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1.
RELEVANCY
IS IT RELEVANT?
401 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. (JUST SOME EFFECT, IT DOESN’T HAVE TO PROVE THE
ISSUE)
402 EVIDENCE THAT IS NOT RELEVANT IS NOT ADMISSIBLE. (IF THERE IS NOT A DISPUTED ISSUE, THEN IT IS NOT RELEVANT).
104(a) – PRELIMINARY QUESTIONS 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, (B) IN MAKING ITS DETERMINATION IT IS NOT BOUND
BY THE RULES OF EVIDENCE EXCEPT THOSE WITH RESPECT TO PRIVILEGES.
- JUDGE LOOKS TO:
(1) Materiality - bear on a fact of consequence (issues at stake in the proceeding, usually substantive law)
(2) Probative – any tendency to make existence of that fact more/less probable; lenient test – doesn’t need to be conclusive
2.
IF IT IS RELEVANT, IS IT OTHERWISE BARRED BY A SPECIALIZED RULE OF EVIDENCE?
YES
407 bars subsequent remedial measures
to prove negligent/culpable conduct or defect
NO

BUT not to prove
ownership, control, feasibility
(if controverted), or to impeach

403 Balancing Test
Tuer (hospital’s change in protocol was inadmissible
bc no demo of infeasibility & not used for impeachment)
Policy – increase safety by removing repair disincentives
408 bars compromise/negotiations talks to prove
liability for or invalidity of claim

BUT not to prove other things i.e.
witness bias, lack of undue delay, or
obstruction of criminal investigation

BUT not if it is an admission of guilt

BUT it is admissible to put with another
statement that D introduced or for perjury if D’s
statement was made under oath
Biaggi – rejected immunity offer is admissible for D as
evidence of innocence

BUT not to prove another purpose i.e. agency,
ownership control, or witness bias
Williams –
Policy – avoid chilling settlement efforts
409 bars offer or payment of med expenses to
prove liability
Policy – encourages offers to assist
410 bars plea discussions in criminal cases
Policy – a non-guilty D may have pleaded;
exclusion will promote plea bargaining
411 bars liability insurance or lack of it
as an independent fact
Policy – unlikely that the insured are more careless;
jury might seek deep pockets; exclusion encourages
insurance and avoids windfall for opponent of an
insured party
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1.
OFFERED TO
PROVE A TRAIT
REPUTATION OR
OPINION TESTIMONY
-------------------------TO PROVE ACTION IN
CONFORMITY
THEREWITH ON A
PARTICULAR
OCCASION
 Barred by 404(a)
**Rationale:
(1) Colorful evidence
that may bear too
strongly on present
charge;
(2) May justify a
guilty verdict
irrespective of guilt;
(3) evidence and
rebuttal attempts could
confuse/distract jury
--------- OR ----------TO PROVE 404(A)
TRUE EXCEPTION1
(2)(A) CHARACTER OF
ACCUSED - CRIMINAL
D CAN SHOW OWN
PERTINENT TRAIT &
PROSECUTOR CAN
REBUT OR IF D OFFERS
VICTIM’S TRAIT, PROS.
CAN SHOW D HAS SAME
TRAIT
(2)(B) CHARACTER OF
ALLEGED VICTIM CRIMINAL D CAN SHOW
VICTIM’S CHARACTER,
SUBJECT TO
412/PROSECUTOR CAN
REBUT, SUBJECT TO
413, 414, AND 415
LIMITATIONS
(3) EVIDENCE OF THE
CHARACTER OF A
WITNESS - AS
PROVIDED IN RULES
607, 608, AND 609.
--------------------------IF TRUE EXCEPTION,
CHECK AGAINST 405
CHARACTER EVIDENCE
IF EVIDENCE OF OTHER ACTS, WHAT IS IT BEING OFFERED TO PROVE
IF NOT BARRED, AND NOT UNDER 404(A), IS
IT OFFERED FOR ANOTHER PURPOSE
- PROOF OF KNOWLEDGE
Repeat hacking incident Prosecutors argue few people
know how to hack & it’s not only the same
incident, but the same company. This most likely
would be allowed.
- PROOF OF MOTIVE
FBI agents following van; driver shoots at them. Gov
allowed to admit D’s prior attempted murder charge
in WI & failure to appear as his motive to kill these
agents.
- PROOF OF IDENTITY
Carrying the same gun used in the killings can show
identity with other evidence in the case.
Trenkler – Signature evidence – crimes are so
similar, motis operandi, that it’s almost like the
person has put his signature on it. Prior bomb
involvement ties into current Mass. bomb explosion
charge. Under 404(b), there was such a special
relevance & jury could reasonably determine the
same person was responsible for both bombs.
- NARRATIVE INTEGRITY (Res Gestate- the whole
thing; fill in blanks/show connections)
Russian Roulette testimony limited but allowed.
Prosecution argues the jury might be leery of vague
testimony, but if the gun was pointed toward her
that’s convincing
- ABSENCE OF ACCIDENT
D shot his wife, but claimed it was an accident
while cleaning his gun. Prosecution sought to
admit evidence that D previously used the same
defense with his first wife’s death. **Also, might fit
under doctrine of chances
- DOCTRINE OF CHANCES – chance something
happens repeatedly; jury infers design
Rex v. Smith - D marries wealthy women, drafts
wills, and all 3x wives were found dead in the tub.
Admissible to allow jury to infer a design/plan.
**Judge Scrutton’s imaginary card game theory - if
someone is found with an ace is pocket 1x maybe
accident, but 3x is suspicious
------------------------------------------------------IF 404(B) OTHER PURPOSE, DOES IT MEET
HUDDLESTON (stolen tv case) STANDARD?
-Court does not need to make a preliminary finding
that past acts actually occurred so long as there is
sufficient evidence by which a jury COULD
reasonably find that the conditional fact existed.
- Jury decides whether prior act occurred; court only
decides if it is relevant.
Safeguards: (1) 404(b) allows proper purposes; (2)
402 requires relevancy; (3) 403 balances probative v.
OFFERED TO IMPEACH
CHARACTER FOR TRUTH-TELLING TO
SUPPORT INFERENCE THAT WITNESS
LIED HERE
2. NON-CHARACTER BASED
Contradiction by:
(1) Conflicting evidence (sensory
deficiencies);
(2) Past inconsistent statements;
(3) Evidence of bias
3. CHARACTER-BASED
- 607 witness credibility may be
attacked by any party, including
party calling the witness.
(1) 608 Past lies by opinion/rep. of
untruthfulness or cross about
specific instances w good faith
basis
(2) Past convictions
- 609(a) admitted, subject to 403, if
crime was punishable by
death/imprisonment of 1 year + or
if crime elements required proof or
admission of dishonesty or false
statement
- 609(b) conviction cannot be more
than 10 years old from date of
conviction or release whichever is
later
-- convictions that do not involve
dishonesty or false statements are
admissible only if (a) punishable by
death/imprisonment 1 yr + and (b)
pass 403 balancing
-- convictions for crimes of
dishonesty or false statements are
always admitted – no 403
balancing
4. REHABILITATION
Once credibility has been attacked
it can be rehabilitated in the form
of either opinion or reputation
testimony, but then the opposing
side can use specific instances
(with good faith basis) to rebut
*Note – use of extrinsic evidence is
barred for conduct evidence, but
not bias bc bias is not deemed to be
OFFERED AS HABIT OR
ROUTINE PRACT
406 RELEVANT TO PROVE
CONDUCT OF PERSON/ORG ON A
PARTICULAR OCCASION
CONFORMED W THE HABIT OR
ROUTINE PRACTICE
3.19: Estate suing decedent’s
doctor who was wrongly
prescribing steroids. 8 former
patients learned that pills
prescribed by same doctor
were also steroids. D.C.
Circuit reversed (rare) and
said evidence shouldn’t have
been admitted. Habit
evidence should be
something that is not
volitional – same scenario or
stimulus again and again and
response is always
UNFAILINGLY the same
(Davis Ex: you always put
your socks on before you put
your pants on – you do it so
often and in the same way
that it is a routine that is not
even thought about).
Key focus is “predictive”
unlike other propensity
evidence, the more predictive
the behavior, the more
probative. To justify habit
evidence a party must show he
expects to prove a sufficient
number of instances of the
conduct in question. *Advisory
Co suggests that regular
drinking does not qualify as a
habit under 406 (some courts
allow it though) – some argue
the noted suggestion is
evidence that the committee
meant to extend the category of
habit only to relatively
innocuous behavior.” There is
no clear straight line separating
habits from the sort of
character-based propensities
regulated under 404 and even if
we could decide where to draw
the line, human behavior rarely
conforms to human
1
For Criminal Ds only because his life & liberty is at hazard and Criminal Ds: (1) bear slightest burden of proof; any favorable evidence may raise a reasonable
doubt; (2) argue peaceful/non-violent traits, unlike civil Ds who argue careful traits (law-abiding citizens rarely commit serious crimes); & (3) evidence of good
character carries little risk of unfair prejudice to gov. (*doesn’t explain why Ds can offer victim’s bad character bc jury could choose to deny protection to an
unsavory victim). **Perrin (10th Cir. 1986) – extended defense opportunity to civil case where Ds were accused of serious crimes, BUT after 2006 amendment the
Perrin Doctrine was dead and evidence was only allowed to be presented by criminal Ds
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prejudice; & (4) 105 limiting instruction
a collateral matter
categorizations.
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IF CHARACTER EVIDENCE IS ADMISISBLE, DOES IT MEET THE RULES FOR PROVING CHARACTER?
405 (A) PROOF MAY BE MADE BY REPUTATION/OPINION TESTIMONY. ON CROSS, INQUIRY IS ALLOWABLE INTO RELEVANT SPECIFIC INSTANCES OF
CONDUCT. (B) SPECIFIC INSTANCES. WHEN CHARACTER EVIDENCE IS AN ESSENTIAL ELEMENT OF A CHARGE, CLAIM, OR DEFENSE, PROOF MAY ALSO BE
MADE OF SPECIFIC INSTANCES OF THAT PERSON'S CONDUCT
(1) WITNESS’S OPINION - requires that the witness actually know the person about whom he is testifying
My Brother’s Keeper - “Yeah my nephew -that would be his uncle” – establish a firm knowledge of the person
-- D Goal: humanize the client – help the jury relate to him; P Goal: (1) try to break connection bw witness & D (1) length
of relationship; (2) knowledge of prior convictions (specific instances w documented support)
(2) TESTIMONY ABOUT PERSON’S REPUTATION - only requires that witness has heard about D’s rep in the community; the witness
doesn’t need first hand knowledge of his actual character”
(3) SPECIFIC INSTANCES OF PAST CONDUCT on cross by opinion/reputation when (i) D offered evidence of his good character; or
(ii) when a person’s character is an essential element of a charge, claim, or defense (i.e. defamation – rebutting a defense of
truth, child custody – prove character/fitness of parent, insanity – lacked volitional control, entrapment – D was predisposed to
commit the crime, self defense – victim was violent *some jurisdictions allow it as an essential element of the offense; most say it’s
not an element but rather a pertinent character trait)
Michelson (1948) – Party has the right to cross another party’s character witnesses about past bad acts such as arrests
and/or convictions if D opens the door of it it goes to a specific element, of the charge/defense. **Note: It cannot be a
fishing expedition. D admits to bribing a federal agent, but claims entrapment. D offers five witnesses to testify to his good
reputation. Prosecution allowed to cross and ask if they knew specific acts (D had prior arrest for receiving stolen goods)
3.15: D can arguably be her own character witness. D: If you had to do it over again, would you shoot him? D: I wouldn’t
shoot anybody. But if I had to, it would be Mr. Cusick. Cross: Prosecutor: You told the detective you had shot at people
before, though, didn’t you? D: Yes. Arguably, “I wouldn’t shoot anybody” is being her own character witness opening the
door for cross to go into specific instances to rebut character.
3.16: D claims self-defense for murder; during trial victim friends “threaten” D’s brother. Under 405(a) specific instances aren’t
allowed. Issue is D’s reasonable fear – not his character – it may help show fear, but it’s not necessary.
3.18: Expert proffered testimony that the victim’s body contained cocaine, morphine, and alcohol to excessive amounts. It’s an
opinion so what’s the problem with admitting it as character evidence? 405(a) allows “Character or a trait of character” –
this isn’t really character evidence of decedent. There could be an argument for admitting this evidence – even if we
accepted that (which we don’t), we find that it would have been harmless error because there was other evidence, ample
evidence to show the fight and show that the victim started the fight.
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IF PROVING CHARACTER OF VICTIM, DOES IT MEET 412, 413, & 415 LIMITAITONS
PROPENSITY EVIDENCE IN SEXUAL ASSAULT CASES
COMMON LAW: “CONSENT” DEFENSE MADE VICTIM’S CHARACTER AN ISSUE, SO D COULD BRING UP VICTIM’S SEXUAL PROPENSITY
Abbot (1838) – Classic Rule – witness could be impeached by proof of general reputation for unchastity. Accuser is commonly
the only witness so omitting it would hinder the justice process. It is easier to “infer assent [by] Messalina (Roman empress
who conspired against husband), in loose attire, than in the reserved and virtuous Lucretia (innocent woman raped by king;
allegedly caused the revolution that overthrew the Roman Republic).” *Notorious passage.
Sibley (1895) – The chastity rule discussed in Abbot only applied to women.
THEN: STATE COURTS STRUGGLED WITH PAST SEXUAL MISCONDUCT EVIDENCE UNDER 404 EQUIVALENTS BY STRETCHING THE
MEANING OF INTENT (evidence must support reliable inference that D had same intent in charged occasions), MOTIVE (reason
that nudges the will and prods the mind to engage in crim activity), AND COMMON PLAN/SCHEME (pattern/systematic course of
conduct if constituent parts of an overall big plan i.e. domestic violence can be blueprinted details for control = stalking, assault
all integral to the overall plan)
NOW UNDER 412(A) NOT ALLOWED TO PROVE ALLEGED VICTIM (1) ENGAGED IN OTHER SEXUAL BEHAVIOR OR (2) HAS A SEXUAL
PREDISPOSITION. EXCEPT UNDER 412(B)(1) IN A CRIMINAL CASE, SPECIFIC ACTS TO PROVE (A) ANOTHER PERSON WAS THE
SOURCE OF SEMEN, INJURY, OR OTHER PHYSIAL EVIDENCE, (B) CONSENT W ACCUSED, & (C) EVIDENCE THAT THE EXCLUSION OF
WOULD VIOLATE D’S CONSTITUTIONAL RIGHTS. (2) IN A CIVIL CASE, TO PROVE IT IS ADMISSIBLE IF OTHERWISE ADMISSIBLE
UNDER THE RULES AND ITS PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS THE DANGER OF HARM TO ANY VICTIM & OF UNFAIR
PREJUDICE TO ANY PARTY. EVIDENCE OF ALLEGED VICTIM’S REPUTATION IS ADMISSIBLE ONLY IF THE ALLEGED VICTIM PLACED IT
IN CONTROVERSY. **413, 414, &415 SPECIFICALLY ALLOW PROOF OF D’S SEXUAL PROPENSITIES IN SEX OFFENSE TRIALS
Guardia (1998) – Dr. charged with sexually abusing patient; gov. sought to offer testimony of 4 others w similar abuse claims.
