Evidence Outline—Is the info admissible? (Reed)
 Opponent: party wanting to EXCLUDE information from evidence
 Proponent: party wanting to ADMIT information as evidence
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Rules of evidence are geared toward trials by jury although jury trials are rare
Rules exist to strain out the “crap”
Decision is for the judge
The threshold is low—it isn’t even up to the level of a burden of proof—only require it to meet the
equation
 Rules do not come into play unless there is an objection:
o Formal statement made by the opponent explaining why information shouldn’t be admitted to the
record
o We prefer oral testimony evidence as opposed to demonstrative b/c the witness is examined and
cross-examined and under oath, that’s the test of authentication
 Demeanor can be observed
 Can’t cross examine a piece of paper

Evidence—information fit to be admitted to (become part of) the record of proceedings in a trial or
hearing
 Record: the official trial, hearing or deposition transcript, together with all exhibits
identified in the transcript
o Ensures that trial has been conducted fairly
o Allows for review by an appellate court
o Some information should not be part of the record—irrelevant, prejudicial evidence that outweighs
the probative value, not reliable, attorney-client privilege
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Mathematical equation of evidence
o A + B + C + D = 1 (Admissibility of Evidence)
 A—Relevance
 B—Reliable
 C—Policy
 D—Prejudice
If ANY ONE of the factors
is missing, then it does NOT
become part of the record
o
Evidence is information that is RELEVANT and RELIABLE and not barred by any
POLICY and is not excessively PREJUDICIAL
o
o
Relevant: the info is logically relevant to some issue in the proceedings
Reliability: Determining reliability can be stringent (similar to “telephone game”)
 The source of information is sufficiently reliable
 Trier of fact cannot consider unreliable information , however relevant it may appear
Policy: Has a heavy weight on some issues of evidence
 Refers to judicially-enforced rules that exclude relevant and reliable information due to
perceived harm to commonly held social values
Prejudice: The most valuable
 The greater the probative value of the evidence, the less likely to be prejudicial
 Indirectly proportional relationship
o
o
o
RELEVANCE
 401 (definition), 402 (admissibility)
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Does the info logically relate to any issue in the case at hand, including credibility
and truthfulness?
o
RELIABILITY
 601 (competence)605 (judges), 606 (jurors); 602 (first hand knowledge) 801 (hearsay
def), 802 (inadmissible unless exception), 803 (exceptions when declarant is available),
804 (exceptions were declarant is unavailable), 805 (hearsay w/in hearsay), 806 (credibility
of hearsay); 603 (oath), 604 (interpreters), 701 (lay opinion), 702 (expert opinion)
 Is the source of the information reliable?
o Competence: 601 (competence)605 (judges), 606 (jurors)
o Hearsay: 602 (first hand knowledge) 801 (hearsay def), 802
(inadmissible unless exception), 803 (exceptions when declarant is
available), 804 (exceptions were declarant is unavailable), 805 (hearsay
w/in hearsay), 806 (credibility of hearsay)
o Authenticity: 901 (gen’l principles), 902 (self-authentication), 903
(subscribing witness)
o Original documentation: best evidence rule: 1001 (defs), 1002 (req’mt
of original), 1003 (duplicates), 1004 (best evidence rule stmt), 1005
(public records), 1006 (summaries of voluminous docs), 1007 (admission
of parties)
o
PUBLIC POLICY
 Judicially-enforced rules that can exclude relevant and reliable information from becoming
part of the record due to the fact that doing so would harm socially accepted values:
confidentiality b/w spouses, dr/patient, lawyer/client
 Nothing to do with character, liability insurance coverage, rebuilding dangerous
conditions, offers compromising liabilities
 Confidentiality: 501 (gen’l confidentiality to be developed by courts)
o Uniform Rules of Evidence: 502 (attorney/client), 503 (dr/patient), 504
(spouses), 505 (clergy/communicant);
 Character: 404 (character evidence), 405 (method of proof of character), 406
(habit), 608 (impeachment of witness by prior bad acts), 609 (impeachment of
witness by proof of prior criminal conviction);
 Liability coverage: 411;
 Offer compromising liability: 408 (civil liability), 409 (offer to pay med
expenses), 410 (pleading guilty on criminal offense);
 Redesigning prior defect: 407
o
PROBATIVE VALUE vs. PREJUDICE
 The probative value will not unfairly prejudice the other side, waste the court’s time, delay
the outcome or confuse the issues: 403
 This balancing is the basic issue in every evidentiary objection
Direct and Circumstantial Proof
o How facts are proved at trial
 You can prove an unknown either by direct or circumstantial proof
o
Direct
 A fact is directly proved when testimony of a witness or a document states the fact
 Derived from two sources
1. Eyewitness
2. What demonstrative/real evidence shows
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o
No inferences or deductions are necessary here, you have the direct proof that the crime
occurred
 Ex. Greta Green saw Dan Dalton kill Vera
Circumstantial
 Most evidence is circumstantial
 A fact can also be proved by induction and inference
 Fact A is deduced from the existence of Facts B, C, and D as a probable (though
not mandatory) inference
 Problem with Circumstantial proof is that it admits of more than one inference
 Just b/c it is circumstantial does not mean it is excludable
 Example:
 Greta Green saw Dan Dalton on the porch and heard him screaming at her
 Greta Green heard Vera screaming don’t hurt me
 Greta Green saw Dan Dalton run out of Vera’s house and throw something
 Dan fled the scene
 Vera is found dead
 Dan went to VA
o It’s reasonable from all this to infer that Dan killed Vera, but it’s not
necessarily true
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The trial
o Jury selection
 Jury voir dire—attorney or judge conducts questioning to select juries
o Jury nullification
 Juries can make a decision that does not go along with the law as the judge sees it and that
verdict will stand
 A vote against the judge’s instruction
 Sometimes they do what they think is fair
o Opening Statements
 Not permitted to argue therefore must argue (convince) without arguing
 A story that leads to the ultimate conclusion that you are seeking
 In a civil trial, most of the evidence to be admitted is determined in pre-trial motions and
hearings which is why the prosecuting attorney was able to use the knife and the sprite can
in the opening statement
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How do you approach an evidence issue?
1. Identify the relevance of the data offered and objected to.
2. Determine whether the witness or the demonstrative evidence is reliable source.
3. Discuss any policy rules which would exclude the data and
4. Assess whether its probative value exceeds the prejudice, waste of time, confusion of the issues or
of the trier of fact which flows from the admission of the information
FOUNDATION
 How to get information admitted as evidence:
o LAY A FOUNDATION
 Proponent must first lay a foundation for the admittance of evidence during direct
 Foundation show’s the info’s relevance and reliability
A. Document: foundation for document must show:
o Relevance, reliability, hearsay exception, best evidence rule
B. conversation: foundation for admitting a conversation must show
o Relevance, authenticity, hearsay exception
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 Judge decides per 104(a) or (b) once an objection has been raised per 103
 104: Preliminary Questions
a. Questions of admissibility generally. Preliminary facts concerning the
qualification of a person to be a witness, the existence of a privilege, or
the admissibility of evidence shall be determined by the court, subject to
the provisions of subdivision (b). In making its determination it is not
bound by the rules of evidence except with respect to privileges.
b. Relevancy conditioned on fact. When the relevancy of evidence depends
upon the fulfillment of a condition of fact, the court shall admit it upon,
or subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition.
 This is conditional relevance and evidence submitted as such is
introduced prior to a foundation upon a condition subsequent (the
info will be “connected up” later on in the trial); info not
“connected up” will be struck
o Introduce exhibits on direct examination
 Ask open ended questions: who, what, where, when, how, why
OBJECTING
 Objection: a formal statement made by the opponent explaining why information should not become part of
the record
 Objecting to the introduction of evidence: Rules don’t even come into play unless you object
o Objections have to be made in order to be able to appeal per 103(a)1
 Need to state legal basis
 Made before the witness answers
 Made at the time the evidence is moved into evidence as evidence when introducing
demonstrative evidence
o Elements
1. Address judge
2. State you objection
3. State matter objected to
4. State legal grounds for objection
 Your honor, I object to that question on the ground that . . .
o it is leading (can’t lead witness on direct, only cross), it is compound (it’s a
multiple choice answer), it has already been asked and answered
(repetitive), it is argumentative (badgering the witness), it calls for a
narrative answer (is misleading), it assumes facts not in evidence
o General objections only preserve relevance
 If though the admission of evidence results PLAIN ERROR and affects SUBSTANTIAL
RIGHTS of the affected party, that information can be reviewed upon appeal even though
no objection may have been made 103d
 Motion to Strike
o Sometimes motions to strike are more appropriate
 Answer to a proper question is improper in that it exceeds the scope of the question
 Answer happened to quickly before an objection could be raised
o “Motion to strike the answer for the purpose of interposing an objection to the question”
o It develops later that the testimony was improper
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 Ex. The lay witness on direct purports that he has personal knowledge and then on cross he
admits that he was told by 3rd parties (hearsay)
o If judge grants motion, request curative instrx per 105
 105: Limited Admissibility
 When evidence which is admissible as to one party or for on purpose but not
admissible as to another party ... is admitted, the court, upon request, shall restrict
the evidence to its proper scope and instruct the jury accordingly.
o Ex. Your Honor, would you please instruct the jury to disregard the
answer?
 If remark is clearly inflammatory, consider moving for a mistrial
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Pre-trial MOTIONS IN LIMINE
o Def: pre-trial motion to obtain an advisory opinion from the judge on the use of potentially
objectionable information at trial
o Both proponents and opponents can make
o If opponent loses, renew objection at trial
o Elements:
1. Opponent moves to exclude info prior to trial
2. States that he believes that the proponent has the info and will use it at trial
3. State grounds for inadmissibility w/specificity
4. Explain why inadmissible
5. Explain why ordinary trial objection is inadequate
6. Present legal argument in favor of motion
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VOIR DIRE of witness: permitting preliminary cross/direct by either proponent/opponent in issues of:
o Foundation witness who is unable to supply an important element of the foundation for admission
of information into evidence
o Relevant info that may be excludable due to unreliability or adverse public policy (like privileges:
showing that an objection s/b sustained based on the existence of a privilege)
o Elements:
1. Address judge
2. Request to voir dire witness
3. Opponent conduct ltd cross on foundational facts only
4. Opponent makes objection
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OFFER OF PROOF
o Only information admitted as evidence can be reviewed upon appeal therefore excluded evidence
has to get on record in a way that the trier of fact doesn’t know it:
 Done by offer of proof 103a(2)
 Elements:
a. Proponent asks permission to approach judge to make an offer of proof
outside the hearing of the trier of fact
b. States that he intends to make an offer of proof
c. States the purpose for offering: the info’s relevance
 Tells the judge what the witness would have testified to or
 The jury is excused and the proponent examines the witness and
the testimony is entered into the record
 Needs to be done by the proponent when a judge grants opponent’s motion in
limine
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RELEVANCE
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Trier of fact cannot consider irrelevant information about a significant issue, and if it does, it has committed
reversible error
Relevance really isn’t a legal judgment, rather it is a judgment based on logic
What is Relevant?
o Criminal prosecution
 Starts w/ an indictment
 Information that it would take to prove that violation would be first step of defining
relevance in case
 Any pre-trial motion will also help define what is relevance
 Opening statements of parties—defendant has to show his hand—defines what is relevant
in a case
 It won’t be a defense until the defense raises it
o Civil litigation
 Know what is relevant through the complaint and defendant’s answer and the pre-trial
conference w/ the judge
Every witness and document’s credibility is always at issue
 RULE 401
 Definition: Evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence
 RULE 402
 Presumption is that if you have relevant evidence it will be admitted
 If evidence is irrelevant it is not admissible
 RULE 103 Rulings on Evidence
 Procedures to be followed to challenge the admissibility of evidence and preliminary hearings outside the
hearing of the jury to determine admissibility of evidence
 Unless the evidence is clearly inadmissible, NO ERROR for purposes of a new trial motion or appeal can
be based on erroneous admission of information as evidence
 To preserve error—counsel opposing admission must make a verbal objection disclosing specific basis
for objection
 RULE 104
 Outlines method for preliminary hearings whether conducted before trial as motions in limine or during
trial after objection has been made
 Called: Rule 104 Hearing
o Need not be anything formal
 Trial judge will decide all questions of admissibility of evidence
o Judge uses all available info including inadmissible information in order to determine whether
preliminary facts which establish all the conditions precedent to admission of the information have
been produced by the party offering the information
 104(b) Relevancy CONDITIONED ON FACT
o When the relevancy of evidence depends on the fulfillment of a condition of fact, court shall admit
it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of
the condition
 Evidence is received before its foundation has been put in
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Evidence comes in based on a condition subsequent
 It will be struck if the later condition is not met
104(c) Hearing of Jury
o Hearings on confessions: conducted outside hearing of jury
o Hearings on other preliminary matters: conducted outside hearing of jury only when
 Interests of justice require OR
 Accused is a witness and so requests
104(d): Cannot cross-examine the accused on other issues in the case
104(e): Can use this evidence to impeach the credibility of the witness
 RULE 403
 Relevant information may still be excluded IF the judge finds that its probative value is greatly exceeded by
prejudice to the opponent, confusion of issues, etc.
o This rule excludes only evidence that unfairly prejudices an opponent or wastes courts’ time
 PREJUDICE: an irrational dislike of a person or party to litigation
 A rationally based dislike is not prejudicial—if evidence induces the trier of fact
to dislike a party based on rational considerations = NOT prejudice
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Common objections
o Unfairly prejudicial: information offered will tend to over persuade the jury, or will arouse
emotional hostilities which will keep the jury from finding facts rationally
o Cumulative/ Asked and Answered: information offered has been offered before and time will be
wasted
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Probative value vs. Prejudice
o Balancing act
o Fundamentally what every judge does with every piece of evidence that is challenged
o R 403—cover the gaps between the other rules—only reason for this rule
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Official appellate reason for reversing a decision to admit or exclude evidence = Abuse of discretion of
judge
o R 403 is the only rule that gives discretion to a judge whether to admit evidence
 The other rules are hard and fast

