I. What is the Role of the Jury?
1. FRE 606(b)
a. During an inquiry into the validity of a verdict or indictment
i. Prohibited Testimony
1. Juror may not testify about any statement made or incident that occurred
during a jury’s deliberations; the effect of anything on that juror’s or
another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment.
ii. Exceptions; a juror may testify about whether
1. Extraneous prejudicial information was improperly brought to a juror’s
attention;
2. An outside influence was improperly brought to bear on any juror; or
3. A mistake was made in entering the verdict on the verdict form
2. What is an “improper outside influence”? What “extraneous prejudicial information” would allow
a juror to testify about what goes on in the black box of the jury room?
a. Tanner v. U.S.
i. Issue: Did the DC err in not ordering an additional evidentiary hearing at which
jurors would testify concerning drug and alcohol use during trial?
ii. Is the influence on a juror external? If yes, admit.
1. Extraneous prejudicial info: outside/external information must be law or
fact obtained from outside the courtroom coming into the jury room
2. Is it outside influence improperly brought?
a. Has to be pressure from outside sources
3. Is it about a mistake made when entering the verdict?
iii. Is the influence on the juror internal?
1. Is it grave and important regarding the sentence imposed?
a. If yes, Tanner says admit
b. Factors to consider
i. Subject matter
ii. Constitutional violation
iii. If you can’t catch it any other way
1. Physical and mental incompetence are
considered to be internal and not grave or
important because it can be caught through other
ways: voir dire, objections during trial, using
non-juror testimony- Tanner
II. Is the Testimony Relevant?
1. First threshold through which admissible evidence must pass is relevance
a. “What does this fact prove, and why does proving that fact matter?”
2. FREs 401/402: Evidence is admissible and relevant if
a. Probative- it makes a fact more/less probable
i. Any tendency to make a fact more or less
b. Material- helps prove a necessary element
3. Relevance test laid out by Wons
a. The evidence must provide proof of the proposition it is offered to prove
b. The proposition to be proved must be one that is of consequence to the determination of
the action
4. Another way of analyzing relevance; the evidential hypothesis
a. Is the evidence direct or circumstantial?
b. If circumstantial, possible relevance concerns: it requires a factfinder to infer an
increased probability that a fact exists or does not exist
i. This inference is called the evidential hypothesis
ii. A judge has to analyze whether the evidential hypothesis raises the probability of
the fact to be proved in order to admit the circumstantial evidence
1. X had an affair -> adulterers have heightened motive to kill -> X killed
a. The middle link is the evidential hypothesis
c. Note: bias is always relevant, but not unlimited
i. No fishing expeditions
d. Note: Corroboration of a story is a fair evidential hypothesis if
i. Credibility is a central issue
ii. The story told is remarkable in some way
e. Note: Consciousness of guilt might be a fair evidential hypothesis
i. Overview problem; suicide attempt may demonstrate it
f. Cases illustrating evidential hypotheses
i. U.S. v. Figueroa
1. A witness testifying against D had swastikas tattooed on his body
2. D counsel wanted to cross on these tattoos, arguing that D was a member
of a racial minority and that the testimony of the swastika tattoos would
impeach the witness as to his bias
a. Counsel also asserted that the tattoos could demonstrate gang
affiliation and thus lower credibility
3. Swastika -> ____ -> not credible
a. Evidential hypothesis that the trial court is forced to fill in
4. Court here found that the swastikas were relevant in that they could show
that the witness harbored animus towards minorities, but harmless eroror
5. Harmless error analysis factors:
a. Importance of witness testimony
b. Whether testimony was cumulative
c. Whether it is corroborated
d. Extent of cross permitted
ii. Hicks v. Commonwealth
1. The court required one of D’s witnesses to take off his shirt and show a
swastika tattoo
2. Witness testified to another, a black man, having committed the murder
a. Witness and D were both white
3. Court finds that credibility is relevant, but that swastika tattoo did not
give an appropriate inference of bias because no other evidence of bias
was presented besides the mere presence of the tattoo
4. But, harmless error
5. Compared to Figueroa, issue might be amount of corroborating evidence
of bias
iii. U.S. v. James
1. Victim in this case was very violent to both D and D’s daughter
2. V has told people violent things he has done
a. That he has killed a man, stabbed another
3. D claims to have given her daughter a gun out of self-defense, just to
scare the victim bc she knew/believed V was violent
4. D sought to admit court documents which showed that V had attacked a
man
5. Essential to D’s case was her belief that V had been previously violent;
the stories were of a remarkable character, maybe not believable
6. Evidential hypotheses
a. Court records -> D had a reasonable fear -> V was a bad man ->
not guilty
b. Court records -> D testimony corroborated -> shows D’s
penchant for truth -> D is reliable -> D not guilty
7. Court documents relevant, admissible
III. Is the Testimony Conditionally Relevant?
1. FRE 104(b)
a. Relevancy that depends on a fact
i. 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.
2. Conditional relevance comes up as an issue when there is a missing link in the factual chain
a. “If there are unstated factual assumptions that are not reasonably determinable from the
context…”
3. A judge has to determine if something is relevant while assuming that the missing factual link is
there
4. What is “Evidence sufficient to support a finding”?
a. Wons says it is close to 33%
5. Huddlestone test: “whether the jury could reasonably find the fact by a preponderance of the
evidence based on all the evidence of record.
a. Whether sufficient support exists such that a jury could conceivably find the preliminary
fact true.
6. Example: a witness is asked who she saw leave the murder scene
a. “Sally Smith who lives at 123 Elm”
i. How do we know how they know this?
ii. Context?
1. Satisfied probably if witness is Sally’s son
IV. Is the Testimony Too Prejudicial, even if Relevant?
1. FRE 403: 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, needlessly presenting cumulative evidence
2. Is the testimony unfair?
a. Does it make the jury excessively emotional?
i. Let’s get verbal testimony instead of graphic photos, example
b. Does it make the jury excessively irrational?
3. Does the prejudice substantially outweigh he probative value?
a. What is prejudice?
i. Confusing the issues
ii. Misleading the jury
iii. Undue delay
iv. Wasting time
v. Cumulative testimony
4. Close calls on the 403-balancing test favor admission
5. Example of 403 Objection
a. D is convicted of child abuse
i. Permissible inference: D does not respect the law
ii. Impermissible inference: D is a vile human being
b. If a judge does not think that a jury can differentiate between an improper and a proper
purpose of evidence, it loses under 403
6. How do we weigh evidence’s probative value?
a. Is it a central point of the case?
b. Is there a high need for it?
c. Is it cumulative/are there other ways of proving the evidence?
i. If so, more likely that it is substantially more prejudicial
ii. Could we use a stipulation?
1. Old Chief v. United States
a. D is saying it should just be stipulated that he is a felon for
purposes of felon with firearm charge
b. A stipulation can be forced if the evidence is only being used to
prove D’s status as a felon. A stipulation cannot be forced upon a
party because…
i. Do not want to force a party to tell their narrative in a
certain way
ii. Party’s right to not want to look as though theya re
hiding something from the jury
c. Supreme Court thinks that if we were concerned with more than
just status in another case, such as motive, intent, etc., then
maybe we do not force a stipulation that is less prejudicial
d. Would a jury follow a limiting instruction?
7. Note: do not over-rely on 403
V. Is there a Specialized Relevance Rule?
1. Congress has decided, as a matter of law, that the policy implications of certain pieces of
evidence outweigh the prejudicial effect of admitting certain kinds of evidence
2. A 401 and 403 analysis must still be done on all of the following
3. “What precisely is the proponent trying to prove? What is the evidential hypothesis?”
a. “Is it for a permissible or impermissible purpose?”
i. Offering it for liability or to show ownership/control?
b. If there are two purposes: one permissible, one not
i. 403
4. FRE 407- Subsequent Remedial Measures
a. 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
i. Negligence
ii. Culpable conduct
iii. A defect in a product
iv. A need for warning
b. A court can admit this evidence for another purpose such as
i. Impeachment
ii. ownership
1. Why fix if not owner?
iii. control
iv. feasibility of precautionary measures
c. Wons. Elements for inadmissibility
i. Subsequent to an event
1. After D’s specific injury
2. Not after manufacture of a product, but pre-injury
ii. Remedial measure
1. One that would have made the earlier injury or harm less likely
iii. Liability based purpose
d. Wood v. Morbark
i. Motion in limine to exclude remedial measures
ii. D CEO, however, said that the chute on the wood chipper that caused accident
was safest on market
1. But after accident, made the chute longer
iii. Can show subsequent remedial measure for impeachment purpose
1. Obviously, it was not the safest on the market if you changed
5. FRE 408- Settlements/Compromise (Civil Lawsuits)
a. Evidence of the following is not admissible either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction
i. 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
ii. 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
i. The court may admit the evidence for another purpose:
1. Witness bias or prejudice
2. Negating a contention of undue delay
3. Proving an effort to obstruct a criminal investigation
c. Wons. Elements
i. Any offer, acceptance, and/or statements made in the course of compromise
negotiations are protected
ii. Rule only covers a claim that was disputed as to validity or amount
1. Fact-intensive analysis to see if “disputed claim”
a. Factors
i. Was the statement intended to be a part of negotiations?
ii. Had a party explicitly asserted a claim?
iii. Is the prospect of litigation readily apparent?
iv. Are attorneys involved?
d. Note: no impeachment exception
e. Note: also applies to evidence about willingness to negotiate with a third party for
purposes of the instant case
f. Bradbury v. Phillips Petroleum
i. D company messed up so many times in 1 year
1. Had to settle every time leading up to instant case
ii. D is seeking to suppress those settlements
iii. However, P is offering settlements not to show liability but to show consistently
reckless conduct and to negate a defense of mistake
iv. Court found this to satisfy the “other purpose” exception”
1. Relies on short time frame and striking similarities of incidents
6. FRE 409- Medical Expenses
a. Evidence of furnishing, promising to pay, or offering medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury
b. Wons. Elements: If a party has offered to pay the medical expenses of an injured person,
that statement may not be used to prove liability or damages.
c. Broader than 408: does not require there to be a disputed claim
d. Narrower than 408: does not exclude collateral admissions of liability
i. “I am sorry I caused the accident”
1. Still admissible under this rule
e. Exceptions: some other purpose
i. Agency
ii. Control
iii. Ownership
iv. Impeachment
7. FRE 410- Pleas
a. In a civil or criminal case, evidence of the following is not admissible against the D who
made the plea or participated in the plea discussions
i. A guilty plea that was later withdrawn
ii. A nolo contendere plea
iii. A statement made during a proceeding on either of those pleas
iv. A statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or if they resulted in a
later-withdrawn guilty plea
b. Exceptions
i. Statements can be admitted in any proceeding in which another statement made
during the same plea or plea discussions has been introduced, if in fairness both
statements ought to be considered together; or
ii. In a criminal proceeding for perjury or false statement, if the D made the
statement under oath, on the record, and with counsel present
c. Thorniest issue with this rule is defining a “plea discussion”
i. The rule requires there be discussion with an attorney for the prosecuting
authority
1. But what if attorney is passive and police are aggressive?
ii. Two-tiered approach adopted by courts
1. Statements by the accused are excludable if the exhibits a subjective
expectation to negotiate a plea
2. And that the expectation was reasonable under a TotC
iii. In short, “the accused must be attempting to strike a deal with someone
reasonable presumed to possess the authority to make the deal happen”
1. Did law enforcement give impression of authority?
d. Note: FRE 410 does not have an impeachment exception
8. FRE 411- Liability Insurance
a. 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.