Under 403, it was excluded bc risk of jury confusion substantially outweighed probative value. 413 essentially supersedes
404(b) allowing evidence of prior conduct to demonstrate D’s propensity to commit the charged offense, but 403 balancing
test still applies to 413. *High lower court deference; case could have come out the other way if lower court said so.
Mound (1999) – D argued 413 violates 5A’s due process bc it authorizes the jury to overvalue character evidence & convict D
for who he is, rather than for what he did. Since 413 must survive a 403-balancing test it is not unfair and does not
violate 5A.
Dissent - 413 runs counter to the centuries of legal tradition & violates fundamental conceptions of justice.
**Harriett R. Galbin, Shielding Rape Victims: A Proposal (1986) – 412 goes too far and is too broad, the legislators did not
clearly understand the underlying evidentiary concepts; A 404(b) amendment would have been better - allowing this evidence
for only certain purposes:
In rape prosecution, evidence of consensual sexual conduct w persons other than the accused is not admissible to show victim
was more likely to consent to sex. Evidence of consensual sexual conduct however may be admissible for other purposes i.e.
identity, opportunity, common plan or scheme, and for other purposes not specifically mentioned in the rule
In a rape prosecution, evidence that victim engaged in consensual sexual conduct is not admissible to support the inference
that the person is less worthy of belief as a witness
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412 IN FORCE
1.
2.
412(B)(1)(B) PAST SEXUAL BEHAVIOR WITH THE ACCUSED (Jovanovic) – D and victim’s first date ended in a sadomasochistic
assault. D claims consent. Emails from victim saying she was into sadomasochism were excluded. Appeals court held emails
were sexual behavior evidence, admissible under 412(b)(1)(B). **Still subject to 403.
**Advisory Committee: Past sexual behavior connotes all activities that involve actual physical conduct.
412(B)(1)(A) EXPLAINING THE SOURCE OF PHYSICAL EVIDENCE (5.2) – victim testified that D attacker had never been in her
apt before that night. D says he had been and before it was consensual sex. Evidence of D’s fingerprints in the bedroom. His
claim is he wasn’t there during time in question, so consent under (b)(1)(B) doesn’t apply and (b)(1)(A) doesn’t apply bc he’s
not pointing to anyone else to say someone else is the source – he’s saying that’s my fingerprint, but I didn’t leave them that
night. *His explanation was inadmissible bc it did not meet any of the 412 exceptions.
3.
PAST ALLEGEDLY FALSE ACCUSATIONS (Smith) – 412 hearing not necessary for impeachment evidence. D accused of
molesting a young girl; trial rested on her credibility. Evidence of girl’s prior false allegations of molestation should have been
allowed. *Note this evidence is still subject to 403, 404, 607, 608, and 613.
- 5.3 Smith remanded: need credible evidence to show that prior allegations did happen. Under 608(b) D’s use of the evidence
requires the victim or a victim’s character witness to testify, but if either denies it then D has to accept it, no extrinsic proof
is allowed. Low standard = reasonable probability/relevance (Huddleston- trial ct simply examines all the evidence and
decides whether the jury could reasonably find the conditional fact). All that’s required is a reasonable amount of info for
the jury to believe conditional facts. And relevant evidence may be excluded under 403
- 5.4 Alvery – victim accepted an invitation to D’s home; then he allegedly raped her. D sought to enter evidence that victim
has claimed raped before after engaging in consensual sex. *Not like Smith case where D was questioning about a past
retracted accusation, here D is saying prior sexual behavior was consensual, violates 412.
4.
STYLE USES OF EVIDENCE OF PAST SEXUAL BEHAVIOR
Proof of Bias - Exposure of a motive to testify is a proper & important function of the protected right of cross
Olden v. Kentucky (1988) D dropped victim at man’s house and she claims rape. D argues his 6A right to confrontation
was violated bc D’s evidence that victim & man were in relationship was excluded and it would have showed a
motive for lying (not that she was lying, but she had the motive to). *Like Prof Gowan’s 404(b) amendment
-- Note: Protects D’s 6A right to cross an accuser to show witness bias bc bias-based impeachment suggests a witness
has a motive to lie in this case, not that he has a bad character for truthfulness.
5.5 Bryant – D wants to admit (1) Sex acts to show knowledge, intent, common plan with respect to consenting. Like
404(b), but 412 governs, so barred. (2) Sex with 2 prosecution witnesses. Could be motive (why she came up with
the story) or bias (but a woman is likely going to know the people she broke down to about the rape); & (3) Sex
after the alleged rape – admissible to rebut a contention by prosecutors that the woman was diagnosed with posttraumatic stress disorder (assumes prosecutors are going to offer PSD - premature)
Narrative Integrity (Res Gestae)
Stephens v. Miller (1994) – Victim said D entered her trailer and made unwanted sexual advances. D became angry and
aggressive. D said it was consensual sex, then he commented to victim about her sexual history with another man,
(“don’t you like it doggy style? Tim said you do”), which made her angry. Lower court allowed D to say he made a
comment that enraged victim, but did not allow him to state the exact comment about the victim’s sexual past.
-- Remember Old Chief (citing Parr v. U.S. (5th circuit); cert. denied (1958)) that explained the reason for the rule
is to permit a party to give the jury a picture of the events relied upon. To substitute a naked admission might rob the
evidence of its fair and legitimate weight, which reflects the fact that making a case with testimony and tangible
things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.
Holding: nothing in the constitution prohibited the exclusion of the testimony here (1) The Rape Shield intended to
prevent this exact kind of generalized inquiry into the victim’s past sexual conduct. Thus, to accept D’s res gestae
argument would make the rape shield useless. Also, there is nothing to support D’s res gestae argument as a
constitutional violation. In other circumstances (where D wasn’t so obviously guilty) the argument might be made
that if D actually said the comment it might paint a picture and make his testimony more believable.
Dissent: the exclusion of the evidence has interfered with D’s right to present his defense. The plausibility of his
defense turned on whether the jury could be persuaded that something he had said could have angered her enough
for her to make up the rape story
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Prof Galbin’s 404(b) amendment: (Never adopted) – Probably admissible – under one of the specific 404(b) purposes;
not to show her sexual character or that she acted in conformity with it, but rather to fill in the blanks.
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WITNESS COMPETENCY
601
GENERAL RULE OF COMPETENCY - EVERY PERSON IS COMPETENT TO BE A WITNESS EXCEPT AS OTHERWISE PROVIDED IN THESE RULES.
HOWEVER, IN CIVIL ACTIONS AND PROCEEDINGS, WITH RESPECT TO AN ELEMENT OF A CLAIM OR DEFENSE AS TO WHICH STATE LAW
SUPPLIES THE RULE OF DECISION, THE COMPETENCY OF A WITNESS SHALL BE DETERMINED IN ACCORDANCE WITH STATE LAW.
(**EVERY – STATUTE IS VERY BROAD; EXCEPT AS OTHERWISE PROVIDED – BUT EXCEPTIONS ARE VERY FEW)
602
LACK OF PERSONAL KNOWLEDGE - A WITNESS MAY NOT TESTIFY TO A MATTER UNLESS EVIDENCE IS INTRODUCED SUFFICIENT TO
SUPPORT A FINDING THAT THE WITNESS HAS PERSONAL KNOWLEDGE OF THE MATTER. EVIDENCE TO PROVE PERSONAL KNOWLEDGE MAY,
BUT NEED NOT, CONSIST OF THE WITNESS' OWN TESTIMONY. THIS RULE IS SUBJECT TO THE PROVISIONS OF RULE 703, RELATING TO
OPINION TESTIMONY BY EXPERT WITNESSES.
603
OATH OR AFFIRMATION - BEFORE TESTIFYING, EVERY WITNESS SHALL BE REQUIRED TO DECLARE THAT THE WITNESS WILL TESTIFY
TRUTHFULLY, BY OATH OR AFFIRMATION ADMINISTERED IN A FORM CALCULATED TO AWAKEN THE WITNESS' CONSCIENCE AND IMPRESS
THE WITNESS' MIND WITH THE DUTY TO DO SO.
610
RELIGIOUS BELIEFS OR OPINIONS - EVIDENCE OF THE BELIEFS OR OPINIONS OF A WITNESS ON MATTERS OF RELIGION IS NOT
ADMISSIBLE FOR THE PURPOSE OF SHOWING THAT BY REASON OF THEIR NATURE THE WITNESS' CREDIBILITY IS IMPAIRED OR ENHANCED.
Judges determine testimonial competence: whether (1) witness has personal knowledge of the matters of testimony; and whether
(2) the witness declares, by oath or affirmation, that she will testify truthfully
*No mental requirements
a.
COMMON LAW WITNESSES COMPETENCY – lots of competency rules dictating who could and could not testify: excluded party’s
spouses, persons with a financial interest in the case, convicted felons, and atheists. Purpose: to keep from the stand anyone whose
temptation or inclination to lie was greater than the norm.
b.
WITNESS COMPETENCY ISSUES RARE & MOST OLD WITNESS COMPETENCY LAWS ARE GONE
Arises most commonly with young children - courts can exclude under 403 if probative value is weak bc child cannot tell truth
from falsehood. Factors that determine a child’s competency vary from jurisdiction to jurisdiction, but generally include:
perception, accuracy; & ability to communicate
 Some states have an age cut-off, but most have done away with this
Swan (1990) – Court found the 3 year old was not competent to testify – she didn’t know her dress color, the day, said she had
been in court 40x when she had never been there before. *Alabama, Connecticut, and Utah all declare child victims of
physical or sexual abuse to be competent as a matter of law – no hearing or objections
GA Appeals Court rev’d child molestation conviction bc 8 year old victim improperly testified. Prosecutor: Do you know
when your birthday is? No. Do you go to school? Yes. Where? I don’t know. Court: What does court do? Help people. P – Is
it bad to tell a story? Yes. D: Do you know what happens when you don’t tell the truth? No. Do you ever make up games to
play? No. Do you ever talk to your dolls? Yes. If I told you I could fly without an airplane would you believe me? Yeah.
Davis: results differ, but more and more, particularly in sex abuse cases, children are able to testify –questions involving
competency today, more often than not will involve children.
IN PRACTICE: WITNESSES MUST MEET THE ORR QUALIFICATIONS - ABILITY TO OBSERVE (WERE THE EVENTS PERCEIVED?),
REMEMBER (IS MEMORY INTACT OR HAZY?), AND RELATE (COMMUNICATE EVENTS INTELLIGIBLY)
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HEARSAY – 801 out-of-court oral or written assertion or non verbal conduct offered to prove the truth of the matter asserted; usually barred bc
of: (1) jury’s need to observe speaker’s demeanor; (2) D’s 6A right to confront accuser & cross the witness
I. CLIP – Witness says there were screams by the lake, but he didn’t hear them. Some tourists heard them & told him the next day. PROBLEM: it
involves the credibility, not necessarily of the witness testifying, but rather, of this out of court declarant
1. WHAT IS THE EVIDENCE BEING OFFERED TO PROVE?
A. NOT TO PROVE THE TRUTH OF THE MATTER
(1) Words Offered to Prove Effect on the Listener: present witness
testifying about effect & she is available to test/observe
EXAMPLE: Self Defense - testimony to show someone had reason to
fear D at the time of the attack is not hearsay
- Adam’s Rib Clip – Woman killed husband testifying that he told her,
“bite your tongue fatso. I don’t want to have to shake your head.”
It doesn’t depend on the truth, but her perception of it.
- 7.6 Getz – D charged with felony theft after illegally selling horses.
She believed she was selling horses for the owner. Not the truth of
owner’s words, but her belief.
(2) Legally Operative Words (Verbal Acts) - legal right or duty triggered
or offense caused i.e. “I do” – at altar is a marriage; “I’ll kill you” is a
threat, & “he’s a thief” can be slander.
- 7.8 White (6th Cir. 2004) – D convicted of making a false dec. form.
White wanted his friend to testify that D told him “I have more
items to declare.” It should have been admitted as a legally
operative statement.
(3) Inconsistent Statements Offered to Impeach - simply offered to show
inconsistency between two statements at diff times
(4) Non-assertive words – i.e. Ouch
(5) Assertions offered as circumstantial proof of knowledge
B. TO PROVE THE TRUTH OF THE MATTER?
Writings can be hearsay even though less of a perception/memory
problem, but person is still not present for demeanor or cross,
Non-verbal conduct (gestures) can be hearsay – Testifies that she
asked D about replacing his bike and he rubbed his thumb
and finger together (money).
Declarant’s own statements can be hearsay, especially if not under
oath, demeanor is not observed, & not subject to cross. But it
can still fall under an exception
Courts split on machines as hearsay: Nurse drew blood &
computer analyzed it. Computer printout, but medical staff
performed test and input info. *States often rule machines
must meet certain standards.
United States v. White - 4th Circuit said not hearsay bc “raw
data is not statements of operators, but rather the machines
Bullcoming v. New Mexico (2011) – Sp Ct held admission of
lab report w no operator testimony was a violation of 6A
right of confrontation. *P. 579 rulebook Bullcoming case - If
witness testifies to what someone else said out of court violates 6A
2. IF TO PROVE THE TRUTH OF THE MATTER, DID DECLARANT ASSERT/COMMUNICATE THE FACT?2
- Wright v. Tatham (1838): letter asked D to handle something for Parish. Non-verbal act not hearsay bc letter writer did not intend to say “this
man is sane” it was just his thought at the time that the man was competent to handle the proposed matter.