Knapp v. State
o Homicide in which D claims self-defense
o Yes it was RELEVANT to show that the little old man was killed by natural causes, not beating
from the Marshall
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Old Chief v. United States (Criminal side of Rule 403)
o Federal Firearms Act—if you have been convicted of a felony, you may not have possession of a
firearm
o Old Chief was charged w/ illegal possession of a firearm and assault
o Defendants want to avoid the jury finding out that Old Chief was previously convicted of assault
and stipulated that he was in fact convicted of a felony
o Plaintiff wants the felony crime to be known—the felony crime was an assault
o 9th Circuit upholds lower court decision to allow evidence of previous assault
o Supreme Ct reverses decision
 Forced to take the less prejudicial route which in this case would be to take the
stipulation
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o
SCOTUS holds that when the probative value on the whole is exceeded by the prejudice of the
evidence, when the D is willing to stipulate to the info, then the info is allowed taken at its
lesser prejudice
 Deprives lawyers of some degree of discretion
Note: Applies to only a narrow set of cases and facts similar to those in the fact pattern
Note: Not widely applied to other fact patterns and probably will not be

Ballou v. Henri Studios, Inc (Civil side of Rule 403)
o Trying to determine whether Ballou was intoxicated
o Defense wants to keep out evidence of blood alcohol of victim b/c of contributory negligence
o Must weigh the probative value against the prejudice value
o In order to exclude—must find a SUBSTANTIAL outweighing of evidence
o District court did not allow the evidence of intoxication at trial
o Why is there prejudice to P?
 B/c the evidence is a piece of paper—lab results—and cannot be cross-examined
 Document comes in as a piece of hearsay by unnamed technicians who the jury cannot see
and the other side cannot cross-examine—this is the prejudice to the P
 Anytime you counter a live witness with a hearsay piece of paper, you give the piece of
paper more value than it should have
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Problem 5
1. Death of first wife
 Apply Knapp v. State
 Some thought in Knapp that supports admitting the death of the first wife if it is
offered to prove motive
 This is RELEVANT to the case
2. Gambling debt
 Motive evidence that is RELEVANT
3. Brother serving time for murder
 NOT relevant to this case therefore exclude
4. Griffith seducing the teenager next door
 This evidence proves bad moral character
 Maybe can tie it into motive or impeaching him as a witness
 This is a stretch
5. Member of the NRA and militia unit
 NOT relevant to the crime b/c victim was stabbed
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Problem 7
1. Coroner Report
 Relevant
 Prejudicial value: look to Old Chief case
2. Photographs of victim
 Relevant—prosecution allowed to establish the visual of the scene and how she died
 Prejudicial value (use Old Chief case)
 Pictures will arouse hostility in jury, so what is the probative value? Is it enough?
o A plaintiff in a wrongful death case can prove the pain and suffering of the
victim and the family—these pictures would prove this
 Prof doesn’t think these are unfairly prejudicial
3. Photograph of victim and her daughter
 Relevant for the measure of damages b/c allowed to recover for the loss of the relationship
that no longer exists due to the wrongful death
 Prejudicial value: (use Ballou case)
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Plaintiff entitled to prove there was a loving relationship b/c plaintiff entitled to
show damages
Have to weigh the probative value to the prejudice
RELIABILITY
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Reliability
o Sources
 Competence: 601, 602, 603, 605, 606
 Expert/Lay opinion: 701, 704
 Expert Definition: 702
o Daubert Criteria
o Kumho Tire Application
 Basis in Fact for Expert Opinion: 703
 Expert Opinion: 705
 Opinion of Ultimate Issue: 704
 Demonstrative Evidence
 Authentication: 901
 Self-authentication (no need for sponsoring witnesses): 902
o Transmission
 Best evidence Rule: 1001, 1002, 1003, 1004
 Hearsay Exclusions: 801, 802
 Hearsay Exceptions—Declarant Available: 803
 Hearsay Exceptions—Declarant Unavailable: 804
 Catch-all: 807
COMPETENCE OF A WITNESS

Competence is NOT an issue in 99 out of 100 cases

Common Law Elements to be a competent witness
1. Ability to sense the events that witness will testify to –R602
 Need first-hand knowledge—present sense knowledge
 If you can’t sense it, you don’t know it
2. Ability to recall the events
3. Appreciation of legal duty to tell the truth
 Required to testify truthfully and take oath—R603
4. Ability to communicate what they have seen or observed
 Ex. Stroke victim might not be able to communicate
o

Rules don’t talk about these elements
 Federal Rules of Evidence are not the complete set of rules one should know
 There is more found in case law and common law
RULE 601
 General Rule: Every one is competent to be a witness except as otherwise provided in these rules
 Establishes a presumption that all witnesses are competent to testify
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RULE 602
 First hand knowledge is everything UNLESS the witness is an expert who is thus excused from this
qualification
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RULE 603 Oath or Affirmation
 Rule Requires witness to indicate that they Appreciate and understand duty to tell truth
Special Competency Problems
1.
2.
3.
4.
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Children and Insane Persons
The Dead Man Rule
Incompetency of Judges
Juror Incompetency

Children/ Insane Persons
o At common law—children and insane persons were barred from testifying b/c could not
understand the meaning of the oath
o MODERN: Any witness who has minimal ability to relate what the witness saw and observed
AND understands meaning of telling truth—may testify

Dead Man Rule
o Not found in federal rules of evidence
o When one party to civil action is dead, any opposing party who is still alive at time of trial is
incompetent to testify against the interest of the dead party
o Every jurisdiction has there own dead man rule
 Some jurisdictions apply this rule to claims against the estate for torts while others only
apply it to claims for contractual issues
o Testimony given could have been contradicted by the dead person had he been able to give his
testimony
RULE 605
o Judge competence
 Judge cannot testify in a case over which he presides
 Why? The juror and judge competency rules are ones of policy
 No objection is needed to preserve this rule
RULE 606
o Juror’s Competence
 A juror cannot be a fact witness or an expert witness in a case in which the juror is sitting
 There are different positions on whether a juror can impeach the verdict by giving
testimony at a post trial hearing about jury irregularity or misconduct
 All jurisdictions agree that outsiders—such as bailiffs and attendants—can give
evidence of internal jury misconducts
o

606(b) permits jurors to testify as to any EXTERNAL influence on a jury verdict, but
preclude evidence on INTERNAL misconduct
 Jury Misconduct known only to members of jury is not admissible as evidence
 Ex. External Bribery
Problem 8: Use Hill v. Skinner
o Roseann Martino has schizophrenia
o Her testimony that she saw Griffith beat and stab his wife would be good for Plaintiff
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o
o
o
o

Roseann Martino should have a preliminary hearing outside the knowledge of the jury to determine
competency
 Who should do the questioning of the witness? The judge or the lawyers?
 Probably questioning ‘in camera’ = in the judge’s chambers by the judge
What questions should be asked?
 Basic questions of her name and address
 Ask about her medications—what she takes, how often, did she take them on that day, did
she take them today
Can she know and appreciate the truth?
 Conscious lying is not going to be a problem w/ this witness
 Problem is going to lie in her medication
Once Roseann takes the stand, the opposition could cross-examine her and provide the jury with
the fact that she has schizophrenia
Hypnotic refreshment of witness
o Rock v. Arkansas
 AR had a per se rule against allowing any hypnosis testimony of any information that the
witness could not refer to before the hypnosis
o
State v. Moore
 Hypnosis is Unreliable
 The victim underwent hypnosis to ID the perpetrator
 Ct kept evidence out even though they did everything by the rules
 NJ adopts a rule to keep all hypnosis out of court unless constitutional required to allow it
 Not all states have followed this
 Finds that Rock v. Arkansas case ruling only applies to defendant
 Ct concluded that witness could not testify on hypnotic refreshment b/c of reliability


Witness was a prosecution witness—victim of the rape
 What if it was a defense witness subject to 6th rights that defendant can bring a
defense?
o Some states would allow the testimony subject to cross-examine of
hypnosis
o Some states would allow Rock to apply to only the defendant him/herself
Problem 9
o John Wherry hypnotizes Matthew (Griffith’s son) who recalls seeing a man in a dark hooded sweat
suit on top of his mom
o Arguments against Matthew testifying
 See State v. Moore and Rock v. Arkansas
 Matthew is not a defendant, he is just a witness and thus under Moore he would
not be allowed to testify
o Argument for testimony
 6th amendment—Right to make a defense
o Weigh the defense’s 6th right to bring defense against the reliability of the hypnosis testimony
DIRECT EXAMINATION OF WITNESS
 Do’s and Don’ts about direct examination
 DO NOT ask a question that assumes a fact not in evidence—comes from common law
o Ex. Asking: have you stopped beating your wife yet?—assumes that person is beating wife
 DO NOT ask the same question several times in a row
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DO NOT argue with a witness
DO NOT refer to an out-of-court statement
o Out-of-court statements from witnesses are hearsay and are not admissible as evidence,
therefore do not refer to them when questioning the witness
DO NOT ask a leading question—R 611
o Suggesting or implying an answer
o Putting words in witnesses’ mouth is leading
o Exceptions:
 When it appears that witness is an opposing party
 Witness is evasive and uncooperative OR
 Witness is forgetful and unable to recall events
 Refreshing memory of witness through notes/memos or
pleadings/deposition
o These materials never become evidence rather the oral relation
of the witness is the evidence = PRESENT RECOLLECTION
REVIVED
DO ask open-ended questions
Lead player in direct: WITNESS
Can have “roll-up” questions where you repeat what you were told and then ask a follow-up question
RULE 611
 Controls the way in which witnesses may be examined on direct and cross examination
 Grants the judge power to control the order and form of all questions put to witnesses in court

611(b) Cross examination should be limited to:
1. The subject matter of the direct examination AND
2. Matters affecting the credibility of the witness

611(c) Leading questions should not be used on the direct examination of a witness EXCEPT as may be
necessary to develop the witness’s testimony OR if an adversarial witness is called
o Times it would be necessary to lead—If witness is:
 Mentally retarded
 Childish
 Juvenile
 Emotionally disturbed and unable to continue
 No longer remembers something
 Set up foundation for admissions of exhibits and conversations
RULE 614
 Court may call a witness on its own motion
 All parties are allowed to cross-examine these witnesses
 The court may interrogate any witness (either brought by counsel or judge)
 Objecting to the court calling a witness OR the interrogation by the court may be made
o At the time OR
o At the next available opportunity when the jury is not present
RULE 612
 Can use writings to refresh witnesses memory
 Refresh recollection
o If use writing, opposing council must have opportunity to review that writing before hand
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 The judge can impose sanctions for failure to comply such as dismissal of the case
Opposing counsel may use the material to cross-examine the witness and/or make exhibits
This rule only applies to writings, BUT there are other ways to refresh memories such as showing an object
or to lead the witness down that path
Hogan case
o May not call a witness that is going to recant the testimony
CREDIBILITY: CROSS-EXAMINATION, IMPEACH ON COMPETENCE, BAD CHARACTER
 Lead player in cross: LAWYER, not witness
o Lawyer wants to give a speech thru questions—take center stage

2 Reasons to cross the witness
1. Gain admissions favorable to your case
 Ex. if witness leaves something out on direct
2. Impeach the witness’s credibility
Rule 611
o
o
(b) Scope of cross should be limited to:
1. The subject matter of direct AND
2. Matters affecting the credibility
(c) Leading questions are permitted



Jury must evaluate the credibility of every witness who testifies before it
The credibility of every witness is always at issue in every case
The proponent may rehabilitate the witness’ credibility by proving that the witness was telling the truth
the first time

Who may impeach?
o Opponent: Usually the opponent impeaches the credibility of the proponent’s witness
o Proponent: At common law the proponent could NOT impeach its own witness on direct
 Exception (found in US v. Miles):
 If proponent is truly surprised by the witness’ testimony
 If proponent’s witness proved suddenly to be hostile and uncooperative

Rule 607
 The credibility of a witness may be attacked by any party, including the one calling the witness
 This rule seems to include the common law exceptions above
 The right to cross examine ANY witness by leading questions is limited to witnesses ACTUALLY
HOSTILE to one’s case

RULE 610
 Evidence on the beliefs or opinions of a witness relating to religion is NOT admissible for purposes of
showing that the witness’s religious beliefs impair or enhance credibility

9 WAYS TO IMPEACH A WITNESS—reason is to show reasons on why not to believe witness
o Ways from Common law of competence
1. Witness Could not observe Events --need sense knowledge to testify
 If witness could not observe or had limited observation
2. Witness Cannot remember Events
13
 Demonstrate that recollection is inadequate
3. Witness Does NOT Acknowledge obligation to tell the truth from the stand--Rule 603
4. Witness Cannot Relate the Events now
 Demonstrate that witness cannot communicate what they observed
o
Ways derived from former incompetency
5. Bias, prejudice, interested and corruption
 Bias in favor, prejudice against, interested in outcome financially and corruption
6. Prior Felony Conviction
 Fair to show that a witness has been convicted of a felony
 This witness would not have been competent as a witness in the 1800’s
o
Ways based on Bad character
6. Prior Felony Conviction
 Establish bad character: those w/ bad character may lie more often than not

Rule 609
7. Prior Bad Acts Affecting Credibility
 Collateral Fact (?)
8. Reputation or Opinion of Veracity
 Rarely used
 Only in jurisdiction that adopt Uniform Federal Rules
o
Way Based on self-contradiction
9. Prior inconsistent statement
 State v. Oswalt
o
When you offer evidence to impeach witness (show they are lying) then federal rules allow this
evidence to come in
If the information is relevant to anything as well as impeaching the witness, then the collateral fact
rule does not apply
o
Impeachment derived from test for COMPETENCY
1. Ability to sense the events that witness will testify to

RULE 602
 A witness must have personal knowledge of a matter in order to testify to a matter
 A witness who did not see or hear one or two critical parts of an incident may be
competent as to the rest of the facts
o However the lack of first hand sense info about one or two critical
facts may reflect adversely on witness’s credibility

Rule taken in conjunction w/ 601(a) which establishes presumption of capacity
o Burden of showing lack of capacity falls on the party opposing the
witness’ testimony
 Proponent must then show that witness had sufficient first hand
knowledge
2. Ability to recall the events
 Witness who recalls some but not all of the events witnessed is less believable
 These defects of recollection cast doubt on witness’ credibility
3. Appreciation of legal duty to tell the truth
14

Any deviation from expected response to the solemnity of the trial should reflect adversely
on credibility

Rule 603
 Abolishes the requirement that a witness take oath or be held incompetent
 Permits affirmation in the style of other similar pledges to tell the truth in lieu of an
oath

