for fire by employer of ∆
o Issue: allow evidence fire setter falsely claimed to have taken and passed a
polygraph?
o Held: yes, not as substantive evidence but to impeach because lied, CER applies
to impeachment for contradictions but only excludes extrinsic evidence of certain
facts that would impeach by contradiction
 US v. Copelin
o Facts: ∆ sold coke to a cop with specific bills, ∆ had the bills, claimed got the bills
by playing cards
o Issue: ∆ claim only seen drugs on TV, impeach with a failed drug test?
o Held: yes, impeaching with a contradiction is a legit reason to introduce evidence
of other wrongs, impeached by own statements
 McMunigal: courts are split on extrinsic collateral evidence, CER- actually hard to
determine if something is collateral or not, can ask about inaccuracies in own testimony,
CER: rejection of the transitive inaccuracy relevance theory as adequate to support
admission of extrinsic evidence
F. Rehabilitation
 Opposite of impeachment, show trustworthy
o 5 modes match the 5 modes of impeachment: Honesty, consistency, disinterest,
capacity, specific corroboration
o Restrictions on character for truthfulness and prior consistent statements
o No bolstering, must follow impeachment (drags out trial, invites jury to take
witness on faith)
1. In General
 US v. Lindenmann
o Facts: ∆ killed a horse in an insurance conspiracy, Burns testified against him, ∆
attacked Burns’ credibility by saying he had a motive to lie for a plea
o Issue: Introduce evidence that Burns helped with 30 prosecutions as a part of a
large prosecution- bolstering or rehabilitating?
o Held: Okay, not bolstering, ∆ attack Burns’ credibility and claimed bias so can
rehabilitate, FRE not address bias so only limited by the relevance standard (403),
admission of involvement with other cases relevant here: rebuts the self-interest
claim and decreases the chance he is lying, given a limiting instruction, intrinsic
evidence here
2. Character for Truthfulness
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But evidence of truthful character
is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the character for truthfulness or untruthfulness
of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination
for testimony that relates only to the witness’s character for truthfulness.
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Advisory committee: only introduce character evidence in support of credibility if
character has first been attacked, otherwise too much time, bias evidence doesn’t count as
character, if specific contradiction is character evidence depends on the circumstances
608 a and b respond to attacks on character for untruthfulness
Murray v. Lindenmann
o L: intrinsic rehabilitation
o M: extrinsic rehabilitation not okay
There is a difference between saying “you are lying” and “you are a liar”
o Cannot respond to claim of bias or incapacity with character for truthfulness
o Sometimes PIS attack on character for truthfulness- it depends
o Lots of subjectivity
Beard v. Mitchell
o Facts: π sued for negligence in her brother’s death, π impeached ∆ with prior
inconsistent statements to attack credibility
o Issue: may the ∆ then introduce evidence that he has a reputation for truthfulness?
o Held: yes, here the PIS was an attack on truthfulness, okay under 608
US v. Danehy
o Facts: ∆ impeded the coast guard, wants to introduce evidence of
character/reputation for truthfulness
o Issue: do discrepancies between ∆’s and others’ testimonies constitute an attack?
o Held: No, this doesn’t call reputation into question, bolstering here, 608(a) not
triggered, not an attack on character for untruthfulness, just inconsistent with
others’ testimony, 404 doesn’t apply (can’t introduce character evidence under
404 because character for truthfulness is not pertinent in the case)
US v. Drury
o Facts: murder for hire, claims it was a role play, wants to introduce evidence of
truthful character
o Issue: was character “otherwise attacked?”
o Held: no, not an attack to point out inconsistencies in testimony and argue that the
∆ is not credible
 US v. Murray
o Facts: murder/coke enterprise, use police informant’s testimony, cross shows
illegal acts of the informant
o Issue: can the prosecution introduce testimony of a cop that the PI is reliable?
o Held: yes, character has been attacked “otherwise,” can rehabilitate, BUT can’t
use extrinsic evidence of specific instances as was done here (can’t give the
number of cases he has helped with- 608(b))
3. Prior Consistent 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;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another
ground; or
(C) identifies a person as someone the declarant perceived earlier.
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Prior consistent statements come in for the truth, big expansion in 2014
Tome v. US (before amendment)
o Facts: Dad charged with sex abuse, divorced, mom wants custody, mom claims
abuse, dad says this was a lie so the daughter could stay with the mom, the kids
was reluctant at trial, introduced 7 statements by 6 witnesses describing the sex
abuse to rebut the desire to live with mom claim
o Issue: are OOC consistent statements to rebut “recent fabrication” after the motive
to lie/creation of the original lie admissible?
o Held: no, requires prior consistent statements made before the motive to lie (CL),
can’t introduce past consistent statements to bolster, prior consistent statements
uniquely useful if show a motive to lie and aren’t allowed for other
impeachments, if no time requirement then no reason not to allow prior consistent
statements to all impeachment types, notes show adhere to CL unless indicate
otherwise, HS often relevant but relevance isn’t all that matters, allow in too
much judicial discretion/decrease predictability/increase difficulty in trial
preparation, would shift emphasis to OOC statements, can’t change rules for a
specific class (kids) (Scalia- notes don’t matter)
o Dissent: issue here is relevance not HS, FRE not codify CL, plain words, not hard
to administrate, flexible, effect minimal because just repeating in court testimony,
probative here
Advisory committee note to 2014 amendment to FRE 801: prior rule only covered
consistent statements to rebut recent lie/improper motive/influence, retain requirement of
Tome that consistent statements to rebut lie come after motive to lie, amendment extends
substantive effect to consistent statements that rebut other attacks on a witness (i.e.,
inconsistency or faulty memory), now prior consistent statements that were admissible
for rehabilitation are admissible substantively as well
VII. Opinions, Experts and Scientific Evidence
A. Lay Opinions
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.