b. Wons. Elements: straightforward; whether the existence or non-existence of insurance is
offered to prove liability
c. Exceptions are non-exclusive
i. Bias
1. Comes up often if an investigator is employed by an insurance company
that insures the D
ii. Ownership
1. Why be insured if not the owner?
iii. Control
iv. Agency
d. Williams v. McCoy
i. Should have allowed P to talk about getting a lawyer after being spoken to by D
insurance adjuster and before seeing a doctor
1. Adjuster was trying to say she should not sue since she had a prior injury
ii. If not to show existence of insurance, at least to rebut prejudicial claims made
about her being litigious
1. “Without being allowed to explain herself, the total weight of D’s attack
fell on P and affected the verdict”
VI. Is it Character Evidence? Is it Propensity Based Reasoning?
1. FRE 404(b)
a. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the
character
b. Permitted uses: This evidence may be admissible for another peurpose, such as proving
motive, opportunity, intent, rpeparation, plan, knowledge, identity, absence of mistake, or
lack of accident. On request by a D in a criminal case, the prosecutor must:
i. Provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
ii. Do so before trial – or during trial If the court, for good cause, excuses lack of
pretrial notice
2. What 404(b) protects against is using past conduct as circumstantial evidence to predict future
behavior
3. Example: that one has three prior speeding tickets cannot be used to prove that a person was
speeding at a later time because there, the evidential hypothesis is conformity
4. What are we worried about with propensity reasoning?
a. We do not want to over-persuade the jury
b. Worried about a preventative conviction, that the jury will want to punish the person for
the other acts rather than the act which must be proven at trial
i. Punishing for being a bad driver
5. There are only 6 proper uses of propensity reasoning, will address more specifically later
a. 404(a)(1)- where a criminal D can prove pertinent good traits about herself
b. 404(a)(2)- where a criminal D can prove pertinent traits of a victim
c. Can be used to show credibility of a witness
d. FRE 413
e. FRE 414
f. FRE 415
VII. If it is Propensity Based, is there an OKMIMIC?
1. How to get “character” evidence admitted for a non-propensity purpose
a. Proponent of the evidence has the burden of identifying a relevant, non-propensity
purpose
i. Huddlestone test?
b. It is possible that we have a permissible rationale, such as motive, alongside propensity
reasoning, an impermissible rationale
i. If that is the case, balance under 403
2. OKMIMIC
a. Opportunity
i. Proof of location, a time, or an instrumentality necessary to commit the crime
ii. Example: skipping work regularly could show an opportunity to kill
b. Knowledge
i. Mostly used to rebut that a party did not know a certain aspect of his actions
ii. Hernandez: knowledge that D knew a recipe for crack does not make it any more
likely that D intended to engage in crack distribution in the future
1. Applied Rawle test; evidence of prior bad acts only admissible under
404(b) where they are
a. Relevant to an issue other than character
b. Necessary
c. Reliable
2. Court found that they were not relevant to an issue other than character
because it was just grounded in the past and not related in any way to the
current charge of drug distribution
c. Motive
i. Mostly relevant to prove a party’s intent
ii. Example: evidence of gang association not to show once a, always a, but if that
gang had a grudge against a V, shows motive
d. Intent
i. Usually must be proven circumstantially
ii. Usually the focus in intent analysis is on similar conduct that is committed under
similar circumstances
iii. A prior attempt to harm someone could show a present intent to harm, too
iv. Different from motive
1. Intent: I’ll get you, my pretty
2. Motive: because you killed my sister
e. Absence of Mistake/Accident
i. Rebuts a claim of accident when the same type of event occurred previously
ii. Example: in an arson case, other suspicious fires of the D’s property may rebut
that this particular fire was accidental
f. Identity (Modus Operandi)
i. Other acts could show a distinctive method that sheds light on the identity in the
case at issue
ii. Example: evidence of past crimes committed in an identical, unique way
1. Robinson
g. Preparation/Plan
i. Focuses on other acts that indicate a design by the party to accomplish an act
ii. Example: an attempt to obtain a knife, kind of weapon used in murder
iii. Zacowicz: evidence that D had a lot of guns could have been admissible if he had
taken the guns with him to the initial argument with V to show plan; however,
that he simply had them at home was not relevant (and therefore not admissible)
for any reason other than to show that he was a man of murderous design
h. Res Gestae
i. Focus is on the narrative integrity; whether the other act was inextricably
intertwined and therefore not an other act at all
ii. Good when turning the inexplicable into the explicable
1. Even if something is really far removed, if something is inextricably
intertwined, we cannot provide our narrative without that other act being
present
iii. Example: D, the pimp of a prostitute, did satanic rituals. V was present at a
ritualistic murder, asked to leave the cult. Testimony that it was V’s request to
leave that led to her being murdered. Past acts are inextricably intertwined with
her murder.
i. Doctrine of Chances
i. The probability that such a shocking event keeps happening in a similar manner
is low
ii. Example: Peterson; TC admitted testimony of another staircase “murder” from
17 years ago that D was privy to because of the striking similarities between the
events
1. Went to absence of D’s accident, D’s intent, D’s knowledge, too
2. “What are the chances that D was around for both?” – not propensity
j. Consciousness of Guilt
i. U.S. v. Robinson
1. 2 bank robberies took place, 10 days apart, 25 miles apart
2. D pleads guilty to the 2nd robbery; P is trying to admit evidence of the
2nd robbery (D fleeing from the police) as evidence in helping to convict
D of the 1st robbery, too
3. D is arguing that this is inadmissible character evidence
4. P argues that D fleeing both times goes to consciousness of guilt, not
propensity
5. Court fashions 4 prong test to determine the appropriateness of admitting
evidence of other crimes
a. The evidence is directed toward establishing a matter in issue
other than propensity
b. Evidence shows that the other act is similar enough and close
enough in time to be relevant
i. Here, numerous similarities
1. Orange ski mask
2. Distinctive duffel bag
3. Vaulting the counter
4. 10 days, 25 miles
c. The evidence is sufficient to support a jury finding that the D
committed the similar act
d. 403
6. Court further provides a test for the determination of probative value of
flight as evidence of a D’s guilt. Depends on the degree of confidence
with which four inferences can be drawn.
a. From behavior to flight
b. From flight to consciousness of guilt
c. From consciousness of guilt to consciousness of guilt concerning
the crime charged
d. From consciousness of guilt concerning the crime charged to
actual guilt of the crime charged
7. If the above connection can be established, it is not propensity reasoning
3. 403 Applies to all evidence that is admissible under 404(b)
a. 403 balancing depends on a number of factors
i. The more strongly an issue is in dispute, higher likelihood that character
evidence is necessary
ii. Adequacy of proof of the other act; must be able to prove that the D did, in fact,
commit the other act
iii. Probative force of evidence
iv. Need for the evidence
v. Availability of less prejudicial proof
vi. Prejudicial effect of the other act
vii. Similarity to the charged wrongdoing; the more similar, the more likely that it is
propensity based
viii. Effectiveness of a limiting instruction; if one would be useless, less likely to be
admissible
ix. Extent to which the other act evidence will prolong proceedings
VIII. If it is Propensity Based, is it a Habit or Routine Practice?
1. FRE 406: 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
2.
3.
4.
5.
or routine practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.
Habit is different from character
a. Propensity reasoning focuses on a person’s disposition
b. Habit is so routine that it is not volitional; is semi-automatic
i. D saying, he never goes out on Friday because of the Sabbath is not enough;
there is still some choice in the matter even if D says there is not one
1. There still exists a, “Should I, or should I not?”
c. Victor is a careful driver v. Victor always wears his seatbelt
Proponent of habit evidence may use extrinsic evidence
a. Opinion witnesses
b. Specific instances of conduct
c. Documents
Proponent must prove a large enough sample size to convince the court that the behavior is
automatic
Reyes v. Missouri Pacific Railroad Co.
a. P was hti by a train after being passed out next to the tracks
b. P says he was jumped and left to die
c. D says that P was just drunk and that it is P’s own fault
d. D tries to admit P’s four prior convictions for public intoxication
e. If this is for propensity reasons (P is a heavy drinker, likely drunk again) then it is
inadmissible
i. However, D tries to get this in under 406 -> P’s intoxication is a product of P
drinking so much that it is a habit, that P has an addiction
f. Holding: the probative force of habit evidence to prove intoxication on a given occasion
depends on the degree of regularity of the practice and its coincidence with the occasion
i. Applied: four prior convictions spanning a three and a half year period are of
insufficient regularity to establish habit
IX. Is there an Exception to the Rule Against Propensity Evidence?
1. When can we explicitly argue that “she did X because that is the type of person she is; she has
done X in the past”?
2. What are the methods of proving character?
a. FRE 405
i. By reputation or opinion
1. When evidence of a person’s character is admissible, it may be proved
by testimony about the person’s reputation or by testimony in the form of
an opinion. On cross, the court may allow an inquiry into relevant
specific instances of conduct.
a. Note: a character witness must lay a foundation for how they
know reputation or why they have opinion
b. Note: a character witness cannot proffer specific instances on
direct
i. However, they can be crossed on specific instances
1. Broyles: court found a reasonable connection
between drunk driving convictions and a
reputation for peace and quietude
3.
4.
5.
6.
7.