United States v. Abel
 SCOTUS permitted a witness to be impeached by showing that the witness was a
member of the Aryan Brotherhood, an organization of prisoners that took a blood
oath to lie on the witness stand to protect another brother
4. Ability to communicate what they have seen or observed
 Communication difficulties such as improper use of language to convey meaning may be
less believable
 Those unable to speak due to illness or congenital defects may be competent if they can
sign but it affects credibility
 If don’t speak English—may be competent with aid of interpreter but it affects credibility
Impeachment based on the witness CHARACTER
5. Proof of the witness’ bad reputation for truthfulness
 A witness whose reputation for honesty and truthfulness is poor is a witness who should
not be believed
 Common law (seldom used): permitted credibility of one witness to be attacked by a
second witness that first witness has a bad rep
 This can be countered by witnesses that rep for truthfulness is good
o Reputation limited to that existing in the community in which witness
lived at time of trial
 Rule 404/405—permit a party to call a collateral character witness

Collateral rule
o Collateral means that it does NOT go to prove any other element of the case
o If it is collateral—does not go to any other part of case—then must take the witnesses statement as
is-cannot use any outside source to contradict
o If it is not collateral—does go to any other part of case (such as motive), then can use outside
sources (such as documents or testimony) to contradict witness

State v. Oswalt
o Collateral Fact Rule:
 Applies to impeaching a hearsay declaration (reference case)
 Purpose of rule:
 avoidance of undue confusion of issues AND
 prevention of unfair advantage over a witness unprepared to answer concerning
matters unrelated or remote to the issues at hand
 judicial economy (prof reason)
 you can raise a collateral fact in cross, but if you do you have to rely on the answer of the
witness b/c you cannot bring another to contradict it
6. Prior dishonest acts of the witness not amounting a criminal conviction
15

Any witness can be cross examined on specific instances of conduct that show the witness
should not believed
o However, Rule 608(b) prevents the cross-examiner from proving these
same instances of dishonest conduct from another source
 Ex. document or another witness

Rule 608
o Evidence of character and conduct of witness
o Credibility of witness may be attacked or supported by evidence in the
form of opinion or reputation subject to these limitations:
 Evidence may refer only to character for truthfulness or
untruthfulness AND
 Evidence of truthful character is admissible ONLY AFTER the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise
o Specific instances of conduct of witness for these purposes may NOT be
proved by extrinsic evidence
 United States v. Copelin
 Copelin’s argument: Evidence improperly admitted b/c fact was collateral (does not go to
prove any other element of the case)
 Ct held that this is not collateral b/c it goes to the knowing intent of the crime, the
substance of the crime, therefore you can bring in another witness to impeach
 Rule 608b impeachment
Bad Character
 United States v. Drake
 Issue: did the court err in permitting Drake to be cross-examined about his false academic
credentials? No
 Cross established that he was a liar
 R 608(b)—may ask witness about bad things reflecting on his credentials
o Just need a bad act, don’t need a crime (ex. cheating on test and gets caught)
 Academic credential line of questioning was only relevant to his qualification as a
witness—it is a collateral issue
 United States v. Saada
 Issue 1:
o Did the court below err in ruling to grant a new trial for newly discovered
evidence that Rishty, the gov’t s witness, had committed a post trial crime
affecting his credibility? No
 Issue 2:
o Was it error to allow the gov’t to admit prior misconduct of former judge
Yacarino? Yes b/c judge Y is dead therefore it is hearsay
 Issue 3:
o Was it error to allow the gov’t to admit evidence of Isaac’s participation in another
fraudulent insurance scheme w/ Rishty?
 Ct held harmless era? Harmless era rule says that it was wrong, but by looking at evidence
on the whole, it is not overwhelmingly influential
o Reason for harmless era: judicial efficiency
7. Evidence of Prior Convictions
 Common Law: Convicted felon was incompetent in all civil and criminal cases
16



o Witness should not be believed for the same reason today
One side: Many people find it extremely prejudicial to the defendant and not very
probative in value—one side
Other side: Jury ought to know the defendant is a crook
How to impeach by proof of prior conviction
o Opponent may ask witness on cross if he has ever been convicted of a crime
 In most states, cross examiner can ask the witness to identify the type of
crime, date, place of conviction and sentence given
o By introduction of a certified copy of record of conviction after cross has been
completed
Practical Tip: If defendant has one or more felony convictions, do not want to put the defendant on
the stand
Rule 609

o
Permits impeachment of any witness by proof of prior conviction of a felony
Rule divided into 2 categories
1. Someone other than the accused in a criminal case
 If the witness committed a crime punishable by death or imprisonment longer than
one year, then the conviction may be admitted if prejudice on the whole does not
outweigh the probative value
2. The accused in a criminal case
 Permits any party to impeach D by proof of a prior conviction for a crime that:
o Carries a statutory punishment of confinement in excess of one year not
involving dishonesty or false statements OR
o A crime involving dishonesty or false statements
 Test: court has to find the probative value exceeds prejudicial effect of the
evidence toward the accused—more stringent test
o
Rule 609(a)(1)
 Not accused = R 403 balancing—presumption is that evidence will be admitted as long as
not substantially prejudicial
 Accused = more probative than prejudicial—most show that the probative value outweighs
the prejudicial
o
R 609(a)(2)—if the crime is a crimen falsi, (act of dishonesty or false statement) then no 403 and
no balancing
 Rather it is automatically admitted against witness (other than criminal D)
 THIS POLICY RULE TRUMPS THE “D” PART OF THE EVIDENCE EQUATION
o
R 609(b)—may not admit evidence of a prior conviction if the conviction was over 10 years ago
 The later between: Date of conviction or of the release of the witness from the confinement
imposed
 Exception: the trial judge decides that in the interest of justice, the probative value of the
conviction outweighs the prejudice
 Proponent of old conviction MUST give advance written notice to opponent
before introducing the evidence
o
R 609(c)—may not admit evidence of a prior conviction if
17
1. The conviction was the subject of a pardon or other equivalent procedure or successful
completion of rehabilitation program AND There is proof of rehabilitation and no
subsequent criminal convictions OR
2. The pardon was based on finding of innocence
o
R 609(d)—Evidence of juvenile adjudications is NOT admissible UNLESS
1. The evidence of conviction against witness other than the accused would be admissible
to attack the credibility of an adult AND
2. The court is satisfied that the evidence is needed to fairly determine innocence or guilt
issue


o
Bars use of JA to impeach criminal D under any circumstances
Permits use of JA to impeach parties in civil cases and non-party witnesses in civil and
criminal cases IF
 The judge finds out that the JA would have been an impeachable adult offense
AND evidence of prior adjudication is necessary for a fair trial
R 609(e) Evidence of the pendency of an appeal is allowed
 United States v. Sanders (4th Cir. 1992)
o Facts: Sanders and Alston, both inmates at Lorton were indicted for assault w/ intent to commit
murder and possession of a knife or shank. The indictment charged Sanders and Alston w/
assaulting fellow inmate Jenkins w/ a shank
o Sanders had a criminal conviction of a previous shanking of an inmate
o R 609(a)(1) against defendant so must decide whether it is more probative than prejudicial
o Sanders claimed self-defense
 Took the stand
o Sanders asked on cross whether he had a prior conviction of shanking an inmate
o The similarity of the old crime to the new crime and closer in time the more prejudicial to the
accused
 The credibility of the probative value to impeach witness is not very high
 United States v. Wong (3rd Cir. 1983)
o Charged w/ mail fraud
o Procedural posture: appeal from conviction for 2 RICO counts and 17 counts of mail fraud
o D convicted of two prior counts of mail fraud and prosecution wants to bring this up at trial
o R 609(a)(2)—policy rule that trumps the “D” part of Reed’s evidence equation
 Don’t use the balancing test of prejudice and probative value
o Issue: Could Mr. Wong be impeached on a crime so similar to the one in which he committed?
 YES—b/c it was a crime of deceit and there is no balancing of probative vs
prejudicial balance
 United States v. Brackeen (9th Cir. 1992)
o Bank robbery is not a crime of dishonesty therefore don’t use 609(a)(2)
 Luce v. United States (SCOTUS 1984)
o Defendant must take the stand in order to appeal the judgment of the lower court to allow
prosecution to bring up prior convictions against him in order to preserve the error
 He needed to take the stand and have the prosecution impeach him
o He didn’t preserve the error by taking the stand to be impeached
o Cannot rely on motion in limine ruling
18
Impeachment based on INCONSISTENCY
8. Impeachment for prior inconsistent statements
o A witness who tells two different versions of the same events is not to be believed
o Common law: prior inconsistent was admissible only to prove lack of credibility by demonstrating
inconsistency
o There is no federal rule directing the court’s management of impeachment by prior inconsistent
statement
o
RULE 613
 A witness may be crossed concerning a prior statement made whether written or not
 Statement need not be shown or contents disclosed to witness at that time UNLESS
 It is requested
 Not necessary to show statement to the witness before you impeach them on the statement
giving them time to make an excuse for the inconsistency
o
613(b): Requires that the witness be given an opportunity on re-direct to explain a prior
inconsistent statement
o
If a prior out-of-court statement is to be proved by a document or third party witness—the crossing
attorney must either
 Call the witness’ attention to the statement by asking if witness made statement OR
 Otherwise let the witness know about the statement’s existence
 Coles v. Harsch (Sup. Ct Oregon 1929)
 Need to lay a foundation to impeach a witness on prior inconsistent statements including
times, places and persons present and ask if witness made such statements

Impeachment based on Inconsistency
o prior inconsistent statements 613a/b, 801d1A, 801d1B
 neither stmt has to be a lie, they just have to be inconsistent; 2 versions of the same events
 2 ways: oral stmts and written stmts
 613a: allows cross of witness about prior written or oral stmt w/o having to see it
 613b: requires that on re-direct the witness has a chance to explain the
inconsistencies
 Written
 801d1A: allows prior sworn inconsistent stmts to be admitted to prove the truth of
the out-of-court inconsistent stmt
 801d1B (out of the def of hearsay): rebutting a charge of falsification
 out of court stmts that rebut a charge of falsification are only admissible if the
stmts are made before the charge, not after
 the event of falsification occurs as long as the witness has a motive to falsify:
totality of the circumstances
o Tome: molestation case of 4 yr old daughter, parents going through
divorce: motivation to lie to stay w/mom: a prior consistent stmt is
inadmissible to rehabilitate a witness who has been impeached if stmts
were not made at a time when the witness had no motive to falsify.
 Collateral fact rule applies
 Tome v. United States—SCOTUS 1995
o Witness is a child—alleging that her father sexually abused her
o 5 witnesses’ statements were made AFTER the motive was established
19

These 5 were prior consistent statements but were flawed b/c they were all made
after mother and father started a custody battle and child could have motive to lie
 Court going back to the common law idea that a prior consistent
statement must be made at a time when the person doesn’t have a
motive to lie
o There is nothing in the federal rules stating this
Impeachment derived from former law on DISQUALIFICATION OF A WITNESS
9. Impeachment for bias, prejudice, interest or corruption
 NOT IN THE FEDERAL RULES. Why?
o Congress intended to do away with this type of impeachment OR
o Congress did not intend to do away with this type of impeachment, but rather the
judicial branch determine on a case by case basis using the common law
 United States v. Abel—SCOTUS 1984
o Ehle accuses Mills (defense witness) and Abel of being members of the Aryan
Brotherhood and this membership requires members to lie for one another
o Congress did not expressly negate impeaching on bias and prejudice, therefore it is implied
Prof thinks that the most effective between prior inconsistent statement and bias is prior inconsistent
statement b/c makes you question whether the witness can tell the story straight
REHABILITATION of a witness
 Impeached witness can be rehabilitated in several ways
o Lack of competence:
 On re-direct counsel may show the witness did see, hear, remember, and accurately relate
under oath the events testified to
o Proof of bad moral character:
 Extrinsic reputational witnesses can be called who will testify that the first witness had a
good reputation for truthfulness
o Felony conviction/proof of prior bad act:
 Either anticipatory impeaching of one’s own witness by bringing the bad acts to light in the
original direct OR
 Offering the witness a chance to repeat the story and affirm that the fact of felony
conviction or prior bad acts did not influence the witness’ truthfulness
o Prior inconsistent statement: (this is difficult)
 Produce an earlier statement by the witness consistent w/ witness’ testimony from the
stand.
 This earlier statement is admissible to rebut a claim of recent fabrication express or
implied
Prior Consistent Statements
o Rule 801(d)(1)(B)
 Permits a prior consistent statement of a witness to be admitted as a non-hearsay assertion
made out of court
20
EXPERT/LAY OPINION
OPINION RULE
 Opinion is a judgment of probability
 Opinion is interpreting the facts for the jury—should the expert be allowed to interpret the facts or should
the jury
 Expert = Interpreter who reviews info from sources other than observations made by expert and tells you
what it means
 Expert does not need to know any facts of the case, whereas lay person must have observed
 Cannot be both an expert and lay witness
 Tradition was to let only experts give opinions and not lay persons.
o However, adoption of Rule 701 allow observing lay witnesses to give opinions

RULE 701--LAY WITNESS
o Permit LAY persons to give opinion evidence when the opinion is:
1. Based on first hand knowledge (See R602)
2. Is helpful to the trier of fact AND
3. Is not based on scientific, technical or other specialized knowledge

RULE 702—EXPERT WITNESS
o Has Scientific, technical or other specialized knowledge
o Testimony will assist the trier of fact to understand the evidence or determine a fact in issue
o Need to be qualified as an expert by:
 Knowledge
 Skill
 Experience
 Training OR
 Education
o Can give an opinion IF
1. Testimony is based upon sufficient facts or data,
2. Testimony is the product of reliable principles and methods AND
3. Witness has applied the principles and methods reliably to the facts of the case

RULE 704—OPINION ON ULTIMATE ISSUE
o Opinion or inference otherwise admissible is not objectionable b/c it embraces an ultimate issue to
be decided by the trier of fact
o No expert that is testifying on the mental state or condition of a defendant in a criminal case may
state an opinion or inference as to whether D had or did not have the mental state or condition
 This ultimate issue is for the trier of fact alone
 This is only true in federal court—no state has adopted 704(b)
 This is used where criminal D has set up a defense of insanity
 Expert can give NO direct evidence on D’s sanity
 Instead expert may answer hypothetical’s about a hypothetical person’s mental
state under the same facts
Lay Witness
 Traditional doctrine: Lay person can only give facts, NOT opinions w/ exceptions of intoxication and
insanity
 Rule 701 substantially broadened the old common law doctrine
21

Knight case
o The opinion of the bystander witness should have been received
o It was error not to receive the lay opinion
 But ct held that it was harmless error

