Art. 4: RELEVANCE & ITS LIMITS
RELEVANCE
 2 Basic Principles
o Irrelevant evidence should be excluded
o Relevant evidence should be admitted (with some exceptions)
 Relevance is contextual
o Nothing is relevant in and of itself
o A brick is not a wall
Rule 401: Test for Relevant Evidence
 Consider first: What is the evidence being offered to prove?
o The greater number of inferential steps need to get from evidence to ultimate facts
to be proved  the lower the probative value of the evidence
 Evidence is relevant if:
(a) It has ANY tendency to make a fact more or less probable than it would be without
the evidence; AND
a. ANY tendency = Low standard. Does not measure weight
i. Does not have to prove anything conclusively – merely must have
some tendency to make a fact more or less probable
ii. Example
1. A has a fixed design to kill B. This does not prove A is guilty
of killing B. Rather, we can now place A on the list of those
likely to have killed B. Thus, evidence of fixed design is
relevant.
b. Is there a logical relation between the evidence and what it’s being offered to
prove?
(b) The fact is of consequence in determining the action
a. Materiality
i. The thing the evidence is being offered to prove must be of legal
significance
b. Materiality depends on (1) legal issues and (2) substantive law
i. Example
1. S injured at work while operating machinery. Witness testifies
that S was eating pizza at the time. This is irrelevant because
worker’s comp claim is substantive law – whether S was
negligent does not matter
 Evidence may be irrelevant if:
o It is not probative of a proposition at which it is directed or
o That proposition is not provable in the case
Rule 402: Admissibility of Relevant Evidence
 Relevant evidence is admissible unless any of the following provides otherwise:
o US Constitution
o Federal statute
o Federal rules of evidence
o Other rules from the Supreme Court
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Irrelevant evidence is not admissible
Rule of presumptive admissibility
o If evidence fails 401 test – inadmissible under 402
o If evidence passes 401 test – presumptively admissible, unless otherwise excluded
US v. Dominguez
o The government is perfectly free to introduce weak, as well as strong, evidence.
No one claimed that this particular piece of evidence proved guilt. It was merely
one piece of evidence among many
Rule 403: Excluding Relevant Evidence
 The court may exclude relevant evidence if its probative value is substantially
outweighed by one or more of the following:
o Unfair prejudice
o Confusing the issue, misleading the jury, undue delay, wasting time, needlessly
presenting cumulative evidence
 Balancing Test: Probative Value vs. Risk of Unfair Prejudice
o If it’s close, evidence allowed in (rule of presumptive admissibility)
o In weighing, must consider whether limiting instruction would help reduce
prejudice
 Unfair Prejudice
o Definition
 Undue tendency to move the tribunal to decide the case on an improper
basis (commonly an emotional one)
o Types
 Will cause jury to decide on an improper basis
 Emotions, bias, disagreement with D’s religious views, etc
 Jury is not in a position to accurately assess the probative value of the
evidence
 US v. McRae
o Facts: in murder trial of M, lower court admitted crime scene photos that it
described as gross, disturbing. Photos showed exit and entry wounds
o Analysis
 What’s the relevance of these photos?
 Always start your 403 inquiry by examining the relevance of the
evidence
 Is the evidence leading to some unfair prejudice?
 Lots of evidence is emotional or hard to take or reflects badly on
the defendant. Unfair prejudice goes further than this
 Does the unfair prejudice substantially outweigh the probative value?
o Holding
 Relevance: these photos supported prosecution’s theory that gunshot was
intentional. Yes
 Unfair prejudice: No. The crime scene itself was not pretty. These were
not deliberately gruesome depictions of it
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o Takeaway: Rule 403’s major function is limited to excluding matter of scant or
cumulative probative force, dragged in by the heels for the sake of its prejudicial
effect
Old Chief v. US
o FACTS: D charged with possession of a firearm by a convicted felon. Didn’t
dispute that he was a felon; rather, disputed that he possessed a firearm.
o ISSUE: 403 challenge – Probative value of including what his prior assault
conviction was outweighed by the prejudice
 Is this evidence relevant? What is its probative value?
 Relevant bc it makes possessing a firearm prove that he had one
 Shows that he was in fact a felon – essential to case (high PV)
 Is it prejudicial?
 Would need to be extremely prejudicial to substantially outweigh
its high probative value
o Like generalizing a defendant’s earlier bad act into bad
character or as calling for preventative conviction even if
he should happen to be innocent
 His past felony conviction is so similar that it could lead the jury to
think that he’s a very violent guy who’s done this kind of thing
before
o HOLDING: Court admits the evidence for its high PV and gives a limiting
instruction
 Rule 105: requires a limiting instruction be given when admitted evidence
has a legitimate and an illegitimate use
o NOTE: the term unfair prejudice speaks to the capacity of some concededly
relevant evidence to lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged
LIMITS ON RELEVANCE  CHARACTER
 What is character? It is claimed to be a stable and general set of traits
o Evidence of character is never admissible by the prosecution/plaintiff to prove
that the D acted in accordance with the character evidence on the occasion in
question
o Character evidence is powerful
Rule 404: Character Evidence  Crimes and Other Acts (propensity rule)
(a) Character Evidence
(1) Prohibited Uses  Not admissible to prove that on a particular occasion, the
accused acted in accordance with the character or trait
(2) Exceptions for Defendant or Victim in a Criminal Case
(A) A defendant may offer evidence of the defendant’s pertinent (related to
nature of the charges/relevant to the issues) trait
- If the evidence is admitted, the prosecutor may offer evidence to
rebut it
(B) Subject to the limitations of 412, a defendant may offer evidence of a
victim’s pertinent trait. If the evidence is admitted, the prosecutor may:
(i)
Offer evidence to rebut it, and
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(ii)
Offer evidence of the defendant’s same trait
(C) In a homicide case, prosecutor may offer evidence of the alleged victim’s
trait of peacefulness to rebut evidence that V was first aggressor
(3) Exceptions for a Witness  may be admitted under 607, 608, and 609
- 607: either party may attack a witness’ credibility
- 608: either party may offer evidence of a witness’s character for
untruthfulness & opponent may rebut with evidence of character
for truthfulness. Either way, must be opinion or reputation
evidence
- 609: either party may seek to impact a witness by showing her
past conviction of a sufficiently serious or deceptive crime
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404(a) Questions
o How does accused’s character get into evidence?
 In all cases (except victim’s character in a homicide), the accused has to
“open the door”
 US v. Zackowitz
 Character is never an issue in a criminal prosecution unless the
defendant chooses to make it one
o What does it mean to say that D put his character “at issue”?
 He makes character directly relevant by claiming he has a strong
“reputation” for honesty/peacefulness OR
 Character is an implied element of the defense
 Example: affirmative defense of entrapment. D has to show that he
did not have a “predisposition” to commit the crime
3 ways of introducing character evidence in civil cases that don’t violate 404(a)
1. Evidence that looks like character that is being used to prove something different (not
proving he acted in accordance)
a. Cleghorn v. NY Central & Hudson River RR (notice)
i. Relevance theory of notice
2. Character is an essential element of a claim
a. Berryhill v. Berryhill
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i. Character was a fundamental aspect of the claim or defense. Character
was the matter under decision by the court – so you have to go into
character here
ii. Not using character to prove that a specific act occurred – looking at
character as the central matter of relevance to the inquiry
1. Can’t ignore it bc it’s been put at issue
3. As an essential element of a defense
a. Larson v. Klapprodt
i. “You’ve slandered me by calling me a drunk!”
ii. The damage to K’s reputation from this statement was part of K’s
claim, so evidence of his reputation was admissible to establish truth
1. Need to look at character to determine harm
 Mechanics of Rule 404(a)(2)
o Character for honesty: “Did you know that Smith was convicted in 2001 for
perjury?”
 Must be based in fact
 Must “take with witness’s answer”
o Extrinsic evidence – like proof of a prior conviction – is NOT admissible
o When prosecution rebuts with pertinent character evidence:
 Prosecution is strictly limited to asking what the W knows or has heard
about
(b) Other Crimes, Wrongs, or Acts
(1) Prohibited Uses  Not admissible to prove a person’s character/trait to show
that on a particular occasion the person acted in accordance with the character
trait
(2) Permitted Uses  This evidence (of any other crime, wrong, or act – very broad)
may be admissible for another purpose (other than character), such as, proving:
- Motive
- Opportunity
- Intent
- Preparation
- Plan
- Knowledge
- Identity
- Absence of mistake
- Lack of accident
(3) Notice in a Criminal Case  In a criminal case, the prosecutor must:
(A) Provide reasonable notice of any such evidence that the prosecutor
intends to offer at trial, so that the defendant has fair opportunity to
meet it
(B) Articulate the purpose of the notice
(C) Do it in writing before trial
 404(b) Explained
o Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith
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o It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity…
o Provided that upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial of the nature of any such evidence it
intends to introduce at trial
404(b) Questions
o What are specific acts?