2. Why the difference?
a. Because now we are testing the
character witness’s testimony, not
proving character
b. “Did you know though that D was
convicted of perjury…?”
c. Note: a specific instance cannot be
proved on cross, a crossing attorney
must accept either the yes or no
ii. By specific instances of conduct
1. When a person’s character 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.
a. Closed list of examples:
i. Criminal
1. Seduction
2. Entrapment
ii. Civil
1. Negligent entrustment/hiring
2. Parental custody
3. Libel
4. Slander
5. defamation
Character of a defendant in a criminal case (404[a][2][A])
a. The following exceptions apply in a criminal case:
i. A defendant may offer evidence of the D’s pertinent trait, and if the evidence is
admitted, the P may offer evidence to rebut it
1. A P can rebut through cross or calling their own character witness who
testifies to the same reputation or opinion testimony that D offered
Character of victim in a criminal case (404[a][2][B], [C])
a. A defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence
is admitted, a P may
i. Offer evidence to rebut it; and
ii. Offer evidence of the D’s same trait; and
b. In a homicide case, a P may offer evidence of the alleged V’s trait of peacefulness to
rebut evidence that the victim was the first aggressor
i. P can here open the door to character if it is D’s allegation that V was first
aggressor
What is a “pertinent” character trait?
a. One that is relevant to the outcome of the case
Per FRE 405, a D must initiate the process of character evidence admission by offering either a
pertinent trait of character of herself or the alleged victim
a. Can do so in 3 ways
i. Through a character witness who testifies to D’s character
ii. Through a character witness who testifies to V’s character
iii. Through cross exam of a P witness with questioning about D or V’s character
If the D offers evidence about herself
a. P can rebut by saying D lacks that trait or has an opposite trait
8. If D attacks V’s character
a. P can rebut by showing V lacked that trait or held an opposite one
b. P can rebut by showing D has the same trait
9. Gilliland: a P cannot turn a D witness into a character witness on cross if the D witness was just a
fact-witness on direct
a. Cannot ask the witness character based questions to bait a discussion into character only
to then cross on specific instances of conduct
10. Character of D in a rape prosecution (413)
a. In a criminal case where a D is accused of a sexual assault, court may admit evidence that
the D committed any other sexual assault
i. Huddlestone conditional relevance test for other act occurring
b. Must give 15 days of notice
c. Specific instances of conduct allowed on direct
d. Extrinsic evidence is allowed
e. P can open door
11. Character of D in a child molestation prosecution (414)
a. In a criminal case where a D is accused of child molestation, the court may admit
evidence that the D committed any other child molestation
i. Huddlestone conditional relevance test for other act occurring
b. Must give 15 days of notice
c. Specific instances of conduct allowed on direct
d. Extrinsic evidence is allowed
e. P can open door
12. Character of D in a civil sexual assault of child molestation prosecution (415)
a. In a civil case involving a claim for relieg 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.
i. Huddlestone conditional relevance test for other act occurring
b. Must gives 15 days of notice
c. Specific instances of conduct allowed on direct
d. Extrinsic evidence is allowed
e. P can open door
13. All of 413-415 are subject to some kind of 403 analysis; there is still some determination in
deciding whether the prejudice to the D is substantial enough for inadmissibility
a. LeCompte: acknowledges that there is a 403 analysis to be done; however, “403 must be
applied to allow 414 its intended effect…”
i. In light of the strong legislative judgment that evidence of prior sexual offenses
being admissible, 8th Circuit here found that DC erred in excluding prior rape
evidence as being too prejudicial
ii. Here, a “light 403” analysis was done
b. Guardia: applied a normal 403 balancing test
i. The court considered a number of factors to see if the prejudice was too high
1. Similarity of prior acts to the acts charged
2. The closeness in time
3. The frequency of the prior acts
4. The presence or lack of intervening events
5. The need for evidence beyond the testimony of D and the V
a. Remember that one factor can be way stronger than any others
ii. Court excluded, on appeal, testimony from 6 different women who claimed they
suffered sexual abuse at the hands of D
1. It would have greatly dragged the trial out
2. 6 new incidents besides the incident at bar to discuss
a. Would have needed 6 new experts
b. Would have called for graphic lay witnesses
3. Fear of confusion with so many incidents
14. Propensity can be used to show that someone is a liar by nature; will discuss more in
impeachment
X. Impeachment
1. “I have a witness that I want to call a liar”
2. Always need to have a good faith basis for impeaching someone
3. Impeaching credibility is always relevant; however, even more probative if a case comes down to
be a “he said, she said” battle
4. You make a choice: are you seeking to cast doubt on specific testimony or on general
trustworthiness?
5. Casting doubt on general trustworthiness can be done in three ways
a. Showing bias
i. Can be proved with extrinsic evidence; therefore, not limited to attacking on
cross
1. Do not have to take a witness at word
a. Can show a document, for example
ii. Comes up where a witness has an attitude/background that slants her testimony
consciously or unconsciously for a reason not dealing with the merits of the case
iii. Examples of things that can bias
1. Personal relationships
2. Business relationships
3. Bribes
4. Financial stake in the suit’s outcome
5. A witness’s like or dislike of a party
6. Witness’s fear of a party
7. A witness’s self interest
iv. United States v. Abel
1. Finding that evidence shedding light on the source and strength of a
witness’s bias is allowed
2. Here, relevant to delve into a witness being a part of the Aryan
Brotherhood with D, an org. whose tenets include killing and lying on
behalf of other members
b. Defect in mental or sensory capacity
i. Where we are saying that a witness can’t accurately perceive, remember, or
narrate an event
ii. Can be proved using extrinsic evidence
iii. Example: intoxication on the night in question
1. Note, however, that a history of alcoholism would not accomplish this, it
must be a specific impairment at the relevant time in question
iv. Henderson v. DeTella
1. A witness identified D as the killer
2. D tried to have a witness say that the witness has used drugs on multiple
occasions
3. Court notes that the use of narcotics can affect perception; however, the
use would have needed to be within the period of the events to which the
witness testified
4. “Absent a connection to the witness’s cognitive abilities, D’s testimony
would have served only to impeach the witness’s character, a purpose
that we have repeatedly deemed improper”
c. Liar by nature
i. FRE 403(a)(3) – evidence of a person’s character is not admissible to prove that
on an occasion the person acted in accordance with the character …
1. Exceptions: but that evidence may be admitted under FRE 607, 608, 609
ii. FRE 607: Any party, including the party that called the witness, may attack the
witness’s credibility
iii. FRE 608
1. (a) 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.
a. Notes
i. Reputation or opinion testimony allowed after
foundation laid
ii. No specific instances allowed
iii. Specific instances can be explored on cross if they relate
to target witness’s truthfulness
1. Because it tests knowledge/credibility of the
testifying witness, not the target witness
2. (b) except for a criminal conviction under 609, extrinsic evidence is not
admissible to prove specific instances of conduct to attack or support a
witness’s character for truthfulness. But the court may, on cross, allow
them to be inquired into if they are probative of the character for
truthfulness of:
a. The witness; or
b. Another witness whose character the witness being crossed has
testified about
c. Notes
i. One can cross regarding specific instances that relate to
truthfulness only
ii. Anyone who testifies has put their own personal veracity
at issue
iii. Remember, this is non-conviction testimony
iv. Extrinsic evidence not allowed
1. Answers must be accepted
v. A good attorney will try to get extrinsic evidence in by
saying that this is a different kind of impeachment that
allows extrinsic evidence
1. Bias
2. Sensory/mental capacity
vi. Test: whether the non-conviction misconduct involves
veracity; fact-intensive inquiry regarding the degree to
which the dishonesty was linked to the underlying
conduct
1. Honesty not linked to violent behavior, drug use,
etc.
2. Maybe linked to things like perjury, fraud
d. State v. Morgan
i. D says on direct that the V was violent and a big drinker
ii. Court found that D opened the door to V character
iii. P thus had 2 options:
1. Could say V was peaceful
2. Could say D also violent
iv. P admitted evidence that D had assaulted someone,
saying it went to truthfulness
v. Court found that the extrinsic evidence of D’s past
assaults were not in any way probative of witness’s
character for truthfulness under 608(b)
iv. FRE 609- Impeachment by evidence of criminal conviction
1. Was it a crime punishable for more than a year? (could it have been)
a. If the witness is not the D, must be admitted subject to 403
b. If it is D, the probative value must outweigh the prejudice
i. U.S. v. Brewer- lays out factors for assessing if the
probative value outweighs the prejudice
1. Nature of the crime (did it involve honesty?)
a. Violent acts not probative
2. Time of the conviction
a. More recent, more probative
3. Similarity of past crime and charged one
a. The more similar, the more prejudice
4. Importance of D’s testimony
a. Favors not admitting?
5. Centrality of credibility issue
2. If an element of a crime is dishonest act or false statement, always
admissible
3. Limits on 609
a. Usually just bare facts of conviction, when it happened
b. 10-year limit; >10 years admissible only if
i. Probative value + specific facts substantially outweigh
prejudice (reverse 403)
1. Look at Brewer factors
c. Inadmissible where there is a pardon or certificate of
rehabilitation
d. Juvenile adjudications rarely in, but can be if
i. Criminal case
ii. Witness other than D
iii. Adult’s conviction for identical conviction would be
admissible to attack the adult’s credibility
iv. Admitting the evidence is necessary to fairly determine
guilt or innocence
6. Casting doubt on specific testimony can be done in two ways
a. Prior inconsistent statement
i. FRE 613
1. (a) When examining a witness about the witness’s prior statement, a
party need not show it or disclose its concent to the witness. But the
party must, on request, show it or disclose its contents to an adverse
party’s attorney.
2. (b) 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.
a. Test: both statements cannot both simultaneously be true; they
are irreconcilably at odds
b. Note: extrinsic evidence only ok if a witness has a chance to
explain/deny
c. An omission or lack of present memory can show an
inconsistency if it would have been natural for the witness to
have included the details in prior testimony
3. U.S. v. Winchenbach
a. Distinguishes 613(b) and 608(b)
b. 613- applies when 2 statements, one made at trial and one made
previously, are irreconcilably at odds
i. An attorney can show the discrepancy using extrinsic
evidence
c. 608- addresses situations in which a witness’s prior activity,
whether conduct or statement, in and of itself casts doubt on
veracity
i. Applies to and bars extrinsic evidence of a witness’s
misconduct
ii. Can apply to statements if the statements in and of
themselves stand as an independent means of
impeachment without a need to compare it to
contradictory trial testimony
b. Proof, either through cross or other extrinsic evidence, that something testified to was
wrong and can be contradicted
i. Simply means to offer counterproof to a proposition on which the witness has
testified
ii. Difference between this and 613 is that you are using underlying facts, not
statements, to impeach
1. Testimony was wrong or mistaken, without drawing an inference about a
witness’s character
iii. Limitation: contradiction cannot concern a “collateral matter”
1. Contradiction must concern the merits of the claim
2. Must conflict about a point that matters in the litigation
3. Not collateral if, ignoring the contradiction, it is still independently
relevant to the issues at stake
4. 403 analysis if questionably collateral
iv. This kind of impeachment can be done via cross-exam or with extrinsic evidence
1. This kind of impeachment is, by definition, extrinsic evidence
v. U.S. v. Opager
1. D tried testifying that she had never sold cocaine before
2. P showed evidence that D had sold cocaine before
3. Court found this to be a factor in establishing D’s criminal
predisposition, a matter clearly of consequence to her case
4. Found that the testimony had the “incidental effect” of showing her to be
a liar, but that fact cannot bar it from being admitted as extrinsic
evidence that contradicted her point that she had never sold drugs
a. You can impeach with underlying facts and have it also go to
one’s truthfulness
7. Rape Shield Law; a limit on impeachment
a. FRE 412: Sex offense cases; the victim’s sexual behavior or predisposition
i. (a) The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
1. Evidence offered to prove that a V engaged in other sexual behavior; or
2. Evidence offered to prove a victim’s sexual predisposition
ii. Exceptions
1. Criminal cases
a. Specific instances of a V’s sexual behavior can be offered to
prove that someone other than the D was the source of semen,
injury, or other physical evidence;
b. Specific instances of V’s sexual behavior with respect to the
person accused of sexual misconduct if offered to prove consent
or if offered by the prosecutor;
i. Note: a P can offer all of this evidence for any purpose
1. Motive
2. Intent?
c. And evidence whose exclusion would violate the D’s
constitutional rights
2. Civil Cases
a. Evidence of V’s sexual behavior can be admitted if its probative
value substantially outweighs the danger of harm to any victim
and of unfair prejudice to any party. May admit evidence of a
V’s reputation only if the V has placed it into controversy.