Case hypo almost as famous as the case: Testimony that captain examined the boat & embarked on it with his family is circumstantial, not
hearsay and it shows his belief that it was seaworthy, not that he was asserting it was seaworthy
 Contrasted with an event when the chairman of the atomic energy commission took his family to the site of a recent nuclear test accident is
different because he is intended this action to assert the sites safe nature.
A Few Good Men Clip – Out-of-court inactions with no intent to be an assertion are non-hearsay. Cruise – victim wasn’t being transferred bc
no phone calls made & none of his bags were packed. Out-of-court inactions are non-hearsay
Miracle on 34th Street – letters addressed to Santa. Non-hearsay bc post office actions were not intended as an assertion.
During mad cow alarm, press report that Agriculture Minister ate a hamburger & said “this is delicious” is an assertion because he’s
trying to say that the beef is safe to eat – hearsay
Scott Peterson Trial, Prosecutor argued D’s failure to tell wife about boat. Testimony of wife’s sister & friend that she never mentioned it. This
is silence, failure to tell them wasn’t a communicated assertions, so non-hearsay
Hotel Crack Cocaine Case. Government offered documents to show D had knowledge of how to make these drugs. Only trying to prove D’s
knowledge & knowledge alone is not hearsay
After being shot, D fired gun into alley, testimony of that is probably not hearsay. Shooting into alley to make a mark and id person who shot
him could be an assertion, but is one thinking that clearly after being shot; not likely that he intended to communicate anything here, more of
a reaction
Police on premises of suspected gambling site, picked up phone, speaker tried to place a bet. Caller had no intent to id place; officer testifying
about call and we can test his credibility.
IDs D after being fatally shot “Why did you stab me?” –could be ID exception; if said loud/angrily it may have been an assertion
After being arrested for cashing a stolen check, another guy walks by and D whispers, “I didn’t tell them anything about you.” Whispering
might not have been intended as an assertion
D on trial charged with poisoning her working-class ex-lover. She claimed he framed her. Victim’s diary showed she met with him and he
was not feeling well after. He’s not an acclaimed poet intending for others to read/publish his diary. It might depend on where he kept the
diary. Unless something indicates he really intended to communicate something, it would not be hearsay
2
*Note - declarant’s state of mind is important
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1.
IF IT IS AN ASSERTION, DOES IT MEET ONE OF THE HEARSAY EXCEPTIONS?
PAST STATEMENTS OF WITNESSES: 801(D)(1)
(A) INCONSISTENT STATEMENTS SUBSTANTIVELY
(B) PAST CONSISTENT STATEMENTS
(C) STATEMENTS OF IDENTIFICATION
& 613 INCONSISTENT STATEMENTS TO IMPEACH
ADMISSIONS BY PARTY-OPPONENTS: RULE 801(D)(2)
(A) PARTY’S OWN STATEMENT
(B) ADOPTIVE ADMISSIONS
(C) & (D) STATEMENTS OF AGENTS
(E) CO-CONSPIRATOR’S STATEMENTS
AVAILABILITY OF DECLARANT IMMATERIAL: 803
(1) PRESENT SENSE IMPRESSIONS &
(2) EXCITED UTTERANCES
(3) STATEMENTS OF THEN-EXISTING CONDITION
(4) STATEMENTS FOR MEDICAL DIAGNOSIS
(5) REFRESHING MEMORY & RECORDED RECOLLECTIONS
(6) BUSINESS RECORDS
(8) PUBLIC RECORDS
(10) ABSENCE OF PUBLIC RECORDS
WHEN THE DECLARANT IS UNAVAILABLE: 804(B)
(1) PAST TESTIMONY
(3) STATEMENTS AGAINST INTEREST
(2) DYING DECLARATIONS
(6) FORFEITURE BY WRONGDOING
RESIDUAL EXCEPTION: 807
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1.
Past Statements of Witnesses: Clip - cab driver drove robbery victim home from crime, testifies on direct her bf paid him, but on cross, D attempts to
impeach bc he previously told police she paid his fare. If under 613, declarant must testify & lawyer must have good faith belief of past statement, it
can’t be used as evidence of the truth bc no demeanor observation or cross; BUT person is now under oath, subject to cross & observation. *If under
801(d)(1)(A) as substantive evidence, declarant must testify & be subject to cross; statement must be inconsistent and given under oath at a prior
proceeding or deposition. *801(d)(1)(A) has more stringent standards
a. 613: Inconsistent Statements Offered to Impeach
(A) WHETHER WRITTEN OR NOT, IT NEED ONLY BE SHOWN OR DISCLOSED TO WITNESS UPON REQUEST. *Cross-examiner may accept denial or
introduce extrinsic evidence *Note 608 doesn’t allow this. (B) EXTRINSIC EVIDENCE IS NOT ADMISSIBLE UNLESS WITNESS IS AFFORDED
OPPORTUNITY TO EXPLAIN OR DENY IT & OPPOSITE PARTY IS AFFORDED AN OPPORTUNITY TO INTERROGATE
Barrett (1976) – museum stamp theft; jail snitch testifies. 613(b) - court takes critical evidence very seriously and defense should be able to put
on impeachment evidence under 613(b) as part of his 6A right even if statement was vague, bc jury could have inferred it was contradictory
and that there was reasonable doubt,
7.17 – W told police D fired fatal shot. On direct W testifies she was not there & denies making previous statement. Gov. calls officer to testify about
it. Officer’s testimony cannot be used substantively, only allowed to show prior inconsistency.
Ince (1994) – Unsworn statement by D’s friend that D admitted firing the gun. At trial, she couldn’t remember it. Officer then testified to what she
had told him, arguing it was impeachment. A prior inconsistent statement should not be introduced to impeach one’ own witness (especially
if it contains an alleged confession), thus circumventing hearsay exclusion. If original testimony was not damaged & testimony is both
prejudicial and lacking probative value (fails 403), it’s NOT permissible for prosecutor to call another witness as a strategy
b. 801(d)(1)(A): Inconsistent Statements Offered Substantively
A statement is not hearsay if declarant testifies at the trial or hearing subject to cross concerning the statement, and the statement is (A)
inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition
- If prior statement was made under oath at a proceeding (like a grand jury hearing), it may be introduced substantively
- If witness says she ‘doesn’t remember’ previous statement, its not technically inconsistent, but the judge may rule it is in a DV case
Victim id’d person involved at Grand Jury hearing and said he hit her, but at trial she said she ran into a door. Prosecutor can offer the previous
statement into evidence bc it was an inconsistent statement was given under oath “subject to penalties of perjury” 801(d)(1)(A). *Rulebook p.
220 – conference report – no option to cross in front of the grand jury, but the report doesn’t say anything about cross.
Witness claiming no memory isn’t really inconsistent. *Difficult to know if memory loss is true/false; if subject to cross it could go either way.
c.
801(d)(1)(B): Past Consistent Statements - statement by witness out of court before testimony that reinforces or supports testimony
A statement is not hearsay if declarant testifies, subjected to cross, statement is consistent with testimony, & is offered to REBUT express
or implied charge against declarant of recent fabrication/improper influence/motive
- Prior statement need not be under oath & it may be introduced substantively if impeachment efforts suggest testimony was a recently
created lie or was influenced by improper motives (only to rebut specified attacks on the witness’s in-court testimony)
o Anatomy of a Murder Clip – W testifies that in jail D said “I fooled everyone.” Party admission. On cross, asked how he came to testify implying deal w D.A. Shows bias/motive. But if prosecutor wants W’s mom to reaffirm W, it would only be allowed if their convo was before
alleged motive would have arisen. *Anyone in jail likely has a motive to please the D.A. from the moment they are in there
o Tome (1995) – Prior consistent statement only introduced if proponent shows (1) W’s testimony has been attacked as recently fabricated or
influenced by motive to tell a lie and (2) W made prior statement before time of alleged fabrication or motive to lie arose. Rationale: statements
that occurred before the alleged fabrication are more trustworthy. Mother was not granted her request for sole custody. Later she contacted
authorities that her daughter said dad sexually abused her. D argued mom lied to maintain custody. Child testified, but would not answer Q’s on
cross. Gov. produced 6 witnesses to reaffirm child’s allegations. Allowed under 801(d)(1)(B) bc they rebutted implicit charges that child’s
testimony was motivated by a desire to live with her mother. “A consistent statement that predates the motive is a square rebuttal of the charge
that the testimony was contrived as a consequence of that motive.”
d. 801(d)(1)(C): Statements of Identification
Not hearsay if declarant testifies & is subject to cross concerning statement, & statement is an ID of a person made after
PERCEIVING the person
- Perceived = “aware of”; doesn’t require that the witness actually SAW the person
- Rationale: ID’s made prior to trials are likely to be more accurate than ID’s during testimony
o Clip – Woman ids mugger in lineup. Even if she didn’t remember, it wouldn’t affect testimony bc an ID made shortly after attack is more
reliable than time of testimony bc memory fades. Plus peoples’ appearances might change (i.e. lose weight or grow a beard).
o Owens (1988) - Prison guard beaten up; ID’d attacker at the hospital, but lost recollection of attack. Victim was allowed to testify to his hospital
ID. A witness in a criminal trial may testify about an earlier ID even if he can no longer testify as to the basis of that ID. The Confrontation
Clause only requires the opportunity for effective cross, not whatever sort of cross D might want. Here, D could have attacked victim on the
basis of his forgetfulness. “Subject to cross-examination” does not on its face require more. *Note: when witness is available for cross, ct is more
likely to admit hearsay, BUT when witness can’t remember, he’s not really subject to EFFECTIVE cross.
o 7.21 –abuse claims made to nurse, can she testify about the victim’s statements? Often identification is like the clip above, a line up, but it can be
a verbal ID or, as here, a comment identifying abuser indirectly, “kids dad came over drunk and hit me with an open hand.”
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2.
801(d)(2) ADMISSIONS BY PARTY-OPPONENTS
a. 801(d)(2)(a) PARTY’S OWN STATEMENT
STATEMENT OFFERED AGAINST A PARTY & IS (A) PARTY'S OWN STATEMENT, EITHER INDIVIDUAL OR REPRESENTATIVE CAPACITY
- Confession of a crim D is admissible, but not if it is involuntary. Guilty plea is admissible as an admission, but still requires 403
balancing. Guilty plea to minor offense/ no contest plea not admissible
Rationale: most statements offered against an opponent were against opponent’s interest when she made them and the inability to cross
examine declarant doesn’t exist when she is the declarant
Court TV Clip - Babysitter’s trial for shaking infant to death; Officer testified, he questioned her right after the act and she described the baby as
fussy and said there bad days when she couldn’t get the baby to stop crying. D’s own statement admissible to show possible motive.
7.11 – Injured P claims she couldn’t work up to her full potential; Evidence that she billed clients for lots of hours after the accident. These are her
own statements so admissible against her claim. BUT they would be hearsay if offered in her favor; not allowed to bolster own case
7.12 – OJ Simpson said, “take my blood test and we will see” - verbal act showing confidence in his innocence, thus this was an assertion
which would tend to make this hearsay
b. 801(d)(2)(B): ADOPTIVE ADMISSIONS
STATEMENT OFFERED AGAINST A PARTY & IS (B) A STATEMENT OF WHICH THE PARTY HAS MANIFESTED AN ADOPTION OR BELIEF IN ITS TRUTH
EX: Someone told B, “You didn’t stop for the light,” B said “I’m sorry, I didn’t,” B’s answer (w question) would be adoptive admission.
*Often in police interrogations yes responses and head nods are treated as adoptive admissions of question
4-Part Test for when silence be deemed an adoptive admission: D (1) heard and understood statement; & was (2) at liberty to respond/capable
of denying it; under (3) circumstances that would naturally call for a response; but (4) did not respond/communicate denial
Clip - insurance fraud – insurer implies D burned the insured item; he responds, “I’m a poor man.” An employee who witnessed the
conversation gives the testimony. Prosecution: When he made this accusation to D was it denied? W: No, he claimed he was a poor person.
P: What tone of voice did he have? W: Guilty. P: his own statement being offered against him to show his admission. **The last question is
objectionable though
7.13 – Undercover drug deal when asked for “a 50”; D reached for his bag, which contained 13 grams of 89% pure crack. No question D was at
liberty to respond and failed to, but what about Q1 of the test – did he hear and understand the comment? Or Q3 – did the circumstances
necessarily call for a response
Witnessed her father rape and kill her friend Susan. Prosecution argues D had the opportunity to defend himself when she visited him in jail and
instead he only pointed to a jail notice sign: “Station may be monitored.” He does not deny a false accusation of murder. He was convicted,
but on appeal the Court found that because he was exercising his right to silence so it cannot be used against him.
c. 801(D)(2)(C) & (D): STATEMENTS OF AGENTS – usually requires independent evidence
STATEMENT OFFERED AGAINST A PARTY & IS (C) A STATEMENT BY A PERSON AUTHORIZED BY THE PARTY TO MAKE A STATEMENT CONCERNING
THE SUBJECT [admissible against corp, but not against individual D unless authorized or directed to make the statement] OR (D) A
STATEMENT BY THE PARTY'S AGENT OR SERVANT CONCERNING A MATTER WITHIN THE SCOPE OF THE AGENCY OR EMPLOYMENT, MADE DURING
THE EXISTENCE OF THE RELATIONSHIP [statements made by agents within the scope of employment is admissible; no requirement that
declarant have personal knowledge of facts underlying his statement]
Pet Wolf - Kid hurt where D’s employee kept a wolf, but no one actually saw how. (1) Note left on door “Sophie bit a child; I need to talk to you”
= admissible against employee & center & 403 does not warrant their exclusion and (2) Board mtg minutes discussing Sophie biting the
child = admissible against center (minutes served a representative capacity), but not employee bc he was not at the meeting.
7.15 – slip and fall on icy walkway –someone calls management to complain and then the guy shows up to fix it, “those guys on the day shift were
supposed to shovel and salt, but they left early.” He showed up shortly after call, carrying a shovel and bucket & his statement shows
knowledge – likely sufficient to show he’s an agent/employee speaking in connection with his employment.
d.
801(d)(2)(E) & 104(a): CO-CONSPIRATOR’S STATEMENTS
STATEMENT OFFERED AGAINST A PARTY & IS (E) MADE BY A COCONSPIRATOR DURING THE COURSE AND IN FURTHERANCE OF THE CONSPIRACY
Brother’s Keeper – Double hearsay - hearsay within hearsay is not excluded if each part of the combined statements conforms with a hearsay
exception. Delbert’s statement to brother – admission. Brother’s statement to trooper – statement of co-conspirator so long as: (1) the
statement was made when the conspiracy was still active and (2) that it was in furtherance of the conspiracy. If there ever was a conspiracy,
there’s no way it was still active when the brother talked to the Trooper. Could possibly argue that a cover up is part of a conspiracy. BUT it
could hardly be said that this instance was in furtherance of the conspiracy.