Rule 704. Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because
it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.
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Modern law abandons the restriction of only experts offering opinions, lay witnesses can
offer opinions but must be helpful to jury and based on firsthand observations
Advisory committee 701: adversarial system makes these rules okay
Advisory committee 704: old rule too restrictive
701: lay, regular fact-witness, CL no opinions but now okay because offer opinions in
normal conversations, personal knowledge required, help jury, not need specialized
knowledge, can be on ultimate issue
Government of the Virgin Islands v. Knight
o Facts: ∆ beat Miller, gun accidentally went off and he died, cop and eyewitness
said it was an accident
o Issue: exclude?
o Held: cop- yes because no personal knowledge; witness- no
Robinson v. Bump
o Facts: π sued because of a car accident, ∆ offered testimony of the car behind ∆
who said that ∆ was in total control
o Issue: admit?
o Held: yes, personal knowledge and helpful, opinions okay
US v. Houston
o Facts: felon had a gun, let special agent testify regarding footage- identified ∆,
funs, and family
o Issue: admissible?
o Held: yes, can identify if witness better able to do so, allowed to narrate the tape
because personally familiar with ∆ and gun, poor quality so helpful to jury
Advisory committee 200 amendment to 701: added C
US v. Ayala-Pizarro
o Facts: sell H/guns
o Issue: cop testified about drug distribution points/operations/normal packagingdoes this make him an expert?
o Held: not an expert, line unclear, personal and particularized knowledge here,
favor admission, observations didn’t require expertise, testified to what he saw,
can testify about how the points work/H packaging because he’s seen it (fact
witness)
 US v. Freeman
o Facts: murder for hire, evidence of calls, agent testified about personal
impressions of records as they played, “interpreted” in favor of prosecution
o Issue: admissible?
o Held: no, he did not specify personal experiences, opinions/conclusions jury could
drawn on its own, not his job to interpret vague plain language, testimony because
argumentative, unmerited credibility of witness, opinions offered wouldn’t be
helpful as an expert either, foundation of opinion unclear so unclear if would have
even been allowed as an expert, cannot interpret the words
B. Expert Testimony
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.
Rule 703. Bases of an Expert
An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed. If experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need not be admissible for the opinion
to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect.
Rule 704. Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because
it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.
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.
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Under FRE 702, although education or training certainly help to qualify an expert, his
knowledge, skill, and experience alone can suffice. Thus, a convicted burglar could give
expert testimony as to the use of crowbars, wires, etc. in burglary, or a marijuana user
could give expert testimony that a particular sample of marijuana hails from Hawaii.
Must be in the expert’s domain
1. Permissible Subjects and Scope of Expert Testimony
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Advisory committee 702: experts can testify on facts too, not just opinions, trier
determine if proper to use expert
Experts can base opinions on secondhand information
o Can also make firsthand observations, rely on trial evidence, etc.
Can easily mislead a jury (why requirement of reliability/disclosure (705))
o See experts a lot for damages, often dueling
Via in limine motions
Trial court sets the schedule of production, must satisfy trial court
Π’s often use the same experts
Hatch v. State Farm Fire and Casualty Co.
o Facts: sued SF for denying fire insurance, ∆ claimed arson
o Issue: insurance industry expert said SF not operate in good faith or a “good
neighbor,” admissible?
o Held: no, beyond industry standard for good faith, doesn’t require specific
knowledge
Marten Transport v. Platform Advertising
o Facts: π said ∆ used TM, expert in transportation testified to 1) importance of a
carrier being able to capture every qualified driver 2) search engine optimization
o Issue: admissible?
o Held: 1) yes- type of opinion expert is qualified to enter 2) no- not qualified, not
supported by a reliable basis/methodology. Requires technical knowledge and not
get from general industry knowledge, not reached on his own
Senate report on 704: eliminate competing experts as to ultimate legal issue, expert
psychiatric testimony limited to present and explain diagnoses, extends beyond insanity
defense to any mental state, all such “ultimate issues” (i.e., premeditation or
predisposition)
2. Relating the Basis of an Expert Opinion to the Jury
 Experts rely on HS, allowed under 703
 Advisory committee 703: can base diagnoses on information from numerous
sources/variety, expert’s validation sufficient, only okay if of the type typically relied
upon by experts
 Advisory committee 703 amendment: still cannot admit underlying information
 Williams v. Illinois
o Facts: expert testimony on DNA on victim matches ∆, testified about profile
produced by an outside lab
o Issue: violate CC?
o Held: No, experts can express opinions on facts the expert assumes but doesn’t
know to be true, not offered for TMA- just explain assumptions on which the
opinion rests, this report is different from what the CC protects
o Thomas concur: not testimonial
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o Dissent: CC catches errors, need to question lab that did the evidence, report an
OOC statement as basis of conclusion then the utility of the statement depends on
the truth of OOC statement, testimonial
People v. Sanchez
o Facts: ∆ gun/drug, cop testified ∆ was in a gang based on a gang database with
inputs from others
o Issue: admit?
o Held: no, for TMA, can still rely on HS for opinion but cannot repeat it
3. Court Appointed Experts
Rule 706. Court-Appointed Expert Witnesses
(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to
show cause why expert witnesses should not be appointed and may ask the parties to submit
nominations. The court may appoint any expert that the parties agree on and any of its own
choosing. But the court may only appoint someone who consents to act.