State v Odom
o Odd witness that is in between a lay witness and an expert (See Imwrinkelreid)
o Ct assigned this officer as an expert witness
 Qualified by reason of street experience and to interpret evidence of a drug bust
o Some cts may have trouble with this holding
o Officer might fail the Daubert test
Imwrinklred: Skilled lay observer: the in between of lay and expert witness
Experts
 Many cases are assumed to be determined by the believability of the expert testimony
o Experts are important to a case b/c they carry a great deal of believability

Expert opinion testimony consists of two elements
1. Qualification of the expert as an expert AND
2. An opinion on a relevant issue based on factual information disclosed to the expert before giving
the opinion

Foundation for testimony requires sufficient information so that a judge can determine that expert has
proper qualifications to interpret info
o Determined under Rule 104

Reference Rule 201

Frye v. United States—1923
o D charged w/ murder. Determining the admissibility of evidence gathered by a primitive lie
detector (systolic blood pressure deception test)
o Scientific rules must be generally accepted by the scientific community
 If not generally accepted, then expert cannot testify
o NY and PA still use the Frye rule—the majority of the states use the Frye Rule
o
RELIABILITY RULE: expert could not give opinion testimony which was not deduced from
a well-recognized scientific principle or discovery which had gained general acceptance in the
particular field of knowledge to which it related
Frye rule does not apply to technical experts, only scientific experts

Daubert v. Merrell Dow Pharmaceuticals, Inc—1993 SCOTUS (overruled Frye)
o Co-plaintiffs parents are suing Merrell Dow for the birth defects of the co-plaintiffs from drug
Mom took during pregnancy
o Summary judgment motion so there are No triable issues of fact
o Decided in lower courts under the Frye general acceptability test
 Expert testimony for P was not a generally accepted method therefore lower courts granted
summary judgment for Merrell Dow
 D’s experts were epidemiologists—statisticians
 P’s experts did lab tests on mice and in test tubes
22
o
SCOTUS used Rule 702-qualification of an expert—as a baseline
 Expert can testify if:
1. They had specialized knowledge AND
2. This knowledge would help the trier of fact
o
In order to be the basis for expert opinion, an underlying scientific process must be:
1. Relevant to the issue at trial
2. Assist the trier of fact in understanding the evidence
3. Survive a preliminary assessment of whether the reasoning or methodology at issue is
scientifically valid, AND
4. Be applicable to the facts of the case
o
Ct also requires that proponent show—thru proper foundation—that expert has a special
knowledge, training or experience beyond the ken of ordinary mortals
o
Ct lays out a list of factors to use when determining whether scientific evidence should be allowed:
DAUBERT FACTORS
1. Replication—Use of Scientific Method
2. General acceptance
3. Publications w/ peer reviews
4. Error rates
 Not an exclusive or determinative list
 Even though ct did not intend for ironclad 4 prong test, MBE tests it this
way
Daubert test used at the federal level and in those states that choose to apply it (DE)

Kumho tire Company, Ltd. v. Carmichael—1999
o Holding: Daubert test is to be applied to ALL types of experts: technical, scientific, etc
 Same requirements needed as needed for scientific knowledge
o Expert in this case is an engineer—technical

Daubert and Kumaho Tire
o Experts are people with specialized knowledge that would be helpful to the trier of fact
 Helpfulness depends on the experience of the expert for the specific case facts
o It is difficult to apply the Daubert factors to other areas of expertise b/c some areas have no
scientific basis (such as antique appraiser)

Ellis v. State—1982
o The cowboy expert would likely fail the Daubert test
 But here in the state, the expert was allowed
 Note: Case decided before Daubert
o General acceptance rule is for RELEVANT COMMUNITY

If do NOT object to expert, then waive Daubert analysis

Problem:
o The bloodstain expert would probably survive the Daubert analysis (only talks about the science),
but the interpretation/analysis of the expert is subjective

United States v. Saelee—2001 (US Dist Ct for Alaska)
o Challenging a handwriting expert (forensic document analyst)
o Handwriting experts have been used and accepted for 125 years
23

Yet ct still holds that this expert does NOT pass the Daubert test
Note: A similar case came up in DE (a state that uses Daubert) and ct held that FDA’s have been
used for years and that the court was not going to stop using them now

United States v. Scheffer—SCOTUS 1998
o Facts: Scheffer was court marshaled for possession of meth. Scheffer worked in the office of
special investigation as an informant on drug investigations. He popped on a drug test and took a
polygraph test stating that he did not know he had ingested meth. Scheffer wanted to admit the
polygraph against Rule 707 of the Military Rules of Evidence which prohibit any polygraph
evidence from being admitted
o Issue: Whether excluding the polygraph evidence violates D’s 6th Amendment right to present a
defense in a criminal proceeding? NO
 Polygraph is scientific evidence of CHARACTER (Frye case all over again)
 Does D have the right to provide evidence to bolster his character?
 What is the difference between the line of sited cases that held for the 6th right to present a
defense and this case? Only the time and the military

After Rule 704 an expert can give an opinion on an ultimate issue and it is not considered error
Opinion on Ultimate Issue
 Rule 703—Bases of Expert Testimony
o Factual basis for an expert opinion can come from 3 sources
 Direct observation by the witness
 Material presented at trial by other witnesses incorporated into a hypothetical question put
to the expert
 Information gathered by the expert outside of court from sources relied upon by experts in
that field
 This is usually inadmissible hearsay however not in this situation
 Rule Excludes unreliable hearsay reports and other data gathered by expert
outside court as substantive evidence UNLESS
o Probative value substantially outweighs the prejudicial effect
o (Last sentence) Precludes the direct of an expert on the hearsay basis for an opinion except in
unusual circumstances

United States v. Brown (11th Circuit) 1999
o Cocaine found inside the metal frame of her luggage. Brown charged w/ possession of controlled
substance w/ intent to sell
o EXPERT was a DEA agent and qualified as an expert
o Bases in Fact
 Got information from agents in Bermuda
 This info is made out of court and not admissible in court b/c it is hearsay
o Rule 703 allows experts to rely on data which itself would not have been admissible, IF this data is
“of a type reasonably relied upon by experts in the particular field in forming opinions.”

United States v. Tran Trong Cuong (4th Circuit) 1994
o Problem with:
 703 reasonably relied
 403 prejudice v. probative value
 If allow the testimony about Dr. Stevenson’s report then it is prejudicial to D b/c
do not know what is in that report and cannot cross Dr. Stevenson
24

Rule 705—Disclosure of Facts
o
o
o

Permits expert to give opinion and explanation of that opinion w/out first disclosing the basis for
the opinion under R703
Leaves the disclosure of basis to be brought out on cross, UNLESS trial judge orders otherwise
On re-direct, R106 RULE OF COMPLETENESS, may give direct examiner opportunity to
introduce hearsay basis information given to the expert outside the court room
Rule 706—Court Appointed Experts
o
o
o
Expert shall not be appointed by court unless witness consents to act
Purpose: provides a procedure whereby parties can save money and time and obtain a single courtappointed objective expert to interpret info for the jury
Requires a conference between judge and all parties before court can appoint
DEMONSTRATIVE EVIDENCE



Evidence from which the trier of fact can derive a relevant firsthand sense impression
Evidence can either be oral testimony or demonstrative
7 types
1. Documents
 Includes any way in which info may be retained in permanent form
 Problems: made out of court, cannot be cross-examined and they are not sworn to
 Ex. Traditional paper documents, photographs of all types, Xerox copies,
electronic audio/video tape records, computer floppy disks
2. Real evidence
 Any physical object associated w/ events pertinent to the case
 Ex. The murder weapon
3. Photographs and Imagery Evidence
 Include actual images of events at issue at trial (which resemble real evidence) and images
taken and used for illustrative purposes, not depicting the actual images
 Dual role
o Contain hearsay and
o Tell story of their own
4. Maps, Chart, and Models
 Also images of events based on the testimony of witnesses and are generally thought to be
valuable only in so far as they assist witnesses in telling their stories to the finder of fact
5. Demonstrations and Experiments
 Demonstration: In-court OR out-of-court re-enactment of an event or injury made to help
the trier of fact with an aspect of the case
 Experiment—a scientific attempt to replicate a result
 Ex. replication of auto crash
 Very little in Federal Rules
6. Demeanor of Witness
 Jury always observes the demeanor of every witness which the judge advises the jury they
may consider in assessing the credibility of all witnesses
 Non-verbal signals being sent
 Problem: Not usually preserved for the record and cannot be reviewed by appellate judge
 Nothing in Federal Rules
7. Jury View
 Jury viewing the scene of the crime or accident
25


The majority of US jurisdictions do NOT consider jury views as demonstrative evidence
b/c most judges view it as too prejudicial
 Can’t go back to the exact incident time and see it the way it was at the time of the
crime
o Lighting could be different, season, etc.
Nothing in Federal Rules
FOUNDATIONS—RULE 104
 Demonstrative evidence cannot be used at trial unless the proponent lays a proper foundation
authenticating the demonstrative evidence by showing that the evidence is what it purports to be
 Foundations defined as the preliminary questions and answers to a live witness that show who, what, when,
why and how
o Series of answers from a live sponsoring witness
 Extremely formalistic
o Words used are ones judge expects to hear

Rules of Evidence contain NO specific rules governing the legal sufficiency of the foundation required for
all seven types of evidence
o Rule 901/902 only pertain to admitting photographic and documentary evidence

Foundation for real evidence—can be eye-witness who can state that exhibit is in same condition as when
found at crime scene
Fungible evidence (such as drugs seized during a raid)—there is NO witness w/ first hand knowledge so
instead testimony showing the original location and later handling of fungible real evidence is required =
Chain of custody


Amount of foundation needed depends on the evidence
o Ex. Admission of ordinary typed letter: need sponsoring witness that testifies he recognizes letter
and signature is genuine
o Ex. Murder weapon: Need testimony of several witness, police lab techs, medical examiner linking
death w/ weapon, chain of custody

Rule 104 Preliminary Questions—Laying a foundation
Demonstrations and Experiments
 Nothing in the federal rules so common law applies

Rule 401 (relevance) and 403 (probative v. prejudice) tangentially relate to demonstrations and
experiments requiring a showing of relevance and probative value to sustain admission
o Judge excludes demonstrations which he finds to be over-persuasive and not conducive to the
decorum of the courtroom

Common Law applies to admissibility
o Substantially Similarity Test: An experiment is irrelevant UNLESS it is substantially similar to
the actual event replicated
 May be met by something less than a one-to-one correspondence between all the factors of
the original event and the experiment
 Cannot mislead the jury
o A shocking or revolting demonstration of physical deformity resulting from traumatic injury is
admissible
 However: Cts exclude demonstrations which have no value other than “shock value”
26
Maps, Models and Charts
 NO federal rule on authentication of map, chart or model so use Common Law
 Only foundation you need is to demonstrate that the map or chart depicts the issue or event
o Easy foundation that can be made by anyone that has knowledge

Common Law: Sponsoring witness states that map will assist witness in giving evidence by showing;
1. Witness is familiar w/ physical facts of actual event
2. Map depicts some relevant physical fact about event
3. Map is an accurate representation of some portion of event or physical object at issue AND
4. Map will assist witness in giving testimony
Jury views and Demeanor
 No federal rules so use Common law
 In most cases jury views are not considered evidence
 Views and demeanor constitute demonstrative evidence
 2 purposes:
1. To orient trier of fact w/ respect to testimony AND
2. To present sense info to jury which cannot be obtained in court room

Common Law: Trial judge has inherent power to order jury to view the scene of relevant events
o Judge has nearly unlimited discretion to grant or deny a motion for a view
Photographs, motion pictures
 Serve a dual function
1. Pictures tell a story
2. Aid witness
 Can be used like a map or chart
 Designed for general orientation
 Can mark on them or do whatever you need to do
o

Two ways to get photos into evidence are:
1. Witness who has knowledge of objects in photograph can state that it is an accurate
depiction
2. Authenticate by process by having person describe process by which image was
generated and have them testify that it is an accurate depiction
 Same w/ animations used
Bannister v. Town of Noble—(we did not have to read)
o ‘Day-in-the-life’ images taken of car accident victim
 These give you HEARSAY b/c taken outside the courtroom and you want jury to accept
them as true
 It is asserted conduct that sends a secondary message that is considered hearsay
o R403 Objection that ‘day in life’ video was more prejudicial to the defendant than probative b/c
not taken w/ defendant around
o In this case the judges permitted the video evidence for what it was worth
Imagery Evidence
 Admissible IF the proponent establishes a foundation obtained through the oral testimony of witnesses
that the image is a true and correct representation of some relevant location or incident
 Includes photographs, motion pictures, videotapes, sound recordings and other types of chemical or
electronic imagery
27

Cts analogize evidence to real evidence, documentary evidence and maps, charts and models
o Real evidence: foundation should reflect fact that image was mad at our about same time as events
shown, it was fair/accurate representation of event, and has been preserved since created
o Map: Witness ID it as fair/accurate representation of events, then mark exhibit
o Document: sponsoring witness must ID when and where image was created and ID of voices

Rule 901: includes 3 foundations commonly used to authenticate imagery evidence
1. Identification by a person who has knowledge that image represents what it claims to represent
2. Authentication by process or system by which image was created AND
3. For image evidence containing human voice recordings—voice ID by a witness who can express
an opinion based on first hand knowledge that recorded voice belongs to purported speaker
Authentication
 Authenticity is a preliminary fact which the trial judge determines before the jury can receive the evidence
and evaluate it
 Two ways to authenticate:
1. Direct
 Testimony from maker of document or someone present when document was made
 Ex. Attesting witness to will
2. Circumstantial
 Testimony from someone other than maker or present witness from which judge and jury
can infer that document is what it purports to be
 Common methods include:
 ID by lay person of handwriting and signature on document
 ID by expert questioned documents examiner
 ID from special characteristics of document
 ID by evidence of process by which document was generated

Methods of Authentication
o Calling witnesses who answer questions establishing: who, what, when, where, why, how

Two aspects to authenticate
1. Show item of demonstrative evidence is what it purports to be AND—R901
2. Showing where item has been since it was made relevant to case—Common law

Rule 901
o When lawyer authenticates a piece of evidence, he is showing that the evidence is what it is
supposed to be
o (b) non-exclusive list of ways to authenticate
 (1) Testimony of witness w/ knowledge: testimony that a matter is what it is claimed to be
 Direct authentication
 (2) Non-expert opinion on Handwriting: Testify as to genuineness of handwriting, based on
familiarity
 Circumstantial authentication
 (3) Comparison by trier or expert witness: Having jury or expert compare authenticated
sample to one that has not
 Ex. Let jury decide if it is the same signature or handwriting, etc
 Circumstantial authentication
 (4) Distinctive Characteristics: Appearance, contents, substance, internal patterns or other
distinctive characteristics taken in conjunction w/ circumstances
28