3. Procedure
b.
c.
d.
e.
f.
a. File a motion that describes the evidence and why using it
b. 14 day notice
c. All parties served
d. Notify victim
412 applies to a broad range of sexual behaviors
i. Physical conduct
ii. Behaviors that imply sexual conduct
1. Use of contraceptives
iii. Fantasies, dreams
iv. Evidence of sexual predisposition
1. Dress
2. Speech
3. Lifestyle
Neither specific acts nor reputation are allowed under this rule
Even if something would be admissible, remember to subject it to 404/403
Doe v. United States
i. V is appealing an order that allowed evidence of her past sexual history att rial
ii. 7 things specifically
1. Her general reputation
2. Evidence of her calling out to soldiers
3. Evidence of her meeting soldiers at snack bar
4. Evidence from her landlord that she is promiscuous
5. What a social worker learned about her
6. Telephone conversations between her and D
7. Evidence of D’s state of mind because of what he knew about he r
reputation and what she said to him
iii. Court finds that 412 keeps out 1-5 as it is reputation or opinion evidence that
does not go to either source of injury/semen or consent
iv. Court DOES admit 6/7 as they touch directly on her interactions with D and his
reasonable perception of consent
Stephens v. Miller
i. D arguing that while having sex with V, he said something untoward and so she
got mad and fabricated a rape charge
ii. As proof, D said he told her “you like doggy style, someone else said you did”
1. Dealt with her prior sexual history
iii. TC ended up just giving a JI saying, “D said something upsetting during sex”
1. D now arguing his constitutional right to frame case in the way he wants
to is being infringed upon
iv. Court finds that the constitution requires no more than a proper balancing of D’s
right to testify and the P’s interest because he was allowed to testify about what
happened and that he said something upsetting
XI. Is it Hearsay?
1. What is Hearsay?
a. A statement of assertive conduct which was made or occurred out of court and is offered
to prove the truth of the facts asserted in the statement
b. Declarant: person who made the statement
2. What does it mean to prove the truth of the facts asserted?
a. Test: from the point of view of the party offering it, would the statement still be helpful to
the jury if the statement were false?
i. If so, it is not offered for the truth and is not hearsay
ii. A statement will be admitted if a nonhearsay purpose is demonstrated and that
nonhearsay purpose satisfies a 403 test
1. All depends on the evidential hypothesis
b. What are other reasons to offer a statement besides for its truth value?
i. State of mind of the declarant or listener
ii. Impeachment
1. To show that 2 statements are in conflict, regardless of which is true
iii. If it is a verbal act
1. If the words themselves have legal consequences simply because they
were uttered
a. Like a contract offer
b. A defamatory statement
c. An illegal threat
2. Verbal part of a physical act resolves ambiguity
a. Example: if I give you a pen, you may ask if it is a gift. But if I
say, “I expect that back”, the ambiguity is resolved.
iv. To show a declarant’s knowledge
3. What is a Hearsay statement?
a. An oral assertion, a written assertion, or nonverbal conduct of a person, if the nonverbal
conduct is intended by the person as an assertion. An assertion is any act undertaken by
the declarant that is intended to communicate a fact.
b. When is conduct both assertive and hearsay?
i. Test
1. For what purpose is the proponent of the evidence offering it? (in trial)
2. Did the declarant intend to communicate that purpose to an audience? (at
time of the statement)
ii. If there was an intent to assert something and then the conduct is offered for a
purpose that matches that intent = hearsay
iii. Examples:
1. Shadow boxing, actor’s intent is that he will hit someone, proponent’s
purpose at an assault trial is that there was intent to hit -> hearsay
2. Hyperventilating, no intent (natural reaction), proponent’s purpose is to
show he was nervous -> not hearsay
iv. Party offering the evidence that something is an assertion must prove it by a
preponderance
c. When are oral/written communications assertions?
i. They usually are, unless
1. Questions
2. Involuntary statements
3. Implied assertions
4.
5.
6.
7.
a. Those statements that possess an underlying, implied message
b. Example: someone this thumb with a hammer and you ask if it
hurts, he says “what do you think?”
i. Implied message of being in pain
c. If evidence is offered for its implied message, then the statement
may be an assertion and may be hearsay.
i. Two-part test:
1. For what purpose is the proponent of the
evidence offering it?
2. Does the proponent’s purpose in introducing the
evidence match the declarant’s intent?
ii. If this test is satisfied, hearsay if the assertion is offered
for its truth value
Why do we care about Hearsay?
a. We want reliable evidence in front of the jury. With every witness, we are concerned
with unreliability stemming from four testimonial capacities:
i. Perception
ii. Memory
iii. Narration
iv. Sincerity
b. If even one of those testimonial capacities appears to be missing, the whole of the
testimony could be inaccurate
c. We want firsthand reports, not hearsay statements
United States v. Parry
a. Argued by P that D acted as a middleman in arranging drug transactions between DEA
agents and drug dealers
b. D argued in his defense that he had a good faith belief that he was working for the DEA
i. Offered hearsay testimony from his mother saying that the person D was working
with was a DEA agent
c. Court finds that this statement was not offered to prove that the person was, in fact, a
DEA agent; however, it was to prove that D had knowledge that he was a DEA agent
State v. Galvan
a. D’s ex-wife testified that 2 days after vicious murder for which D is charged, she
observed her 2-year-old daughter who was with D that night taking a belt and binding her
hands with it while making several gestures as if beating her own chest
i. Further testimony that 5 months later, same daughter had an adverse reaction to a
cartoon in which a mouse was tied up
b. Court finds both to be hearsay over P’s argument that it demonstrated knowledge rather
than going to the truth
i. Court finds that the only relevance that the child’s knowledge could have would
be, inherently, for the truth of showing that someone was stabbed and tied up
c. Court cites a concern that letting the testimony in would make knowledge
indistinguishable from memory and belief, destroying the hearsay rule
United States v. Long
a. While police are searching D’s home, someone calls and asks if D has any stuff to sell
her a “fifty”
b. D moves to exclude this as hearsay, saying that the statement is offered for the truth of
the matter assertion; that he sells drugs
i. It would be an implied assertion here
c. Court here instead thinks that the caller did not intend to assert that D sells crack, she just
wanted to engage in a business venture
d. “Nothing is an assertion unless it is intended to be one”
8. State v. Dullard
a. D wrote a letter to someone, that was found among meth-making materials, that a cop
was watching them
b. P offered this to show that D had a meth lab
c. The declarant is obviously not intended to assert that D has a meth lab
d. Court here (the minority view v. Long) does not want to worry about intent alone and
instead is concerned with all testimonial capacities
i. Memory
ii. Perception
iii. Ambiguity
iv. Sincerity
e. Court finds that the line between intended and unintended conduct only touches on
insincerity, but that other hearsay dangers are still at issue
i. Thinks statement is hearsay
XII. Is there a Hearsay Exemption?
1. If one of these rules are satisfied, the statement is not hearsay
a. If it is not hearsay it may be argued substantively
2. FRE 801(d)(1)(a) – Prior Inconsistent Statements
a. Not hearsay if the declarant testifies and is subject to cross-examination about a prior
statement and the statement
i. 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. Notes:
i. Not offered for truth, but to show an inconsistency
1. The prior inconsistent statement could be used to PROVE the point at
issue (it could be argued substantively)
ii. What is an “inconsistent” statement?
1. Irreconcilably at odds test; both cannot be true
2. A more recent statement that indicates a change in view or mistake, it
also works
3. Evasive answers
4. Memory loss
a. But has to be something you should remember
iii. What kind of “proceeding” qualifies?
1. The more formal the setting, the likelier it will be admitted
2. Should be under oath
3. Investigative report in which an adverse party took a statement?
iv. Must be available for cross, too
3. FRE 801(d)(1)(b) – Prior Consistent Statements
a. Not hearsay if the declarant testifies and is subject to cross-examination about a prior
statement and the statement
i. Is consistent with the declarant’s testimony and is offered:
1. To rebut an express of implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying; or
2. To rehabilitate the declarant’s credibility as a witness when attacked on
another ground
b. Notes:
i. If a witness is accused of lying, or if it is implied that she was, she may point to a
prior statement that is consistent with her testimony to rebut the attack
ii. What is “consistent” testimony?
1. Need not be sworn
2. Need not be in a formal proceeding
3. It can have minor differences
4. But it must relate to the testimony at trial and should not introduce new
points not covered in the witness’s testimony
a. Must be consistent with matters on which the witness was
actually impeached
iii. What is the degree to which the consistent statement is effective for
rehabilitation?
1. Rehabilitation happens when it invalidates an attack on a witness such as
inconsistency or faulty memory
iv. Tome v. United States
1. Asking whether a statement made after a motive to say it has been
developed can be used under 801d2b
2. Alleged sexual abuse by D on his daughter; mom does not like that D has
custody
3. 6 accounts of the kid being assaulted are coming in from August of 1990,
motive to lie about the charge to get D to stop having custody developed
in the summer of 1990
4. D is arguing that this does not establish any prior consistent statement;
rather, D argues that a motive to lie is only confirmed by bringing in the
prior consistent statements
5. Supreme Court holds that, even if not explicit in the FREs, the premotive rule still exists and that the 6 accounts developed post-motive are
inadmissible
v. “Your memory seems to get better with time” is enough to open the door to
rehabilitation; Problem 7-3
vi. A charge of global unreliability can be rebutted by pointing to some specific
consistencies; Problem 7-4
4. FRE 801(d)(1)(c) – Statements of Identification
a. Not hearsay if the declarant testifies and is subject to cross-examination about a prior
statement, and the statement
i. Identifies a person as someone the declarant perceived earlier
b. Notes:
i. Simple foundation:
1. Statement must be one of identification after having perceived the person
2. Subject to cross
ii. There is no temporal component (no recency requirement); relaxed standard
c. United States v. Owens
i. Is a statement of identification admissible when the identifying witness is unable,
because of memory loss, to explain the basis for the identification?
ii. V severely beaten, in an interview named D as his attacker
iii. V can no longer remember, bad head injury
iv. Was V here “subject to cross” if he could not remember?
v. Court finds the prior identification admissible because the very purpose of the
rule was to account for out of court identifications being preferred to in court
ones and that the rule itself accounts for the fact that memories get worse
5. FRE 801(d)(2)(A) – Individual Admissions; Party opponent
a. Not hearsay if the statement is offered against an opposing party and:
i. Was made by the party in an individual or representative capacity
b. Notes:
i. “Your words can be used against you, and, if they are offered against you at trial,
your words will be deemed non-hearsay”
ii. Need not be against a party’s interests
iii. No personal knowledge requirement of topic of the statement
iv. If a party Is speaking in a representative capacity, the statement can be used
against the party as an individual
v. If a party denies a statement, the Huddlestone standard lets it in if a reasonable
jury finds that the party uttered the statement
6. 801(d)(2)(b) – Adoptive Admissions
a. Not hearsay if the statement is offered against an opposing party and
i. Is one the party manifested that it adopted or believed to be true
b. Foundation:
i. Offered against the party
ii. Party manifested that it adopted or believed the statement to be true
c. An express agreement, ranging from verbal declaration to a nod, would allow the
statement in as an adoptive admission
d. Tricky situation with this rule: when is there adoption of an admission by inaction or
silence? (tacit admisisons)
i. Foundation
1. Party heard and understood a statement made in his or her presence
2. The circumstances naturally called for a reply (under similar
circumstances, a reasonable innocent person would have immediately
denied the accusation)
a. Consider:
i. Specificity of the accusation
ii. The context of the accusation
b. Press conference example: a specific allegation that called for a
reply
3. The party had the opportunity to deny the statement
4. The party either remained silent or made an evasive or equivocal reply
ii. Most hotly contested is whether circumstances naturally called for a reply
1. Would a reasonable innocent person deny that they “have the face of a
bank robber”?
iii. Under Miranda; silence cannot be used to impeach after warnings given;
however, prearrest silence can be used to impeach and used substantively as an
adoptive admission
1. Where there is a circuit split is when one is in custody but not yet
Mirandized. There, the silence can be used to impeach, but maybe not
substantively.