Bourjaily (1987) – Courts preliminary finding under 801(d)(2)(E) can consider the out-of-court statements that are subject of the admissibility
inquiry. Gov entered statements made by accomplice implicating D in cocaine conspiracy. CL required independent proof (not allowed to
consider the statements), but Court ruled 104 abolished that requirement. Proving conspiracy: (1) Judge applies 104(a) to determine if
person can be a witness (by a preponderance of the evidence to make sure there was in-fact a conspiracy); (2) then Judge applies 104(b) to
determine if conditional relevance is met (Huddleston standard); (3) then jury must apply beyond a reasonable doubt standard to determine if
the conspiracy was committed. Rulebook p. 225 amendment – added “not only sufficient” language
7.16 – Another case of double hearsay – Y to N arguably an admission, but how do we know what Y really said since it was translated? Court
could possibly use the statement itself to show the conspiracy was ongoing and the statement was in furtherance of the conspiracy
(Bourjaily). N confessed to an undercover agent that heroin was coming into the country from Lebanon and tells them his cousin, Y, is
coming in from Lebanon to meet him with a drug briefcase. Undercover agent tries to communicate with Y, but N is the translator because Y
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doesn’t speak English. Through translation Y says “It’s so strong when I was packing it my nose started bleeding.” During arrest, gunfire
ensues and N is killed. 2nd circuit affirmed ruling the translation was admissible.
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3. AVAILABILITY OF DECLARANT IMMATERIAL: 803 - sometimes circumstantial guarantees of trustworthiness are sufficient to justify non-production of
the declarant (even though he may be available)
a. PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCES
(1): STATEMENT DESCRIBING/EXPLAINING EVENT/CONDITION MADE WHILE DECLARANT WAS PERCEIVING IT OR IMMEDIATELY THEREAFTER.
*Rationale: memory problems are slight
(2): STATEMENT RELATING TO A STARTLING EVENT OR CONDITION MADE WHILE DECLARANT WAS UNDER THE STRESS OF EXCITEMENT.
*Rationale: Any motive to lie will be overcome by the shock of the starling event, and memory is also not a problem because the statement
must be made close in time to the event
*Rationale – these circumstances temporarily still capacity for reflection and produces utterances free of conscious fabrication. *Duration of
excitement is flexible - statement must occur while the event/condition is going on or immediately after it occurred
The Graduate Clip – D thinks he’s invited, but she calls the police and claims he’s a burglar. Possibly admissible under 803(1) present sense
impression, but it’s definitely not an excited utterance 803(2) bc she is not excited. Not like grandma: “my goodness he’s flying”
7.29 Dog Mauling Judge OKs Testimony - Neighbor says, “That dog just bit me, You need to control your dog.” When husband came home,
neighbor said, “As I was walking by, the dog lunged at me.” Judge ruled statements were admissible as excited utterances, but even if he
rushed right home there would be a temporal disparity bw event and statement (kind of like a cooling off period; the excitement of the
moment is over). Arguably she could still be in the heat of the moment, but this seems to be stretching it.
b.
STATEMENTS OF THEN-EXISTING CONDITION: 803(3)
THEN EXISTING STATE OF MIND, EMOTION, SENSATION, OR PHYSICAL CONDITION (SUCH AS INTENT, PLAN, MOTIVE, DESIGN, MENTAL FEELING,
PAIN, & BODILY HEALTH), BUT NOT INCLUDING A STATEMENT OF MEMORY OR BELIEF TO PROVE FACT REMEMBERED/BELIEVED UNLESS IT RELATES
TO EXECUTION, REVOCATION, IDENTIFICATION, OR TERMS OF DECLARANT'S WILL
i. Allows statement of fact to show person believed fact to be true, but prohibits feeling statements to prove remembered fact is true - “I saw
Bill yesterday” admissible to show declarant believed he saw Bill when he made the statement, but inadmissible to prove he actually saw
Bill. Allows proof as to whether a person had a plan and/or carried it out - “I went to the movies yesterday” is excludable hearsay if offered
to prove declarant did go to the movies, BUT, “I plan to go to the movies tomorrow” is admissible to whether declarant went to the movies
Court TV Clip – D attempts to get victim’s friend to say victim said if she was pregnant she would have to disappear. It goes to her present attempt
get of town. That’s why no body has been found. D didn’t murder his wife, she left, that explains these circumstances.
Mutual Life Insurance Co v. Hillmon (1892) – before federal rules; similar CL exception. Supreme Court said letters should have been admitted to
show P’s then-present intention to show declarant had a plan and lend probability to the conclusion that he carried it out.
Shepard – 803(3) cannot be used to show belief. D, accused of murdering his wife, offered evidence that she was suicidal; Gov. rebutted by showing
her statement of belief that D was killing her → Backward looking statement (not one of intention); could confuse the jury
c.
STATEMENTS FOR MEDICAL DIAGNOSIS: 803(4)
STATEMENTS MADE FOR PURPOSES OF MEDICAL DIAGNOSIS/TREATMENT DESCRIBING 1) MED. HISTORY OR 2) SYMPTOMS, PAIN, OR SENSATIONS, OR
3) INCEPTION OR GENERAL CHARACTER OF CAUSE OR SOURCE THEREOF INSOFAR AS REASONABLY PERTINENT TO DIAGNOSIS/TREATMENT
Rationale: no sincerity concern; patient tells the truth to get good medical treatment; *Statement of present bodily condition can be made to a
layperson under 803(3). *To admit the WHO, prove it’s necessary info for dr. to reasonably treat patient, who is seldom related to diagnosis
Iron Shell (1980) - Dr Q&A w 9-year-old was admissible under 803(4) 2-part test: (1) when Dr’s motive is consistent with the rule’s purpose & (2)
it’s reasonable for the physician to rely on info in diagnosis or treatment. Rationale: patient’s strong motive to tell the truth
7.35 Child’s statement to Dr about broken arm that “Daddy twisted it” was not admissible bc the “who” was not reasonably pertinent to diagnosis
or treatment. Dissent: child abuse medical diagnosis is defined by who inflicted the injuries, children’s IDs are inherently reliable, & public
policy is to protect children against abuse. But, see: Robinson – Supreme Court applied two-part test and found statements describing abuse
were admissible bc (1) child made it during the course of treatment & nothing indicated intent was other than to obtain treatment & (2) dr’s
testimony demonstrated cause of injuries and ID of abuser were critical to effective diagnosis and treatment.
8th and 1st circuits have held that if child abuser identified is a member of child’s home, child’s statements should not fall under the general rule
and such statements are valid for proper treatment and diagnosis AND statements by young children to doctors are usually reasonably pertinent
to treatment of the child. Note **Rules requiring doctors, teachers, and sometimes even lawyers – a duty to report potential child abuse cases
d.
REFRESHING MEMORY AND RECORDED RECOLLECTIONS 803(5)
A MEMO OR RECORD CONCERNING A MATTER ABOUT WHICH A WITNESS ONCE HAD KNOWLEDGE BUT NOW HAS INSUFFICIENT RECOLLECTION TO
ENABLE THE WITNESS TO TESTIFY FULLY AND ACCURATELY, SHOWN TO HAVE BEEN MADE OR ADOPTED BY THE WITNESS WHEN THE MATTER WAS
FRESH IN THE WITNESS' MEMORY AND TO REFLECT THAT KNOWLEDGE CORRECTLY. IF ADMITTED, THE MEMORANDUM OR RECORD MAY BE READ
INTO EVIDENCE BUT MAY NOT ITSELF BE RECEIVED AS AN EXHIBIT UNLESS OFFERED BY AN ADVERSE PARTY
Rationale: past-recorded recollections cannot be self-proving. if they were, it could lead to abuses of the statement where witnesses
may/may not have accurately recorded facts/details in the first place.
RULE 612: IF A WITNESS USES A WRITING TO REFRESH MEMORY FOR THE PURPOSE OF TESTIFYING, EITHER
(1) WHILE TESTIFYING, OR (2) BEFORE TESTIFYING, IF THE COURT DETERMINES IT IS NECESSARY IN THE INTERESTS OF JUSTICE
Elements: proponent of record must show the witness (1) had firsthand knowledge; (2) does not have adequate recollection to testify fully and
accurately; (3) made record; & (4) can verify the accuracy of statement
The item used to refresh the witness’s memory is not offered as evidence – does not need to comply w/ the best evidence rule, does not need to
he authenticated, and doesn’t have to comply with the hearsay rule. Present recollection refreshed is a testimonial process that has no
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connection w/ the hearsay doctrine, The doc that refreshes the witness’s memory is not allowed to be read to the jury or introduced as an
exhibit. However, if it does satisfy the requirements of a hearsay exception it may be admitted.
Johnson (1998) – Witness gave a written statement to police naming D as murderer, but at trial he claimed he didn’t remember and wouldn’t
testify the statement was correct when he wrote it. It was read into evidence under the past recorded recollection exception. BUT because
the witness did not affirm the statement or anything in it and past-recorded recollections cannot be self-proven, it was inadmissible hearsay.
*Note: If prosecution has a shaky witness, they should put him before grand jury then it would be under another exception.
e.
BUSINESS RECORDS: 803(6)
A MEMO, REPORT, RECORD, OR DATA COMPILATION, IN ANY FORM, OF ACTS, EVENTS, CONDITIONS, OPINIONS, OR DIAGNOSES, MADE AT OR NEAR
THE TIME BY, OR FROM INFORMATION TRANSMITTED BY, A PERSON WITH KNOWLEDGE, IF KEPT IN THE COURSE OF A REGULARLY CONDUCTED
BUSINESS ACTIVITY, AND IF IT WAS THE REGULAR PRACTICE OF THAT BUSINESS ACTIVITY TO MAKE [THAT RECORD] AS SHOWN BY QUALIFIED
EXPERT OR CERTIFICATION. **"BUSINESS" INCLUDES BUSINESS, INSTITUTION, ASSOCIATION, PROFESSION, OCCUPATION, AND CALLING OF EVERY
KIND, WHETHER OR NOT CONDUCTED FOR PROFIT.
Rationale: Likely to be more accurate since they’re made for the purpose of running an enterprise rather than for some purpose in litigation
Business records elements: (1) Entry made at or near time of the occurrence of what it describes; (2) by or from info transmitted by a person with
personal knowledge; (3) Kept in a normal course of regularly conducted business activity; (4) Must be the regular practice of that business activity
to make the record
- Doc must be authenticated by either (1) witness testimony describing the record’s circumstances or (2) written certification by a person w/
knowledge certifying document meets the 4 requirements (the person just must know generally how the records were kept).
Palmer v. Hoffman (1943) - 803(6) allows business records to be admitted if made in the course of regular business, but the court would not
allow RR accident report into evidence because the purpose of the engineer report was for litigation purposes, not for the regular
management of the business. Note: Motive and opportunity to falsify are the primary factors in using this case to exclude records.
Virgneau (2000) – (before business records exception) records admissibility does not apply to statements contained within a business record that
are made by one who is an outsider to the business where the statements are offered for their truth). D convicted of $$ laundering. Gov.
introduced banks money forms that D allegedly filled out. Since the forms were not redacted, they should NOT have been admitted for their
truth. *If independent evidence that D was writer, they could’ve constituted a party-opponent admission.
f.
PUBLIC RECORDS & REPORTS: 803(8) & 803(10)
RECORDS, REPORTS, STATEMENTS, OR DATA COMPILATIONS, IN ANY FORM, SETTING FORTH (A) OFFICE/AGENCIES ACTIVITIES OR (B) MATTERS
OBSERVED PURSUANT TO LEGAL DUTY, EXCLUDING, HOWEVER, IN CRIMINAL CASES MATTERS OBSERVED BY LAW ENFORCEMENT OFFICERS/PERSONNEL,
OR (C) IN CIVIL CASES AND AGAINST GOV. IN CRIMINAL CASES, FACTUAL FINDINGS RESULTING FROM AN INVESTIGATION MADE PURSUANT TO
AUTHORITY GRANTED BY LAW, UNLESS THE SOURCES OF INFORMATION OR OTHER CIRCUMSTANCES INDICATE LACK OF TRUSTWORTHINESS
TO PROVE ABSENCE OF A RECORD, REPORT, STATEMENT, OR DATA COMPILATION OR NONOCCURRENCE OR NONEXISTENCE OF A MATTER OF WHICH A
RECORD WAS REGULARLY MADE & PRESERVED. EVIDENCE IN THE FORM OF A CERTIFICATION IN ACCORDANCE WITH 902, OR TESTIMONY, THAT
DILIGENT SEARCH FAILED TO DISCLOSE THE RECORD, REPORT, STATEMENT, OR DATA COMPILATION, OR ENTRY.
A Few Good Men - “flip to the page of the book that discusses code reds.” The absence of it in the training manual used to show the officer did
whatever he did on his own. Non-verbal conduct is sometimes an assertion – i.e. absence of complaints is not an assertion and not hearsay bc
it’s not obvious that lack of complaints really asserts that the product is okay.
Beech Aircraft - Navy plane crash and pilot families sue for products liability. Navy JAG report contains both facts and opinions
- House Judiciary Committee said that “factual findings” should be strictly construed and evaluations/opinions shall not be admissible, but
Supreme Court found “provision for escape” in Rule’s final version: evaluative reports are admissible unless info sources or other
circumstances indicate lack of trustworthiness. Thus reports otherwise admissible under 803(8)(C) are not inadmissible merely because they
state a conclusion or opinion as long as conclusion is based on a factual investigation and satisfies Rules’ trustworthiness requirement.
Fn 11 – advisory committee proposed list of factors: (1) timeliness of investigation, (2) investigator’s skill or experience; (3) whether a
hearing was held; and (4) possible bias when reports are prepared w a view to litigation (i.e. Hoffman)
Police Reports and Business Records p. 547 -552 - Rule 803(8) does not extend to the reports of police or evaluative reports if offered against
the D in criminal cases. Police reports are also commonly excluded under 803(6) [Business Records Exception] b/c they are not objective.