 Circumstantial authentication
(5) Voice ID: Can be heard first hand or thru recording
 Must be someone who has previously heard the voices
 Sponsor can be a party to the conversation or a third party familiar w/ voices
 Degree of prior familiarity goes to weight and credibility rather than exclusion
 Circumstantial authentication
(6) Telephone Conversations
 Placing call to person, knowledge of person’s voice and self-ID of recipient of
call—authenticate outgoing call
 For a business call—show that it is a routine business transaction
 Circumstantial authentication
(7) Public Record or reports
 Public records kept by person required by law to keep such writings by statute or
rule—considered authentic w/out proving authorship
 Circumstantial authentication
(8) Ancient documents—self authentication
 3 conditions needed to satisfy:
o Must be beyond suspicion of alteration or tampering
o Must have been found in place where one would expect to find it
o Must be 20 years old on its face
 Ex. Comes up in will contentions
 Circumstantial authentication
(9) Process or System: process or system used to produce a result and showing that it is an
accurate result
 Circumstantial authentication
Rule 902 Self Authentication
o Self-authenticating—all admitted w/out the need of a sponsoring witness
 Considered per se authentic based on their source
 Ex. promissory notes, trademarks, passports (domestic public documents under seal),
magazines, newspapers, published government documents
o (1) Domestic public documents under seal
 Codifies common law presumption that gov’t docs under seal are authentic
o (2) Domestic Public documents NOT under seal
 Gov’t docs, not under seal, are considered authentic IF officer who has a seal says they are
authentic
o (3) Foreign Public Documents
 Doc issued in another country IF it is accompanied by a sealed certificate by a gov’t
official showing that author is in fact author of document
o (4) Certified copies of public records
 Since public records are considered self-authenticating, so are COPIES of records made by
legal custodian and certified by custodian
o (5) Official publications
 Books, pamphlets or other publications purporting to be issued by public authority
 Any gov’t printed material
o (6) Newspapers and Periodicals
o (7) Trade inscriptions and the like
 Trademarks need not be authenticated
o (8) Acknowledged documents
 Documents accompanied by a certificate of acknowledgment executed by a notary
o (9) Commercial paper and related documents
29
o
o
o
 Actions founded on commercial paper are part of the pleadings, not evidence
(10) Presumptions under statute
 Any signature, document or other matter declared by statute to be presumptively or prina
facie genuine or authentic
(11) Certified domestic records or regularly conducted activity
 Certified copies of ordinary business records IF certification itself or some collateral
method of proof establishes that business record was made originally
 By someone w/ knowledge of the data recorded
 Kept in ordinary course of business for non-litigation purpose AND
 Generated by a regular business practice
(12) Certified foreign records of regularly conducted activity
 Admitted on par w/ US business records
Best Evidence Rule



Requires proponent to produce original of document in court in order to prove contents of document
o If original was unavailable b/c it was
 Lost or destroyed through no fault of proponent OR
 In the possession and control of adversary party
 Proponent could still prove contents of document by any means
There are no degrees of secondary evidence
o Any evidence would be allowed to prove contents of doc w/out any preference for a written copy
over oral testimony of witness familiar w/ contents
Principle reason for rule:
o To ensure jury gets correct version of the contents
R1001 Definitions
 Writings: The definition of a writing and recording is broad enough to cover almost any form of data
storage known today
 Photographs: If contents of photo are to be proved, proponent MUST bring original to court
 If contents are not to be proven, then Best Evidence Rule does NOT apply
o When a videotape or motion picture’s contents are to be proven—trial judge must decide what
constitutes the best evidence of the contents
 Original: Defines original to include DUPLICATE original copies
o Photographs—any negative or print from negative
 Duplicate
o Classifies all forms of common paper copy processes as duplicates
R1002 Requirement of Original
 RULE: When you wish to prove the content of a document, you must produce the original or have a
very good reason for not doing so.
R1003 Admissibility of Duplicate
 A duplicate can be admitted in lieu of original UNLESS:
A. A genuine question is raised as to the authenticity of the original OR
B. In the circumstances it would be unfair to admit the duplicate


Proponent does NOT have to show loss, destruction or adversary possession of original
Microfilm, microfiche, Xerox or output qualifies as duplicate
30

Examples
o The notes typed on the computer, saved to hard drive, put on a disk, emailed, printed, etc.
 All of these are originals per R1001(3) that states “if data are stored in a computer, any
printout or other output readable by sight, shown to reflect the data accurately.
o Person writing notes.
 The actual notes are original
 Photocopy would be a duplicate per the definition of duplicate in R1001(4)
R1004: EXCEPTION TO BEST EVIDENCE RULE
 Degree of Secondary Evidence Rule (duplicates are preferred to other sources per R1003)
 Original is not required and ANY evidence of the contents of the writing, recording or photograph are
ADMISSIBLE to prove content IF:
1. Original Document lost or destroyed by no reason of your own
2. Original Document is beyond the reach of process by any available judicial process or procedure
3. Original Document in hands of opposition and they don’t want to turn it over
4. Collateral matter—if document you are using is to be used for a matter that is not closely related to
a controlling matter
R1005 Public records
 Can provide a copy either:
o Certified as correct in accordance with R902 or
o Testified to be correct by a witness who has compared it w/ the original
R1006 Summaries
 Can summarize the contents of voluminous writings, recordings, or photographs and present them in a
chart, summary or calculation.
 Originals or duplicates shall be made available for examination, copying or both
o This allows you to be able to summarize the contents of 1000’s of emails, etc.
R1007 Testimony or Written Admission of party
 Contents of writings or photos may be proven by:
o Testimony or deposition of party against whom offered OR
o By party’s written admission
R1008 Function of court and jury
 Court determines whether there has been fulfillment of a condition of fact if necessary (Use R104)
 When issue raised—Jury determines whether a writing existed, whether it is the original and the contents of
the original if proven by secondary evidence

Sirco v. Cotto (Civil Ct. City of New York—1971)
o Doctor testifies for Plaintiff about X-rays that were taken, but the x-rays were not made available
o Common Law Best Evidence rule: Produce the original or have a good excuse for not

Herzig v. Swift & Co. (2nd Cir 1945)
o Best evidence rule does NOT apply UNLESS proving the contents of a writing
 Here they are not trying to prove the contents of a writing, rather they are trying to prove
earnings that are recorded in a journal of record
 Using witness testimony is admissible evidence

Meyers v. United States (DC Ct of Appeals 1948)
31
o
o
o
o

Facts: Roger’s testimony was given regarding the testimony of Larmarre and what he heard the day
it was given. The transcript was then offered as evidence but it did not have the information that
Rogers was giving.
Issue: Was the transcript that the court reporter had the best evidence?
Holding: This evidence was not a document under the best evidence rule, rather it was the
testimony that the evidence was regarding (refer to case)
Prettyman dissent
 The best evidence would be the transcript, but prof says that the transcript would not be
direct evidence b/c it was created by someone else.
 Prof says the best evidence would be the statement of the people that were there
b/c this would be direct evidence
People v. Enscat (1971)
o Officers testified to the contents of the movie and took pictures of the obscenity
o Ct characterized the film as a writing and therefore the best evidence rule applies so the
original film should be produced
o Can use secondary proof if the best evidence cannot be produced for good reason
 Prosecution did not give a reason why the movie was not given
 Note: The snapshots of the movie screen would not be considered a duplicate at
this time, but definition of a duplication in R1001 would seem to say that it was
HEARSAY

RULE: Excludes out-of-court statements offered at trial to prove the truth of the out-of-court
statement.
 Hearsay is a concept peculiar to Anglo-American Law
 HEARSAY IS INADMISSIBLE except for the exceptions
 If not interested in proving the truth of the statement then not hearsay
 Do not know if a statement is hearsay unless know the relevance of it
o

Need to know:
 Relevance = prove truth of the matter asserted
 If the statement does not need to be taken as true to be relevant, then not hearsay
 Reliability = circumstantial guarantee of trustworthiness = something that replaces a crossexamination, observance of demeanor of witness, and oath
 Can’t have out-of-court statement unless can replace these three guarantees
 Without these three guarantees, you can not admit a statement b/c it would be
hearsay
o Game of telephone—reliability point
 When you are hearing something from someone else, you are
getting it through their mental filtration
 For Criminal Cases only: Constitution (6th amendment) gives criminal defendant right to
be confronted by accusers/witnesses—confrontation clause
 If do get hearsay in, then there is a policy issue of confrontation as well as the
relevance and reliability
First you need to know the relevance of the out-of-court statement
o The relevance of the out-of-court statement determines whether it is hearsay
o What is the purpose of its use?
 If for the purpose of the truth of the statement, then it is hearsay
32

 If want people to believe the truth of the statement, then it is hearsay
If what the person said was of no particular consequence, then it is NOT hearsay b/c it
provides a non-hearsay purpose

Second you need to prove that the statement was reliable
o Hearsay is presumed to be unreliable for three reasons
A. No oath
B. No demeanor
C. No cross-examination

Exceptions under 2 grounds
1. Necessity
2. CGT—circumstantial guarantee of trustworthiness
 Practical tip: most hearsay turns out to be admissible if you know the tricks; cannot conduct a trial w/out
hearsay
 Professor’s rule: Hearsay is admissible unless it is unreliable
 This topic for class purposes is to figure out how to get hearsay evidence to be admitted
 What is bad about hearsay?
o Our preference for getting evidence from live witnesses
Practical Tip: must ask for limiting jury instructions or won’t get them
Rule 801
 Definitions
o Statement: a statement is an oral or written assertion or nonverbal conduct of a person, if it is
intended by the person as an assertion (nod head, role eyes)
o Declarant: a person who makes a statement
o Hearsay: hearsay is a statement, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted
R 802
 Hearsay inadmissible unless there is an exception
R 803, 804
 Listed exceptions

Problem 55
o Can a question be an assertion?
 Yes—the fact that a statement is framed in an interrogatory sort of way does not take it out
of the realm of an assertion
o Go thru analysis steps:
 Relevance: yes relevant to motive for killing Griffith’s wife—inference he is talking about
himself killing his own wife
 Reliability: Is there something that makes this statement reliable enough even though you
can not cross-examine Griffith, observe his demeanor, or give him an oath? Is the declarant
making a statement that can be relied upon?

Estate v. Murdock
o Need to establish who died first
o Mr. Murdock told the responders “I am alive”
o This is not hearsay b/c it didn’t matter what he said, b/c he could still talk meant that he was
alive
33
o
Not hearsay b/c Not offering statement to prove the truth of the statement

Subramaniam v. Public Prosecutor
o Good example of non-hearsay purpose
o Subramaniam was found carrying ammunition which was against the penal code and he was
sentenced to death
o S defense was that he was under duress from the terrorists
 Duress—action made under the threat to use deadly force on you or someone close to
you—subjective
 Whether the harm was really there or not does not matter, as long as S thought it
was present and acted upon it
o Held that the statements should be allowed and were not hearsay b/c it didn’t matter whether
the terrorists statements were true just trying to find out his state of mind
 Offering this for a non-hearsay purpose

Vinyard v. Vinyard Funeral Home, Inc.
o Landlord/Tenant: if someone makes a complaint, whether it is true or not, puts the landlord on
notice and the landlord must check it out
o Statement is a non-hearsay statement b/c it didn’t matter whether the people were telling the truth
that the pavement was slippery, all that matters is that it put the corporation on notice and they
should have checked it out
 Not hearsay b/c not offering it to prove the slipperiness of the pavement, but rather to
prove that the corp was put on notice
 Side Comparison: Prof thinks that the ultimate intent of counsel was to admit those
statements to show that many people thought the pavement was slippery and
therefore it was slippery and dangerous—this however is hearsay

United States v. Hernandez
o Want to introduce testimony that DEA agent received a referral from US Customs that Hernandez
was a drug smuggler
 Don’t know who the declarant was
o Issue: was it error to admit Agent Salnier’s statement? YES
 Statement was being used to offer proof of the truth of the matter asserted that
Hernandez was a drug smuggler—therefore it was hearsay
 However, this statment could be background evidence explaining why Agent was focusing on
Hernandez which would be non-hearsay because offering it to prove why Hernandez was being
investigated and not truth of matter
 This would have 403 issues though

United States v. Zenni
o Want to prove that the people making the phone calls to place bets have the state of mind that the
number they called would allow them to gamble—is this assertive?
 They are implied assertions and according to this court, these implied assertions are not
assertions
 At common law, these phone calls and the statements made in them would be
considered hearsay
o In federal practice, not subjected to hearsay rule if not trying to prove what was said, but
what was implied by the statements

United States v. Jaramillo-Suarez
o Issue: Was the pay/owe sheet hearsay?
34
o
o
Answer: No. It was admitted for a non-hearsay purpose as real evidence, as part of the drug
paraphernalia
 Almost impossible to admit this document for the truth of what it says b/c how would it be
admitted as evidence—there is no sponsoring witness who would come forward
Here the pay/owe sheet’s probative value for the limited purpose for which it was admitted was
independent of the truth of its contents, therefore the rule against hearsay was not implicated

Problem 57
o Video here is non-assertive—therefore we don’t have to worry about the hearsay rule
because doesn’t meet the R 801
Exceptions
1. Admission—party to case
2. Former testimony
3. Prior statement of witness
4. Declaration against Interest
5. Dying declaration
6. Excited utterance
7. Present sense impression
Admissions—Rule 801(d)(2)
 An admission is not hearsay
 An admission is anything that a party to a case says or does that is contrary to the position the party takes in
the case.
 Admission is an exception to the hearsay rule and is going to be admitted if:
o The statement is made against the party and
o The statement is reliable

Admission is not considered hearsay when it is made by a party in the case and is against the
interests of the party
o Rationale for allowing statements made by party in even though it is hearsay
 Let it in b/c no one would say something against their own economic gain or liberty unless
it was true

Anything a party says or does that is relevant to the case is probably admissible if it fits the criteria in Rule
801(d)(2)
Law of admissions doesn’t seem to care much about fundamental reliability


Adoptive admissions
o Look for some manifestation of intent of both parties
o One is an objective test: Look at statement itself in relation to the situation of the witness at the
time—See Hooser
o One is a subjective test: looking at subjective intent of the witnesses (Ambiguity of ‘hanging head’
in G case)

Admissions become harder when it is silence or when it is equivocal (vague/ambiguous)