7. FRE 801(d)(2)(c); FRE 801(d)(2)(d) – Statements of Agents
a. Not hearsay if a statement is offered against an opposing party and
i. (C) was made by a person whom the party authorized to make a statement on the
subject;
ii. (D) was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed
b. The statement must be considered but does not by itself establish the declarant’s authority
under (C); or the existence or scope of a relationship under (D)
c. Exemplifies the adversary system; not only can your statements be used against you, the
words of your agents can be used against you as well
d. Difference between (C) and (D) boils down to whether the agent was express or implied
i. (C) The totality of the circumstances must indicate that the principal gave the
agent the authority to make statements on behalf of the principal
ii. (D) an agency situation may be implied
1. Example: an employee in charge of purchasing raw materials for a
manufacturer may conduct numerous conversations with suppliers
a. If the subject of those statements were within the scope of her
employment and occurred while she was employed, then her
statements may be attributable to her employer even if she had
no express authority
b. Note: she would not be considered an agent for the packaging
department for example
e. Trial judge determines, under 104(a), whether foundation has been established that
agency exists
i. A statement, “I am authorized on behalf of x” can be used as evidence of agency,
but must be corroborated
f. Malhandt v. Wild Canid Survival
i. D was an implied agent for the company because he kept custody of the wolf that
was involved in the attack and keeping the wolf was within the scope of his
employment
8. FRE 801(d)(2)(e) – Coconspirator Statements
a. Not hearsay if a statement is offered against an opposing party and
i. Was made by the party’s coconspirator during and in furtherance of a conspiracy
b. The statement must be considered but does not by itself establish the existence of the
conspiracy or participation in it – Bourjaily
c. Foundation:
i. Conspiracy existed
ii. Conspiracy was in process when statement was made
iii. Declarant was a coconspirator
iv. Declarant made statement in furtherance of the conspiracy
v. The party against whom the statement is offered was a member of the conspiracy
d. Conspiracy here means joint venture; any time people act together by mutual
understanding in pursuit of a common purpose
e. Tricky to determine if a conspiracy is still in progress
i. Typically, courts seek to determine whether the statements occurred before or
after the last overt act necessary for the conspiracy
ii. Statements from afterwards do not qualify unless it was established as a part of
the conspiracy to hide it
f. Tricky to determine if it is “in furtherance” of the conspiracy
i. Any statement that advances the ball on a conspiracy works
ii. Any statement that can be reasonably interpreted as encouraging an advancement
of the conspiracy, such as initiating it, mapping out a strategy, keeping cos
apprised of the progress, and encouraging further cooperation all satisfy
iii. Bragging would not satisfy
g. Note: the elements must be satisfied by a preponderance of the evidence under FRE
104(a), not dealing with 104(b) because they are obviously relevant
h. Bourjaily v. United States
i. D argues that a conspiracy needs to be proven using evidence independent of the
hearsay statements
1. He argues against bootstrapping, the use of a quote to boost the argument
ii. Supreme Court here finds that bootstrapping is ok
1. Why?
a. Hearsay is presumed unreliable, but is a rebuttable presumption
b. Sometimes when the mosaic of evidence is created, it is stronger
than any individual piece of evidence
iii. Court finds that a quote is usable as evidence, but insufficient
9. Notes on Opposing Party Statements in Multi-Party Cases
a. What if we have criminal Ds tried together but only have hearsay exception for one of the
two of them
i. Bruton doctrine applies: if D1 confesses and names D2 as a cohort in his
confession, that confession cannot come in against D2, even with a limiting
instruction
ii. Remedies: the evidence CAN come in if –
1. The trials are severed
2. There are separate juries who are instructed differently
3. The references to the co-D are redacted
XIII. Is there a Hearsay Exception? – 803, Available Witnesses
1. For these, a declarant must have personal knowledge on the topic of the statement
2. FRE 803(1) – Present Sense Impression
a. A statement describing or explaining an event, or a condition made while or immediately
after the declarant perceived it
b. Foundation:
i. During or very shortly after event (usually within minutes)
1. 15 minutes max
ii. Describes or explains the event or condition
1. Does not need to be startling
3. FRE 803(2) – Excited Utterance
a. A statement relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused
b. Foundation:
i. Event was startling or stressful
1. Objective analysis + subjective analysis
a. Objective: nature of the event must be likely to inspire nervous
excitement
b. Subjective: whether, in fact, the declarant was in a state of
nervous excitement
2. Context-dependent inquiry
ii. Statement made relating to the event or condition
1. Broader in scope than PSI; does not need to describe or explain the event
iii. Statement made while in a state of nervous excitement
1. No temporal requirement; it can be as long as someone is still in the
excited state
2. Declarant must be excited; not enough that reasonable person would be
3. More leeway for kids
4. Excited states can be reignited with certain triggers (a photo of an
assailant)
4. FRE 803(3) – Then-Existing Mental, Emotional, or Physical Condition
a. 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 a declarant’s will.
b. Focus is on the present of the statement, not past or prospective statements
c. Different uses of this rule:
i. Statements of present bodily condition
ii. Statements of present state of mind or emotion when offered to prove a state of
mind or emotion of a declarant that is in issue
1. When state of mind must be proved to win or lose a case
2. Examples:
a. Good faith
b. Intent
c. Knowledge
d. Coercion
e. Racist statements
f. Motive to prove guilt
g. Damages
h. Fear in extortion case
iii. Statements of the declarant’s state of mind to show subsequent conduct of the
declarant
1. Can these statements cover joint conduct? “I am going to the library with
Margret.” Can the statement also be used to show that Margret went to
the library?
a. Depends; Hillmon v. Houlihan
b. The statements CANNOT be used to show that a non-declarant
DID do
2. Can these statements include backward-looking aspects? “I am going to
the library because I got a C on my exam.”
a. Cannot come in for the truth of the matter
i. Remedies
1. Scalpel that part of the statement
2. Give a limiting instruction
3. Mutual Life Insurance v. Hillmon
a. A declarant’s statement that discusses joint conduct is admissible
to prove the non-declarant’s intention to do something in the
future without the need for corroborating evidence
4. United States v. Houlihan
a. Minority view opposed to Hillmon; a statement that discusses
joint conduct is admissible to prove the non-declarant’s intention
to do something as long as there is other corroborating evidence
5. FRE 803(4) – Statements for Medical Diagnosis or Treatment
a. A statement that:
i. Is made for – and is reasonably pertinent to – medical diagnosis or treatment and
ii. Described medical history; past or present symptoms or sensations; their
inception; or their general cause
b. Only covers patient’s statements to doctor or in the furtherance of seeking treatment
c. Foundation:
i. Declarant made a statement to a proper addressee
1. Doctor
2. Good Samaritan/family member/friend in hopes that the message is
conveyed to a doctor
3. Nurse/hospital intake assistant to get diagnosis/treatment
ii. Declarant made the statement for a medical motive (diagnosis or treatment)
1. Expert retained for litigation is covered by this exception because he is
making a diagnosis
iii. Subject matter of the statement is reasonably pertinent to diagnosis or treatment
1. Will the statement in any way help the doctor with diagnosis or
treatment? Would a reasonable physician rely on these statements in
diagnosing?
a. See Iron Shell
b. Majority approach when dealing with the identity of a
perpetrator in a domestic violence case: admissible because
treatment is forward looking (do you have a palce to stay
tonight?) If it goes to preventative treatment, then it is admissible
i. Problem 7-24: preventing a woman from returning to an
abusive husband counts as preventative care and with
children, the age could be a factor in assessing whether
purpose was to receive medical care
1. Less likely to have ulterior motives?
6. FRE 803(5) – Writing to Refresh Memory/Recorded Recollection
a. A record that:
i.
Is on a matter the witness once knew about but now cannot recall well enough to
testify fully and accurately
ii. Was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
iii. Accurately reflects the witness’s knowledge
b. FRE 612 – Writing Used to Refresh a Witness’s Memory
i. A) 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 a party to have
those options
ii. B) Options: adverse party is entitled to have the writing produced at the hearing,
to inspect it, to crorss on 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, delate any unrelated
portion, and order that the rest be delivered to the adverse party.
iii. C) if a writing is not produced or it 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 requires- declare a
mistrial
c. Under 612, you can use any object to refresh a witness’s testimony. They will read
silently, and you’ll ask if memory is refreshed
i. If they say yes, go on with direct
1. Opposing counsel has a chance under 612 to review the document or
introduce it as an exhibit at trial
ii. If they say no, you can introduce the document in lieu of having testimony about
it under 803(5) as long as some foundation is established
1. Previous personal knowledge
2. Subsequently prepared or adopted a record of those facts
3. The witness prepared or adopted the record while events were fresh in
her memory
4. The witness can vouch that when she prepared the record, the record was
accurate
5. And at trial, the witness cannot completely and accurately recall the facts
even after reviewing a document
d. Baker v. State
i. When a writing of some sort is the implement used to stir the embers of cooling
memory, the writing need not be that of the forgetful witness himself, need not
have been adopted by him, need not have been made contemporaneously with or
shortly after the incident in question, and need not even be necessarily accurate
1. All that is required is that it refreshes memory
7. 803(6), 803(7) – Records of Regularly Conducted Activity; Absence of a Record of Regularly
Conducted Activity
a. FRE 803(6)
i. A record of an act, event, condition, opinion, or diagnosis if:
1. The record was made at or near the time by someone with knowledge
2. The record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling
3. Making the record was a regular practice of that activity
4. All these conditions are shown by the testimony of a custodian or other
qualified witness, or by a certificate that complies with 902(11) or
902(12)
5. The opponent does not show that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness
b. FRE 803(7)
i. Evidence that a matter is not included in a record described in (6) if:
1. The evidence is admitted to prove that the matter did not occur or exist;
2. A record was regularly kept for a matter of that kind; and
3. The opponent does not show that the possible source of the information
or other circumstances indicate a lack of trustworthiness
c. Foundation:
i. Kept in course of regularly conducted business
1. Any regular organized activity
a. Includes criminal enterprises
ii. Routine practice to make record
1. If a bank made an unusual record about a particular customer, would
probably not qualify
2. Cannot be made just in anticipation of litigation
iii. Made at or near time of the transaction it records
1. “reasonable time” standard
iv. Made by, or from info transmitted by, a person with knowledge
1. No personal knowledge of specific transaction required; only need to
testify to routine practice
2. Can create a hearsay within hearsay issue if the information is
transmitted
a. The custodian is excepted; a complaining customer who
transmits info might not be
b. There is no hearsay within hearsay issue when a business duty
includes the duty to confirm the hearsay.