They do not have an independent purpose & are thus less trustworthy
Circuit Cases:
Oates – report offered by gov chemist; gov chemist considered “other law enforcement personnel.” Advisory Committee: “In one respect the rule
with respect to evaluative reports under 803(8)(C) is very specific: they are admissible only in civil cases and against the government in
criminal cases in view of the almost certain collision with confrontation rights which would result from their use against an accused in a
criminal case.” We should be wary of police reports involving criminal investigations to come in under 803(8)(B) and 803(8)(C). See pg 547.
*803(8)(C) amended bc of D’s right to confrontation
Hayes - IRS tax examiner who testified at trial. Testimony offered into evidence as a business records exception. 803(8) only intended to apply to
observations made by law enforcement officials at the scene of a crime or in investigating a crime, and not to reports of routine matters made
in nonadversarial settings.
Weiland - You can’t use 803(6) as a backdoor to get in a report that’s not admissible under 803(8). Yet the court said that some of the information
(fingerprint card and prison photo) were admissible. This is information about the defendant’s prior convictions. The court said this was done
as a matter of routine. So it could come in. It was not done in an adversarial setting. The Court kind of ran in between Oates and Hayes
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4. 804(A) WHEN DECLARANT IS UNAVAILABLE
804(A): Unavailability defined. A DECLARANT IS UNAVAILABLE IF HE: (1) HAS A PRIVILEGE PERMITTING HIM TO REFUSE TO TESTIFY; (2)
REFUSES TO TESTIFY ABOUT THE SUBJECT MATTER OF THE STATEMENT; (3) CANNOT REMEMBER THE SUBJECT MATTER; (4) DEATH OR
ILLNESS; OR (5) IS ABSENT & PROPONENT HAS BEEN UNABLE TO PROCURE HIS ATTENDANCE BY PROCESS OR OTHER REASONABLE MEANS
BUT, § 804(A) TREATS A DECLARANT AS NOT UNAVAILABLE IF IT’S SHOWN THAT PROPONENT IS RESPONSIBLE FOR CREATING THE CONDITION THAT
WOULD OTHERWISE MEET ONE OF 804’S DEFINITIONS OF UNAVAILABILITY
b. 804(B)(1): PAST TESTIMONY
TESTIMONY GIVEN AS A WITNESS AT ANOTHER HEARING OR DEPOSITION (ON COMPLIANCE WITH LAW), IF THE PARTY AGAINST WHOM THE
TESTIMONY IS NOW OFFERED, OR, IN A CIVIL ACTION OR PROCEEDING, A PREDECESSOR IN INTEREST, HAD (1) AN OPPORTUNITY & (2)
SIMILAR MOTIVE TO DEVELOP TESTIMONY BY DIRECT, CROSS, OR REDIRECT
Opportunity –
7.23 It was a civil suit and now there are criminal charges – D had the same opportunity, but not the same motive bc crim charges are much
more serious (other things to consider – would insurance have covered him for civil liability, was plaintiff’s liability theory similar to
criminal charges?
Similar Motive - whether the party resisting offered testimony had, at a prior proceeding, an interest of substantially similar intensity to
prove/disprove the same side of a substantially similar issue.
7.22 –Grand jury testimony did not meet the exception because even though the witness was arguably unavailable under 804(a)(2), the party
against whom the testimony was offered did not have “an opportunity & similar motive to develop the testimony by direct, cross, or redirect”
since neither D nor D’s attorney was present during the grand jury testimony.
Predecessor in Interest - If it appears that a party in a former suit having a like motive to cross-examine about the same matters as the present
party, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. *Privity or
common property interest between parties is not necessary.
Lloyd v. American Export Lines (1978) – Lloyd sued co bc they didn’t protect him from Alvarez. Alvarez counter-claims then Lloyd
dropped claim. Co wants to use Lloyd’s transcript from the previous coast guard hearing. Although, congress didn’t furnish a definition, the
3rd circuit ruled there was a sufficient community of interest shared by the coast guard in its prior hearing and Alvarez in the subsequent civil
trial. A similar nucleus of operative facts and the same basic interests was enough to make the first party a predecessor in interest to the
second party. Dissent: “Predecessor in interest” is a term of art to be construed narrowly as one who is in privity. It does not matter that the
Coast Guard had merely the same motive, he did not have the duty to represent Alvarez. His search was for the truth, not to win, and so he
was not bound to explore all possible avenues.
c.
804(B)(2) DYING DECLARATIONS
IN A PROSECUTION FOR HOMICIDE OR IN A CIVIL ACTION OR PROCEEDING, A STATEMENT MADE BY A DECLARANT WHILE BELIEVING THAT THE
DECLARANT'S DEATH WAS IMMINENT, CONCERNING THE CAUSE OR CIRCUMSTANCES OF WHAT THE DECLARANT BELIEVED TO BE IMPENDING DEATH.
SHEPARD – TO MAKE OUT A DYING DECLARATION THE DECLARANT MUST HAVE SPOKEN WITHOUT HOPE OF RECOVERY AND IN THE SHADOW OF
IMPENDING DEATH
**Davis: Stonewall Jackson before he died said let us cross the river and rest in the shade of the trees
Clip - Audrey Hepburn discovers body of an acquaintance smothered to death. Near his outstretched hand, the word "DYLE" is scrawled. Mr. Dyle
later is put on trial for killing the man.
D: we don’t have any proof that we thought his death was imminent. P: he did have a plastic bag over his head
Shakespeare, On Truth & Dying: Wigmore traced hearsay to the late 17th century. Shakespeare offered more than one reason to trust the words of
the dying more than ordinary hearsay.
Richard II, Art II, I, 1-8 John of Gaunt: “O, but they say the tongues of dying men Enforce attention like deep harmony. Where words are
scare they are seldom spent in vain, For they breathe truth that breather their words in pain.”
King Joh, Art V, iv. 10-61 Melun: “What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I
then be false, since it is true That I must die here and live hence by truth.”
7.28 – Mattox (1892) – doctor supplied solicited opinion that he did not think the man would make it. The man then said, fairly close in time to
Mattox’s mom, “I know your son and he did not shoot me, I saw the parties who did.” Dying declarations are justified upon the ground of
necessity, and the certain expectation of almost immediate death will remove all temptation to falsehood, and enforce as strict adherence to
the truth as the obligation of an oath could impose. But the evidence must be received with the utmost caution, and if the circumstances do
not satisfactorily disclose that the awful and solemn situation in which he is placed is realized by the dying man because of the hope of
recovery, it ought to be rejected. In this case the lapse of time was but a few hours; the wounds were three in number and one of them of great
severity; the patient was perfectly conscious, and asked the attending physician his opinion, and was told that the chances were all against
him, and that the physician thought there was no "show for you [him] at all." He was then interrogated as to who did the shooting, and he
replied that he did not know.
Shepard (1933) Dr claimed his wife committed suicide. Wife said, “Dr. Shepard poisoned me” – she didn’t know for sure, so personal knowledge
issue. A statement of conclusion does not mean exclusion, but no other evidence and high a risk of confusion would be too
prejudicial/damaging. Afterthoughts: Justice Cardozo felt that homicide may not be imputed to a D on the basis of mere suspicious even
though they are suspicions of the dying. Contrast mere suspicions with earlier case, “Sophie bit a child” – that was arguably no better
informed than Mrs. Shepard’s conclusion, but the former was deemed admissible. The distinction is that the wolf example concerned
statements of a party-opponent which is governed by the this-is-war rationale
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Liang, The Legal Mythology of Dying Declarations (1998) – The idea that dying declarations are reliable bc people who know they are about to
die speak the truth is irrational. *For example, trauma victims are oxygen deprived and often speak nonsensically.
d.
804(B)(3) STATEMENTS AGAINST INTEREST
STATEMENT THAT: (A) A REASONABLE PERSON IN THE DECLARANT’S POSITION WOULD HAVE MADE ONLY IF THE PERSON BELIEVED IT TO BE
TRUE BC IT WAS SO CONTRARY TO DECLARANT’S PROPRIETARY/PECUNIARY INTEREST OR HAD SO GREAT A TENDENCY TO INVALIDATE
DECLARANT’S CLAIM AGAINST SOMEONE ELSE OR EXPOSE DECLARANT TO CIVIL/CRIMINAL LIABILITY; AND (B) IS SUPPORTED BY
CORROBORATING CIRCUMSTANCES THAT CLEARLY INDICATE ITS TRUSTWORTHINESS, IF IT IS OFFERED IN A CRIMINAL CASE AS ONE THAT TENDS
TO EXPOSE THE DECLARANT TO CRIMINAL LIABILITY.
Rationale: When someone says something detrimental to a very important interest, it’s likely true because people rarely say something
carelessly or falsely involving a subject that could be personally harmful
*Note Rule 804(b)(3)(B) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are
corroborating circumstances that "clearly indicate" the trustworthiness of the statement.
Fatal Attraction Clip – Michael Douglas confesses to wife about his affair with a woman; the wife is now on trial for the woman’s murder.
Statement? Prosecutor wants to offer Douglas to testify about his confession. Why? To show motive. Hearsay problem? Regardless of the
truth, we are only concerned with the effect it had on the wife, Not hearsay because not offered to prove the truth
BUT suppose husband is charged and prosecutor wants wife’s testimony of his confession. Same purpose - motive. Hearsay problem? The
statement would have to be true because he said the words, he would only have a motive if in fact he did have an affair, So this is
hearsay. Exception? Maybe a party admission
BUT suppose husband is found dead and the mistress is charged with his murder. Prosecutor wants the wife to testify about confession.
Same purpose – motive. Hearsay problem? It’s being offered to show truth of the matter asserted, so this is hearsay. Exception?
Maybe Statement against Interest – reasonable person would have only said it if he believed it to be true bc it’s so contrary to the
declarant’s proprietary (property interest) or pecuniary interest (if adultery were a crime; potential divorce/fault ground/loss of assets)
Presumed Innocent Clip – Ford says, "You're right. I did it." Now someone else is charged and he wants the D.A. to testify to Ford's statement.
D – Statement against interest: people don’t go around saying, “yeah I killed so-and-so.” P – He wasn’t serious; the two had an antagonistic
relationship. *Judge might allow this in. Prosecution could insist that defense must show “corroborating circumstances” to establish
statement’s trustworthiness – not prove the truth but tend to establish it bc a statement tending to expose declarant to criminal liability &
offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Amendment proposed, but not adopted, to explain “corroborating circumstances” (803(24) and 804(b)(5) merged into 807)
Hall, 165 F.3d 1095 (7th Cir. 1999) – (1) timing & circumstances under which the statement was made, (2) declarant’s motive to make
it & if there was reason to lie, (3) whether declarant repeated it & did so under other circumstances (not an isolated occurrence); (4)
party or parties to whom it was made; relationship bw declarant & opponent of the evidence, (5) nature & strength of independent
evidence (when taken together w other evidence might help support the statement’s trustworthiness)
 “Several additional factors that may be considered in determining whether hearsay testimony has sufficient "guarantees of
trustworthiness." Including: (1) declarant’s character for truthfulness & honesty & availability of evidence on issue; (2) whether
testimony was given voluntarily, under oath, subject to cross, and a penalty for perjury; (3) extent to which the testimony reflects his
personal knowledge; (4) whether witness ever recanted his testimony; & (5) whether statement was corroborated. FN. In 1997, the
contents of Rule 803(24) and Rule 804(b)(5) were combined and transferred to the new Rule 807. With the exception of the additional
requirement under Rule 804(b)(5) that the declarant be unavailable, the text of the two former rules was virtually identical.
 None of the statements indicate that [witness] had unique knowledge of the crime bc statements did not contain specific details
unknown to the public. His statements were not corroborated by any physical evidence or eyewitness testimony. Additionally, [witness]
recanted his statements and passed a polygraph exam in which he proclaimed his innocence. Finally, except for [witness] statement, the
dates provided cannot be established with any degree of reliability. Thus, these factors clearly support the district court's conclusion that
the proffered hearsay testimony lacked "trustworthiness.”
Brother’s Keeper Clip - trooper relates a convo w Lyman, Delbert’s brother; Lyman told a convo w Delbert about killing Bill to put him out of
misery and how he would do it. Statement against Interest bc surely it’s against his penal interest to implicate himself in a crime
Williamson (1994) – Harris stopped in a car with LOTS of cocaine. He said he was delivering it to Williamson (other evidence linked Williamson
to it). Harris refused to sign a statement or testify. Agent related Harris’ statements into the record. Statements against penal interests
cannot be used to collaterally incriminate third parties under 804(b)(3), unless the statements were truly self-inculpatory and not
self-serving. The principal behind 804 is that even dishonest people tend not to make self-inculpatory statements unless they believe them to
be true. 804 cannot be read to mean that collateral statements–even ones that are not in any way against the declarant’s interest–are
admissible. Q to ask is whether statement was sufficiently against declarant’s penal interest such that a reasonable person in his position
would not have made it unless believing it to be true. Harris’ confession did little to subject himself to liability & reasonable person might
think implicating someone else would decrease his exposure to criminal liability.
Concurrence: Advisory Co suggests not all collateral statements are admissible, and contemplates the exclusion of collateral self-serving
statements, but allows collateral neutral statements. A self-serving statement is one that tends to reduce or mitigate potential for punishment;
neutrals are where two or more are capable of committing a crime and the declarant simply names the parties.
7.25 – someone reports a car leaving the scene & it is traced to D’s house; D blurts out the restaurant hired him to start the fire, but bc there was a
family upstairs he only poured a little gas. *Note amendment was passed and approved and is now a part of the federal rules 804(b)(3) is now
divided into 2 paragraphs – prosecution if offering a statement such as the one in this problem, would have to show corroborating
circumstances as well. Judge seemed somewhat sensitive to Williamson problem, so he did not allow the entire statement to come in.
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7.26 – Sister testified her brother, later murdered, came to her house asking for lemon juice to remove gun residue from his armed bank robbery.
Statements in Williamson were made to police, does that make a difference? Williamson p. 472 language “arrest statements of a co-D have
traditionally been viewed with special suspicion” so this does make a difference, but certainly brother’s statements were against his interest.
Could argue the facts are distinguishable between this problem & Williamson since statements weren’t made to police
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e.