Problem 59: R801(d)(2)(A)—adoptive admission
o The statement is equivocal (ambiguous, vague) and can lead to more than one inference
 The law in some states implies a duty on anyone accused to immediately deny it and if they
don’t the statement will be admitted—get this from Carlson case
 Implied admission
 Since it’s not an unequivocal ‘no’, then it will be admitted
35

Problem 60—R801(d)(2)(A)—adoptive admission
o No response given—SILENCE
o Ambiguous response is not enough to be admitted

State v. Carlson
o Statement was admitted as an excited utterance and not as an admission
 Wife’s statement is admitted as an excited utterance under R803
o Statement excluded as admission on the grounds that it was too equivocal (vague/ambiguous) to be
assent

Problem 61
o Want to establish that Griffith fled to avoid prosecution
o Is this statement made by the officer about what Mr. Martino said about when Griffith fled
admissible?
 Is the fact that Griffith fled relevant? Yes
 Is this hearsay w/in hearsay? See R 805
 Tough time admitting Mr. Martino’s statement b/c it is hearsay, but an admission
is not hearsay, so if Griffith’s actions were an assertion and can be admitted,
then R805 doesn’t apply
o Is Griffith’s action of leaving an assertion? Yes it is an assertion that he
does not want to be there

Do you look at an action from the standpoint of the person doing it by what they intended from the action
or from the standpoint of the receiver and what message they received?
o This is not yet established
o The problem is that it is unclear about whose perspective to look at

United States v. Hoosier—1976 (6th circuit)
o Issue: did the defendant adopt the statement of his girlfriend “that ain’t nothing, you should have
seen the money…”
o Answer: Yes
o Confirms that have to ‘jump up and deny’ a statement made
o Silence can be an admission if not based on advice of counsel or knowledge that saying
something can be used against you
o Burden is cast on declarant to manifest the intent

R 801(d)(2)(C)—Authorized party statement
o

Big Mack Trucking v. Dickerson
 Facts: Dickerson’s truck crushed Leday with his tractor-trailor. Dickerson gave a statement
to the police about bad breaks. Dickerson did not testify.
 Rather the officer testified as to what Dickerson stated and this was objected to as hearsay.
 Issue: Was he authorized to speak on behalf of Big Mack? NO
 The law of agency holds that the truck driver was not authorized to speak for
the company
Mahlandt v. Wild Candid Survival
o Interested in statements by Mr. Poos to others that the wolf bit the child
 Mr. Poos put note on door of director that wolf bit child
 Mr. Poos spoke to director and told him that wolf bit child
o Also interested in statements about the biting incident recorded in a corp meeting
o Rule 801(d)(2)(D)—Agency
36


There is relevance b/c Mr. Poos is the wolf keeper
Made during the existence of the relationship

In-house v. out-of-house statements

Why should agency guide our decision to allow statements made by employees authorized in a business
entity? B/c the entity has no voice. They must have a person bind them

Problem 64
o R 801 analysis:
 Is it a statement made by an employee in scope of employment?
 Was the employee an agent?
 Was the employee speaking on behalf of the company?

United States v. Goldberg
o Conspiracy to manipulate public moneys from a construction project
o Goldberg was a late joiner to the conspiracy that was made
 The statement under contention was made when Goldberg wasn’t part of the conspiracy
o Court admitted the statement

Bourjaily v. United States
o Changed the old rule and now can prove the conspiracy out of the mouths of the conspirator
based on Federal Rules of Evidence
 Old rule was that you could not use statements made by conspirators unless the conspiracy
was proven
o Judge rules on whether the evidence can be heard w/out proving whether there was or was not a
conspiracy

Sabel v. Mead Johnson & Co—Outside docs
o Want the tape of the statements made by the outside consultants made in a meeting w/ Johnson to
prove that it was a bad product
 Outside consultants were not empowered to speak or act on Johnson’s behalf
o In house statements are not meant to be excluded
o Mead Johnson is not in control of the statements therefore there is no agency, they were not
employees of Mead unlike in the wolf case, Poos was an employee which is why that statement
was admitted
Former Testimony
 Rule 801(d)(1) PRIOR INCONSISTENT statement
o When there is a prior inconsistent statement under oath, the statement can be submitted
substantively on the burden of proof


CONSISTENT statements—generally allowed to put that statement in
Identification statements even if not under oath can be admitted

R804(b)(1)
o If there is an unavailable/absent witness and you want that testimony to become part of the record
and you have a deposition in the same case, it is admissible
 Rule 43 Civ Pro—use a deposition for any lawful reason
o In a civil case, if a witness has been examined in another case in any format, that statement made at
that time, under oath will be admissible in your case if you meet the following conditions
 There is someone who can stand in the shoes of that person to be cross examined
37

Based on common law cases

Travelers Fire Insurance co v. Wright
o Witness is unavailable and prosecution wants to use the former testimony of a person not in the
civil case—the brother of the accused
o Issue: Can we admit the testimony in the criminal case to the civil case to establish arson?
o Holding: Yes can admit the testimony
 Reasoned: the real basis for admission is to prevent the miscarriage of justice
 Reason: necessity b/c can’t get it from another source
 Reason: ability to cross examine
o Being partners: the interest of one is the interest of the other
The attorney in the criminal case should have cross examined the witness to show his credibility in
case it was used for a civil case—he had the opportunity and didn’t use it

United States v. Salerno
o Defendants accused of controlling the bid wars of a construction project
o Witnesses invoke their 5th amendment rights and will not testify—therefore not available
o Militates against the admission of this statement in a civil prosecution
o Motive and opportunity have to be essentially the same
 Here they are not substantially identical
 Substantial identity of motive and opportunity between cases

Problem 71
o Defense
 Motive and opportunity of defendant in criminal prosecution is not the same as the civil
prosecution
 Prosecution response: trying to establish the same thing that Griffith was guilty—
motive the same
o Figure out who is doing the cross examining and what their motive is
o Distinguish Salerno: Salerno speaks to a situation where the motive and opportunity are not
substantially identical where here it is who killed Sondra

Problem 70—Rule 801(d)(1)
o What do we do with his prior inconsistent statement?
 Not admissible because not under oath
 If this were in DE, any prior inconsistent statement is admitted substantively
o Precludes admissibility of prior inconsistent statement but may be used to impeach his deposition
in R607 or under R806 at trial

State v. Jensen
o Issue: are signed, written confessions of embezzlement made by employees who are now
unavailable admissible in an action to recover on the employees’ bond? YES
o Use the Declaration against interest R804(b)(3) exception against hearsay to get this in

R804(b)(3)
o Pecuniary interest—co-signing on a loan goes against your pecuniary interest b/c agreeing to pay
debt of someone else
o Proprietor interest—give deed of farm land to B as long as it is used as a school—this cuts
against value of the land

United States v. Barrett
o Witness Melvin is going to tell jury what witness Ben said, but Ben is dead (he is unavailable)
38
o
o
o
o
o
R804(b)(3)—did he say anything against his interest? YES
 Should the statement be admitted: Yes
Issue: should the whole statement be admitted?
Do we need corroboration/guaranty of trustworthiness in this case? Appeal court thinks so
Analysis:
 First look to see if the statements were declarations against the interest and
 Second, look to see if there is corroboration
How do you corroborate? Still a challenge—see Williamson

Williamson v. US
o Harris told officer that cocaine found was for Williamson, then changed his story.
o Harris refuses to testify (unavailable)
o Want to introduce the statement ‘Cocaine belongs to Williamson’—this is a declaration against
Harris’ interest and therefore admissible
o This overrules Barrett
o SCOTUS: R804(b)(3) does NOT allow admission of non-self-exculpatory statements

If witness is available you can NOT use the statement against interest exception b/c witness is
available
Dying Declaration
 Rule 804(b)(2)
 Jensen case: confrontation clause trumps the rule
Excited Utterance
 Problem 74—definitely admissible as an excited utterance
o Focus on Sondra’s screaming statement
o Using Truck Insurance: is there corroboration? Yes—she was discovered dying from knife
wounds
o Sondra was ‘excited’—under a traumatic experience
o Sondra is the victim and not a bystander like in Jones
 It is relevant b/c she is a party and the event is ‘exciting’
o
Lira v. Albert Einstein Medical Center
 Would the doctor be excited about seeing the wounds—probably not

Problem 76
o Can we get the statement of the unknown declarant in as an excited utterance
 He called her, so it doesn’t seem like he is acting under excited utterance
o Can you get in Sondra’s statement
 Yes she is excited b/c of threatening phone call
o If exclude his remarks and only admit Sondra’s—look at R106 Completeness to get his in
 Doesn’t apply b/c has to be introduced by the adverse party who probably won’t introduce
it
o Is his threat a declaration against interest—threatening someone is a crime in itself

State v. Jones—Unknown declarant—present sense impression
o State trooper charged w/ groping
o Evidence that corroborates the evidence of victim—CB radio conversation between truck drivers

Possible for a statement to be both an excited utterance and a present sense impression
Spontaneous Utterance R 803(2)
39

Rule: a statement made by a participant or observer of an exciting (traumatic) event
Mental State Rule 803(3)
 Declaration of bodily state and mental state is admissible even if it is hearsay
o Declaration of present mental state to prove:
 Current mental or bodily state for own sake
 See Mutual Life Ins v. Hillmon—establish a mental state from which you can
take a circumstantial inference where the mental state was carried out in some way
 Current mental state to prove some future act
 See Shepard v. United States
o Exclamation to the doctor that husband had poisoned her relayed by the
nurse
o Sup ct holding: not admissible
 There was nothing Mr. Shepard could do to cross examine or
examine demeanor
 Consider it like a spontaneous utterance depending on how it is used
 Cannot use a statement of current mental state to prove past acts EXCEPT when
speaking about making a will, either before or after the making of the will
 Proof of present mental state to prove a past act is a no-no
o See United States v. Pheaster
 Symptom statements made to doctors/healers are admitted (Declarations made for
medical treatment R 803(4))
Hearsay Exceptions: Past Recollection Recorded, Business Records—R803(5)
 Relying on a documentary source of what people said or did in the past
 Need to have a memo that was made within a reasonable time after the event
 You can refresh someone’s memory if they made a contemporaneous memo

Suppose the person says “I don’t know” even after attempts to remind—use R803(5)
o The document used to refresh the witness’s testimony can only be read and not admitted into
evidence UNLESS it is offered by an adverse party
o Includes made or adopted documents

Baker v. State
o Witness not able to remember that the victim had exculpated the defendant
o Try to show the police report to the officer to refresh memory, but judge does not allow
o Held that a witness who was unable to recall important facts (a statement by deceased eye
witness) could have his memory refreshed by looking at his police report. Counsel was not
attempting to introduce the memo as past recollection recorded.
o Second angle that the court doesn’t address:
 ID statement—isn’t this hearsay w/in hearsay—Rule 805—the police report which is
hearsay, writes down what the victim said which is hearsay
 How do you qualify each statement individually
o Victim’s statement—803(1), 803(2), it is not a prior statement of a witness
as an ID b/c victim did not testify

Rule 612—recollection revived—give witness the document to refresh memory, then take it away, do not
put it into evidence
o Anything can be used to revive a witness’s recollection
 COMPARE: 803(5) which has to be a document made or adopted by a witness
Business Records-R803(6), R803(7)
40

The records of any business activity may be admitted as an exception to the hearsay rule IF the
sponsoring witness could verify
 R803(6) Allows almost any business record to be admitted unless it is unreliable
 Any kind of operation where records are regularly kept will be deemed a business
 Does not matter if it makes money or not

United States v. Vigneau
o Western Union checks were signed by D
 Trying to prove that these checks were part of a money laundering drug scheme
o Not admitted as business records b/c not trustworthy or reliable
 Business records contain only what workers/employees produce
o Are these checks D’s admissions b/c the documents are contrary to his party interest
 Bring this in as a statement of D which was not done or discussed in this case
 Statement by a party opponent contrary to a party’s interest therefore an admission
o Judge says that statements or remarks by third parties are too unreliable and cannot be
included
 Only info recorded by the people in the business, not by a third party
 Not trustworthy b/c he does not work for the business

United States v. Duncan—1990
o Same struggle as was in Vigneau about the trustworthiness/reliability of records made by third
parties
 Holding creates a conflict with the Vigneau case b/c two different circuits w/ two different
views
o Records: applications for benefits policies
o Held: applications for health insurance signed by Mr. and Mrs. Duncan were admissible even
though most of the information came from the Duncans and not from observations of the health
insurance company
o Note: Prof keeps bringing us to the point that these are admissions as well

Hahnemann University Hospital v. Dudnick
o Computer generated documents are now generally accepted with basic foundation for
authentication
o Held: that a computer-generated delinquent account could be admitted w/out the elaborate
foundation requirements in Monarch Savings and Loan v. Genser.
 The sponsoring witness need only identify the account by

Making a foundation
o Can a criminal record be a lawful business that can keep records? If not then no application of
R803(6)
 Argument for: if congress wanted it to be only lawful business records they would have
said so
 Argument against: it is a criminal operation and thus not a business

Palmer v. Massachusetts
o Unavailability of declarant due to death
o There is a statement made by the engineer/declarant two days after accident. If admit the statement,
then the railroad would be shown to be innocent
o Held: an engineer’s question and answer statement taken shortly after a railroad grade crossing
accident involving the engineer was inadmissible because
 (a) accident reports are not within the scope of the business of the railroad and
 (b) because the statement was self-serving and unreliable
41

o
o
o
Self-serving records are deemed unreliable and unreliable business records
are not able to be admitted
Ct holds that it cannot be admitted b/c it was not a business record kept for “regular course of
business”
How reliable do you think the statement was?
 The engineer was probably motivated to make a self-serving statement not placing blame
on himself or the railroad
Remember: Just b/c it might be reliable, does not make it admissible

Foundation for business record (Imwinkelried)—8 steps
1. The report was prepared by a person w/ a business relationship w/ the company
2. The informant (ultimate source of the report) had a business duty to report the information
3. The informant had personal knowledge of the facts or events reported
 This is where Vigneaux and Duncan differ on what personal knowledge is
4. The written report was prepared contemporaneously w/ the facts or events.
5. It was a routine practice of the business to prepare such reports
6. The report was reduced to written form.
7. The report was made in the regular course of business
8. The entry is factual in nature.
 Rule 803(6) relaxes this requirement by expressly allowing the admission of opinions or
diagnoses.