i. See Problem 7-27 where it was the prison guard’s duty
to make sure that people checking in’s IDs matched the
name they signed in with when visiting a prisoner
v. No reason to find that the document is untrustworthy
1. Burden is on the opponent of the info to show lack of trustworthiness
a. Example: document made solely for litigation
vi. 803(7) has same foundation but also a qualified witness to testify that a diligent
search uncovered no such record
d. United States v. Kim
i. D sought to introduce a telex that was sent from D’s bank in Korea that showed
that he did not have money problems
ii. Court finds that the telex does not meet 803(6) for three reasons
1. Not prepared until 2 years after the transaction
2. Not made for a regular business purpose; was made in response to a
government subpoena
3. Indicated a lack of trustworthiness; prepared in anticipation of litigation
a. Not entirely consistent with a letter sent by the bank to D and
there was no testimony as to the circumstances of its preparation
in Korea
e. Scheerer v. Hardee’s Food
i. P is suing after falling in D parking lot
ii. D is saying it was P’s own fault
iii. District Court admitted an incident report made by a D employee that described
the parking lot as dry, not oily; the report included a statement from P’s friend
that P was wearing slick shoes
iv. Court finds this to be inadmissible
1. The source of who talked about P’s shoes was never figured out
a. We cannot test the reliability or trustworthiness of that statement
2. Was prepared in anticipation of litigation
a. Not in the course of business
8. FRE 803(8) – Public Records; 803(10) – Absence of a Public Record
a. 803(8) A record or statement of a public office if:
i. It sets out:
1. The office’s activities;
2. 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
a. Read broadly to have law enforcement personnel include
scientists, criminologists, and forensic specialists
3. In a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
a. Factual findings can include opinions;
i. See Beech Aircraft
ii. D cannot get in exculpatory statements just because they
appear on a government record. Those aren’t factual
findings. Government must adopt the statements as true.
1. See Problem 7-31: was not a factual finding that
a government informant was told by a D that he
was innocent
ii. The opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness
1. Trustworthiness factors to consider from Beech Aircraft that go toward a
recorder’s subjective conclusions
a. Timeliness of the investigation
b. An investigator’s skill and/or experience
c. Whether a hearing was held
d. Whether there are possible bias/motivational problems: was
there one eye on possible litigation?
b. 803(10) Testimony that a diligent search failed to disclose a public record or statement i:
i. The testimony or certification is admitted to prove that
1. The record or statement does not exist; or
2. A matter did not occur or exist, if a public office regularly kept a record
or statement for a matter of that kind; and
ii. In a criminal case, P must give 14 days of notice
c. 803(8) has a limited application in criminal cases
i. Routine, non-adversarial reports can be admitted against a criminal D if the
purpose is not adversarial but deals more with record-collecting.
1. Example: record of stolen cars that the car in question is on
a. A fingerprint card
b. Maybe lab results
i. But maybe not if scientists report to Das
d. Beech Aircraft v. Rainey
i. When we admit public records, are we only admitting the factual findings or the
subjective conclusions of the people who prepared the record?
ii. Supreme Court here errs on the side of admissibility
1. See above factors for assessing trustworthiness of an investigation and/or
conclusion
iii. As long as a conclusion is based on a factual investigation and satisfies the
trustworthiness requirement, it is admissible
XIV. Is there a Hearsay Exception? – 804, Unavailable Witnesses
1. These exceptions are for when a declarant is unavailable but had personal knowledge on the
content of the statement (from a policy standpoint, these statements are necessary)
2. Before being able to use any of the exceptions, it must be established that the declarant is
unavailable
3. 804(a) – When a declarant is unavailable
a. Exempted from testifying because of a privilege (self-incrimination)?
i. But a D cannot use his OWN SI privilege to say he is therefore unavailable
b. Refusal to testify despite a court order
c. Testifying to not remembering the subject matter
i. Not unavailable if general memory but not specific memory as to an event
d. Cannot be present or testify because of a death, then-existing infirmity, physical illness,
or mental illness
i. Courts assess factors:
1. Nature of the infirmity
2. Expected time of recovery
3. Reliability of evidence concerning the infirmity
4. Special circumstances
a. Hung jury, complexity of case, whether there are numerous
witnesses, if the trial can’t wait
e. Is absent from the trial or hearing and the statement’s proponent has not been able, by
process or other reasonable means, to procure:
i. Good faith effort, including subpoena
f. Declarant incompetence
i. A 2-year-old cannot intelligibly speak to an ass
4. A declarant is NOT unavailable if the proponent procured or wrongfully caused the declarant’s
unavailability as a witness to prevent the declarant from attending or testifying
5. 804(b)(1) – Former Testimony
a. Hearsay exception if unavailable and
i. It is testimony that was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
ii. 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
re-direct examination
b. Wons. Elements
i. Testimony
1. Sworn statements in response to questions on the record
ii. At a proceeding
1. Broad; judicial inquiries, administrative inquiries, legislative inquiries
2. Statements to law enforcement not covered by this
iii. Subject to examination by a party against whom it is not offered
1. Or predecessor in interest in a civil case
2. All that matters is that there was an opportunity, does not matter if the
examination did not happen
iv. Who had a then similar motive
1. If the issue to which the testimony related at the former proceeding is
substantially identical to the issue in the present proceeding, then a
similar motive to develop the testimony is likely to exist.
c. U.S. v. Feldman
i. Court finds that a naked opportunity to have done a cross-exam of a witness is
insufficient
ii. Test: there is an opportunity to cross where there is a real need and/or incentive
to conduct it
1. Here, no one thought they would have had to depose Sanburg
a. No incentive
b. Ds thought he was on their side
iii. Test for whether there is a similar motive:
1. Factors:
a. Type of proceeding
b. Trial strategy
c. Potential penalties or financial stakes
d. The number of issues and parties
2. Applied:
a. The civil case here was not contested whereas the criminal case
was contested heavily
b. The burdens of proof were very different
c. Lower stakes in the civil suit; they were immune from payment
d. Clay v. Johns-Manville
i. Current Asbestos company D is saying that it is unfair to bring in a deposition
from a previous litigation against a different asbestos company
1. They argue that the other company was not their predecessor in interest;
they are saying that if they did have an opportunity to cross in the
previous case, they would have done so
ii. Court instead adopts a much broader interpretation of “predecessor in interest”
1. If it appears that in the former suit a party having a like motive to cross
examine about the same matters as the present party would have, then the
current party was accorded an adequate opportunity for such
examination, and the testimony may be received against the present party
6. 804(b)(2) – Dying Declarations
a. Hearsay exception if declarant is unavailable and
i. The statement was made 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.
b. Wons. Elements
i. The statement must relate to the cause or circumstances of impending death,
1. Explaining the circumstances would qualify; “He never liked me” would
probably get in
ii. The declarant had personal knowledge of the matter asserted
1. “He must have poisoned me” not getting in unless there is personal
knowledge
iii. The declarant believed that death was imminent
1. Test: The victim was under a sense of impending death either by express
language (“I’m dying”) or by indubitable circumstances (objectively
reasonable to think that person knew they were dying?)
2. Problem 7-36: statements in hospital after being set on fire found
inadmissible
a. Never explicitly said he was dying
b. He was high, more dubious that he thought he was dying
c. He did not know his chances of survival were as slim as they
were
3. Problem 7-37: kid saying, “don’t bother me, I’m already dead” among
other factors was a dying declaration
a. Court found that all factors combined to show that kid knew he
was dying
b. Court also relied on the fact that the kid DID die as evidence that
the kid comprehended that he was dying
iv. State v. Adamson
1. V was very seriously hurt by, and ended up dying because of a bomb in
his car
2. V told rescuers that it was D, also said “hurry up, I feel like I’m going”
3. Court found hospital statements admissible
a. His injuries were awful, like “hamburger”
b. Leg was amputated
c. One day later
d. Grave condition in the ICU
e. Sense of hopelessness
f. Reasonable to sense impending death
4. Court found statements at scene inadmissible
a. At scene, V said mafia was responsible
i. Found that V had no personal knowledge
7. 804(b)(3) – Statements Against Interest
a. Hearsay exception if declarant is unavailable and
i. A statement that
1. 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 interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose the
declarant to criminal or civil liability; and
2. 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
ii. Wons. Elements
1. Awareness
a. Declarant must be aware that the statement is against her interest
b. Objective test: reasonable person would have only made the
statement because it was true”
i. Fact-intensive analysis:
1. Under declarant’s circumstances, would a
reasonable person have said it?
2. “I am too drunk to drive”; there is awareness if
walking towards car, but none if walking home
2. Interest at stake
a. Penal interest
i. In criminal cases, corroborating evidence is needed for a
statement against penal interest; like if D has a witness
say, “Someone other than D said he would commit crime
D is being tried for”
1. Factors
a. Relationship between declarant and
accused
b. Whether other people heard the
statement
c. Declarant’s motive
d. Whether statement was made
spontaneously
b. Pecuniary Interest
i. Surrounding facts must indicate that the statement would
hurt the declarant’s financial or ownership interest
c. Proprietary interest
i. Surrounding facts must indicate that the statement would
hurt the declarant’s financial or ownership interest
d. Civil liability
e. Criminal liability
iii. How does a court handle those statements that are both self-serving AND against
interest? “He robbed the bank, but I drove him”, for example.
1. Williamson v. United States
a. Narrow test: that a person is making a broadly self-inculpatory
confession does not make more credible the confession’s nonself-inculpatory parts
i. Nothing in 804(b)(3) suggests that the admissibility of a
statement should turn on whether it is collateral to a selfinculpatory statement
b. Holding: no admission of self-serving statements, even if a part
of a broader self-inculpatory narrative
8. 804(b)(6) – Forfeiture by Wrongdoing
a. Hearsay exception where unavailable and
i. 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
b. Wons. Elements
i. Opposing party engaged or acquiesced in wrongdoing
ii. Intent of the wrongdoing was to procure the unavailability of the declarant as a
witness, and
iii. The wrongdoing did, in fact, cause the unavailability of the declarant as a witness
c. The wrongdoing need not be illegal
i. Must be an improper, significant interference
1. Force or threats
d. Opposing party need not be the one who did it
i. Tacit consent to another is enough
e. Intent to silence must be present, but need not be the only intent
i. The fact that there is a motive other than trial silence does not diminish a motive
for trial silence
f. This all must be done by a preponderance of the evidence standard
g. In the event of prosecutorial retaliation, it must be MORE than passive
interference/passive fear of retaliation
h. This can apply for other trials
i. If D silenced someone for a different trial, it would apply even for D’s current
trial
XV. If all else fails, the Residual Hearsay Exception
1. FRE 807
a. Under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically covered by a hearsay exception in
Rule 803 or 804
i. The statement has equivalent circumstantial guarantees of trustworthiness
ii. It is offered as evidence of a material fact
iii. It is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts;
2.