(b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so
in writing and have a copy filed with the clerk or may do so orally at a conference in which the
parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.
(c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The
compensation is payable as follows:
(1) in a criminal case or in a civil case involving just compensation under the Fifth
Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the court
directs — and the compensation is then charged like other costs.
(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that
the court appointed the expert.
(e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own
experts.
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Advisory committee 706: good to have this option
Leblanc v. PNS Stores
o Facts: π slip/fall at ∆’s store
o Issue: ∆ asks court to appoint a witness
o Held: No, this isn’t common, not necessary, rare
Wiley: rare a court appoints an expert, adversarial experts  the truth suffering, highly
partisan, but judges rarely have experience with court experts and parties rarely suggest it
4. Special Reliability Requirements for Experts
 FRE 702
A) Introduction
 People don’t use 706 because of discomfort with judicial fact finding
 So, judges scrutinize experts for reliability
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Frye: old test, need general acceptance, used in some states still for novel scientific
evidence
 Not let in if “Invade the province of the jury” i.e., lie detectors or eyewitness experts
testimony (jury resolve these issues, not need expertise)
 Daubert- helpful to jury (explain principles/concepts), determine if should consider (i.e.,
tested, peer review, rate of error, standards/controls, generally accepted)
 Non-scientific still must be scrutinized for helpfulness to jury and reliability, often factors
listed above might not help i.e., police officer testify about code words of drug dealers; in
these situations determine grounded in reliable methods and procedures, requisite
knowledge/skill (i.e., years been on the force)
B) The Daubert Revolution
 Daubert v. Merrell Dow Pharmaceuticals
o Facts: parents suit because kids with birth defects, π entered testimony of 8
experts that said ∆’s product could have caused these
o Issue: what is the proper standard? Exclude this?
o Held: exclude, new test: 1) reasoning/methodology underlying scientifically valid
(scientific method), 2) reasoning/methodology applied properly to the case
(relevance, “fit,” evidence assists the trier of fact)
 702 governs- not Frye
 Scientific knowledge that assists the trier of fact
 Scientific knowledge: tested, peer reviewed, publication, rate of error,
general acceptance
 General Electric v. Joiner
o Facts: tort, say PCB caused lung cancer
o Issue: admit experts?
o Held: yes, abuse of discretion standard of review for admitting experts, overly
stringent review by the lower courts, good methodology applied to different facts
by experts, conclusion and methodology not entirely distinct
 Kumho Tire Co. v. Carmichael
o Facts: tire blew, accident, π claim tire defective, π used a tired failure expert,
methodology disputed
o Issue: can a judge gatekeep for testimony that isn’t scientific? (technical here)
o Held: Yes, Daubert applies to all experts, 702 doesn’t distinguish scientific and
technical knowledge, ensures experts on reliable foundation, here not reliable
C) The Current Legal Landscape
 Advisory committee 2000 amendment to 702: rejection of expert testimony is the
exception not the rule
 Swift: area of judicial decision making that is complex and immune from appellate
review, inconsistent
 Faigman: Daubert more liberal when science is cutting edge but uses sound methodology,
Daubert requires fields justify their claims- cognitive burden on judges
 Friedman: no evidence judges are good at determining reliability so shouldn’t assume
juries led astray by bad experts, issue of expert testimony is when π’s case is too weak as
a matter of law to support a judgement, judges should rule more often insufficient
evidence to support ruling as a matter of law as opposed to excluding experts
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Billauer: judges don’t like to gatekeep, we should teach judges “science”- reliability and
validity
Marsh v. Valyou (FL)
o Facts: π 4 car accidents, fibromyalgia, expert says accident caused it
o Issue: use Frye or Daubert?
o Held: Frye standard, not new/novel here, pure opinion, not have to satisfy Frye to
get it in, shouldn’t usurp jury, even if Frye was applied it would be satisfied here
VIII. Privileges
A. In General
Rule 501. Privilege in General
The common law — as interpreted by United States courts in the light of reason and experience
— governs a claim of privilege unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute; or
 rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision.