Lewis v. Baler
o Similar to Palmer v. Hoffman
o Use foundation above
 Two reports were made by two different people that can not be reached
 The reports were made by employees who were responsible for safety in this freight yard
 Report was made 4 hours after accident
 Kept in ordinary course of business b/c ICC requires it
o Why is this different than Palmer
 Ct didn’t think that the accident reporters were motivated the same as in Palmer
 The report writers could not be sued at all and so might not care what the report said
o Ct held that the factors are sufficient indicia of trustworthiness to establish the admissibility
of the reports into evidence
This case demonstrates how the reigns have been loosened and more accepting of business records

Problem 91
o Rule 901 and R803(6)—certified copy is self-authenticating and is allegedly proof against the
hearsay rule
o Police report is not allowed under R803(8)(b)
o Is the medical examiner’s report prepared as a duty for the police?
 Under R803(8)(B)—matters observed pursuant to duty imposed by law where there is a
duty to report
o R803(8) excludes reports from government agencies

What is the foundation for admitting a government record? See Imwrinkelreid.
A. Have to have duty to observe information
B. Have to keep the information taken due to the duty
C. Has to be in official custody
Rule 803(8)
o
The courts have decided to apply sections (B) and (C)
 Even if (A) applies, you would look at the limitations set out by (B) and (C)
42

Problem 92
o Police report has summaries of witnesses
 This is hearsay within hearsay
o Getting this report admitted in place of the officer is very difficult because the witness summaries
are hearsay
 Even if the officer was there to testify, he would not be able to speak about the witness
summaries b/c it is hearsay

Beech Aircraft v. Rainey
o Was it pilot error and was something wrong with the engine
o JAG report was made by an officer (not attorney) who investigated the facts and gives an opinion
under the law
 Report stated that it was pilot error—this is an opinion
 Officer that did report—doesn’t matter where he was b/c under R803(8) (?) availability of
author doesn’t matter
o
o
Rule 803(8)(C) says factual matter is allowed—it says nothing about opinions given
 Opinions should not be admitted b/c there is no way to cross examine the document
Ct holds that an opinion is not an opinion if it is factually based
 A fact can include an opinion if the opinion is based on fact
Government Records-R803(8)
 Gov’t agency records are routinely admissible unless they are completely untrustworthy
 It doesn’t matter if the record contains fact or opinion as long as the opinion is based on the fact
(Beech Aircraft)

United States v. Oates
o Medical evaluator was sick and could not come in to testify
o Evaluative reports by law enforcement personnel and police reports are inadmissible
 Depending on the view, this could apply also to R803(6) and R803(9) (?)
o This is a policy choice
o See Grady for an exception to this exception

Rule 807 (Catch-all)
o If you cannot find a hearsay exception that fits the rule you want to use, then turn to 807 and
demonstrate the three elements—used as a catch all
1. Show necessity
 Often shown by unavailability
2. Establish the guarantee of trustworthiness of the item of hearsay
3. Attempt to show that it is in the general interest of justice to get this one time hearsay
exception
 You will never get a general exception, just a one-time
o

Only go to R807 if there is NO OTHER hearsay exception
Turnerville Case involving Rule 807
o Apply the factors for R807
1. Necessity b/c declarant is dead and cannot get testimony from another source
2. Guarantee of trustworthiness-made at a time that the mechanic had no reason to make up
a lie, but was made too far after event to be a spontaneous utterance
43
Confrontation Clause
 Crawford v. Washington
o Justice Scalia on why we have confrontation clause
 Trial by deposition is un-American and un-English
 We cross-examine to get at the truth at our trials
 History—how was the Bill of Rights viewed by the Framers
 Intent of Framers to adopt a safeguard to protect against the evils of the time
o Constitution has:
 An agreement that deserves to be enforced as it was at the time it was written, just like in
contract law
 Particular principle once fixed is immutable that cannot be changed
 This is the conflict Scalia sees w/ Ohio v. Roberts
o This case married the confrontation clause to the hearsay rule
o If had a hearsay exception that was justified, then no reason to look at the
confrontation clause
o If we accept the rationale of Crawford, do we have to restrict the justification of Confrontation
clause to what the Framers viewed? Yes
o Must determine:
 First that there is testimony—confrontation clause only applies to testimonial hearsay
 Divide the world of hearsay into two parts: testimonial/ non-testimonial
o Testimonial definition:
 Solemn declaration to prove a fact
 Material that would normally be given under the penalty of perjury
under oath which the person would be able to be cross-examined
o Testimonial hearsay conditions:
 Unavailable declarant
 Declarant statement made in presence of defendant
 Representation by counsel—opportunity for cross
 Made under oath
o Non-testimonial hearsay conditions:
 Admissible under ordinary hearsay exception
 Confrontation clause does not apply
o
When Ms. Crawford made the statement, she said she took Crawford to the house (which would be
R804(b)(3) b/c against her interest as an accomplice or conspirer)
 Problem w/ this statement where she implicates herself and her husband would be
unreliable b/c against her interest
Public Policy
CHARACTER EVIDENCE


Character evidence is INADMISSIBLE but there are exceptions
Governed by R404 and R405

Rule 404: Character Evidence is NOT admissible to prove conduct
o Rule 404(a): Evidence of a person’s character or trait of character is NOT admissible for the
purpose of proving action in conformity therewith
 3 EXCEPTIONS in Rule 404(a)
44
1. Character of Accused: Criminal D can bring reputational witnesses (see R405) to
prove good character and prosecution can rebut
2. Character of Alleged Victim: When a crime of violence is committed and
defendant claims self-defense
o Issue of who is the first aggressor when the claim is self defense
o D is putting character of victim at issue
3. Character of Witness: Bad character admissible on credibility—witness
predisposed to lie
o
Prosecution CANNOT offer evidence of D’s bad moral character UNLESS
1. D chooses to prove that D is of good moral character
 Prosecution can offer D’s prior convictions for similar crimes to negate proof of
good character of reputation

Rule 405(b)
o Permits proof of actor’s character by means of proof of specific instances of
conduct WHEN CHARACTER is an essential element of a claim or
defense

Michelson v. US—Scotus
o Use of character evidence by defendant in criminal prosecution to prove
“innocent”
 Witnesses can be cross-examined about the relevant bad
conduct of D that may have contributed to a “snapshot” of D’s
reputation
o Michelson invited the cross by putting the witnesses on the stand
 He opened the door and once door is open any witness can be
put on stand that can speak on the relevant issue
o Cross examination can bring up specific bad acts of the accused
2. D claims the victim of a violent crime was the first aggressor OR
 D claims self-defense
o State can prove D’s aggressive character but only after D offers evidence
of victim’s violent conduct
o Victim’s reputation for violent conduct can be proved by reputation
witnesses
 Also for claims by D of enticement—referring to sexual assault
o D may offer evidence of enticement
o Prosecution in rebuttal may offer evidence of D’s prior bad sexual
conduct
3. D takes stand and is subject to impeachment under R608 or R609
 Impeached by proving bad character for truthfulness
 Character of ANY witness may be impeached for truth and veracity
 D character witnesses in criminal trials may be impeached on basis for their
reputation evidence of good character
 Under R608: Impeachment can arise in form of cross on specific instances of
prior bad conduct of D

Rule 404(b)
o Evidence of character is admissible when offered to prove a non-character issue
45


o

Way in which crime was perpetrated was so different and so unique that it was like the criminal
had signed his name—signature crime
 Ex. Case with poisoning via medication—character evidence used to prove identity of the
perpetrator and also demonstrated that he had the bad character for poisoning which would
normally not be admissible but since there is another reason for the character evidence it
was admitted
Rule 405 Methods of Proving Character—Relies on R404
o Proof may be made by testimony as to reputation OR by testimony in form of opinion
 Section (a) permits character to be proved by reputation whenever R404 makes character
evidence admissible
 Section (b) permits all parties to prove character trait at issue by specific instances of
relevant conduct whenever character is at issue
o

Show motive, opportunity, knowledge, intent, plan, preparation, identity of accused,
or absence of mistake or accident
The innuendo of bad character is to be weighed via R403
Seems to open door to admissibility of character evidence in CIVIL cases where character is
at issue
 Courts are split on whether to allow the character evidence in civil cases
 Majority view holds: evidence is inadmissible on policy grounds
US v. Carrillo
o Deals w/ ‘uncharged misconduct’
o Identity of the accused issue that was based on fact that Carrillo’s nickname was the same as
another drug dealer
o Carrillo had a distinctive way of dealing drugs—he put them in a balloon in his mouth
 This was not unique enough to place a ‘signature’ on the dealings
o Would the probative value be outweighed by the prejudice of allowing evidence of bad character =
drug sales
o Prosecution trying to offer evidence to show identity or plan
Uncharged misconduct

Uncharged misconduct—criminal or civil
o If it is relevant it will be admitted, but must be weighed in R403 balancing test first

If uncharged misconduct evidence is offered that is weighted more toward the uncharged conduct and less
toward the crime charge, there is a problem
6th amendment notice clause—must be told what crime you have been charged
o This is why R404(b) was amended to require notice of use of uncharged misconduct
Must establish the elements of the offense charged and identity to convict in a criminal case
o When start introducing evidence of issues that are not pertinent to the elements of the offense
charged, then there seems to be a problem of trial within a trial



R404(b)
o Codifies the common law uncharged misconduct rule
o Criminal D MUST be notified of intent to use uncharged misconduct IF D requests advance notice
o Categories of relevance:
1. Motive
 P may introduce prior, similar uncharged misconduct of D to show motive
46
 Motive means: motivation which demonstrates intent to commit criminal act
2. Intent
 When elements of crime require specific intent, P may prove D committed other
similar criminal acts as circumstantial proof of specific intent
 If D raises some defense based on lack of intent (insanity, accident, entrapment)
o Proof that D committed other similar criminal acts w/in relevant period of
time before act charged tends to disprove D’s claim
3. Knowledge
 Demonstrate guilty knowledge
4. Plan or Preparation
 When D goes on a crime spree and commits a series of related criminal acts, those
acts not charged may be admitted to prove that crime charged was part of a plan or
design to carry out a series of crimes
5. Identity

US v. Cunningham
o Cunningham was convicted of a crime connected with current charge—charged her with same
criminal act of stealing from employer some Demerol
o Prosecution wants to introduce evidence that her nursing license was revoked for stealing drugs in
the past from her employer
 What is this relevant to?
 Helps to establish motive and gives better reason for her to be the one to steal over
the other four nurses with access
 Helps to answer the question of why did she steal the drugs—to feed her habit and
we ‘know she has a habit’ b/c she lost her license
 Prove that she had the motive and therefore the necessary intent to commit crime
 Only a circumstantial piece of evidence
 Is the probative value greatly outweighed by prejudice?
 The prejudice is that the people will believe that she is a bad person and that they
don’t care what the evidence shows, she is guilty b/c of her bad character
o Danger that jury might convict her not for what she did now, but for what
she did before
o Holding: allowed it to come it to establish motive and identity

Tucker v. State
o Prosecution has BURDEN of proving by clear and convincing (in a R104 hearing) evidence
that the defendant committed the uncharged offense

Huddleston v. US
o Issue: whether the district court must itself make a preliminary finding that the Gov’t has proved
the “other act” by preponderance of the evidence before it submits the evidence to the jury.
o Holding: such evidence should be admitted IF there is sufficient evidence to support a finding by
the jury that the defendant committed the similar act
o Application: Will the evidence of Huddleston selling TV’s way below market value give a
presumption that he knew the tapes were stolen

Rule 404(a)(2) is drawn to not allow the Perrin case to happen b/c it is a civil case and the rule says only
for criminal cases

Every specific act offered under R 404(b) entails a R403 balancing test before it can be admitted
47

Note that proof of a specific bad act under R404(b) also entails proof of the bad moral character of the
person whose act is admitted on an intermediate issue

How much proof do you need to prove uncharged misconduct?
o Tucker v. State
 Must show that there is plan, clear and convincing evidence establishing that defendant
committed the uncharged conduct
 Plan, clear and convincing evidence includes a record, a victim statement,
forensic evidence, eye-witness testimony
o Huddleston v. United States
 Burden is preponderance of the evidence which is very low
 No preliminary hearing required
 If objection during hearing, judge will rule from the bench
o Perrin v. Anderson
 Prof thinks that this was overruled by 2006 changes to R404(a) specifically limiting
R404(a)(2) to criminal prosecutions
 Civil action

Civil Version of uncharged misconduct rule = Similar Acts Rule
o Permits proof of similar intentional or negligent wrongful conduct to prove one of the
intermediate issues listed in R404(b)
HABIT

Rule 406
o Permits parties to prove habit or routine business practices in civil cases and criminal prosecutions
o Witness can testify to:
 A personal habit approaching fixed regularity OR
 To an organizational routine practice
 Using evidence that shows the activity approaches fixed regularity either by
specific acts evidence or by some unnamed species of proof given in alternative
o Habit has to be regular act
o

No specification of how habit is to be proved
 Can use opinion that a person’s practice or corporate policy approaches fixed regularity
 Can use proof by specific instances of conduct sufficient to demonstrate a habit
Problem 110 Habit
o Defense Objection’s
 Relevance
 It is relevant to establish he had motive to get money
 Opinion testimony
 Can she give an opinion on whether he is a compulsive gambler?
o Rule 701: she has first hand observation and it is helpful to the jury but
there is an issue over whether it is scientific
 Rule 406—habit
 See Halloran v. Virginia Chemicals, Inc
o Tried to prove that Halloran habitually used the coil immersion system to
heat the Freon
o NY Ct says you need a sufficient number of acts to prove habit
o Yes habit can be used to demonstrate the conduct of a person
 What is considered a habit?
o Halloran case only says you need a sufficient number of acts
48


o Repetitive conduct—number of reps count
Can you prove habit by opinion?
o Cts can choose whether to allow proof w/ opinion OR a number of
repetitions
 Neither seem to prejudice the defendant worse than the other
Habit is rarely ever admitted unless you are talking about business practice

Halloran v. Virginia Chemicals
o Held: D could prove P’s habitual careless uses of immersion coils to demonstrate habit.
o Ct did not tell how many reps would be needed to be considered habit.

Reyes v. Missouri Pacific Ry.
o Held: Four repetitions in 3 years does NOT prove a habit, nor are the incidents admissible under R
404(b) on an intermediate issue
o Learned that infrequent repetitive use did NOT create a habit
RAPE SHIELD and corresponding rules



Precludes D crossing the victim witness on prior sexual conduct
No state has adopted R412-415 entirely—it only exists in federal court
Every state has adopted a rape shield—R412 in federal world

Public policy purpose for R412 and its progeny in all states is to encourage women who have been
sexually assaulted to come forward, identify the perpetrator and come to trial as a witness for the
prosecution.