3.
4.
5.
iv. Admitting it will best serve the purposes of the FREs and the interests of justice
b. Reasonable notice must be given to offer something under 807
Wons. Elements
a. Proper notice
b. Circumstantial guarantees of trustworthiness equivalent to 803/804
c. More probative on the point for which it is offered than any other evidence
i. Test: great practical inconvenience to get evidence another way
ii. “Unless the hearsay is admitted, the facts it brings out may otherwise be lost”
Thorniest issue: just how high is the standard for trustworthiness?
a. Courts often admit grand jury testimony under this rule even though it satisfies no
unavailable witness exception or 801
i. Are we not diluting hearsay requirements with 807?
Three circumstances in which the hearsay is trustworthy under this rule:
a. Circumstances are such that a sincere and accurate statement would naturally be uttered,
and no plan of falsification is formed
b. Even though a desire to falsify might present itself, other considerations, such as the
danger of easy detection or the fear of punishment, would probably counteract its force
c. Where the statement was made under such conditions of publicity that an error, if it had
occurred, would probably have been detected and corrected
i. Like the old newspaper admitted in Dallas County v. Commercial Union
Insurance
Majority view: if the evidence is a near-miss under 803 and 804, but trustworthy and necessary, it
is admissible
XVI. Confrontation Clause
1. What is the Confrontation Clause?
a. The 6th Amendment guarantees that the accused in a criminal prosecution shall enjoy the
right to be confronted with the witnesses against him
2. Note: statements at issue with the confrontation clause must also have a hearsay exception
3. Confrontation Clause Rule of Law drawn from Crawford v. Washington
a. Court first notes that the CC must be interpreted with the common law focus of excluding
statements made in ex parte examinations against the accused
b. Notes that the CC applies to “witnesses” who “bear testimony”
i. Testimony: solemn declaration or affirmation made for the purpose of
establishing or proving some fact
1. Examples:
2. Ex parte, in court testimony
3. Affidavits
4. Custodial examinations
5. Prior testimony
6. Similar pre-trial statements that a declarant would reasonably expect to
be used prosecutorially
a. Is the declarant acting like a prosecution witness?
7. Statements taken by police in the course of interrogations
a. Where the purpose is to prove past events
c. Court finds that the Framers would not have allowed the admission of testimonial
statements of a witness who did not appear at trial unless
i. Unavailable
ii. Prior opportunity to cross
d. Thinks that where non-testimonial statements are at issue, hearsay exceptions are enough
4. What statements are non-testimonial? Where do we draw a line?
a. Offhand, overheard remarks are not testimonial
b. Business records are not testimonial
c. Dying declarations?
i. Sometimes testimonial, but courts usually let them in despite CC issues
d. Where wiretaps are involved
i. Could be advancement of a conspiracy with CI
e. Responses to a police officer who come to aid a cry for help
i. Factors: Hammon/Davis/Bryant
1. Is the declarant speaking about something currently happening?
2. What words are being used?
a. Consider both declarant and the police (for context)
b. Are the words uttered necessary to respond to an ongoing
emergency or for solving something that has already happened?
c. Can a declarant form an intent?
3. Level of formality
a. More formal, more likely testimonial
b. Are there Miranda warnings?
c. At the police station?
d. Memorialized statements to a stenographer?
e. Structured series of questions?
f. Parties separated when questioned?
4. Reliability of the statements
5. Is there an ongoing emergency? (would a reasonable person have
detected an ongoing emergency? All you need)
a. Factors to consider:
i. Present-tense? Past-tense?
ii. Immediacy of danger to police/public?
1. Type of weapon used
2. Declarant’s medical condition
a. Are there paramedics?
3. Have police secured scene?
iii. Magnitude of threat?
1. Type of crime + type of weapon
2. Is scene secure?
3. Suspect on the loose?
iv. Particularity of the threat?
1. Public area?
2. Is encounter organized?
a. Could he do it again?
5. Davis v. Washington
a. Domestic abuse case
b. V talks on 911, says D’s name, says what he did
i. Cut off, told to answer dispatcher’s questions
c. Issue: does the CC apply only to testimonial hearsay? Does a 911 call recording satisfy
this?
i. Yes, only testimonial
ii. 911 call testimonial if focused on establishing facts of a past crime; however,
they are usually for describing current circumstances
d. Holding: 911 call’s primary purpose was to enable police assistance to meet an ongoing
emergency; where that is the case, it is not testimonial
i. Note: that situation can evolve into being testimonial at a point, but that is for
trial courts to determine
6. Hammon v. Indiana
a. Domestic abuse case, V found alone on the porch
b. D was in the kitchen
c. Police talked to them separately
d. V signed an affidavit
e. Officers told D that they were “investigating what happened”
f. Court found that no emergency was in progress
i. V said things were fine when they got there
ii. She was asked “what happened”, not “what is happening”
iii. Formal enough in that interrogations were in separate rooms
1. D told questioning was for an investigation
iv. Statements deliberately recounted
v. They were doing “precisely what a witness does on direct examination”
g. All unlike V in Davis who did not have police protection and was seeking aid, spoke in
present-tense
7. Michigan v. Bryant
a. V of a shooting found in a parking lot, in a lot of pain
b. Asked “what happened, who shot you, where were you shot”
i. Said D’s name, explained what happened
ii. 5-10 minutes later, cops went to D’s home
c. Court found that the circumstances of the interaction between the V and the police
objectively indicated that the primary purpose of the interrogation was to meet an
ongoing emergency
d. Primary purpose test:
i. Objective analysis
1. At or near the scene v. at police station
2. During an ongoing emergency or after the fact
3. Consider both parties’ statements
ii. Ongoing emergency is the biggest factor
1. Spree killer v. one-time thing
2. Injury/physical condition could matter
a. If super hurt, less likely that primary purpose is to prosecute
b. But also gives context as to nature of the situation
iii. More formal, more testimonial
iv. Interrogator matters, what is tenor? What is he saying?
v. Reliability
1. Scalia hates this, thought he got rid of it in Crawford
2. Implicit in Davis is the idea that staements meant to resolve an
emergency possess a diminished prospect for fabrication and therefore
the CC does not require such statements to be subject to cross.
8. Ohio v Clark (Non-Testimonial = No confrontation clause)
a. Child dropped off at day care after showing signs of abuse
b. Teacher asked the child what happened and he indicated the D had caused them
c. Teacher reported the injuries to abuse hotline
i. Does an individual’s obligation to report suspected child abuse make that
individual an agent of law enforcement for purposes of the Confrontation
Clause? No
ii. Do a child’s out-of-court statements to a teacher in response to the teacher’s
concerns about potential child abuse qualify as “testimonial” statements subject
to the Confrontation Clause? No
XVII. Can the Evidence be Authenticated?
1. To be admissible, evidence must be what the proponent says it is
a. Huddlestone standard; 51%
2. Always keep in mind the purpose for which evidence is being admitted
a. Is there a conditional relevance issue?
3. Note re: chain of custody: you can authenticate evidence but that does not preclude evidence from
being admitted so long as a conditional relevance standard is met
a. Let the jury decide the weight of evidence in a chain of custody issue
b. Test: if a reasonable jury could conclude that the bill was the same item in substantially
the same condition
4. FRE 901 – Relevant Rules of Authentication
a. 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 says it is
i. Examples of things that satisfy this
1. Testimony of a witness with knowledge
2. Nonexpert opinion on handwriting based on a familiarity that was not
acquired for current litigation
3. Comparison by an expert witness or the trier of fact
4. Distinctive characteristics and the like; appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken
together with all the circumstances
5. Opinion about a voice; based on hearing the voice at any time under
circumstances that connect it with the alleged speaker
6. Evidence about a telephone conversation; evidence that a call was made
to the number assigned at the time to:
a. A particular person, if circumstances indicate that the person
answering was the one called
b. A particular business, if the call was made to a business and the
call related to business reasonably transacted over phone
7. Evidence about public records
a. Document is where it should be
8. Evidence about ancient documents or data
a. Found where it should be
b. No suspicion about authenticity
c. At least 20 years old
9. Evidence about a process or system
10. Methods provided by statute or rule
11. Photograph authenticated by non-photographer
a. Personal knowledge + fair and accurate representation of
knowledge in photo
b. Automatic camera? Silent witness:
i. Can you establish time + date?
ii. Any evidence of tampering or editing?
iii. Operating condition of the condition create accuracy +
reliability?
iv. What was the procedure to prepare the photo?
v. Are relevant participants depicted in the photo?
5. FRE 902 – Evidence that is Self-Authenticating
a. Domestic Public Documents that are signed and sealed
b. Domestic public documents that are not sealed but are signed and certified
c. Foreign public documents
d. Certified copies of public fecords
e. Official publications
f. Newspapers and periodicals
g. Trade inscriptions and the like
h. Acknowledged documents
i. Commercial paper and related documents
j. Presumptions under a federal statute
k. Certified domestic records of a regularly conducted activity
l. Certified foreign records of a regularly conducted activity
6. Bruther v. General Electric Co.
a. P is alleging a number of theories in a products liability action
b. D argues that P cannot establish the authenticity of the specific lightbulb that P claims
hurt him
c. Court finds that, in spite of there not being clear evidence that it was even the lightbulb in
question, that it was sufficiently authenticated
i. There was only limited access to the area where bulbs were stored
ii. Proximity of cabinet where the broken bulb was to where the accident happened
iii. Plaintiff’s statement that he put a General Electric bulb in that same slot just a
few weeks before
d. Court notes that, while authenticated and admissible, D could certainly attack the weight
of the testimony
i. Jury’s job to assess weight, analyze chain of custody issue
XVIII. Is a Piece of Evidence the Best Evidence?
1. FRE 1002 – Requirement of the Original
a. An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise
2. FRE 1003 - Admissibility of Duplicates
a. A supplicate 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
3. FRE 1004 – Admissibility of Other Evidence of Content
a. An original is not required, and other evidence of the content of a writing, recording, or
photograph is admissible if:
i. All the originals are lost or destroyed, and not by the proponent acting in bad
faith;
ii. An original cannot be obtained by any judicial process
iii. 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
iv. The writing, recording, or photograph is not closely related to a controlling issue
4. In sum, the best evidence rule applies when:
a. The content of the photo/recording/writing determines a party’s claim/charge/defense
b. The party/witness is relying on the document to prove her point though she has personal
knowledge
i. If you make the document central to your case, it must come in
c. Witness derives all her knowledge from what a document says rather than her own
personal knowledge
i. If a witness independently has the same knowledge as a document he rule does
not apply
1. Driver of oil truck has personal knowledge of delivery, CEO of oil
company does not and relies on the document
5. Meyers v. United States
a. D gave testimony to a senatorial subcommittee; P brought the chief counsel to testify to
what D had said to the subcommittee
b. D is arguing that the best evidence rule called for the transcript, not testimony
c. Court found that the government was not attempting to prove the contents of the
transcript; the only issue was what was said
XIX. Is it a Proper Lay Witness Opinion?
1. FRE 701 – Layperson Testimony Rule
a. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
one that is:
i. Rationally based on the witness’s perception;
1. Just means firsthand personal knowledge
ii. Helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and
2.