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Privileges aren’t just rules of admissibility, also govern whether information can be
compelled before trial
Some privileges parallel rules of professional responsibility that impose confidentiality
Privilege rules differ from other rules of evidence in their purpose: don’t improve
accuracy of fact finding
Privileges aren’t codified in the FRE
McCormick: most evidentiary rules are to get to the truth, but privileges are inhibitive,
they protect an interest or relationship
Mueller: proposed change to FRE controversial so rejected codification of privileges,
leave privilege law where it was but remove privilege from general rulemaking of
SCOTUS
B. Attorney-Client Privilege
1. Introduction
 Among the oldest, model privilege, most heavily litigated, controversial
 Swidler and Berlin v. US
o Facts: investigate travelgate, foster met with attorney and then suicide, tried to
subpoena attorney’s notes
o Issue: does attorney client privilege extend beyond the 5th and into death?
o Held: yes, old, encourages frank conversations with attorneys, most of the CL
holds it survives death, concern for reputation/civil L/friends/family, need for
criminal and civil, broader than 5th- consult attorney for a wide variety of topics,
without privilege these admissions wouldn’t exist probably, applies same for civil
and criminal, this would be a significant exception
 US v. Jicarilla Apache Nation
o Facts: π sued government for mismanaging funds in a trust, seek attorney-client
conversation about the trust
o Issue: does the A-C privilege allow US to withhold communications about
property in a trust for the tribe?
o Held: Yes, objective of the privilege applies to a governmental client, fiduciary
exception doesn’t apply (there aren’t the same obligations here as CL required),
government not a private trustee- different, US not represent tribe and the tribe
isn’t a “real client”
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o Dissent: narrow privilege, applies only where it is necessary for purpose,
fiduciary exception applies, history of governmental mismanagement
Bentham: betraying a trust is immoral, decreases happiness, no confidence, guilty
couldn’t get as much help
Simon: privilege indues people to seek legal advice (guilty people), lawyers can dissuade
illegal acts, sometimes people cannot be dissuaded and negative social impact of
privilege and sometimes attorneys help commit crimes
Barton: courts decide cases in ways to benefit the legal profession, judicial sympathy,
powerful selling point to clients
2. Elements of the Privilege
 Communication, in confidence, between a lawyer and client, in the course of the
provision of professional legal services
A) communication
 US v. Kendrick
o Facts: 3 thefts, claim insane at trial, attorney says client was cooperative/aware
o Issue: should you exclude testimony of trial counsel at a post-conviction hearing?
o Held: no, comments about physical characteristics excluded because anyone could
observe, not exclude fact that a communication occurred, appearance not intended
to be in breast of lawyer, nonconfidential, objectively observable
 Tornay v. US
o Facts: Taxpayers try to quash IRS summons to attorney regarding fees
o Issue: IRS summons to attorney for fees protected?
o Held: no, privilege encourages disclosure, applies only where it is necessary,
protects only disclosures necessary to obtain legal advice, fees are incidental, can
still disclose fully if testify about fees, it doesn’t matter that this may deter people
from retaining an attorney
B) in confidence
 Prison calls rarely confidential
 US v. Gann
o Facts: ∆ gun and ex-con, said had gun to attorney on phone, cop overheard
o Issue: privileged?
o Held: no, privilege fails because knew 3rd parties there, not in confidence
 US v. Evans
o Facts: ∆ tried, attorney testified about conversation wherein a 3rd party (Holden,
who is an attorney) was present
o Issue: privileged?
o Held: no, only confidential communications, not shielding if 3rd party present isn’t
an agent of the client/attorney, Holden was there as a friend/witness
 US v. Lawless
o Facts: attorney prepared estate tax return, IRS sough documents used
o Issue: privileged?
o Held: no, information given to an attorney with the intent that it would go to a 3rd
party isn’t confidential, if given so might be used on return not protected
 Smithkline Beecham Corp. v. Apotex Corp.
o Facts: ∆ wants π’s documents, patent case
o Issue: privileged?
o Held: Yes, documents assess patentability, request for legal services, need
information for evaluation by the attorney
c) Between attorney and client
 US v. Kovel
o Facts: ∆ accountant for tax law firm and not an attorney, clint investigated for tax
fraud, grand jury subpoenaed him about communications
o Issue: privileged?
o Held: Yes, conflict between seeking the truth and protecting honesty with
attorneys, attorneys need help, like a foreign language, accountants do not destroy
the privilege, if talk to an accountant so he can give legal advice privileged, made
in confidence for legal advice
 US v. McPartlin
o Facts: ∆’s fraud, had different attorneys, one attorney interviewed the other ∆ and
it was exculpatory for own client, had a common goal disprove other individual’s
diary
o Issue: privileged?
o Held: yes, made to an agent of the attorney in confidence for a common purpose
with co∆, not need exact same defense
 Pasteris v. Robillard
o Facts: π fell at ∆ home, want statement of ∆ to insurance co.
o Issue: privileged?
o Held: no, only if the individual is member of the bar or subordinate, no evidence
statement to subordinate of an attorney even if insurer will ultimate defend the ∆
 Upjohn Co. v. US
o Facts: ∆ audited about illegal payments to foreign governments, counsel asked an
employee about it, IRS summoned questionnaires
o Issue: privileged? Extend to non-management employees?