A notice of 15 days prior is required of all parties who intend to offer evidence under these rules
R412

CRIMINAL: Limits admissibility of the victim’s sexual behavior EXCEPT to demonstrate consent, source
of semen, pregnancy or social disease or in violation of D’s constitutional rights.
o In these instances of exception, the prior sexual behavior may be admitted

CIVIL: prior sexual conduct evidence is admissible UNLESS probative value of evidence is outweighed
by prejudice to victim witness

An usual RULE OF PRIVILEGE—not many rules involve a witness
 The only other is the 5th amendment
o The privilege for the witness is not to have testimony about their past sexual acts
R 413 Sexual Assault—LUSTFUL DISPOSTION RULE
o Criminal cases
o Allows evidence of the DEFENDANT’S prior sexual misconduct to be admitted in the guilt phase
of a sexual assault prosecution
o Admitted to show D’s propensity to commit crimes of that type
o No limitations w/ respect to age of prior sexual misconduct
o Do NOT need to weigh probative value vs. prejudice
R 414 Child molestation—LUSTFUL DISPOSITON RULE
o Criminal cases
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o
o
o
o
Allows evidence of the DEFENDANT’S prior sexual misconduct to be admitted in a child
molestation prosecution
Admitted to show D’s propensity to commit crimes of that type
No limitations w/ respect to age of prior sexual misconduct
Do NOT need to weigh probative value vs. prejudice
R 415 CIVIL cases for sexual assault and child molestation
o Permits proof of sexual misconduct in civil action for damages for sexual assault whenever it is
relevant to an issue in the action

Problem 112—Rape Shield
o Is it admissible that Jones and victim had a relationship and use to live together?
 YES R412(b)(1)(b)—evidence of specific sexual conduct between victim and accused
to show consent
o What about solicitation of sex that she was convicted of? No
o Johnny V had sex that day?
 NO b/c irrelevant in this case b/c it was conceded that there was sexual relationship btwn
victim and D

Olden v. Kentucky
o D Argument: consent--victim accused 4 black men of rape so that her husband and boyfriend
would not find out that she was messing around with other men
o Issue: Could KY rape shield be used to keep out information about victim’s relationship w/ African
American boyfriend? NO
 Issue of relationship w/ boyfriend does not go to consent, but it goes to false claim of rape
o Held: constitutional error to refuse to admit the evidence showing that the victim had a motive to
make a false claim of rape b/c of the culturally undesirable relationship she had w/ another man
o Constitutionally mandated EXCEPTION to the rape shield (found in 6th Amendment):
 When you can show MOTIVATION TO LIE and make a false claim of rape through
prior sexual conduct then it will be admitted
 Need to have a claim of consent in the case in order to bring in the claim of false
rape
 Olden says there is a constitutional right to defend and allow the prior misconduct of
the victim to be admissible
 Does this undercut the purpose of the Rape Shield?

State v. Cassidy
o Victim alleges rape
o D claims that she is lying about the incident and tries to bring in another man that had a similar
sexual encounter with her
 Other incident of other man is not admissible b/c it didn’t have anything to do w/ consent
and was an independent act
 Prof says this is a relevance issue, not rape shield
o Held: inadmissible under CT rape shield b/c it was not one of the exceptions to the general
rule against proving the victim’s sexual conduct prior to the assault

Johnson v. Elk Lake School dist
o Held: court has discretion under R403 to exclude sexual misconduct evidence of low
probative value and high prejudice
 R403 considerations still apply when offering evidence under R412-415—must still use
balancing

Most states DO allow prior sexual misconduct under R404(b) to prove intent, motive, plan, etc.
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o
R 404(b) works well to offer the same evidence as would federal rules R413-415 which states have
not adopted
INSURANCE


General issue of D’s propensity to act negligently or carefully and the payability of D are EXCLUDED
from jury
R411
o Evidence that a person was or was not insured against liability is NOT admissible on the issue
whether person acted negligently or otherwise wrongfully
o Evidence offered for purpose of sowing proof of agency, ownership or control, or bias or prejudice
are ADMISSIBLE
 This allows jury to get a taste of the forbidden fruit along w/ proof of intermediate issue
OFFER TO COMPROMISE

A party who offers to pay expenses for another party involved in some altercation, who offers to
compromise a claim or charge w/out coming to trial, or makes overtures to settle litigation in progress
would probably be uttering words or taking assertive conduct which would qualify as an admission under
R801(d)(2)
o However courts have EXCLUDED evidence of promises to settle claims, pay medical expenses
or enter into a criminal plea bargain
 IF offered in same case at trial when negotiations failed and case went to trial

FOUNDATION for excluding this evidence requires demonstration of an actual or apparent dispute over
liability between the parties when the offer is made

Courts exclude:
o Actual offer to settle itself AND
o Any preliminary conversations which could be described as overtures to settlement
Courts admit:
o Statements characterized as factual admissions made during negotiations to reach a settlement


R408
o
o

R409
o
o
o

R410
o
o
o
Excludes evidence of an offer to settle a civil case, or any statement made in course of seeking a
settlement to prove liability on the party proposing the settlement
Exception: Can introduce to prove that one party to a case tried to manipulate the other, such as to
delay filing a complaint until after running of SOL, or obstruction of criminal prosecution
Prohibits evidence of a party’s payment or offer to pay medical, hospital or similar expenses on the
issue of liability
Does NOT exclude such evidence to prove control, ownership, knowledge or other intermediate
issues
Does NOT apply at all to criminal cases—therefore it is admissible in criminal actions
Companion rule to R408
Prohibits admission of a plea bargain agreement proposal, or a plea bargain later w/drawn in any
civil or criminal case involving parties to a plea bargain to prove guilt or liability in a CIVIL case
Statement of counsel made during plea negotiations not resulting in plea are also inadmissible
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o
o

May be admissible to prove bad faith, guilty knowledge or other intermediate issues
Does not bar prosecution of criminal D for perjury for making false statement under oath in course
of guilty plea proceeding
Prob. 118
o This is an issue over claim
o If there is no claim, P will argue that R 408 has no application here
 Is there a claim? When is there a claim established?
 If the claim is asserted as a right of action (prospective of property and
contract, rather than tort), then there is a claim and R408 would apply.
 If define claim as initiation of a lawsuit/request for money, then there is no
claim—Davidson v. Prince
SUBSEQUENT PRECAUTIONS




When tort or breach of warranty action is filed against maker of product or landlord for personal injuries—
root of lawsuit may be whether product or premises were defective when P was injured
If D makes any changes a jury could logically reason that these changes were made b/c D knew there was a
defect at the time of P’s injuries
Exclude evidence of later repairs or remedial measures on ground that to admit proof of later
changes to the product or premises would discourage desirable changes which increase public safety
R407
o
o

Exclude evidence of subsequent remedial measures to prove negligence and culpability for a
defective product in strict liability
Can show proof of later changes of design or condition to show ownership of premises, control
over product or feasibility of design at time of making
Tuer v. McDonald
o R407 is a privilege
o Grounds under R407 to admit
 Feasibility
 Ownership
 Control
 Impeachment
PRIVILEGES
 Up front bending of the rules of evidence to fit political views and values
 Important b/c dealing w/ protection of livelihood of lawyers, physicians, etc
 Common law: the attorney-client privilege was one of only two of common law privileges—
privilege given by judges
Attorney client Privilege





Claim belongs to client and is inheritable to clients heirs
Look to intent of client
Must have the existence of a professional relationship between the client and an attorney
o Client must be consulting an attorney in attorney’s professional capacity
o Determined by client’s subjective understanding of situation
Privilege extended to disbarred attorneys and those not yet admitted
Privilege extended to paralegals or other persons acting on behalf of attorney
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



Communication
o Communication in writing is deemed confidential
o Letter from client to attorney is privileged
Subject matter
o Attorney must disclose fact of employment as counsel and ID client when required to do so
o If client skips bail, address and whereabouts of client can be compelled from counsel
Waiver
o Waived if communication is conducted in presence of third party
 Exception: attorney’s employee
o Once waived at any stage (deposition), it is waived throughout trial
o Waived if client on cross answers questions about communications made to counsel
Cannot escape liability for a fraud or crime by consulting attorney and stating that D is about to commit
crime
o Attorney can NOT keep communication secret w/out becoming an accessory before the fact or a
conspirator

Attorney work product
o Qualified privilege of attorney to refuse to disclose the workings of his legal mind in a case
o Documents prepared in anticipation of litigation
o Privilege belongs to attorney—not client
o Cannot be discovered or offered as evidence at trial UNLESS opponent can demonstrate good
cause

R501
o
Leaves federal laws of privileged communications up to common law

Problem 123
o Can Bailey tell us what he overheard in the waiting room?
 Yes b/c he is in the waiting room and not speaking to an attorney or any other worker of
the firm
 No expectation of privacy/privilege
o In room w/ paralegal and tells her the same thing?
 Paralegal is the extension of the attorney and Griffith would expect privilege
o Attorney has doubts about Griffith’s mental state then and now. Attorney hires a psychotherapist to
do an analysis of Griffith. Griffith tells her about drowning.
 This is privileged b/c psychotherapist is an agent of the attorney
o Griffith puts forth an affirmative defense. Does this constitute a waiver of the privilege?
 See Menedez case
 Brothers had forfeited the right to privilege w/ therapist b/c brought mental state to
issue in the trial
o Note: R801(d)(2)(a) admission by saying he playfully drowned his wife

Problem 124
o Client communicates to attorney that he intends to lie on stand about affair. Is this privileged
information?
 Yes, this information would likely be privileged and attorney would not tell the judge, but
attorney would just let client give a narrative and would not assist him
o If the judge listens to the testimony and finds out that it is a lie, in a trial for perjury, can the
attorney be a witness? No, he can claim the privilege
 See Woodruff
 Test: whether the statement is made as a part of the purpose of the client to
obtain advice on that subject
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

If the substance of the matter is about legal services then the attorney can
claim for client the privilege and not testify
Crime/fraud exception
 Is it a crime to commit fraud? Yes
 Is it a crime to help your client commit the perjury? YES
 Is this fraud and a crime on the court? YES
o Attorney can not claim the privilege and will have to testify

Private media
o Phone conversations
o Emails
o Faxes
o Letters

Can you claim confidentiality for the fact of consultation with attorney?
o Generally not a matter of privilege

Upjohn Co. v. United States
o Facts: Subsidiaries were given kickbacks to foreign gov’t officials in order to secure gov’t
business. Corporate heads met w/ the attorneys and were told to prepare statements and
questionnaires to be given to the lower level management and employees to be completed and
given to general counsel for review
o Issue: Are these documents communicated to general counsel from lower level employees
confidential? YES
 Corporation has the right to invoke the privilege. IRS wants those documents.

Jaffee v. Redmond (SCOTUS 1996)
o Redmond shot and killed someone in line of duty as a police officer. She spoke to a therapist about
the incident.
o 7th Circuit
 There was a privilege recognized through Reason and experience
 Reason tells us that psychotherapists and patients share a unique relationship, in
which the ability to communicate freely w/out the fear of public disclosure is the
key to successful treatment
 Experience, the court observed that 50 states had adopted some form of the
privilege
o SCOTUS—privilege extends to the psychiatric/client relationship including social workers as
was present in this case

Menendez v. Superior Court
o Interlocutory appeal or in CA a writ of mandate is filed
o Menendez brothers wanted to suppress the evidence of tapes made by Dr. Oziel about the killings
of the parents
o Holding:
 Two of the tapes have no claim of privilege b/c of the threatening statements made on them
 Tarasoff warning—duty to warn a victim of threats of violence
 The other two tapes do have the privilege
o Tapes were not actual admissions of the parental killings
 Rather had more to do w/ the behavior toward Dr. Oziel
o Privilege might be waived if bringing mental state into issue by threatening
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Physician-Patient Privilege


Nothing in the federal rules
Federal courts do NOT recognize a physician-patient privilege b/c it was not recognized at common law
o Supreme Court recognized a very broad privilege for confidential communications between
psychotherapist and patient (Jaffee v. Redmond)
o
o
Every case talks about the issue that: the law has the right to every man’s evidence
 This is so that justice can be served and serve the public
Other side is the personal/public expectation of privacy and the fact that people might not disclose
if they didn’t think there was privacy

Delaware Uniform Rules of Evidence 503
o Mental Health provider, physician and psychotherapist-patient privilege

Problem 129
o The medical condition is at issue in this tort case thus R503(d)(3) states that the claim is
waived and there is no privilege
 Dr must disclose

Problem 130
o Waiver of privilege b/c of the Tarasoff threat of violence—R503(d)(5)
o Dr actually had a duty to make this report and warn Berger
o The mental state was also put at issue and the analysis is as above
Spousal privilege
o
o
o
o

Anti-marital facts privilege—don’t tell anything that you learned in the course of the marriage
Witness privilege, not defendant privilege—testimonial spouse is one that can invoke it
 She could testify if she wanted or could invoke the privilege and stay off the stand
Not many states still have this statute
Still exists in the federal rules
There is a confidential communication privilege given for each spouse in the federal and state context
o Must have the intent to communicate something
55




Relevance
o R 401, 402, 403, 103, 104
Reliability
o Sources
 Competence: 601, 602
 Authentication: 901
 Self-authentication (no need for sponsoring witnesses): 902
o Transmission
 Lay opinion: 701, 704
 Expert Definition: 702
 Daubert Criteria
 Kumho Tire Application
 Basis in Fact for Expert Opinion: 703
 Expert Opinion: 705
 Opinion of Ultimate Issue: 704
 Best evidence Rule: 1001, 1002, 1003, 1004
 Hearsay Exclusions: 801, 802
 Hearsay Exceptions—Declarant Available: 803
 Hearsay Exceptions—Declarant Unavailable: 804
 Catch-all: 807
Public Policy
o Games Rules: 607, 611, 612
 Impeachment: 602
 Competence: 608
 Prior convictions: 609
 Prior inconsistent statement: 613
 Collateral Fact Rule: 608
 Rule: a collateral fact may not be proved by extrinsic evidence (another witness or
a document)
 Corollary: a witness may always be cross-examined about a collateral fact. When
is a fact collateral: when the fact does not prove or disapprove an issue in the case
o In issue that only goes to credibility
o Character Evidence: 404
o Habit: 406
o Rape Shield: 412 (413-415 not tested on)
o Minor Privileges
 Attorney-Client: 502
 When client dies, it is an asset of the estate
o Exceptions: crime-fraud
 Physician-patient privilege: 503 (see white book)
 Anti-marital Facts Privilege
Probative Value: 403
56