804(B)(6) FORFEITURE BY WRONGDOING
A STATEMENT OFFERED AGAINST A PARTY THAT HAS ENGAGED OR ACQUIESCED IN WRONGDOING THAT WAS INTENDED TO, AND DID, PROCURE
THE UNAVAILABILITY OF THE DECLARANT AS A WITNESS
-- INSTEAD OF SAYING WAIVER (IMPLIES CONSCIOUS DECISION) USE FORFEITURE
-- REMEMBER, THESE STATEMENTS ARE ONLY ADMISSIBLE IN THE EXTREME, ONLY WHEN THE DECLARANT IS UNAVAILABLE FOR ONE OF THE
STATED REASONS IN SUBSECTION B, FORCING THE CHOICE TO COME DOWN TO AN “ALL-OR-NOTHING” DECISION
i.
Gray (2005) – court must find by a preponderance of the evidence that (1) D engaged or acquiesced in wrongdoing (doesn’t have to be a
crime); (2) intended to render declarant unavailable as a witness; & (3) it did have that result. D objects bc she wasn’t intending to make him
unavailable for this trial. Rule doesn’t talk about a particular trial, just general intent to make the witness unavailable at a trial. *Q is
were you responsible for making this person unavailable for trial (any trial)
Dhinsa (2nd Circuit) rule may apply where declarant was only a “potential witness”
Cherry (10th Circuit) statements may be admitted against a person who participated in a conspiracy to silence declarant even if that person
did not engage in witness intimidation/wrongdoing
Steel v. Taylor (6th Circuit) any significant interference with declarant’s appearance as a witness, including the exercise of “persuasion and
control” or an instruction to invoke the 5th amendment privilege, amounts to wrongdoing that forfeits the defendant’s right to confront
the declarant
5. 807 RESIDUAL EXCEPTION
A STATEMENT NOT SPECIFICALLY COVERED BY RULE 803/804 BUT HAVING EQUIVALENT CIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS, IS
NOT EXCLUDED BY THE HEARSAY RULE, IF THE COURT DETERMINES THAT (A) THE STATEMENT IS OFFERED AS EVIDENCE OF A MATERIAL FACT; (B)
THE STATEMENT IS MORE PROBATIVE ON THE POINT FOR WHICH IT IS OFFERED THAN ANY OTHER EVIDENCE AVAILABLE THROUGH REASONABLE
EFFORTS; & (C) FRE’S GENERAL PURPOSES & INTERESTS OF JUSTICE WILL BEST BE SERVED BY ADMISSION. HOWEVER, THE PROPONENT MUST
MAKE THE STATEMENT KNOWN TO THE ADVERSE PARTY SUFFICIENTLY IN ADVANCE OF THE TRIA/ HEARING TO PROVIDE ADVERSE PARTY W A FAIR
OPPORTUNITY TO PREPARE TO MEET IT, THE PROPONENT'S INTENTION TO OFFER THE STATEMENT AND THE PARTICULARS OF IT, INCLUDING THE NAME
AND ADDRESS OF THE DECLARANT. **(Stand-alone, residual; catchall exception).
 Dallas County v. Commercial Union - residual exception case cited by rulebook; Court says we don’t characterize this as under any hearsay
exception, it is admissible because it is necessary and trustworthy, relevant and material, and within the discretion of the trial judge.
- Dispute b/w Dallas County and insurance company, concerning whether charred timber damage was caused by lightening strike or from an
old fire. They try to admit as evidence a newspaper article that was written in 1901 about that fire. The court did not characterize it as a
business record or ancient document, but rather as something necessary, trustworthy, relevant, and material. **Basically creates a residual
exception here before it was codified
 Clip - SIMULATED interview of a child who has been sexually abused. It is used in training clinical social workers. Defense: anatomically
correct doll? Leading questions? If child was present to testify than maybe she should. Prosecution: It is offered to show a material fact that
is probative since she is the only one who can testify to this – the interest of justice
 United States v. Laster (2002) – interpreting “not specifically covered” – some disagreement in the courts; this court liberally construes the
language: under 807, an equally trustworthy statement not covered by 803/804 is admissible if it is material, more probative than any other
evidence, and its admission serves the interest of justice. (sometimes referred to the “near-miss” rule– it doesn’t quite make it under one of
the exceptions, but looking at the big picture it should be admissible)
- Ds charged with making meth. Gov tried to introduce records of Oil co for purchase orders of meth components. Detective had to intro co’s
business records bc co’s sole owner/operator died. Other than a few brief convos w owner/operator he did not have much connection with the
company. Use of these records under the business record exception was not admissible here because the detective was not a party to
this business and knew nothing of the business, but the lower court did not err in admitting the documents under the residual
hearsay exception of 807 as there was no indication that the records were not reliable. **Note: this case establishes Rule 807 as a standalone exception to the hearsay rule, subject to its own analysis. Prof: If the records are not reliable enough to come in under the business
record exception, how are they then reliable enough for 807? (policy Q - if we don’t let this evidence in, the D would go free.)
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UNIT 2: RELIABILITY CHAPTER 8 CONFRONTATION CLAUSE
THE CONFRONTATION CLAUSE - guaranteed right for criminal D to confront opposing witnesses
A Few Good Men Clip - Right before “you can’t handle the truth”; Nicholson gets off the stand. Cruise says, excuse me I’m not
through with you yet. Sit down. *Illustrates that it’s not for the witness to decide when to stand up and leave, but rather the lawyer who
is conducting the examination
History: at the very least drafters intended to assure criminal D’s right to be present at his trial, learn what evidence is being introduced
against him, and to question those who give live testimony
a.
EVOLUTION OF CONFRONTATION CLAUSE CASE LAW
i. MATTOX ERA - Mattox (1895) – Supreme Court remanded; before trial 2, two witnesses died, so gov entered court
reporter’s transcribed notes. Classic 804(b)(1) exception of former testimony, but at this time FREs didn’t exist yet.
Admission was proper bc the purpose of right of confrontation is to put the witness in the courtroom, place him under oath
with consequences of perjury, subject him to cross, & allow the jury to observe his demeanor. Court said D had all these
abilities present during this initial testimony. **This is an old case but it is still good law.
A. Pointer v. Texas (1965) – the Confrontation Clause applies to state trials as well as federal trials
B. California v. Green (1970) – witness testifies at D’s preliminary hearing, identifying D as supplier, but at trial he
changes his story. Gov. uses preliminary hearing transcript to contradict his present testimony. D had the opportunity
to cross the witness at the preliminary hearing. Confrontation Clause demands are satisfied even if witness is
unavailable at a later trial
ii. ROBERTS ERA - Roberts (1980) – no longer good law – held that if declarant was proved unavailable & there were indica of
reliability than the statement could be admissible
A. Craig – child testified through closed-circuit tv under oath, subject to cross, & observable by the jury; the only thing
missing was face to face & eye to eye bw the accused and the accuser. O’Connor majority upholds the testimony, but
notes that a later public policy individualized determination could change this.
J. Scalia dissented – sheds light on his strict vision of the Confrontation Clause; a barrier bw D & witness is
explicitly forbidden by the constitution & there’s no room for interpretation.
iii. CRAWFORD ERA - Crawford v. Washington (J. Scalia 2004) - Crawford stabbed a man he claimed tried to rape his wife.
Wife claims marital privilege. Prosecution offered her police statement to show D’s violent nature to contradict D’s selfdefense argument. He appealed conviction claiming his 6A right was violated. State Sp Ct relied on Roberts and upheld
conviction. 6A directed at use of ex parte examinations as evidence against the accused (principle evil). Court overruled
Roberts replacing reliability and trustworthiness with opportunity to cross. 6A gives Ds the right to confront witnesses and
cross their testimony. This includes testimony police gather. **Crawford Limitations: (1) applies only to criminal cases
and (2) doesn’t apply if witness testifies at trial or if statements are non-testimonial
Major Rule: If the statement is testimonial it may not be admitted against the accused in the absence of the declarant’s
presence and availability for cross at trial unless the declarant is “unavailable” to testify at trial AND the accused had a prior
opportunity to cross the declarant about the statement
A. Whorton v. Bockton (2007) made clear that Crawford is not only new, but flatly inconsistent w Roberts bc the
Court’s overruling of Roberts was not initially clear, quite a few lower courts continued to apply it.
B. **Note: in the modern realm of domestic-violence prosecutions, the justices seem prepared to infer from the history
of abuse D’s purpose to keep his victim from the witness stand. Difficulties posed for domestic-violence
prosecutions: J. Ginsburg in Davis recognized that many battered victims never show for trial. BUT J. Scalia
responded sarcastically, “maybe we should just suspend the confrontation clause in spousal abuse cases.” In Hannan,
Scalia said, “We may not vitiate const guarantees when they have the effect of allowing the guilty to go free.”
C. EX: Simulated child abuse interview - Julie is ruled emotionally unavailable to testify. (1) Is tape Hearsay? Yes,
offered to prove the truth of the matter asserted. (2) Does it raise a confrontation question? (a) Under Crawford,
was it testimonial? This wasn’t a police officer questioning her, it was a social worker or counselor, and we’d have to
know the interviews’ purpose and the investigation’s stage.
Prosecutor: not testimonial, but even if it was this is an ongoing emergency bc she’s living with parents & the
counselor is trying to help, not pursue an investigation. Defense: the questioning took part as part of the investigation
process in looking to prosecution Judge Davis: could go either way here – depends on case circumstances.
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*Note: Davis & Hannan – even some police statements can be non-testimonial.
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HEARSAY & CONFRONTATION CLAUSE ADMISSIBILITY CHART
Major Rule: If the statement is testimonial it may not be admitted against the accused in the absence of the declarant’s presence and
availability for cross at trial unless the declarant is “unavailable” to testify at trial AND the accused had a prior opportunity to cross the
declarant about the statement
IF EVIDENCE IS OF OUT OF COURT WORDS/CONDUCT
HEARSAY UNDER 801(C)
IF NO EXCEPTION
NOT HEARSAY UNDER 801(C)
IF EXCEPTION
ADMISSIBLE UNDER HEARSAY RULE
IF AGAINST CRIMINAL D
IF AGAINST CIVIL D/PROSECUTION
CONFRONTATION CLAUSE ISSUE
RAISES NO CONFRONTATION CLAUSE ISSUE
UNLESS DECLARANT APPEARS FOR CROSS (GREEN)   
UNLESS DECLARANT IS UNAVAILABLE/D HAD PAST CHANCE TO CROSS (GREEN)   
UNLESS STATEMENT IS NOT TESTIMONIAL (WHORTON/DAVIS/HANNON)**   
UNLESS D FORFEITED CONFRONTATION RIGHT BY WRONGODING (GILES)   
- Unavailability wrongfully procured by D, testimonial nature doesn’t matter
bc D forfeited any 6A right
UNLESS STATEMENT = DYING DECLARATION (CRAWFORD/BULLCOMING)   
- Dying declarations don’t trigger 6A even if testimonial bc 6A applies only to
out-of-court declarations in which original CL right would have applied
OR ELSE CONFRONTATION CLAUSE VIOLATION
INADMISSIBLE
SUBJECT TO 403, POSSIBLY ADMISSIBLE
Note: you never need to address the confrontation clause unless you face evidence that is hearsay under 801(c): Crawford tells us that the
clause does not bar the use of testimonial statements of purposes other than establishing the truth of the matter asserted, thus out-of-court
statements offered for a non-hearsay purpose evade 6A scrutiny
**DETERMINING TESTIMONIAL
TESTIMONIAL STATEMENTS:
(1) PRIOR TESTIMONY AT PRELIMINARY HEARING/GRAND JURY
(2) TESTIMONY AT A FORMER TRIAL
(3) LAB REPORTS CREATED BY SCIENTISTS/TECHNICIANS
(4)
WORKING W LAW ENFORCEMENT
STATEMENTS DURING COURSE OF A “BACKWARD-LOOKING”
POLICE INTERROGATION
(5) NON-TESTIMONIAL STATEMENTS
(1) 911 CALLS DESCRIBING A PENDING EMERGENCY
(2) EXCITED UTTERANCES
(3) STATEMENTS BY A CRIME VICTIM TO A PHYSICIAN/NURSE,
IF MADE PRINCIPALLY FOR THE PURPOSE OF OBTAINING
MEDICAL TRETMENT OR DIAGNOSIS
IF TESTIMONIAL, IS THE STATEMENT SUBJECT TO CROSS
(A) AT THE TIME OF THE DECLARATION?

IF MEANINGFUL, GREEN, THEN NO 6A VIOLATION
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(B) AT THE TIME OF TRIAL?


IF (1) D IS PRESENT AND (2) FULLY TESTIFIES, THEN NO 6A VIOLATION
BUT, IF W IS EVASIVE, IF W DENIES IT, OR IIF W PLEADS PRIVILEGE,
THEN POSSIBLE 6A VIOLATION
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CONFRONTATION CLAUSE – Where the prosecution tries to take an out-of-court testimonial statement by W and use it against D, it
won’t be admissible if W isn’t available even if a hearsay exception applies. Requires W to be subject to cross, not necessarily at
the time of the statement.
i. Testimonial Meaning
- Crawford: Where testimonial evidence is at issue 6A demands, what CL requires, unavailability and prior opportunity to
cross. We leave for another day any effort to spell out a comprehensive definition of testimonial. It applies at a minimum to
prior testimony at a preliminary hearing, grand jury trial, & police interrogations. Statements are non-testimonial made during
police interrogation attempting to provide assistance to meet an ongoing emergency.
- The Court later clarified in Davis/Hannan: declaration made during official interrogation will be testimonial if primary
purpose is to establish or prove past events potentially relevant to later criminal prosecution
Davis (J. Scalia & all 9 agree) - 911 call circumstances & Qs were to enable police assistance in an ongoing
emergency, thus non-testimonial.
Hammon: (8 agree) domestic violence dispute interrogation was after the emergency & was looking for criminal conduct;
formal enough to be in separate rooms. Even though Crawford interrogation was more formal (Miranda warning;
tape-recorded; at station), the purposes were the same – nail down the truth about past criminal conduct.
J. Thomas Dissent: limit testimonial to formal testimonial materials: easier to apply & more predictable results.
White v. Illinois (1992, overruled) – set forth Thomas’ view that 6A is implicated by out-of-court statements only if
they are in formal testimonial materials such as “affidavits, depositions, prior testimony, or confessions”
- Bullcoming v. New Mexico (2011 J. Ginsburg) – 5 member plurality held B.A.C. results inadmissible by non-administering
tech. FN 6 defines testimonial broadly (like Davis & Hammon): “To rank as testimonial, a statement’s primary purpose must
be to establish or prove past events potentially relevant to later criminal prosecution.