o Held: yes, privilege applies if the client is a corporation, reject “control group”
test (which only includes management and heads of operation who can take part
in a decision about action on which they seek an attorney’s advice), privilege
exists also for the purpose of assisting an attorney in giving sound advice,
attorneys need facts, low level employees can have information/make decisions
with a substantial effect on the corporation’s legal position, this would make
advice hard/limit corporations seeking counsel to ensure they comply with the
law, here communication by an employee to an attorney for legal advice, this puts
the adversary in no worse of a position than if communication didn’t occur and
can still fact find, case by case, work product doctrine applies to IRS summons,
W-P reveal mental processes of attorneys in evaluating communications
 US v. Ruehle
o Facts: ∆ CFO of Broadcom, attorney for the company investigated charged on the
company, attorney interviewed ∆ and ∆ self-incriminated, attorney gave that
information to the prosecution
o Issue: privileged? For employees as individuals?
o Held: no, attorney for the company, not in confidence but for outside auditors (3rd
parties)
d) To facilitate legal services
 Hughes v. Meade
o Facts: Williams charged with a crime, ∆ was hired by Williams to return stolen
items, ∆ refuses to answer questions, ∆ is not Williams’ attorney but is an attorney
o Issue: privileged?
o Held: no, identity can be protected (policy considerations) but not here because
not a legal service, delivery of goods is not in his professional capacity
 US v. Davis
o Facts: attorney summoned to provide documents on tax liability of a client
o Issue: privileged?
o Held: no, he was acting as an accountant and not a lawyer, don’t need privilege
 Wartell v. Perdue University
o Facts: π claim president discriminated/harassed her, investigations typically by
president’s underlings so one-time method- hire an attorney to investigate (paid
by Perdue), university actually retained him as their attorney, found no
discrimination, π asked for the attorney’s report, ∆ said no
o Issue: privileged?
o Held: no, investigative duties, not warn π he’s an attorney for ∆, not show
attorney was giving legal advice
 Luv N’ Care v. Williams IP
o Facts: patent infringement case, 2 cases on this- one on Laurin and one on
Williams IP, seek information from Williams IP on work for Laurin
o Issue: is a patent agent privileged?
o Held: yes but narrow- communication between non attorney patent agent in
furtherance of execution of these functions (patent proceedings before USPTO),
not apply here- substance of the matter of advice not enough- it needs to be
necessary/incidental to preparation/prosecution of patent applications or other
proceedings before USPTO
3. Waiver
 Privilege can be waived by client or attorney acting as agent of the client
 Who, when, how broad?
o Who: belongs to client, attorney can have implied authority to waive
o Production doesn’t necessarily mean waived, can say accidental production so not
waived (inadvertent waiver provision)
o When: voluntary disclosure to 3rd party, client attacks attorney (sword and shield),
fails to claim privilege
o How broad: whatever was disclosed, if during litigation fairness doctrine so
expand and can see more than disclosed (subject matter waiver- disclose parts of a
communication then waive all communication about the topic)
 Von Bulow: waiver extrajudicial so limited to actual disclosure, if bring
into court then trigger fairness/subject matter waiver
 US v. Bernard
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o Facts: illegal loans, told the individual that he made a loan to that he checked with
attorney to determine if it was legal
o Issue: privileged?
o Held: no, waived by voluntary disclosure discussion to one he made the loan to
Tasby v. US
o Facts: ∆ false declaration
o Issue: privileged?
o Held: no, waived by attacking the attorney’s conduct- calls into question the
communication
Hollins v. Powell
o Facts: ∆ violated π’s rights, π deposed city attorney, allowed because appears the
city/Powell would raise advice of counsel as a defense
o Issue: privileged?
o Held: no, waived, ∆ has the burden to establish a privilege, testified at trial as to
the substance of the conversation with the attorney by Powell (city didn’t object)
In re von Bulow
o Facts: ∆ assault and try to kill wife, conviction reversed, kids of the victim civil
suit, at time the attorney published a book with excerpts of conversations, π tried
to compel certain communications because the book was a waiver
o Issue: privileged?
o Held: no, waived by attorney with consent, acquiesce/encouraged book, typically
fairness requires if part of a privileged communication waived then it all is, but
here- extrajudicial disclosures and haven’t been subsequently placed at issue
during litigation, not waived for undisclosed parts of the communications, not a
waiver by implication because extrajudicial and not prejudicial
Mueller: is an inadvertent disclosure a failure of confidentiality or a waiver? Failed
confidentiality depends on intent at time and waive after the communication, similar
standards either way
4. Crime Fraud Exception
 A-C privilege is limited by crime-fraud if an attorney’s services are obtained for purposes
of furthering a future crime or fraud, regardless of whether the attorney is aware of that
purpose
o Attorneys don’t need to know this
 In camera review: not waive privilege, need good faith by reasonable person
 US v. Zolin
o Facts: case on church of scientology, IRS wants introduce tapes of church and
attorney because CF, asked court to listen to the tapes to determine if privilege
applies, court refused
o Issue: require independent evidence prove CF exception?
o Held: no, CF ensures seal of secrecy doesn’t extend to communications that seek
advice for a crime, can do an in camera review on a matter to determine if CF
applies (104a and 1101c), an interpretation that a judge cannot review means
never catch it, allow court to review doesn’t terminate the privilege, require some
showing CF for review (otherwise harm DP/privilege)- compromise, lesser than
ultimately required to overcome the privilege- good faith belief by a reasonable
person that a review may reveal CF and then up to the court
C. Spousal Privileges
 Two privileges: confidential spousal communications (like the A-C privilege) and against
adverse spousal testimony (Trammel, must be married at the time)
o confidential spousal communications: married at the time of the communication,
either can invoke, not a suit between spouses
o adverse spousal testimony: married at time of trial, can be about pre/during
marriage, otherwise bad for marriages, formerly absolute, not only to witness
spouse, can’t be compelled or prevented from testifying, gives prosecution power
to pressure a spouse, on acts and nonconfidential communications or said
before/after marriage, must be real marriage; also referred to as the spousal
immunity, and applicable only to criminal cases where one spouse is the
defendant; The privilege doesn’t apply to crimes against the witness spouse or
crimes against a child of either the witness or the defendant.