 Any specific instance of conduct
 She gave a false statement to Smith
o Specific act – admissible
 She’s dishonest
o Character – not admissible
o Do you need to prove the specific acts actually happened? Huddleston v. US
 By a preponderance of the evidence
 That a reasonable juror could conclude that the act really happened
 You just need to show sufficiently, upon demand of counsel or trial judge,
that the asserted event/conduct actually happened
o Who can use 404(b)?
 Prosecution against defendant OR
 Defendant against prosecution witness (rare)
o Does D need to open the door or can the prosecution introduce this evidence in
the first instance?
 No, prosecutor can just do it. Frequently comes out in rebuttal anyway
o Must D assert in a general way that she is honest or peaceful before the
prosecution can introduce specific contrary acts?
 NO. 404(b) is not about rebuttal
US v. Beechum  404(b) = 401 + 403
o Facts: B was convicted of unlawfully possessing a silver dollar he knew was
stolen from the mail during his work as a letter carrier. Gov introduced evidence
of 2 credit cards that B kept in his wallet for 10 months. Was the credit card
evidence admissible?  yes
o 404(b) 2 Step Test
1. Must be determined that the extrinsic evidence is relevant to an issue
other than the defendant’s character AND
a. Here, evidence introduced to show that he intended to keep the
silver dollar too
2. The evidence must possess PV that is not substantially outweighed by
its undue prejudice and must meet the other 403 requirements
a. PV = he kept the cards in his wallet where they would
constantly remind him of the wrongfulness. Not prejudicial
Relationship Between 404 and 405
o 404 gives us the principles for character evidence
o 405 gives us the script to actually use them
o 404(a)
 Cannot use prior conduct to suggest person has a “character” for doing/not
doing X. EXCEPT
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D puts own character in issue
Prosecution rebuts with same
In some cases, character of the victim
o 405
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If you meet a 404(a) exception, admit character evidence through
reputation or opinion only. No specific acts on direct!! (but can use on
cross)
o 404(b)
 Specific acts are totally admissible (if relevant) for any use other than
proving character
Rule 405: Methods of Proving Character
(a) By Reputation or Opinion 
 When evidence of a person’s character or character trait is admissible, it may be
proved by testimony about the person’s reputation or by testimony in the form of
an opinion
o Witness on direct examination cannot provide specific examples
o Exists to avoid mini trials
 On cross-examination of the character witness, the court may allow an inquiry
into relevant specific instances of the person’s conduct
 Attorney CANNOT offer extrinsic evidence. Is stuck with witness’ answer
(b) By Specific Instances of Conduct 
 When a person’s character or character trait is an essential element of a charge, claim, or
defense, the character or trait may also be proved by relevant specific instances of the
person’s conduct
o MAY = judge’s discretion based on 403 analysis
o When essential – you can introduce extrinsic evidence
o Need a good faith basis to ask about specific instances of conduct under both
405(a) and (b)
 Specific instances of conduct NOTES
o Most convincing method but possess the greatest capacity for prejudice, to
confuse, to surprise, and to consume time
o 405(a): Cross vs. Direct Examination
 Available on cross examination
 Theory: since reputation witness relays what he’s heard, asking
about specific instances sheds light on the accuracy of his hearing
or reporting
 Not available on direct examination of ordinary opinion witness
o 405(b): Restricted to when character is at issue
 Contrast with circumstantial character evidence, which allows for
reputation or opinion method
 Only applies when the existence of the character trait – and not conduct in
accordance with the trait – is the thing to be proved
 Rebutting entrapment defense (Michelson) – when D argues
entrapment, prosecution can argue D was predisposed to
committing the crime in question
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Proving or rebutting a defense of truth in libel or slander
Resolving a parental custody dispute – character as good or bad
parent is critical
US v. Michelson
 Facts: D convicted of bribing federal agent. D called 5 witnesses to
show he had a good reputation. On cross, prosecutor asked these
witnesses if they knew about D’s TM violation and receiving
stolen goods. Allowed
o D opened the door
o D’s reputation is at issue – “Have you heard?” is generally
ok, but “do you know?” is not allowed
o Asking about arrest without conviction is okay
 Arrest affects one’s reputation
 Allows jury to judge reliability of witness
 Even though prior crimes were unalike, they both stem from the
same character defects which witnesses said this D doesn’t have
Rule 406: Habit, Routine Practice
 Evidence of a person’s habit or an organization’s routine practice may be admitted to
prove that on a particular occasion the person acted in accordance with the habit or
routine practice
o Can be admitted regardless of whether it is corroborated or whether there was an
eyewitness
 Character vs. Habit
o Character
 Generalized description
 Can only be shown with general opinion or reputation testimony
 Except in rare case where character is an essential element of a
claim or defense
 Too probative – jurors will jump to conclusions
o Habit
 More specific than character, describes one’s regular response to a
repeated specific situation
 Can be introduced through any competent evidence
 More probative due to its specificity
 More PV than general character for something
 Greater PV outweighs prejudice
o It’s all 403!!
o It’s a continuum with character on one side and habit on the other wise and a lot
in the middle
 What are the rationales for admitting habit evidence?
o Probability:
 If one regularly follows a practice, chances are high that he did so again
o Psychological
 Pavlovian conditioning
 406 is the inverse of 404(a)
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o Evidence of character cannot be introduced to show the person acted in
accordance with the character trait on the occasion in question
o Habit can be used for that purpose
Not on exam Rule 412: Sex-Offense Cases  The Victim’s Sexual Behavior or
Predisposition
(a) Prohibited Uses  Sexual character evidence is not admissible. Cannot use:
(1) Evidence offered to prove that a victim engaged in other sexual behavior, or
(2) Evidence offered to prove a victim’s sexual predisposition
(b) Exceptions
(1) Criminal Cases  Court can admit the following
(A) Evidence of specific instances of a victim’s sexual behavior, if offered to
prove that someone other than the defendant was the source of semen,
injury, or other physical evidence
- Someone other than the defendant was responsible for the injuries
– factual relevance argument, not a character argument. So
admissible
(B) Evidence of specific instances of a victim’s sexual behavior with respect
to the person accused of the sexual misconduct, if offered by the
defendant to prove consent or by the prosecution
- Relevant factual evidence as well
(C) Evidence the exclusion of which would violate the constitutional rights
of the defendant (Confrontation clause**)
- Means that constitutionally, D (through counsel or directly) must
have a meaningful opportunity to cross-examine the witnesses
against him
(2) Civil Cases  Court can admit evidence offered to prove the sexual
behavior/predisposition of any alleged victim if it is otherwise admissible under
these rules AND its probative value substantially outweighs the danger of harm to
any victim and of unfair prejudice to any party
- Evidence of an alleged victim’s reputation is admissible only if it
has been placed at issue by the alleged victim
(c) Procedure to Determine Admissibility 
(1) Motion
(2) Hearing
 What does 412 do?
o This rule changes the 403 presumptions to tilt toward the victim
o Nothing excluded by 412 is relevant under 401
o If relevant, still might not be admissible under 403
o Rule 412 = 401 + 403
 What is barred under 412? These are just a few
o Age of first sexual experience, Number of sexual partners, Manner of speech or
dress, Purchase or use of condoms/contraceptives
 Barred for purpose of showing sexual character
 What can the Defendant admit as to himself?
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o Doesn’t limit what D can put forward about himself. Evidence as to D is subject
only to 401 and 403
What can the state admit about Victim?
o The defendant can’t admit evidence that the alleged victim has a poor character
for chastity
o Examples
 V was a virgin before the alleged attack
 Not to show sexual character. Okay as part of evidence showing
nature of the injury/fact of sex
 V is religiously conservative and belongs to a chastity-promoting
organization
 Not to show sexual character. Other relevance?
 V is a lesbian who has only ever had consensual sex with women
 NO. categorically barred by 412(a)(1) and (2)
How are the exceptions different from 401 + 403?
o 3 differences
 Burden is on proponent to argue for admissibility. There is a burden shift,
presumption is that the evidence is excludable (not admissible) and the
proponent has to make the case for it
 Probative value must substantially outweigh prejudicial value – this
inverts the 403 test
 Excludable not just on grounds of prejudice, delay, or confusion (403) but
also “undue harassment or embarrassment” of the AV.