- Melendez-Diaz (2009) - business & public records are generally non-testimonial/admissible absent confrontation because
they are not created to establish/prove some fact at trial. BUT lab reports by law enforcement personnel are testimonial.
- Michigan v. Bryant (2011) (shaky majority J. Sotomayor) - dying man with a gunshot wound tells police who shot him.
Evidence was nontestimonial bc during an ongoing emergency (gunman’s unknown intentions & location); admissible as a
dying declaration. *Scalia dissenting: (maybe primary purpose test isn’t so easy) - excessive examinations w the “purpose” of
protection is so transparently false that professing to believe it demeans this institution. *Note. If Sp Ct can’t agree how are
trial judges supposed to rule; underscores the relevance of J. Thomas’s test, the broad view of testimonial is hard to predict
ii. Rule of Forfeiture: remedy if someone causes a witness to be unavailable to testify at trial is that person loses 6A right
to confrontation. Crawford (reiterated in Davis): “the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims
on essentially equitable grounds.” Could be broad or narrow depending on prosecutors’ proof requirement to show D’s purpose
was to make declarant unavailable as a witness.
Intent: Giles: D killed former gf; state court ruled he forfeited his 6A right & prosecution did not need to prove his
purpose in killing her. Crawford & Davis framed the forfeiture rule as equitable, thus D’s wrong was enough to
trigger it bc no one should profit from their wrongs. Sp Ct 6-3 ruled the prosecution must show D’s motive was to
prevent the witness from testifying. Opinion showed the lack of consensus among the Court.
J. Breyer dissented maxim is no one shall be permitted to take advantage of his own wrong. Even a D who killed in
anger and not with the purpose of eliminating a witness has committed a wrong from which he should not profit
iii. Confrontation Clause Applied
8.1 – admissibility of letter written by wife and left with a neighbor. Wife said her husband was angry about an affair and she
thought he poisoned her and if she died it was requested that the letter be given to police.
Is her letter testimonial? What is testimonial? Crawford holding: “Where testimonial evidence is at issue, 6A demands
what CL required: unavailability & a prior opportunity for cross.” Court doesn’t spell out testimonial, “whatever else the term
covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury or at a former trial and police
interrogations.”
 Various formulations of “testimonial” exist:
(1) ex parte in court testimony or equivalent (affidavits, custodial examinations, prior testimony that D was unable
to cross-examine, or similar pretrial statements that declarant would reasonably expect to be used by the prosecution;
(2) extra judicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony,
or confessions citing White v. Illinois 1992 Thomas, J. Concurring – his definition of testimonial – why he doesn’t
join in FN 6 in Bullcoming);
(3) statements were made under circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.
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(4) Bullcoming FN 6 – J Ginsburg’s opinion defined testimonial broadly, like Davis - “to rank as testimonial, a
statement must have a primary purpose of establishing past events particularly relevant to later prosecution”
Wisconsin court applied #3 from Crawford and found the letter to be testimonial because Julie not only
reasonably expected police to see it, but requested that the police see it, which directly implies her knowledge of a
future use in trial.
Because it is testimonial, it implicates 6A right to confrontation, the court went on to apply a broad version of
the forfeiture rule believing that D was involved in wrongdoing and prevented his wife from testifying in this trial, so
since he should not get a windfall from his wrongdoing, the letter was admitted.
**Note this was before Giles – if the Wisconsin court would’ve addressed intent, the result may have been different
since if he killed his wife it was not for the purpose of preventing her from testifying at trial because there would not
have been a trial at the time of the murder. Counter-argument - in deciding to kill someone, you are aware there is a
future trial for such a crime and in deciding to kill her in completion of your crime you were preventing any witness
testimony at your trial. **Appeals court ruled the letter should have been inadmissible, but it was harmless error due
to the weight of the prosecution’s case.
D. 8.2 Confession in Blood – woman was strangled to death. A man tells his nephew he’s involved as an accomplice.
His statement was not made for purposes of future prosecution; it just ends up getting used that way. What matters is
speaker’s intent at the time of the statement - Non-testimonial, so D’s 6A right was not violated.
iv. Crawford Recent and Remaining Battles (p. 620-25) covered in supplement. Do children ever make statements with
prosecutorial effects in mind? Do we look at the child’s intent or the examiner’s intent?
a.
Statements of Children: The author only found one case after Bryant & Bullcoming that even mentioned them & it
only did so in passing. The case didn’t even really apply Davis.
- Loy, 52 Cal.4th 46, 254 P3d 980 (2011)– statements made by 12 year old girl to friend a week before her murder
where she cried softly and told her friend she was afraid of her uncle who made weird looks and would touch her
inappropriately and she told her friend not to tell anyone. D, victim’s uncle ends up being tried for her murder. The
court held this was not testimonial.
- Cage (2007) Mother cut him in the face with a shard of glass – statement being made to a doctor for the purposes of
medical diagnosis or treatment, but it avoids a confrontation clause here, in view of Ca Sp Ct, because the primary
purpose here was not making statements that could be used in a later prosecution, but a medical disclosure for
treatment purposes
- Carlson (8th Circuit) – 3 year old boy, court decides, boy had already told his mother what had happened here had a
primary purpose for a criminal prosecution, there was no ongoing emergency
Future of children’s statements – court talks about four Bullcoming dissenters – Alito, Kennedy, Breyer, and
Roberts (AKBR like Starwars) (p. 616) would not have required the lab tech to have actually performed the test to
appear in trial. Could those maybe pick up one more vote?
b.
Applied: White v. Illinois (1992) - 4-year-old’s babysitter hears child scream and sees D leaving child’s room, then
child tells her that D touched her inappropriately. Child later repeats same story to mother. Then later tells same story
to a police officer and nurse and doctor. Are her statements admissible?
Bullcoming FN 6 – testimonial statements have the primary purpose of proving past events particularly relevant to
later prosecution.
- Babysitter and mother - caregivers: primary purpose here was concern for her well-being
- Nurse and doctor - medical providers: as we saw in supplement cases, there is primarily a medical purpose here
- Police officer – maybe child molester on the loose – cite Bryant majority for ongoing investigation – this was a
close question, but the court admitted it here
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5.
BRUTON DOCTRINE – Joint Trial problem - Co-D's incriminating confession may not be introduced at joint trial if it violates D’s
confrontation clause rights.
a. Bruton (1968) - During a joint trial of a D and his accomplice, accomplice made an out-of-court confession; it was admissible
against speaker, but not Co-D, so court gave a limiting instruction. Appeals court finds confession inadmissible bc of due
process violations against Co-D bc D is entitled not testify against himself under 5A and there’s a substantial risk of unfair
prejudice. This use also deprived Co-D of right to cross under 6A. *Confession of a co-D is so lacking in reliability with regard
to the non-confessing D that the hearsay rule must be strictly applied.
Dissent (White): practical result of Bruton so severely limits the ability of prosecutors to hold joint trials.
Options for the prosecutor in these cases: severed trials; separate juries; testimony by the confessing accomplice; redaction;
bench trial; admissible of statement against non-maker. Bruton problem arises when these tactics aren’t available.
i. 8.6 – W links Ds to prison gang in dog-mauling trial. In a letter to an inmate one D said the other referred to the scheme as
the “dog o war” operation. This letter implicates both Ds knowledge of the dangerous dogs.
Out-of-court statement offered to prove the truth of the matter asserted – Hearsay. Even if it is admissible under an
exception (i.e. statement against interest if D doesn’t testify, recorded recollection, residual exception if demonstrated as
trustworthy, reliable, or both), there could still potentially be a 6A problem, unless (a) declarant appears for cross; (b)
declarant is unavailable and D had a past chance to cross; (C) statement is non-testimonial; (d) forfeiture doctrine
applies; (e) dying declaration. To determine testimonial: (1) Look to Crawford – applies at a minimum to prior
testimony at preliminary hearing, grand jury, former trial, or police interrogations  letter writer probably had no thought
this would later be used against him; or (2) Bullcoming – primary purpose of events relevant to prosecution  D’s letter
doesn’t fit with this. Letter is likely non-testimonial so subject to 403 it is possibly admissible.
b.
Redaction (Brutonized statements):
-- Is there a direct and obvious link to the co-D so the brutonized statement won’t work? Or will it be sufficiently attenuated
so that the statement is permissible?
i. Richardson v. Marsh (1987) – Ds on trial – state redacted 1 Ds confession to omit all reference to Co-D, Marsh.
Confession said they were riding along in the car devising murder plan. Later in trial Marsh admits she was in the car
during convo, but Williams statement in and of itself doesn’t reference her or even anyone else’s existence/presence during
convo. Court holds that this didn’t fall within Bruton Doctrine bc statement was adequately & carefully redacted.
ii. Gray v. Maryland (1998) – Some incriminating extrajudicial statements of a Co-D which name D are so prejudicial that
limiting instructions are not effective (Bruton). D confessed to beating victim to death w 2 others. State tried Ds jointly; A
redacted version of the confession was admitted – it used the word “deleted” whenever Gray’s name appeared. This was
found prejudicial bc it unnecessarily called the jury’s attention to the “blanks” – they look to defense table & their wheels
start turning, thus this runs afoul of Bruton. Jury can react similarly in both an unredacted confession and one redacted in a
way that leaves an obvious blank space or uses the word ‘deleted.’
iii. 8.7 – Edwards, 159 F.3d 1117 (8th Cir. 1998) - a 1988 fire killed six firefighters. In ‘95 people were charged. In a taperecorded statement Edwards told investigators about taking 2 of them to get gas. Statement was redacted to replace Co-Ds
with neutral pronouns. Statement was to police under formal circumstances; primary purpose was looking toward to a
future criminal trial, which is what happened (like Crawford)
Admissible? No reference to Ds involvement or attention-drawing to blanks, arguably the jury could still infer. 8th circuit
affirmed w language in Gray – “why couldn’t witness have said ‘blanks statement’ with pronouns”
**Point – When you use pronouns or generalities it doesn’t, to the same degree at least, attract jury’s attention as much.
UNIT 2: RELIABILITY CHAPTER 8 CONFRONTATION CLAUSE
COMPULSORY PROCESS 6A: "In all criminal prosecutions, the accused shall enjoy the right… to have compulsory process for
obtaining witnesses in his favor.” This gives a crim D the right to subpoena defense witnesses & it’s been more broadly interpreted
to entitle a D to obtain & present all evidence helpful to his defense.
Chambers v. Miss. (1973) – D has a right to present a defense. Chambers convicted of murder, but another man admitted to it. D
argued that he didn’t do it and the other guy did. State rules prohibited D from impeaching other guy when he testified he
didn’t confess (Ms. Voucher Rule) & prevented D from introducing testimony from other witnesses about other guy’s
confession. These rules deprived D of a trial in accord w traditional & fundamental standards of due process. Where
constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanically so to defeat the ends of justice.
Note: this case wasn’t decided under 6A compulsory clause, it was decided under 14A due process clause –it embraced rights
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to confront and cross witnesses and call witnesses in one’s own behalf - maybe it was done this way to be kept low key to help
get a decision. **Timmy Hancock argued this case for the state to the Sp Ct – Ole Miss classmate of Davis
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UNIT 2: RELIABILITY CHAPTER 9 LAY OPINIONS AND EXPERT TESTIMONY
A. LAY OPINIONS: 701 - IF WITNESS IS NOT TESTIFYING AS AN EXPERT, TESTIMONY AS OPINION/INFERENCE IS LIMITED TO THOSE THAT ARE:
(A) RATIONALLY BASED ON WITNESS’ PERCEPTION, AND (B) HELPFUL TO A CLEAR UNDERSTANDING OF WITNESS' TESTIMONY OR DETERMINATION OF A
FACT IN ISSUE, AND (C) NOT BASED ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WITHIN THE SCOPE OF RULE 702 (ADDED IN 2000
AMENDMENT TO AVOID EXPERT TESTIMONY UNDER GUISE OF LAY TESTIMONY).
Advisory Co noted that amendment does not prohibit prototypical examples relating to appearance, identity, manner of conduct,
degrees of light or darkness, sound, size weigh, distance, & others that cannot be described factually apart from inferences. I.E. D was
furious. It’s one of those things that’s hard to describe, we just know it when we see it “fury looks like – well – fury.”
Clip - insurance fraud case. W: He said, I’m a poor man. Lawyer: what tone of voice? Witness: depressed. (a) His perception – jury
didn’t see it; (2) Helpful for jury to know his demeanor; (c) Appearance perceptions are noted by advisory co not to be excluded
(D could object to not laying a foundation, but this would lead the lawyer to dig further what was his voice like when he said,
what made you come to that conclusion, which might just draw more attention to it). *If W said, “He sounded guilty” that would
cross the line since that’s really the ultimate question to be decided by the jury
Brother’s Keeper Clip - Disagreement about time of death; witness said he came by in the morning & he hadn’t been dead long. “I
could tell he was dead. How could you? His arm was floopsy. He’s cool, not cold so I don’t think he’d been dead too long.”
Judge Davis: “He was dead and his arm was floopsy” - things ordinary people know and can observe, but “he had not been dead
long” – tougher. Could argue that as a farmer his business allowed him to see dead animals.
9.2 – D charged with selling cigarettes to a minor – D seeks to offer testimony of witnesses who were familiar with the buyer and
would testify that she appeared to be 20-21 years old. Judge Davis – this probably fits under that language of the advisory
committee note “prototypical examples of appearances.
9th Circuit Court disagreed with trial court’s exclusion of these witnesses because giving a determination of someone’s age is
something that lay people can normally express
9.3 – witness is going to give opinion as to discovering cocaine in D’s shoes. Since testimony was not based on specialized
knowledge within the scope of 702 but rather based on the layperson’s personal knowledge, court said she could give this
testimony because she knew what cocaine looked, smell, and tasted like
Ganier (2006) – Forensic test results run on computers & related testimony constitutes ‘scientific, technical, or other specialized
knowledge’ within the scope of 702 since it requires interpretation by a forensic computer specialist. D indicated some files were
transferred to recycle bin rather than deleted. Gov. computer specialist used forensic software to search comp and found evidence
that D to avoid conviction possibly deleted some docs. Gov did not supply summary to the other side, which criminal procedure
rules require for expert testimony. Prosecution argued the specialist was offering lay testimony bc anyone could figure out with
over the counter, commonly available software. Court says this is an area of expertise - people can use thermometers at home and
use those things accurately, but other kinds of specialized tests get into an area of expertise and it finds this case to be more like
the latter that required specialized knowledge. Since it’s expert testimony, the trial court excluded it, but appeals court said that
was too severe since there was no bad faith & no serious prejudice bc D already had his own expert witness lined up to testify.