 Trammel v. US
o Facts: ∆ heroin, wife involved, agreed to testify for leniency, ∆ objected on a
marital privilege
o Issue: can ∆ use spousal privilege against voluntary testimony?
o Held: no, privilege ancient, protect marriage, move against absolute exclusion but
Hawkins left where it was, privilege continues to evolve and is flexible, reason for
unbudging privilege died- women aren’t property, support for privilege eroded
since Hawkins, strictly construe privilege only apply when it serves the public
good greater than utilizing all means for the truth, Hawkins only excludes
evidence of criminal acts and of communications made in the presence of third
parties- too broad, if willing to testify bad marriage already, no longer justifiednow witness spousal privilege allows one to refuse to testify (protect marriage
without overburdening law enforcement), confidential marital communications
still privileged
D. Other Privileges
 McCormick: privileges- A-C, spousal, government informant, Dr.-patient, clergyman and
penitents (confidential communication to clergyman in professional character, split on
who can waive), journalist and sources (otherwise sources dry up, recognized by some
courts, derived from 1st amendment, belongs to the journalist), accountants, rape victim
 Doctor-patient: belongs to patient
 Psychotherapist: belongs to patient
 Some states priest, by statute
 Informant: protects identity
 Reports/sources: belongs to reporter
 Jaffee: CL develops privileges, reluctant to do this
 Jaffee v. Redmond
o Facts: ∆ cop killed a man, got therapy, civil suit for excessive force
o Issue: can you force the therapist to disclose
o Held: no, psychotherapist privilege, new privileges based on reason/experience,
protecting therapist/patient important enough to outweigh need for probative
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evidence, need confidence/trust, serves public interest by facilitating treatment of
individuals with problems, modest evidentiary benefit (would chill
conversations), all states have it, recommended by the advisory committee
proposed rules, applied to confidential communications to
psychiatrists/psychologists/social workers in therapy, no balancing component
(reject lower court)- this would make the privilege ineffective
o Dissent: cost of this privilege- occasional injustice (cost of every rule that
excludes reliable and probative evidence), this privilege victim is likely an
individual who can’t prove a valid claim or establish a valid defense, preference
for the truth, vast/new/ill-defined, not important enough to override typical rules,
probably not inhibit conversations and if it does so what (shouldn’t get to deny
guilt which getting the benefit of therapy), loss of important evidence, therapy
thrived before the privilege, not just adjust federal to states- states use legislative
approach not CL, state laws vary, social workers shouldn’t be protected- many
states don’t and others restrict it, social workers not highly skilled like a
psychologists and don’t only do therapy so have to determine if it was therapy in
this case, should leave to Congress, court failing to pursue truth
In Re Grand Jury
o Facts: 3 appeals about force dad testify against son and daughter against father
(Delaware and St. Croix)
o Issue: is it necessary to develop a parent child privilege?
o Held: no, no federal court of appeals or state supreme court, 501 disfavors new
privileges, rare to expand, no CL principal, guide by reason and experience- only
4 states protect this in any manner, not recommended by the advisory committee,
clergy one because precedent/balancing/weighing/reason/experience, this one is
new, a parent-child relationship doesn’t require confidentiality in the form of a
testimonial privilege (not enter thoughts), costs>benefits, different because
relationship is inherent, if a parent can waive it then there is no point, leave to the
legislators (can weigh policy and consider other factors such as defining a parent)
o Wigmore test: confidential, required to be confidential, protects relationship,
injury > benefits
o Dissent: these are two different questions- should we allow parent to not testify on
kid and kid on parent, should protect parents on kids
Under Seal v. US
o Facts: kid forced to testify about guns in house with parents
o Issue: parent-child privilege?
o Held: no
Damaska: they reject information to protect values in other places too (testimonial
privileges), not an issues as often because witnesses/attorneys rarely interact
IX. Physical Evidence
 Physical evidence: tangible exhibits
 PE must be authenticated (evidence shown to be genuine, issue of conditional relevance)
and best evidence rule (party prove content of document must introduce the original)
 Real evidence: played a role in events
 Demonstrative evidence: clarify/make vivid
o Not subject to 6/BER, not really “evidence”
 Introduce exhibit v. marking it
o Physical evidence marked: label and make part of formal record
 Must mark even if not introduce evidence and just to refresh
o For jury to rely on an exhibit it must be introduced as evidence
A. Authentication
Rule 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b) Examples. The following are examples only — not a complete list — of evidence that
satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed
to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is
genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an
authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with all the
circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard
firsthand or through mechanical or electronic transmission or recording — based on
hearing the voice at any time under circumstances that connect it with the alleged
speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence
that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that
the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to
business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this
kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data
compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and
showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or
identification allowed by a federal statute or a rule prescribed by the Supreme Court.
Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth,
territory, or insular possession of the United States; the former Panama Canal Zone; the
Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a
department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document
that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A);
and
(B) another public officer who has a seal and official duties within that same entity
certifies under seal — or its equivalent — that the signer has the official capacity and that
the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person
who is authorized by a foreign country’s law to do so. The document must be accompanied by a
final certification that certifies the genuineness of the signature and official position of the signer
or attester — or of any foreign official whose certificate of genuineness relates to the signature or
attestation or is in a chain of certificates of genuineness relating to the signature or attestation.
The certification may be made by a secretary of a United States embassy or legation; by a consul
general, vice consul, or consular agent of the United States; or by a diplomatic or consular
official of the foreign country assigned or accredited to the United States. If all parties have been
given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court
may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document
that was recorded or filed in a public office as authorized by law — if the copy is certified as
correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule
prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a
public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been
affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment
that is lawfully executed by a notary public or another officer who is authorized to take
acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related
documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a
federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a
domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification
of the custodian or another qualified person that complies with a federal statute or a rule
prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse
party reasonable written notice of the intent to offer the record — and must make the record and
certification available for inspection — so that the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or
a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the
certification, rather than complying with a federal statute or Supreme Court rule, must be signed
in a manner that, if falsely made, would subject the maker to a criminal penalty in the country
where the certification is signed. The proponent must also meet the notice requirements of Rule
902(11).
(13) Certified Records Generated by an Electronic Process or System. A record generated by an
electronic process or system that produces an accurate result, as shown by a certification of a
qualified person that complies with the certification requirements of Rule 902(11) or (12). The
proponent must also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied
from an electronic device, storage medium, or file, if authenticated by a process of digital
identification, as shown by a certification of a qualified person that complies with the
certification requirements of Rule (902(11) or (12). The proponent also must meet the notice
requirements of Rule 902 (11).
Rule 903. Subscribing Witness
A subscribing witness’s testimony is necessary to authenticate a writing only if required by the
law of the jurisdiction that governs its validity.
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Advisory committee 901: authentication/identification gets at relevance, authentication is
an inherent logical necessity, B gives examples
Writings may be authenticated at trial or pre-trial through depositions, stipulations, and
requests for admission of genuineness
Specific application of conditional relevance
o Only relevant if it is what it says it is
o Authentication solves conditional relevance
o Trial court uses 104(b)- if a reasonable juror could say authentic
Break chain custody
o Fair flexibility on sufficient proof of authentication
o As long as reasonable juror could conclude authentic
Authentication: specific to physical/tangible evidence (all evidence that isn’t testimony)
Electronically generated evidence needs to be authenticated, probably through a
certification (902(13))
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Electronically stored evidence needs to be authenticated (902(14)); Priya can testify since
she took the screenshots (11.4 in book)
2017 change: self-authentication rule
o Simplifies data dumps- allow certification that can be done before trial to save
time
On a webpage need more than certification (Vayner)
o Not self authenticated there- distinctive things about page not mean ∆ created it
o Authentication of webpage depends on context
1. Authentication of Traditional Documents and Physical Objects
 US v. Long
o Facts: ∆ convicted, ∆ fiancé, a witness and testified about K and that they thought
it was a legit business, ∆ tried to enter the K
o Issue: authenticated?
o Held: yes, only need a rational basis for claim to authentication, can use
circumstantial evidence, question is whether it reasonably could be the document
witness claims she saw, not need to show K is reliable/accurate
 US v. Casto
o Facts: ∆ meth, in the exhibits of meth there is break in the chain of custody,
technician who placed it in a vault didn’t testify
o Issue: allow in?
o Held: Yes, allow if a reasonable juror could decide evidence is what the offering
party claims, affects weight no admissibility
 US v. Grant
o Facts: ∆ heroin and said government didn’t prove packages had H in it, no airtight
chain of custody for 2 weeks
o Issue: Prove H?
o Held: yes, not need authentication because not offer drugs themselves into
evidence, just chemist’s testimony, casts doubt on the testimony but ∆ didn’t
object to his testimony
2. Authentication of Digital Evidence
 Advisory committee 902: paragraph 13 shows items that satisfy admissibility for
authentication, a challenge may require technical information/experts, paragraph 14:
authentication of data copied via hash value, just show authentic
 US v. Vayner
o Facts: ∆ convicted of transfer of a false ID, witness testified and said ∆ gave a
false document, introduced emails, only the witness linked ∆ to the emails,
introduced a printout of ∆’s profile on Russian social media which linked him to
the email
o Issue: authenticated?
o Held: no, no sufficient basis to conclude this is what the prosecution said it is, no
evidence ∆ created page/contents, mere fact it exists doesn’t mean ∆ did it, all
information is known by others, no evidence ∆ had page other than the page itself,
no evidence identify verification necessary for site, require some basis beyond
witness that page belongs to ∆, evidence essential here (vacate)
 US v. Browne
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o Facts: ∆ child porn conviction because Facebook chats, FB said authenticated
o Issue: chats authenticated by this?