Policy arguments for this rule
o Horizontal equity argument
LIMITS ON RELEVANCE  FORBIDDEN INFERENCES
 Takes balancing out of the hands of the court
 Summary of each
o 407
 Subsequent remedial measures cannot be used to infer negligence (but
CAN be admitted otherwise)
o 408
 Compromise and offers to compromise cannot be used to infer liability or
amount of liability (but CAN be admitted otherwise)
o 409
 Payment of medical expenses and similar expenses cannot be used to infer
liability (but CAN be admitted otherwise)
o 410
 Criminal only
 Inadmissibility of pleas, plea discussions, and related statements
o 411
 Liability insurance is not admissible (CAN but admitted for another
purpose)
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Rule 407: Subsequent Remedial Measures * most relevant to be tested on
 When measures are taken that would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove:
o Negligence
o Culpable conduct
o A defect in a product or its design, or
o A need for a warning or instruction
 But the court may admit this evidence for another purpose such as:
o Impeachment or
o IF DISPUTED
 Ownership
 Control
 Feasibility of precautionary measures
 If evidence is offered to prove  “If this measure had been taken earlier, this person
would still be alive” then it’s evidence of a subsequent remedial measure
 Rationale
o The world gets wiser as it gets older. Doesn’t mean that it was foolish before
o Something could always be improved without it having been done, designed, or
maintained negligently
o Public policy favoring remedial measures
 Diehl v. Blaw-Knox
o D’s leg got crushed by a road widener. Sought to introduce evidence of what they
should’ve done differently so this wouldn’t have happened.
o Court should have allowed to evidence bc of its high probative value and bc the
party this would impose liability on is not party to the lawsuit
Rule 408: Compromise Offers and Negotiations
(a) Prohibited Uses Evidence not admissible to prove or disprove the validity or amount of a
disputed claim or to impeach a prior inconsistent statement or contradiction:
(1) Furnishing, promising, or offering – or accepting, promising to accept – a
valuable consideration in compromising or attempting to compromise the claim
and
(2) Conduct or a statement made during compromise negotiations about the claim –
except when offered in a criminal case and when the negotiations related to a
claim by a public office in the exercise of its authority
(b) Exceptions  Can admit this evidence for another purpose like proving a witness’s bias or
prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution
 If not excluded by 408, may still be excluded under 403
 Why do we have this rule? (when it seems like it protects guilty people)
o Public policy preference for settlement
 Doesn’t bog down the courts
 Fair resolution without extra process is better for everyone
o This rule could encourage gamesmanship
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o This rule can cover anything (documents/whatever) that was made in preparation
or with the intention to be used in settlement negotiations (Ramada)
US v. Davis
o Rule: evidence of a settlement offer is not admissible to prove liability for a claim
or the invalidity or amount of a claim
 This is a very strong rule
 Even where something would be an admission of guilt in a criminal case
 It will still be admissible because of the very strong public policy
rationale
Ramada Development Co. v. Raunch
o Rule: Evidence of statements or conduct that are intended to be part of
compromise or settlement negotiations is not admissible
 Anything prepared in connection with settlement is not admissible under
this case rule
Rule 409: Offers to Pay Medical and Other Expenses
 Evidence of furnishing, promising to pay, or offering to pay any medical expenses
resulting from an injury to not admissible to prove liability for the injury
o But can be admitted otherwise
 Unlike 408, this rule does not apply to conduct or statements not part of the act of
furnishing/offering to pay
o 408 = conversation is essential to compromise
o 409 = factual statements, incidental in nature to promises to pay
o Something inadmissible under 408 may be admissible under 409
 “That was my fault! I’ll pay!” IS ADMISSIBLE
Rule 410: Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses  The following is inadmissible against defendant
(1) Guilty plea later withdrawn
(2) Nolo contendere plea (“I do not wish to contend” / no contest plea)
(3) Statements in plea proceedings
(4) Statements in plea talks with prosecutor
(b) Permitted Uses  The following ARE admissible
(1) To complete partial account of plea discussions
(2) In a perjury prosecution if statement under oath, on record, and in counsel’s presence
 US v. Mezzanatto
o Issue: May a defendant waive the Federal Rules’ prohibition on introducing at
trial statements made during plea bargaining?
o Rule: A defendant CAN waive 410 protections
 Rule 410 seems like a very protective rule BUT waiver is standard (from
this case)
o All statements made in plea negotiations are admissible against the individual
who made them**
 410 is an illusory rule
o Because all statements made in plea negotiations are admissible against the
individual who made them
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o This rule doesn’t really exist bc waiver is assumed from Mezzanatto case
Rule 411: Liability Insurance
 Prohibited Uses  Can’t be used to prove whether person acted negligently or
wrongfully
 Permitted Uses  For another purpose like proving a witness’ bias or prejudice or
proving agency, ownership, or control
 Why does this rule exist?
o Exists because we don’t want juries making decisions about liability based on
someone’s ability to pay for insurance or not
o We want jurors to focus on the merits of the case and the damages, not just who
can pay for them
 Also exists to protect insurance companies from always having to pay in
these kinds of cases
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Art. 5: PRIVILEGES
Rule 501: Privilege in General
 The common law governs a claim of privilege unless any of the following provides
otherwise:
o The US constitution
o Federal statute
o Rules prescribed by the supreme court
 But in a civil case, state law governs privilege regarding a claim or defense
 Traditional and Modern Privileges
o Attorney-client*
o Doctor-patient
o Therapist-patient
o Clergy
o Spousal*
o Parent-child
 Theories of Privilege
o Utilitarian
 No one would come to lawyers if they could tell anyone about their case
o Humanist
 Some relationships are more important than securing judgments against
people in specific situations
 Important Notes
o Unlike rights, privileges can be lost relatively easily
 Should carefully guard privilege
 Always mark your notes – like interview notes – “Privileged” and
“Attorney work product”
o Privilege does not apply where attorney is not giving legal advice
 Does NOT apply where attorney is giving business advice
 Attorney-Client Privilege
o A communication
o In confidence
o Between an attorney and client
o For purposes of obtaining legal services
 What is a communication?
o US v. Kendrick
 What is NOT a protected communication:
 Any matters that don’t go to the substance of the legal issue that is
the subject of the representation
 The fact of representation
 Client’s manner, demeanor, ability to communicate with attorney,
physical condition
 Statements by client to attorney about matters unrelated to the
representation and that could not be construed as being for the
purposes of seeking legal advice
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Any matters, facts, or documents that the client passed to the
attorney to assist the representation
o Pre-existing documents do NOT become privileged just
because a client gives them to his attorney
 Example: Client under investigation and sends
attorney all records related to securities activities which attorney needs to carry on the representation.
 The documents themselves are NOT
privileged. They remain discoverable
o Facts (that are otherwise non-privileged) are not privileged
just because they are communicated to a lawyer
 Tax preparation
 Patent advice and preparation
In confidence = Privately, no one else can hear
o US v. Evans
 Attorney-client privilege generally will not shield from disclosure
statements made by the client to an attorney in the presence of a 3rd party
who is not the agent of the attorney
 Be careful sitting in on appointments with other lawyers if you are helping
friends and family!!
o US v. Gann
 If your client calls you, warn him not to say anything substantive unless
certain he can’t be overheard
 And don’t ask him anything until you’re sure he’s alone!
Between Attorney and Client
o US v. Kovel
 Privilege can apply to non-lawyer agents of lawyers
 Initiates “translator” metaphor
 Must be providing service to attorney, to help attorney understand case
 Not services to the client of the kind that professional would
otherwise render
o Upjohn v. US
 Upjohn Factors
 Privilege applies when:
o Communications were made by employees (or contractors)
of corporation to corporate counsel
o At the direction of corporate superiors
o For the purpose of obtaining legal advice
o Regarding matters within the employees’ duties
o And the employees knew the purpose of the
communications
 Corporate communications  When doing interviews:
o You should warn the employee that you are not their
attorney
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o You should warn employee that any unlawful conduct they
disclose you may then disclose to the employer or the
investigating authority
o If employee begins to disclose unlawful conduct, remind
employee that you are not their counsel and advise
employee to get counsel
o If employee still wants to unburden, then that’s on them
For purposes of obtaining/providing legal services
o Kovel  must be providing service to attorney, to help attorney understand case
Waiver
o Permission to disclose waives the privilege
o Selective waiver of SOME privileged material may kill the privilege as to ALL
privileged of the same kind
Crime-Fraud Exception (no privilege)
o “A client who consults an attorney for advice that will serve him in the
commission of fraud will have no help from the law”
o Privilege does NOT attach where:
 Client seeks advice to help him accomplish a future/currently ongoing
crime
 Lawyer does not need to know client’s criminal purpose
 Because the privilege is the client’s so the attorney’s intent or
knowledge is not what controls
 Crime or fraud does not need to be completed
 Look to the purpose for which the advice was sought and client’s intent or
knowledge
o US v. Zolin
 Establishes procedure and thresholds:
 If you want to defeat privilege based on crime-fraud exception
o Ask for in camera review
 Threshold showing:
o A factual basis adequate to support a good faith belief by a
reasonable person that review may establish exception
applies
 In camera review still discretionary
o Rests in the sound discretion of the district court
 What will the judge examine in camera?