3.
4.
5.
6.
iii. Not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702
701 favors fact-based descriptions to conclusions, opinions, or inferences
a. He was singing loudly after having 5 drinks v. he was drunk
i. How drunk? How does this witness define being drunk?
Opinion/conclusory testimony is ok from lay witnesses where it would be difficult to break a
conclusion down to underlying facts
a. He was singing too loudly v. he was singing at 71 decibels
Collective Facts Doctrine: the sum of broken down facts does not adequately express a concusion
a. 1) singing
b. 2) in a parking lot
c. 3) in a residential neighborhood
d. 4) 2 a.m.
e. 5) could be heard from 50 yards away
i. Collectively, facts could be used to conclude that the singing was done at an
inappropriate volume
1. Because the lay witness is here competent to express a conclusion that
does not require an expert opinion and because the underlying, collective
facts were explained, most judges would allow this conclusion testimony
Where trial courts should be hesitant to allow lay witness testimony
a. The more central a conclusion is to a case, more it should be broken down
b. Trial judge should consider the degree to which it is possible to convey the conclusion in
more specific terms
c. Trial judge should consider the number of facts encapsulated in the opinion
i. More facts, more need to break down the opinion
d. If a jury could just as easily draw a conclusion without a lay witness giving it, the lay
witness should not give the opinion
Government of the Virgin Islands v. Knight
a. Lower court excluded the testimony of an eyewitness who testified that a gunshot by the
D was accidental rather than intentional
b. Court found that because the eyewitness had firsthand knowledge/perception that she had
a valid basis for her opinion that it was an accident
i. Further, court found that because the circumstances of the witness’s opinion
could be presented with clarity that it was helpful to the trier of fact
ii. Ultimately, the court found that the opinion was admissible and that a jury could
give it whatever weight they wished to
XX. Is the Expert Opinion Proper?
1. FRE 702 – Expert Testimony
a. 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:
i. The expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine the fact in issue;
ii. The testimony is based on sufficient facts or data;
iii. The testimony is the product of reliable principles and methods; and
iv. The expert has reliably applied the principles and methods to the facts of the case
b. Wons. Elements
i. Proper qualifications
ii. Proper, helpful topic to the jury
iii. Proper basis for the opinion
iv. Proper methodology
2. Is the expert properly qualified?
a. Proponent of the evidence has the burden of proving expertise
b. Qualification can come from knowledge, skill, experience, training, and/or education
i. Formal education is not required; expertise can come from experience
c. Opposing party can voir dire to test qualifications
d. Once an expert starts discussing things outside of their expertise, they must stop
e. U.S. v. Locascio
i. D is trying to rebut an FBI expert talking about gang slang by saying, “he is not a
linguist”; trying to argue against FBI expert talking about gang culture by saying,
“he is not a sociologist”
ii. Court instead relies on the fact that the expert had extensive experience in the
field to say that he was in expert despite not being a linguist or sociologist
3. Is the expert’s topic of discussion proper?
a. FRE 704 – Opinion on an ultimate issue
i. An opinion is not objectionable just because it embraces an ultimate issue
ii. Exception: in a criminal case, an expert witness must not state an opinion about
whether the D did or did not have a mental state or condition that constitutes an
element of the crime charged or a defense. Those matters are for the trier of fact
alone.
b. Proper topic: one that helps the trier of fact understand the evidence or determine a fact in
issue.
i. Is it so commonsensical that it would not provide any benefit to a jury?
ii. A proper topic must be one that is beyond the ken of jurors
c. Not a proper topic where an expert is defining legal terms to a jury
i. Example, an expert should not be telling us what “Deadly force” is
ii. If using a legal definition is unavoidable though, a JI can be given to say that it is
just an opinion of the expert and not a legal conclusion
d. Courts have responsibility to exclude an expert’s ultimate opinion if the expert is “Telling
the jury what result to reach”
i. This usurps the jury’s ability to make a choice, is unhelpful
1. Instead, the expert should be giving the tools to help a jury reach a
conclusion on their own
ii. However, if the legal term used by the witness corresponds to its lay meaning
rather than its legal meaning, the conclusion is admissible
1. Example: expert testimony that a party acted “recklessly” could be meant
in more of its lay meaning way rather than the legal way (substantial and
unjustifiable risk with a conscious disregard of that risk)
e. In terms of the criminal exception, an expert could say that a D suffers from a mental
disease; however, the expert could not say that D acted with intent as a result of it
f. U.S. v. Locascio
i. In response to a D argument that an expert talking about gang life was not a
proper topic because jurors knew about gangs,
1. “despite unfortunate fact that our society has become increasingly
familiar with organized crime and its activities from such sources as
newspapers, movies, televisions, and books, it is still a reasonable
assumption that jurors are not well versed in the structure and methods of
organized crime families…”
g. Torres v. County of Oakland
i. P’s complaint alleges that she was discriminated against based on her national
origin
ii. D’s expert did not believe that P had been
iii. P’s argument is that D’s expert conclusion required her to know the intent or
state of mind of the person at the company who chose not to promote P and that
an opinion on another’s intent cannot be rationally based on the perception of
that witness
iv. Court finds that a rationally based perception requires no more than the opinion
or inference being one which a reasonable person would form based on observed
facts
v. Further, court notes that D expert was privy to the details of why P was not
promoted and so the foundation was met
vi. Court does, however, find that the expert was not helpful because the expert gave
a legal conclusion in a way that did not have a lay meaning equivalent
1. D expert was asked conclusion using the verbatim language of the statute
2. Discrimination has a special legal meaning
3. D expert could have been asked if P’s national origin motivated the
decision not to promote her; however, was instead asked a legal Q
h. U.S. v. Hines
i. Appropriate to have had an expert come in to talk about the unreliability of eyewitness identifications in a cross-racial context
ii. Court rejects the argument that jurors can just use common sense; finds that it is
a sensitive topic and that jury confidence could be misplaced
iii. Further finds that it does not usurp the function of the jury; court notes that an
expert pointing out why a cross-racial ID could be flawed merely gives a jury
tools with which they can make a more informed decision
4. Does the Expert Testimony have a Proper Basis?
a. FRE 703 – Bases of an Expert’s Testimony
i. 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 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.
b. FRE 705 – Disclosing facts or data
i. 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.
c. What can an expert’s opinion be based on?
i. Facts within the expert’s personal knowledge
ii. Facts presented to the expert at trial (two ways)
1. The expert is asked hypothetical questions at trial
a. Facts in hypo must be admitted into evidence by the close of the
case, otherwise the expert testimony will be deemed irrelevant
b.
2. Expert observes the trial
a. “Assuming that the testimony you heard was true, what is your
opinion on…”
iii. Facts presented to the expert outside of court, but not perceived by her
personally, if those facts are the type reasonably relied on by experts in her field
in drawing such conclusions
1. 2-part test for the admissibility of an opinion that uses these facts:
a. Are these the types of facts relied on by experts in your field?
b. Is that reliance reasonable in this case?
i. Court must find both to be met under a 104(a) standard
2. What if the facts presented to the expert are Hearsay?
a. If not, no hearsay analysis, all good
b. If yes, we need an exception
i. If there is no exception, reverse 403 balancing test
1. The otherwise inadmissible testimony must have
a probative value that substantially outweighs
the danger of unfair prejudice
2. Where this test is met, the hearsay can only be
brought in to show the jury that the expert had a
proper basis, not for the truth value of the
hearsay
d. U.S. v. Locascio
i. Would other experts reasonably rely on wiretaps?
1. Law enforcement routinely and reasonably relies on such hearsay
2. Found that in this instance it was reasonable to have relied on this
ii. But can he bring the hearsay into the courtroom?
1. Court thinks that this is something to be weighed by the jury; not an
admissibility issue
5. Is the Expert relying on a Proper Methodology?
a. Reliable methodology has three components:
i. The expert must base the opinion on sufficient facts or data
ii. The expert must ground the opinion in reliable principles and methods;
iii. The expert must apply those principles and methods to the facts of the case in a
reliable manner
b. When are principles and methods reliable? Non-exhaustive list of factors
1. Flexible process, decide which ones matter in your analysis
2. Trial Court has all the discretion
ii. Can the theory/technique be tested?
iii. Is the theory subject to peer review/publication?
iv. Is there a known or potential rate of error?
v. Are there standards controlling the operation?
vi. Is there general acceptance in the field?
1. Big factor, but not dispositive
vii. Was the testimony based on research that the expert conducted independent of
litigation?
viii. Is there an analytical gap between the analysis and the conclusion?
ix. What is the expert’s experience?
x. Has the expert accounted for alternative explanations?
xi. Is the field, in general, reliable?
c. Re. Kumho, are there logical deficiencies?
i. Even though the test feels reliable, is there a logical gap that makes me question
reliability?
d. Is the testimony relevant?
i. Need both relevance and reliability
e. Note: Kumho makes it so that 702 applies to both experience-based expert testimony and
not just scientific testimony
6. Expert Testimony + Confrontation Clause
a. If an expert formulates an opinion based on reliable, but testimonial, hearsay, how should
the court resolve this dilemma?
i. Courts draw the line by making a distinction between an expert’s hearsay that is
based on general knowledge and an expert’s hearsay that is related to casespecific facts
b. What is a case-specific fact?
i. One that relates to the particular events and participants alleged to have been
involved
c. What happens if a fact is case-specific?
i. When an expert has no personal knowledge of a case-specific fact, then an expert
has traditionally been precluded from relating it to the finder of fact; instead, a
party must establish case-specific facts by calling witnesses who DO have
personal knowledge
ii. From there, an expert may testify about more generalized information to help
jurors understand the significance of those case-specific facts
d. Williams v. Illinois
i. In the event that something comes in under the reverse 403 analysis under 703,
you still have a confrontation clause issue to get over in the event that the hearsay
is testimonial and otherwise satisfies the CC
ii. “Where an expert testifies to a case-specific out of court statement to explain the
basis of her opinion, they are offered for truth and are hearsay. Thus, the
proponent must either 1) find a hearsay exception or, 2) admit the evidence
through a different witness”
1. At which point the expert could be asked a hypothetical
e. Under 703, is a fact general knowledge or case-specific?
i. If it is case-specific, was there independent knowledge or from hearsay?
1. If hearsay, is it offered for truth?
a. If so, need an exception
i. If exception, is it testimonial?
1. If testimonial, must meet mandates of the CC
7. Summary of the 7 Attacks on Expert Testimony
a. Is the expert qualified?
i. Knowledge, skill, experience, training
b. Is the info helpful to the trier of fact?
i. We want to give tools, not conclusions
c. Is the data proper?
i. Is it hearsay? Otherwise inadmissible?
d. Is the expert reliable?
i. Daubert/Kumho
e. Are there logical deficiencies?
f. Is the testimony irrelevant?
g. 403 analyses
Privileges FRE 501
•
Unless required by
Constitution or statute, Common Law principles control as interpreted in
the light of reason and experience
State privileges apply in claim or defense based on state law

Attorney-Client
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


Psychotherapist-Patient
Physician-Patient
Marital
5th Amendment
Other privileges
Waiver of privilege