o Held: no, authentication hinges on author, others could access account, not a
business record (FB doesn’t verify/rely on substantive information in the chatsonly that they occurred at time/day so no 902(11)) sufficient extrinsic evidence to
show authors (witness testimony consistent, ∆ concessions linked him, personal
information of the ∆ in the chats, directly from FB), circumstantial evidence can
authenticate a document, 4 chats of the party admitted and other chat between
victims HS
o Class: authenticated under 901(a) with extrinsic evidence
US v. Bertram
o Facts: ∆’s are doctors that did fraud, evidence of emails between ∆’s and ∆’s and
employees
o Issue: may emails be authenticated by someone other than sender/recipient?
o Held: Yes, 901(b)(4)- distinctive characteristics, address/contents, key
consideration if witness can speak to unique characteristics/contents/appearance,
allowed here
State v. Brown
o Facts: ∆ rob Zaxby’s while wearing a GPS monitor and show at Zaxby’s at the
time of the robbery
o Issue: GPS record authenticated here?
o Held: No, saying you use it in court all the time doesn’t show its accurate, need
evidence for process/system used and testimony about accuracy for particular
evidence, most cases don’t challenge GPS
B. Best Evidence Rule
Rule 1001. Definitions That Apply to This Article
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any
form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout — or other output
readable by sight — if it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately reproduces
the original.
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is raised
about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
Rule 1004. Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was
at that time put on notice, by pleadings or otherwise, that the original would be a subject
of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Rule 1005. Copies of Public Records to Prove Content
The proponent may use a copy to prove the content of an official record — or of a document that
was recorded or filed in a public office as authorized by law — if these conditions are met: the
record or document is otherwise admissible; and the copy is certified as correct in accordance
with Rule 902(4) or is testified to be correct by a witness who has compared it with the original.
If no such copy can be obtained by reasonable diligence, then the proponent may use other
evidence to prove the content.
Rule 1006. Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may order the proponent to
produce them in court.
Rule 1007. Testimony or Statement of a Party to Prove Content
The proponent may prove the content of a writing, recording, or photograph by the testimony,
deposition, or written statement of the party against whom the evidence is offered. The
proponent need not account for the original.
Rule 1008. Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for
admitting other evidence of the content of a writing, recording, or photograph under Rule 1004
or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue
about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
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Does very little work, limited scope, many exceptions, trust adversarial process
o Rule has impact if bad faith destruction (Lucasfilm)
o If no one to blame can prove any way, no second-best evidence (Standing Soldier)
1007: if opponent testifies and concedes contents then comes in as admissible by party
opponent
Original document rule
The policy justifications for the original writing rule are that mistakes and forgeries will
be easier to discover if the actual writing or its equivalent is introduced.
1. Scope and Purpose
 Langbein: Gilbert says the BER subsumes all evidence rules
 Meyers v. US
o Facts: perjury, the court allowed counsel to testify about what ∆ had said
o Issue: BER require transcript as evidence of what was said
o Held: No, BER only where contents of writing are what is sought to be proved,
can show perjury with what people hear; question isn’t what does the transcript
say but what did ∆ say at the hearing, transcript is just one way to prove that
o Dissent: rules outmoded, stenography is reliable so now BE here, use transcript as
the BE, use the principle of the law
 Advisory committee 1001-2: discovery is big now so don’t need BER, applies if contents
are what is sought to be proven
 US v. Gonzalez-Benitez
o Facts: ∆ H, used testimony about conversation with informers
o Issue: Should they only use tapes?
o Held: no, not seek to prove contents (only if inquiry about what sound is on the
tapes)
 Nance: BER organizing principle, it is wrong no to apply it, protects truth-finding
2. Exceptions
 Advisory committee 1003-8: if there is no issue of authentication then no reason to
require the original, if failure to produce the original can be explained allow secondary,
no degrees of secondary evidence, no reason necessary for failure to produce original of a
public record (preference for certified copies), judges decide most preliminary questions
but ultimate issues are left to the jury
 US v. Stockton
o Facts: ∆ meth, introduced pictures of papers and not the papers themselves
o Issue: BER?
o Held: applies because to prove the contents but 1003, no challenge to
authentication
 US v. Standing Soldier
o Facts: ∆ assault, alleged note, lost note, used a typed copy at trial to help
testimony
o Issue: BER?
o Held: okay because lost (1004(1)), no bad faith here
 Seiler v. Lucasfilm
o Facts: π said ∆ copyright infringement of imperial walker, copyrighted after the
movie with “reconstructions” from before
o Issue: admit reconstructions? BER?
o Held: No because BER, 1004(1), drawings=writings, writings have a central place
in the law, contents at issue, can’t show unavailable though no fault of own here,
danger of fraud, drawing=manifestation of creative mind objectively, protect
against bad memory, bad faith, condition of fact needed to prove was that
originals were not lost/destroyed in bad faith
C. Demonstratives
 No specific rules about demonstratives but still important
o Will use them
o Juries like them: easy to understand
 If illustration/argument, then not evidence
 Might be proof sometimes- experts can create to illustrate conclusions
 General rule: not evidence, go to jury
 Should be a fair/accurate representation of what it should demonstrate