 Any relevant evidence
 Lawfully obtained
 That has not been “adjudicated” to be privileged
 So what’s the showing?
 Less than
o Proof sufficient to establish elements of a crime or fraud
beyond a reasonable doubt
 More than
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

o A “sneaking suspicion” the client was engaging in or
intending to engage in a crime or fraud when consulting the
attorney
Hypo  corporate communications + crime fraud waiver (corporate employee interview)
o Facts
 You have warned an employee of the corporation in an appropriate
fashion
 He still discloses to you that he was engaged in unlawful conduct
 He claims his unlawful conduct was at the behest of the superiors, with the
blessing of the CEO
o Questions
 To whom can/must you disclose this information?
 The court?
 Who – if anyone – holds the privilege over this information?
 The client
Work Product Protection
o What is work product?
 Literally anything the attorney or an agent of the attorney does that relates
to the representation, from the most ministerial to the most sophisticated
 Applies only to information gather or prepared by a lawyer in anticipation
of litigation
 Does NOT need to be a “communication” between attorney and client
o Broader and Narrower than Attorney-Client Privilege
 Broader
 Does NOT need to a communication between attorney and client
 Does not need to be made in confidence
 Narrower
 Information gathered in anticipation of litigation
 Unlike attorney client privilege, work product protection can be
overridden based on a showing of special need
 But attorney’s “mental impressions” can never be discovered based
on “special need”
o Federal Rules of Civil Procedure
 Work product of an attorney is not discoverable unless the court
determines that denial of discovery will:
 Unfairly prejudice the party seeking discovery in preparing that
party’s claim or defense, or
 Will result in an injustice
o Examples of WP (not exhaustive)
 List of potential witnesses
 Interview notes
 Stack of printed cases from Westlaw, which could reflect the attorney’s
theories about the case
 Notes or mark-ups of any other document not prepared by attorney – CAN
turn the whole document into WP
 Legal memo
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
 Draft letter to client
 Drafts or briefs
Spousal Privileges
o 2 Spousal privileges
 Testimonial privilege
 Criminal only
 Spouse may exercise privilege not to testify against a defendant
spouse in a criminal prosecution
o Cannot be compelled to testify against spouse
 Spouse cannot be prevented from testifying against a defendant
spouse in a criminal prosecution
 Parties must currently be married
 Confidential spousal communication privilege
 Civil and criminal
 Communication
 In confidence
 Between the spouses
 During the course of a lawful marriage
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Art. 6: WITNESSES
PROCESS OF EXAMINING WITNESSES
 Who can BE a witness?
o All people are competent to be witnesses
 Incompetent = the insane, the very young/old
 Witness Rules
o 602  Witness must have personal knowledge of the matter
 We want witnesses to come in to talk about what they themselves have
experienced/seen/heard/produced
 Don’t want hearsay
 Witness has to know DIRECTLY
 “I saw the car on the street”
 Standard for Personal Knowledge (low)
 Testimony should not be excluded for lack of personal knowledge
unless no reasonable juror could believe that the witness had the
ability and opportunity to perceive the event that he testifies about
o 603  Oath
 No magic words, need not be religious in form. Just have to swear on
something
 Order of Examining a Witness
o Direct examination
 Open ended questions
 Making the witness the star of the show
 Showing the witness’ value to the jury here
o Cross examination
 Leading questions
 To lead the witness into a particular answer that you already know
 You’re in charge here
 Trying to undermine the witness here / develop a more precise record of
some of the facts the witness expressed on direct
 Scope of cross examination is limited to what was asked on direct
 Cannot exceed the scope of direct examination
 Can object if opposing counsel tries to exceed the scope
 Witness can be crossed as to any matter relating to impeachment
o Still subject to other evidence rules like 403, though
o Redirect
o Re-cross
o Impeachment and cross examination
 Impeachment and rehabilitation occur within cross and redirect
 Not distinct parts of the trial process
 Continuous aspects of your questioning
 Impeachment
o You challenge the witness’ personal or testimonial credibility
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
Provide a basis for the jury to conclude that the witness is
 Inconsistent (changed their story)
 Dishonest
 Biased (emotional attachments, financial interest)
 Has perception or cognitive problems
o Rule 401 – Character of Witnesses
 A person’s character is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait
o 607  Who may impeach?
 The credibility of a witness may be attacked by any party, including the
party calling the witness
o HOW to Impeach
 W can be impeached as to any subject of their testimony
 Impeach a witness on
 Knowledge – no rule
 Perception – no rule
 Memory – no rule
 Bias – no rule
 Inconsistency – rule
 Character for truthfulness – rule
 We only need special impeachment rules for character impeachment,
because the rules have special concerns about character
 The others fall under relevance rules 401 and 402
WITNESS CHARACTER FOR TRUTHFULNESS
Rule 608: A Witness’s Character for Truthfulness or Untruthfulness
Only applies to witness who has testified
(a) Reputation or Opinion Evidence  taking stand=putting cred and truthfulness up for
grabs automatically
 W’s credibility may be attacked or supported by testimony about W’s reputation for
having a character for truthfulness or untruthfulness, or by testimony in the form of an
opinion about that character
 Evidence of truthful character is only admissible AFTER witness’s character for
truthfulness has been attacked
o Rehabilitation = party’s attempts to support a witness’ character for
truthfulness
 Application
o You call a later witness (W2) to testify about the reputation of a prior
witness (W1) for truthfulness or untruthfulness only
o You can call W2 to testify about W1’s untruthfulness (attack character)
o BUT you can’t call W2 to support W1’s reputation for truthfulness
unless/until W1’s reputation has already been attacked
 Basic pattern:
o W1 testifies
o W2 then testifies as to poor character for truthfulness of W1
o W3 then testifies W2’s poor character for truthfulness (or bias against W1)
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(b) Specific Instances of Conduct
 A witness’s character for truthfulness cannot be attacked or supported with
extrinsic evidence, except for a criminal conviction under Rule 609
 You CAN ask a witness about other matters unrelated to the trial itself if those
matters tend to show the character of the W for truthfulness or untruthfulness
(May inquire into truthfulness)
 BUT other than a criminal conviction under 609, you can’t introduce any
evidence of those things that you’re asking the W about
o No extrinsic evidence of truthfulness or untruthfulness
 608(b) Question
o Facts
 W testifies in her capacity as HR manager of a hospital in a case in
which the plaintiff alleges retaliatory firing
 P alleges D fired her after she made a complaint to the EEOC
alleging employment discrimination
 W testifies on behalf of the D that D decided to fire P before P
filed the EEOC complaint
o You will cross examine W. can you cross her about her discharge from her
prior employer for falsifying government-requires HIPPA filings?
 Admissible under 608 – any witness who takes the stand opens
themselves up to being attacked for their truthfulness no matter
what they’re testifying about or how they are connected to the case
 608a – opinions
 608b – can inquire into specifics
 This question allowed bc we presume that it is always
relevant to prove that a witness is truthful*
o Subject matter relevance limits do NOT apply to questions for witnesses
about:
 Perception
 Memory
 Truthfulness
 US v. Lollar
o While D’s decision to testify does not open the door to attacks on his
general character, it does free the gov to offer evidence bearing on the
defendant’s believability as a witness
 US v. Rosa
o On what can the W be crossed to show untruthfulness?
 Not just any criminal conviction
 Must relate to character for truthfulness
 Tax fraud – YES
 Bribery - NO
 US v. White
o Since we specifically have rule 608 for character for truthfulness of a
witness, you can’t electively get in evidence under 404b that you would
not be able to get in under 608b
21



Can’t use 404b as a back door to get evidence in when we have
608 already
OVERALL RULE from case law
o A witness can be impeached with evidence that it is in their nature to be
deceitful, but not by extrinsic evidence of specific acts of dishonesty
Who does 608 apply to? When does it apply?
o Accused victim witness (W)
 Direct
 Put character for truthfulness at issue by taking the stand
 Cannot be first mover in putting character for truthfulness
(“I’m so truthful” – NO)
 Cross
 Character for truthfulness may be attacked using specific
instance of conduct
 Attorney must take the witness’ answer
 No extrinsic evidence
 Re-direct
 If truthfulness specifically attacked on cross, may
rehabilitate on re-direct with:
o Specific acts of truthfulness
o Explanation of apparent untruthfulness
o Also rehabilitate other witnesses
o No extrinsic evidence
o Character witness (WC)
 Direct
 Takes stand to dispute truthfulness of W OR
 Takes stand to support truthfulness of W ONLY IF party’s
character already attacked
 May testify on ONLY as to opinion or reputation
 Puts own character for truthfulness (and bias) at issue by
testifying
 Cross
 Can be crossed on knowledge on subject’s truthfulness
through asking about specific conduct
 Can be crossed as to own truthfulness, using specific
conduct
 Attorney must take the witness’ answer
 Can be crossed as to their bias against the party or
incapacity
 Re-direct
 Bolster W’s knowledge of subject’s
truthfulness/untruthfulness
 If truthfulness specifically attacked on cross, may
rehabilitate on redirect with: Specific acts of truthfulness
Explanation of apparent truthfulness
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Rule 609: Impeachment by Evidence of Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence: (just looking for relevance to the case
at issue here- like the behavior someone engaged in while committing a crime)
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant; and
 Mirrors 403 --> This is a more defendant-protective version of 403. there is a
presumption here of wanting to keep the evidence out unless it's VERY
probative
 Whereas regular 403 has a presumption of admitting it against the
defendant
 The imbalance between probative value and prejudice doesn't have to
be as extreme here as it does to made something inadmissible for
prejudice under 403
(B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court
can readily determine that establishing the elements of the crime required proving — or the
witness’s admitting — a dishonest act or false statement.
o Where one of the elements of a specific crime actually has an element that
requires proving dishonest/false conduct
o Fraud, falsification of documents or records, perjury
 US v. Wong
o Issue: Whether a district court has any discretion to exclude, as unduly
prejudicial, evidence that a witness had previously been convicted of a crime
involving dishonesty or false statement?
o Reasoning: 403 was not meant to override more specific rules like 609
o Rule: The general balancing test of 403 is not applicable to impeachment
o Holding: judge has no authority to prohibit gov’s effort to impeach the credibility
of a witness by questions concerning a prior criminal conviction
 US v. Amaechi
o Facts: D suggests that the court erred in excluding evidence of a witness’
shoplifting conviction – whether it indicates that the person may be more likely to
commit perjury
o Holding: Shoplifting does NOT qualify as a crime of dishonesty under 609
 US v. Sanders
o Where the offense sought to be admitted against the defendant has little bearing
on his propensity to tell the truth, the district court should recognize that the
substantial likelihood of prejudice outweighed the minimal impeachment value of
the evidence
 Didn’t need to happen here bc the evidence was harmless, but would be
wrong if it wasn’t harmless
Rule 613 on next page
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Art. 7: EXPERT TESTIMONY
Frye v. US  General Acceptance test (superseded by FRE 702)
 Evidence of blood test is inadmissible because it’s a new method and hasn’t been
sufficiently established to have gained general acceptance in the particular field tow
which it belongs
 Not enough standing or scientific acceptance among psych authorities
 Test
o The test for whether expert testimony should be admissible is whether it is
generally acceptable in the relevant scientific field
Rule 702: Testimony by Experts  CURRENT RULE
1. The testimony is based upon sufficient facts or data
2. The testimony is the product of reliable principles and methods, and
3. The witness has applied the principles and methods reliably to the facts of the case
 Daubert Trio (Daubert, Kumho, Joiner) develops CONTROLLING FEDERAL RULE.
Claim: Benedictin causes birth defects
o History: SJ for D, based on studies showing no link between maternal Benedictin
use and fetal defects. Court excluded reputable expert’s animal studies showing
mutation effects of the substance. Circuit affirms using Frye’s general acceptance
test. This court reverses
o DAUBERT FACTORS (guidelines)
 Has theory or technique been tested (by anyone other than the expert)?
 Has theory or technique been subjected to peer review?
 Is there a known, potential rate of error?
 Is there a clear relationship between the theory, the methods, the
application, and the conclusion? (Kumho & Joiner cases)
 Is the theory or technique “generally accepted”?
 Any other factors the court believes is relevant
o RULE is essentially =
 Reliable methods
 Applied reliably
 To sufficient facts or data
o The inquiry envisioned by FRE 702 is a flexible one. Its overarching subject is the
scientific validity – and thus the relevance and reliability – of the principles that
underlie a proposed submission
 Kumho Tire: Daubert applies to all expert evidence, not just “scientific” evidence
 Joiner  History: Lower court’s rulings are reviewed for “abuse of discretion”
o Rule: District court should limit its role to evaluating the legal reliability of the
proffered expert testimony, leaving the jury to decide the correctness of
competing expert opinions
o Reasoning: Conclusions and methods are not entirely distinct from one
another…a court may conclude that there is simply too great an analytical gap
25
between the data and the opinion proffered. That is what the district court did
here, and we hold that it did not abuse its discretion in so doing
Rule 703: Bases of an Expert’s Opinion Testimony
Expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or
data are of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences about the subject
Rule 704: Opinion of an Ultimate Issue
(a) Except as provided in (b), testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces and ultimate issue to be decided by
the trier of fact
(b) No expert witness testifying with respect to the mental state or condition of a D in a
criminal case may state an opinion or inference as to whether the D (at the time of the
offense) had the mental state or condition constituting an element of the crime charged or
of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
 What is an ultimate issue?
o Example:
 “My tests show that effluent from X contained a concentration of chemical
known to cause cancer”
 “the cancers that killed the decedent were typical of the chemical
exposure” “The D is liable for P’s child’s death”
 Opinions on ultimate issue  Mental State
o In a criminal case, an expert can’t give an opinion about what the D’s mental state
was at the time of the offense as it relates to an element of a claim or defense
o CAN give an opinion about D’s mental state or condition at the time of trial
 “D is severely intellectually disabled” FINE
 “D suffers from psychosis” FINE
 “D’s psychotic delusion prevented him from understanding the
wrongfulness of his act at the time” NO
 Examples  Expert may/may not give an opinion:
o The arsenic emitted by X into the drinking water exceeded EPA standards by
500% - Fine
o The bank’s compliance systems were not consistent with industry standards - Fine
o Victim’s nightmares and memory loss are consistent with PTSD. The rig
explosion is the kind of trauma that the literature shows to be sufficient to cause
PTSD - Fine
o The D suffers from paranoia and psychosis - Fine
o D’s psychosis would have prevented him from forming “purpose” or
“knowledge” at the time of the offense - NO
Rule 705: Facts of Data Underlying Expert Opinion
The expert may…be required to disclose the underlying facts or data on cross-examination
AND All materials relied on by any testifying expert must be exchanged in pre-trial disclosure
(regardless of whether those materials would be admissible at trial)
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Art. 8: HEARSAY
INTRODUCTION TO HEARSAY TERMS/WHAT IS AND IS NOT HEARSAY
 Hearsay means:
o A statement that declarant makes while not testifying at current trial/hearing; and
 Out of court statements
o A party offers into evidence to prove the truth of the matter asserted in the
statement
o “I know because somebody told me”
 Analysis
o Is it a statement?
o Who is the declarant?
o Was the statement made out of court?
o Is it being offered to prove truth of the same thing that is being asserted in the
statement?
 Non-Hearsay testimony is only considered accurate if:
o 4 testimonial capacities are sound:
 Perception
 Memory
 Narration
 Sincerity
o Accuracy of non-hearsay is protected by:
 The oath
 Demeanor evidence
 Cross-examination
 Categories of Statements that are NOT Hearsay
o Performative statements
o Verbal acts
o 801(d) admissions
 What are performative statements?
o Performative statements are statements that have meaning, and that may (or may
not) be predicated on the existence of some fact that could be true, but:
 Cannot in themselves be true or false, and
 In which the speaker did not intend to assert the existence of any predicate
fact
o Categories of common performative statements
 Commands / Demands
 Get over here right now!
 Give me those keys!
 That’ll be $200 for a trip to the airport
 Questions
 How are you?
 How’s that leg injury healing up?
 Greetings, wishes, and salutations
 Have fun in evidence today! Have a great trip!
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





o On exam if you encounter a performative statement:
 Say: This is a performative statement BECAUSE – and then state the
reasons why
What are verbal acts?
o A verbal act is an utterance that has legal significance simply because the words
were spoken:
 The uttering of certain words has independent legal significance under the
substantive law  words of contract, libel, slander, threats, and the like
 Thus, we only care that these words were said, not that they are true
 SO verbal acts are not hearsay – depending on the relevance theory for
which the statement is offered
o Examples
 Utterance of consent to/refusal of search
 Offer and acceptance (the words create the legal effect)
 Making a gift (the words create the legal effect)
 Offering a bribe (the words constitute the crime)
 Perjury (words = the crime)
 Statements of fraud (words= the crime)
 Statements of defamation (words = the crime)
Lyons Partnership v. Morris Costumes  purpose for which statement is being offered
o If the statement “it’s Barney” is used to prove that it was LITERALLY Barney,
then it’s hearsay
 BUT if it’s offered to prove anything else (like the kids loved the TV show
or BELIEVED that the dragon thing was Barney) then it’s NOT hearsay
o Also has to be a statement with some truth content to be able to be hearsay
 If the kids screamed “Yay!” when they saw Barney, that isn’t hearsay bc
you can’t prove what “Yay!” proves
 The statement can have meaning (like yay or woo) but wouldn’t be
hearsay
US v. Parry
o Whether an out of court statement is used for some purpose other than to prove
the truth of the matter asserted, the value of the statement does not rest upon the
declarant’s credibility and therefore, is not subject to attack as hearsay
US v. Montana
o Statement: “it’s going to be $10,000”
 Not hearsay
o Performative utterances are not hearsay because they do not make any truth
claims
 The only issue here from “give me 10,000” was whether the marshal was
reporting the demand correctly, and his testimony was not hearsay
US v. Zenni
o Nonassertive verbal conduct does not constitute a statement and is not subject to
the hearsay rule
State v. Dullard
o A statement that is introduced into evidence for its implication is inadmissible
hearsay
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Describe the difference between assertive and non-assertive nonverbal conduct. Provide
your own examples distinguishing between the two.
Non-assertive, nonverbal conduct describes all nonverbal behavior people engage in
without intending to communicate a message. An actor engages in assertive, nonverbal
conduct when the actor intentionally communicates a message through body language or
gesture as if through speech. Examples:
Nonassertive conduct: A man walks around with a gun in his belt, under his jacket.
Assertive conduct: A man pulls back his jacket and gestures to the gun in his belt to
communicate that he is armed
HEARSAY RULES AND EXCEPTIONS
Broad Range of Exceptions to Hearsay Rule
 FRE 801(d)(1) declarant witness’s prior statements
o Prior inconsistent statements
o Prior consistent statements
o Statements of identification
o *Note: declarant must be subject to cross about out of court statements. Under
oath
 FRE 801(d)(2)  opposing party’s statements
o A party’s own statements  direct admissions
 Party’s own words are not hearsay when used against them at trial
o Adopted admissions
o Authorized admissions
o Vicarious admissions
o Co-conspirator admissions
 FRE 803  exceptions applicable regardless of declarant’s availability
o Present sense impressions
o Excited utterance
o Statements of then-existing mental, emotional, or physical conditions
o Recorded recollections
 Declarant must be available to testify as a witness, but may be considered
“unavailable” due to memory loss
o Business records
o Public records and reports
 FRE 804 exceptions available only when declarant is unavailable
o Former testimony
o Dying declaration
o Statements against interest
o Forfeiture by wrongdoing
o *Note: some witnesses may be on the stand but still “unavailable” because of
privilege, refusal to testify, or testifies to loss of memory
 Most exceptions to hearsay have 2 values:
o Necessity
o Trustworthiness
Rule 801: Definitions that Apply to This Article; Exclusions from Hearsay
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Definitions:
(a) Statement  person’s oral assertion, written assertion, nonverbal conduct, if the person
intended it as an assertion
(b) Declarant  the person who made the statement
(c) Hearsay  a statement that
(1) Declarant makes out-of-court
(2) Party offers it to prove the truth of the matter asserted in the statement
(d) Statements that are NOT hearsay
(1) Declarant-Witness’s Prior Statement  declarant testifies and is subject to cross
examination about a prior statement. The statement:
(A) Is inconsistent with declarant’s testimony and was given under oath
- You can admit the testimony given under oath for its truth and
impeachment
(B) Is consistent with declarant’s testimony and is offered: (not a sworn
statement)
(i)
To rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper
influence or motive in so testifying; or
(ii)
To rehabilitate the declarant’s credibility as a witness when
attacked on another ground
(2) An Opposing Party’s Statement  Statement offered against opposing party and:
(A) Direct admission
(B) Adoptive admission
(C) Authorized admission
(D) Vicarious/agent admission
(E) Co-conspirator admission
 Direct Admissions
o The party said it
 The defendant told me “I’m ripping off my customers”
 Literally anything the party has said
o Requirements
 No personal knowledge required
 Need not be obviously against interest
 Must be offered against party who said it
 (double hearsay may still be barred)
o Advisory Committee Note
 Admissions by a party-opponent are excluded from the category of
hearsay (are admissible) on the theory that their admissibility in evidence
is the result of the adversary system rather than satisfaction of the
conditions of the hearsay rule
 A party can hardly object that he had no opportunity to cross
examine himself or that he is unworthy of credence save when
speaking under the sanction of oath
o Salvitti v. Throppe
 Truck driver visited victim in hospital and said “we are at fault”
 Rule
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

Any admission is admissible as non-hearsay against the person
who made it
o Doesn’t matter if the declarant knew what he was talking
about or had personal knowledge of the facts
o Bruton v. US  DIRECT
 In a written confession E said “B and I robbed the store”
 E = guilty. E’s statement = direct admission
 B = guilty
o Hearsay
o Court here says you can’t cure this hearsay by using a
limiting instruction
 Rule = have to redact the hearsay parts of a statement, can’t just give
limiting instruction with the entire statement
o Gray v. Maryland  applying Bruton rule
 B confessed that he and G participated in a beating. Trial judge introduced
redacted version of B’s confession
 “Who beat the victim?”
o “Me and deleted”
 Judge told jury to only use the evidence against B, not G
 Did this follow the Bruton standard?
 Technically yes bc Bruton rule just says you have to delete or
redact the hearsay portions
 NEW RULE
 A direct admission can be admitted against the party who stated it,
but all the rest of their admission that may implicate other people
must be handled in a more meaningful way to comply with Bruton
o Not just literally deleting the words and reading them as
“deleted”
Adoptive Admissions
o One that the party manifested that it adopted or believed to be true
 The party adopted the statements as true
o Example
 W, an accountant’s secretary, testifies: When the accountant reviewed D’s
books and told D “you’re ripping off your customers,” D shrugged and
said “So what?”
o Silence or implied adoption = admission
 If this statement is offered against the party, can deny it on direct and
cross examination
 For valid adoption through silence, look for:
 The kind of assertion that one would deny
 The party heard the assertion
 The party had an opportunity to deny the assertion
 Circumstances did not prevent the party from denying the assertion
(like intimidation by the speaker)
 Example
 “James and I robbed a bank”
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


o James said nothing in response. Adopted but can offer an
alternative explanation for silence on cross
o US v. Truman  silence as admission
 Rule
 A witness who testifies under oath and is subject to cross
examination in a prior state court proceeding explicitly refuses to
answer the same questions at trial, the refusal to answer is
inconsistent with his prior testimony and the prior testimony is
admissible under FRE 801(d)(1)(A)
Authorized Admissions
o Admissible against the party opponent if the party opponent was the authorizing
principal
o Classic case:
 You authorize your attorney to negotiate a corporate deal. In the course of
the deal, the attorney makes representations about the financial health of
your company
 Such representations are admissible against you as if you made
them (as if they were direct admissions!)
o Complexities:
 In the corporate context: who is the authorizing principal?
 Can be the board of directors
 Does there need to be a formal grant of authority about the type of
statement?
 Needs to be within the scope of the agent’s express “speaking
authority”
Vicarious Admissions
o Made by employee or agent, admissible against employer/principal as if it was a
direct admission
o Has to be a statement:
 Concerning a matter within the scope of their agency of employment
 Made during the existence of the agency or employment relationship
 Need not be specifically allowed
Co-Conspirator Admission
o Elements
 Made by co-conspirator
 During course of conspiracy
 In furtherance of conspiracy
o Treated as if a direct admission by any of the other co-conspirators during and in
furtherance of the conspiracy
o Bourjaily v. US  CO-CONSPIRATOR
 Issues
 How do we establish co-conspirator admission?
 May a court use hearsay evidence in making its preliminary
determination on whether a conspiracy exists for purposes for
purposes of determining the admissibility of the evidence at trial?
 Standard for determining if something was co-conspirator admission:
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Rule

Preponderance of the evidence that a conspiracy existed
Here, was enough that B actually showed up at the meet exactly as
planned
In making a determination of whether the preponderance of the
evidence reveals that there is a conspiracy present for purposes of
determining the admissibility of evidence, a court may use the
hearsay statements sought to be admitted
Rule 803: Exceptions Against Hearsay – Regardless of Whether the Declarant is Available
as a Witness
 The following are admissible, regardless of whether declarant is available as a witness:
(1) Present sense impression
(2) Excited utterance
(3) Then-existing mental, emotional, or physical condition
(4) Statement made for medical diagnosis or treatment
(5) Recorded recollection
(6) Records of regularly conducted activity
(7) Absence of a record of a regularly conducted activity
 (1) & (2) Present sense impression / Excited utterance
o Present sense impression
 Statement made while presently observing something
 Important, but narrow category of statements
 Rationale
 Person has personal knowledge (privileged access to own state of
being and perceptions)
 Has no time to fabricate
 We might worry that the witness is biased or lying but have
reduced concerns that the declarant is lying or has problems with
perception or memory
o Excited utterance
 Low bar to meet this exception
 Should relate to the thing going on right then
 Close in time to the occurrence
 Continuous agitation/excitement on part of the declarant
o US v. Obayagbona
 2 requirements for 803
 There must be an occurrence sufficiently startling to render
inoperative the normal reflective thought process of an observer
 The statement of declarant must have been a spontaneous reaction
to the occurrence
o “immediately thereafter” (close enough)
 Holding
 15 minutes after something happens can still be present sense
impression
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
Excited utterance can last much longer than present sense
impression
o Bemis v. Edwards
 Statements made in a 911 emergency call may qualify as present sense
impression or excited utterance. To qualify, must be:
 Contemporaneous
 Witness must have personal knowledge of what he describes (has
to have personally seen it happen)
 Holding: declarant didn’t actually see the fight happen, can’t admit the
statement bc lacked firsthand knowledge
(3) State of Mind  mental, emotional, physical
o 2 kinds of state of mind statements:
 Direct
 I’m angry
 Interpretive
 I want to punch this wall in!
o Very small differences in phrasing can make a big difference in hearsay
admissibility:
 I am the god Odin
 Not hearsay to admit for state of mind
 I believe I am the god Odin
 Admissible hearsay
o Under state of mind exception
 Being offered to prove that you believe you are Odin
o But still goes to your state of mind
o A person’s statement of belief can be used to prove that they believed the thing
but it can’t be used to prove that the thing is true
 Statements of memory are not covered by 803(3)
 Like present sense impression and excited utterances, state of mind
exception excludes statements made in the past**
o Bc you’re relating a belief that you used to have
 What is the timing here?
o Rule is saying that you can’t make any statement about the
past
o What about statements related to the future?
 Admissible to prove intent (Hillmon) / likelihood of
the thing happening
o How to get this evidence admitted:
 We want to admit these statements to prove the D was angry:
 Witness’ testimony: “I heard him say, ‘I’m angry!’” for proof that
the D was angry.
 We have a hearsay problem because:
o It’s an out of court statement
o Made by the declarant other than while testifying at a trial
or hearing
o Offered for truth of the matter asserted
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
Can we get it in even though it’s hearsay? YES
o Under 803(3): “I’m angry” is a statement of then existing
mental or emotional condition. Bc it satisfies the 803(3)
exception, this statement constitutes admissible hearsay
 What about inferential statements of mental, emotional, phys condition?
 “I want to punch this wall in!” offered to show anger
o If the statement is hearsay, it falls under the 8803(3)
exception
o If the statement is NOT hearsay, then it is not barred by the
hearsay rule
 Implied assertion
o US v. Harris
 What about statements that could be about state of mind, but that also
could be about something else?
 Statement: “The cops are setting me up” v. “I think the cops are setting me
up”
 Holding: accepted not for their truth but as circumstantial evidence of H’s
state of mind
 H *believed* S brought an agent to him
o Hillmon  most famous hearsay case
 Hillmon Doctrine
 If there is a statement of future intent, it is admissible to:
o Show that the person thought that at the time AND
o That it supports a probable inference that the thing planned
for actually happened
(4) Statements Made from Medical Diagnosis/Treatment
o Not focused on the identity of the speaker or hearer of the statement
 Focused on what the statement was made FOR
 The statement’s purpose is all that matters here
o Only reasonably pertinent if declarant has reasonable belief that the person
they’re talking to is someone who is in a position to engage in diagnosis and
treatment (or closely connected to someone who can, like a triage nurse)
 Courts take a narrow view of what is pertinent
o Rock v. Huffco Gas
 Hearsay here bc statements were not reasonably considered by the
declarant as being pertinent to the diagnosis or treatment
 Doctors only needed to know that R had twisted his ankle, didn’t need to
know the additional detail that R may have twisted his ankle while
working on the rig
(5) Recorded Recollection
o Recollection refreshed vs. recorded recollection
 Refreshed= they magically remember after reading/hearing something
 Not hearsay
 Brain fart rule – person briefly can’t remember, you refresh their
memory, then they remember and can go testify
 The thing used to refresh is not evidence, it’s like a prop
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Recorded = using a document when the witness can’t remember
 Admissible hearsay
o The closer in time the record was made to the events it described, the better it is
o First you offer it to the witness
 Then you read the recorded recollection into evidence
o If the person fails to remember then you can mark it as an exhibit
o US v. Riccardi
 The prosecution read lists of the goods taken from the indictment to
refresh the witness’ memory as to what was missing and their value.
Admissible?
 You can use literally anything to refresh a witness’ recollection
(6) Records of Regularly Conducted Activity  very important
o Business Record Exception Requirements
 Record of a business or other regularly conducted activity
 Regularly maintained
 Made promptly
 Based on knowledge
 Supported by court testimony
 Not untrustworthy
o Record of a business
 Keogh v. Commissioner
 Rule
o A personally kept business record qualifies under FRE
803(6) if it is systematically checked and regularly and
continually maintained
 Truthfulness
o No reason for guy to lie in his own diary
 Palmer v. Hoffman
 Is a statement made in an employer’s post-accident interview by an
employee involved in the accident admissible as a statement made
in the regular course of business for a RR company?
 Holding: No. A business record is admissible if made in the regular
course of business and it is the regular course of business to make
such a record
o Here, the fact that a company regularly makes a record in
certain situations does not necessarily mean that record is
the regular course of business
o Interviewing employees after an accident is not a
systematic routine of the RR business
 Lewis v. Baker
 Court reaches opposite conclusion of Palmer
o In Palmer, the statement was made by an employee
involved in the accident who knew that he was likely going
to be party to a future lawsuit concerning the accident
 The report was made specifically for litigation
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o
o
o
o
As a result, that employee had a strong motivation
to fabricate the truth in his favor
 This case, the reports were made by employees not involved in the
accident. No motivation to lie
o Trustworthiness element is distinguishable from Palmer.
Admissible
 Differences between Palmer and Lewis cases
 Evidence of regular practice
 Incentive to lie on the part of the person directly preparing
report/personal involvement
 Federal business records act
 Similarities?
o Accident/injury reports all foreseeably may be used in
litigation
 Conclusions from Palmer and Lewis?
 Do we look more at regularity of practice or more at the purpose
for which the records are kept?
 We consider:
o Is there some valid, non-litigation purpose for these
accident reports that helps the business run as a business?
 If so, fits the exception 803(6)
Personal knowledge
 Defined very thinly
 “by or from information transmitted by a person with knowledge”
 Consider: HR director at a law firm who regularly compiles work hour
reports of employees based on their submitted time sheets. She personal
knowledge of how the record was made (bc she made it). She has no
knowledge of whether each attorney really worked the hours submitted
Supported by in court testimony
 Who can testify?
Does not appear untrustworthy
 Evidence will be admitted unless the source of info or the
method/circumstances of preparation indicate lack of trustworthiness
 Gives trial court discretion to exclude evidence otherwise within
the letter of the exception; indicates that routineness alone is not
enough
Nested hearsay
 Need 2 exceptions
 1 to get the record in and
 1 to get whatever statement is in the record, in
 Examples
 Police reports (almost never admissible though)
 Medical records
 Wilson v. Zapata Offshore Drilling
 What about layers of hearsay contained in a business record?
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
Holding: if every participant in the chain of creating the business
record was acting in the regular course of the business, and
pursuant to the employee’s duties to the company, then there is no
multiple hearsay problem
o Note: this business duty notion is not contained in the
language of the rule or in advisory committee notes. It is
judicially created
(7) Absence of Record of Regularly Conducted Activity
o If all of the other factors of (6) are met, then the absence of a record of the thing is
evidence that the thing did not occur
o Absence of evidence does not equal evidence of absence EXCEPT under 803(7)
and 803(6) for type documents
o Examples
 Employee absence and vacation rosters – no record of absence may be
used to show employee was present
 Complaint reports – absence of a complaint report may be used to show
that the parry did not complain at that time
Rule 804: Declarant Unavailable
(a) Criteria for being unavailable
1. Excepted from testifying about subject matter of declarant’s statement bc of
privilege
2. Refuses to testify about the subject matter despite a court order to do so
3. Testifies to not remembering the subject matter
4. Cannot be present or testify at trial bc of death or then-existing infirmity, physical
illness, or mental illness
5. Is absent from the trial and the statement’s proponent has not been able to procure
declarant’s attendance
(A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
(b) Hearsay Exceptions for Unavailable Declarants: admissible
1. Former testimony
 Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether
given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose
predecessor in interest had — an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
2. Statement under 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.
3. Statements against interests A statement that:
(A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
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to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
4. Forfeiture by wrongdoing
What does it mean for a declarant to be unavailable?
o Physically not present (physical)
 Refusal to attend
 They could be dead
 Incapacitated
 Outside of jurisdiction
o Non-testifying (legal)
 Unable to remember
 Refusal to speak
Former testimony:
o Requirements
 Witness has to be unavailable
 The material you’re trying to get in has to be prior testimony
o Useful bc allows you to still use a statement from a witness even if they cannot
testify/show up
 Principle of necessity
o Terms:
 Predecessor in interest = a similar party that is similarly situated
 Same line of business in the same way
 Opportunity and similar motive
 Can also challenge the admission of former testimony against an
unrelated party
o 3 kinds of prior statements
 801(d) Prior inconsistent testimony
 Must be sworn
 Can be used for its truth
 Can be used for impeachment
 801(d) Prior consistent testimony
 Doesn’t have to be sworn
 Can be used for its truth
 Can be used for impeachment
 804(b)(1) Former testimony
 Requires an unavailable witness
 Cannot be used to its truth
 Can be used for impeachment
o Contrast 801(d) and 804(b)
 801(d): W currently a witness in this case and also gave testimony in a
prior matter
 Limited to prior consistent and inconsistent statements
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804(b): Declarant gave testimony in prior matter and is now
missing/dead/legally unavailable
 Any prior testimony can be used for its truth, provided party
against whom it is offered
o In a current criminal matter: had opportunity to examine
declarant in the prior matter
o In current civil matter: had, or “predecessor in interest”
had, opportunity to examine declarant
o Criminal v. Civil cases
 Criminal
 Party against whom the former testimony is now offered…must
have had an opportunity and similar motive to develop the
testimony
 This rule applies when the current proceeding is criminal. It does
not matter if the first proceeding was criminal
 Civil
 Predecessor in interest = a party with a like motive to cross
examine about the same matters as the present party would have
Statements under the belief of imminent death
o Mostly not admissible
o Limitations
 For criminal case:
 Only admissible in a homicide case
 For civil case:
 Any kind of claim
 Only applies to certain kinds of statements
 Statements about its cause or circumstances
 Person usually dies
 Doesn’t have to die though, but that’s usually how you get the
“unavailable declarant”
o Lewis case
 Just as a lay witness may offer opinion testimony on anything rationally
based on their perception, F’s statement here is admissible bc it is
rationally based on his perception of Lewis
 Rule
 A dying declaration may be admissible as an exception to the
hearsay rule, even if the statement is testimonial in nature
Statements against interest
o Distinguishing from party admissions:
 Party admission need not be against interest
 Statements against interest need not be by a party
 So: This rule encompasses statements by declarants who may or may not
be parties – but that still may be important
o US v. Samaniego
 Issue: Who owns the championship belts?
40

S claims the belts were stolen from him. B claims he purchased the
belts from title-holder, thus holds good title himself. B apologized
to S for stealing the belts
 Apology admitted under 803(3) statement of then existing mental
or emotional condition
 The part of B’s apology in which he admitted having stolen S’s belts is a
statement against interest, because it would subject the declarant to civil or
criminal liability within 804(b)(3)
 Unavailability = B declined to come from Panama to the US to
admit in court that he stole the belts
 Forfeiture by wrongdoing
o Statement offered against a party that wrongfully caused the declarant’s
unavailability
o Why is it called forfeiture by wrongdoing?
 The party who caused the witness to be absent forfeits the protection of
the hearsay rule
 Because he did wrong
o This recognizes the need for a protective rule to deal with abhorrent behavior,
which strikes at the heart of the system of justice itself
o Paradigm case:
 Mobster knows that W will testify against him at racketeering trial. M
makes W disappear. Now, any hearsay statement W made before
“disappearing” which would have been inadmissible, can come in against
M
o Criteria
 Party’s purpose must be to prevent W from testifying
 Who decides if hearsay exception applies?
 Judge makes determination by preponderance of the evidence
o Giles v. California
 Facts: G on trial for murdering A. 3 weeks before A’s death, police
responded to a DV call at G’s home. A reported that G choked her. Trial
court admitted those statements under exception for forfeiture by
wrongdoing
 Reasoning: G is the reason A is unavailable. Defendant cannot profit from
a witness’ unavailability to testify if he created that unavailability himself.
A’s statements, which she would have made at a trial against him, may be
admitted against G
 Confrontation clause issues: How is Giles like Crawford and Davis?
 Court holds: Forfeiture by wrongdoing was established exception
to confrontation at time of founding
 BUT limited to witness tampering – not to any wrongful acts that
resulted in W’s unavailability
Rule 807: Residual (Catch all) Exception
 What does covered mean?
o It fits an 803/804 exception but falls short OR
o It doesn’t fit an 803/804 exception but seems reliable and important
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6th: CONFRONTATION CLAUSE (related to hearsay)
6th Amendment
“To be confronted with the witnesses against him”
 Gives every criminal defendant the right to cross examine witnesses who testify against
him
 Defendant has the right to confront the witnesses providing “testimonial” statements
against him with a reasonable opportunity for cross examination
o Testimonial statements =
o in court testimony and
o its functional equivalent
 statements that the declarant would reasonably expect to be used by the
prosecution
Ohio v. Clark
 Facts: LP told his teachers that his dad abused him. At trial, LPs statements were
admitted. LP couldn’t testify bc he was too young, C moved to exclude the statements
based on the CC
 Issue: are out of course statements made to persons other than law-enforcement officers
excluded from admission into evidence by the CC?
o Holding: No.
 In order to determine whether a statement is subject to the Confrontation Clause, courts
apply the primary purpose test
o If the primary purpose of the conversation eliciting the statement is to create a
testimonial statement to substitute for trial testimony, the statement is within the
scope of CC
o If the primary purpose … is to respond to an ongoing emergency, the statement is
not within the scope of the CC. Statements to non-law enforcement are much less
likely to be considered testimonial
 Application:
o Here LPs teachers were resolving an ongoing emergency and the primary purpose
of the teacher’s questions was to ensure that LP was safe, not to elicit testimony
from him for a potential court proceeding
Crawford v. Washington
 Issue: is a recorded statement to the police by an unavailable witness admissible at trial?
o No
 Rule Testimonial statements of witnesses not present at trial are admissible only where
the declarant is unavailable and the defendant had a prior opportunity for cross
examination
 Takeaways: Landmark decision that changed the constitutional test governing when
hearsay is admissible in a criminal trial. Departed from the reliability standard from
Roberts. Testimonial hearsay is inadmissible unless the defendant has the opportunity to
cross examine the declarant under oath
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