Plus, there were other options the trial judge could have utilized: continuance, enter any other order under the circumstances,
order discovery.
**Note: advisory committee’s note to 2000 amendment to 701 implies that while a lay witness may not offer opinion testimony
based on “specialized knowledge,” the witness may do so based on his or her “a particularized knowledge” gained by “his or her
position in a business.” arguably, “the particularized knowledge” on which lay opinion may be based could also constitute
‘specialized knowledge.’
9.4 – government wished to present a witness’s testimony about how he deciphered the hieroglyphic code and determined the phone
numbers of persons listed in the book. Judge concluded he could testify and explain how he deciphered the hieroglyphics.
Should the trial court have permitted this testimony as a lay witness?
Davis: deciphers cryto-quotes – his personal knowledge and he has a knack for it
GRNG = THAT about 95% of the time, requires an eye for linguistic pattern s
2 Key Differences bw Lay & Expert Opinions: (1) Only expert opinions may draw upon the witness’s ‘scientific, technical, or other
specialized knowledge (701(a)). (2) Lay witnesses cannot rely on hearsay, but experts may in certain cases (Melton, 703)
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B. EXPERT TESTIMONY: 702 - IF SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL ASSIST TRIER OF FACT TO UNDERSTAND EVIDENCE
OR DETERMINE A FACT IN ISSUE, A WITNESS QUALIFIED AS AN EXPERT (#1 PROPER QUALIFICATIONS) BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR
EDUCATION, MAY TESTIFY IN FORM OF OPINION OR OTHERWISE, IF (1) TESTIMONY IS BASED UPON SUFFICIENT FACTS OR DATA (#2 PROPER TOPIC). (2)
TESTIMONY IS PRODUCT OF RELIABLE PRINCIPLES AND METHODS (#3 SUFFICIENT BASIS), AND (3) WITNESS HAS APPLIED PRINCIPLES AND METHODS
RELIABLY TO CASE FACTS (#4 RELEVANT AND RELIABLE METHODS). AND MUST MEET #5 RULE 403 WEIGHING TEST
**Courts often favor expert testimony admissibility bc opponent is free to counter it w/ opinions from rival experts; high trial ct discretion
1.
PROPER QUALIFICATIONS FOR EXPERTS - 702 allows expert testimony derived from experience as well as formal training or education.
9.5 - Johnson Man could id marijuana based on its appearance, due to his experience transporting it for many years and his use of it. His
testimony conflicted w other side’s witness who said there’s no test to differentiate bw marijuana types. 702 allows experts to testify
from experience. Expert testimony doesn’t foreclose issues from jury’s consideration bc they can reject it. D can counter expert. Note, lay
testimony can counter expert testimony
Jinro America (2001) – Substantial, practical expertise, training, or education in particular relevant field is necessary to qualify a witness as an
expert under 702 & his testimony must be solely based in that area. Expert in Korean companies could not testify outside of that
2.
PROPER TOPICS
MATTERS OF COMMON KNOWLEDGE - Sometimes reasonable assumptions about common knowledge avoid experts need to clarify i.e.
trademark dispute – match v. macho v. men’s toiletries – one co had English expert say they are similar  702 analysis – (1) He has specialized
knowledge, but it’s prob not needed here bc he’s testifying to things the jury likely already understands. Appeals ct, abuse of discretion standard,
affirmed admission, but said it would have been okay either way.
Clip – expert witness discussing cause of death vs. manner of death; fine as background information
9.7 – Defense: If D was confused, no intent to deceive. D expert to testify about memory & human ability to confuse. Ordinary people are likely
to understand forgetting/mixing up things. This isn’t something that would help the jury
OPINIONS ON LAW & ULTIMATE ISSUES: 704 Expert may state opinion on ultimate issue (modern), but may not insert D in opinion.
704 (B) NO EXPERT WITNESS TESTIFYING WITH RESPECT TO THE MENTAL STATE OR CONDITION OF A DEFENDANT IN A CRIMINAL CASE MAY STATE AN
OPINION OR INFERENCE AS TO WHETHER D DID OR DID NOT HAVE THE MENTAL STATE OR CONDITION CONSTITUTING AN ELEMENT OF THE CRIME
CHARGED OR OF A DEFENSE THERETO. SUCH ULTIMATE ISSUES ARE MATTERS FOR TRIER OF FACT ALONE. B ADDED AFTER HINCKLEY TRIED TO
ASSASSINATE THE PRESIDENT AND WAS ACQUITTED ON GROUNDS OF INSANITY.
9.10 – Expert testifies that meth product purchases show intent to make it. He essentially testifies to the ultimate issue, but this is the question to
be answered by the jury. The court quoted advisory co notes (p. 196 of supplement) abolition of the ultimate issue rule does not lower the
bar so as to admit all opinions under 701 & 702, and 703, which provide ample assurances against admission of opinions which would
merely tell the jury what result to reach. Expert here attempted to do the jury’s job for them – inadmissible.
Hygh v. Jacobs - Hygh’s surgeon said fracture was caused by a blunt instrument(officer’s flashlight). D’s law enforcement expert testified the
cop used deadly physical force. Expert’s legal conclusions crossed: invaded jury’s role to decide & judge’s role to define deadly force.
OPINIONS ON CREDIBILITY - Expert testimony is inadmissible on whether a witness testified truthfully bc that’s the jury’s job.
Batangan - Clinical psychologist with a specialty in sexually abused kids testified to his exam of girl, his experience with abused children in
general, & then implied daughter was credible. This invaded the jury’s role to determine credibility. 704 permits opinion testimony
regarding the ultimate issue, but not for the expert to inform the jury of the correct conclusion. Jury’s common knowledge usually allows
for sufficient witness credibility assessment.
OPINIONS ON EYEWITNESS IDENTIFICATION - Expert testimony may be appropriate even in areas within the understanding of the average
juror, where the juror may make inappropriate inferences based on common knowledge.
Hines (1999) - Bank teller (white) ID’d robber (black). D expert eyewitness ID specialist testified about trouble with cross-racial IDs. Gov.
argued it was unnecessary bc jury could determine ID credibility. Court ruled it could aid jury bc they would have a better understanding
of science of eyewitness ID. Like in cases of battered women syndrome, expert provides info that may correct erroneous assumptions
3.
PROPER BASES OF OPINION TESTIMONY: 703 FACTS OR DATA THAT AN EXPERT BASES AN OPINION/INFERENCE MAY BE THOSE PERCEIVED BY OR
MADE KNOWN TO THE EXPERT AT OR BEFORE THE HEARING. FACTS OR DATA NEED NOT BE ADMISSIBLE IN EVIDENCE FOR OPINION/INFERENCE TO BE
ADMITTED.
EXPERT’S OPINION MAY BE BASED ON FACTS: Perceived by or made known to expert at trial (705) OR before trial (raises hearsay issues) (703).
In Re Melton - Experts don’t need first-hand knowledge; Psychiatrists may reasonably rely on the reports of fam members. Jury’s decision
based on testimony of 2 psychiatric experts whose opinion rested entirely on hearsay - a report from his mom that he struck her. Gov. may
not disclose hearsay accusation to the jury unless court determines that its probative value in assisting the jury substantially outweighs the
prejudicial effect. The info about the family may not come in as substantive evidence; it may only be offered for the expert’s opinion
- Advisory Co – this is what physicians/medical experts rely on to form opinions, but it doesn’t require their bases for opinion be admitted.
- Note. 2000 amendment to 703 – “facts or data that are otherwise inadmissible must not be disclosed” – court didn’t have this sentence
but followed it regardless and gave a limiting instruction to not consider mom’s comment outside of expert’s report. *Davis – nail in wall
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4.
ASSESSING THE RELIABILITY OF EXPERT SCIENTIFIC TESTIMONY –
Frye (1923) – expert opinion based on a scientific technique is inadmissible unless the technique is ”generally accepted” as reliable
in the relevant scientific community. Court ruled that a systolic blood pressure deception test (precursor to polygraph) had not
gained such standing and scientific recognition to justify admission of expert testimony deduced from its use.
Daubert (1993) – To be admissible in federal trial, an expert opinion must be based on sound principles and valid deductions/ must
be relevant (must be helpful and pertinent to issue at hand) & reliable (must establish testimony grows out of pre-litigation
research/research subject to peer review). (overruled Frye –702 is broader).
- Mother used bendictin when she was pregnant. Child has birth defects; tried to get in evidence of defects. “General acceptance”
is not a necessary precondition to admit scientific evidence; FREs assign trial judge the task of ensuring expert testimony is
reliable & relevant. Pertinent evidence based on scientifically valid principles will satisfy those demands. Not required that
scientific testimony must be “known” to a certainty because arguably there are no certainties in science.
Factors to determine whether expert testimony should or should not come in – *list is not exclusive, only illustrative and no
one issue is determinative.
 Can the theory be tested, and if it can, has that testing taken place?
 What are its known or potential error rates?
 Has it been described in scientific publications subject to peer review?
 Is there an existence and maintenance of standards controlling the technique’s operation; and
 Has it achieve some degree of general acceptance in relevant scientific community? (**carries a lot of weight)
C.J. Rehnquist Dissent – I do not doubt that 702 gives to the judge some gate keeping responsibility, but I do not think it
imposes them to become amateur scientists to perform that role.
 Kumho answered dissent Q - everything Court said about scientific knowledge testimony applies equally to technical or
specialized aspects of expert testimony
Afterthoughts
o Note: 702 amendment was added specifically in response to Daubert: “If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
o Even though Daubert purports to be a liberal interpretation and the advisory committee comments that Daubert shows that
the rejection of expert testimony is the exception rather than the rule, some commentary conjectures that Daubert actually
raised the bar
o Advisory Co notes p. 185: When a trial court applying this amendment rules that an expert’s testimony is reliable, this
doesn’t mean that contradictory expert testimony is unreliable. Opinions don’t have to be proved correct, just reliable.
o Llera Plaza (2002) Daubert Hearing Example: Judge Pollak thought finger print identification was insufficiently tested and
reviewed, thus it failed to operate under uniformly accepted scientific standards. He held a Daubert hearing, but then
ultimately concluded expert testimony in the area was admissible
o Note - Daubert II – Judge Kozinski noted that judges are largely untrained in science and unmatched to determine experts
proposed testimony, it is our daunting task to evaluate, but he does proceed to evaluate
Polygraph evidence under Daubert’s relevance-and-reliability analysis?
United States v. Crumby (1995) – One approach, but not the most common is allowing evidence under limited
circumstances: when (1) D provides sufficient notice to gov.; (2) opposing party has a reasonable opportunity to have its
own polygraph administered; (3) it will be allowed to impeach/corroborate D’s testimony if D testifies & is impeached
Notes 4 Main concerns with polygraphs: (1) aura of infallibility; (2) opinion regarding ultimate issue; (3) polygraphs
infringe on jury’s role to determine credibility; (4) judicial resources will be unduly consumed
Court looks to Daubert factors: testability (could be a problem with the control questions; *all the court discusses is the
actual test procedure, not tests of the test); peer reviewed; error rates (the error is more likely to find an innocent person
guilty so if it concludes innocence the error margin is very low; acceptance in scientific communities (the community the
court looks to his polygraph examiners- BUT we would hardly expect them to be objective/critical observers)
i. 9.14 – Canter (SDNY 2004) court denied polygraph evidence -similar to the prevalent court position. But then D wants to
show his consciousness of innocence & have the examiner testify to the fact that he consented to take the test afer the examiner
had told him about her high level of success. Concern: if everyone knows that polygraph evidence is inadmissible then go
ahead and take it and then admit the fact that you consented. Court rejected evidence and said this whole thing has a bad odor
to it. D could take the test in private & then if it shows he’s lying, no one knows about it, but if it shows he is telling the truth
then they try to get it admitted. OR worse D knows the results are inadmissible so we take the test to show
consent/consciousness of innocence
o
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ii. Scheffer (1998) – D wants to offer evidence that he passed a lie detector test to show he didn’t use drugs. Military rules of
evidence have a blanket ban on polygraph evidence looking back to Chambers (6th amendment compulsory process clause);
Can denial of polygraph evidence violate the compulsory process? The Court holds (8-1) no right to compulsory process
here; Chambers required the evidence to be crucial to the defense and reliable & polygraphs are not completely reliable. J.
Thomas (majority) wrote that “the jury is the lie detector” and polygraph evidence will diminish the jury’s role in making
credibility determinations (only 4 justices joined in this part and 4 other justices not concerns of reliability, but made it clear it
is not jurisdictionally required to ban polygraph evidence outright).
J. Stevens dissenting: (1) Jurors don’t blindly follow polygraph evidence and (2) Shows empirical studies suggesting 85-90%
accuracy, even critical studies conclude that accuracy is 70%, we routinely admit far less reliable evidence;
**Davis notes that polygraph evidence really goes to truthfulness and perhaps the court’s greatest concern is with this aspect
more so than reliability
iii. A Hogwartz sorting hat would throw all of this up in the air - : )
5.
Assessing the Reliability of Non-Scientific Expertise
i. Aftermath of Daubert, but before Kumho – forensic handwriting flunks Daubert, thus it is not science, then because it’s not
science it need not pass Daubert test and a looser test applies under which it is admissible. Leads to people offering experts
saying this really isn’t an area of scientific expertise to evade Daubert test. But then Kumho levels the playing field
1. Kumho Tire Co (1999) – court says that everything from Daubert’s conclusion on scientific knowledge applies with
equal force to expert testimony based on technical/specialized knowledge. Supreme Court affirmed exclusion of
expert testimony on defective tire bc court must reliability & relevance of expert testimony for not only scientific
knowledge but technical or other specialized knowledge as well, and may flexibly apply one or more of Daubert’s
specific factors to determine the admissibility of a technical expert’s testimony based on its relevancy and reliability.
*Standard doesn’t require the expert be correct, just reliable. Rationale: (1) The rule on its face makes no distinction
bw scientific knowledge & technical/specialized knowledge; (2) Experts can formulate opinions based on hearsay and
not firsthand knowledge; & (3) It would be difficult, if not impossible for a trial judge to distinguish between these
different kinds of knowledge
ii. 9.15 Hedonic value of life - under Daubert factors, at least two factors – testing and rate of error are totally lacking, but do note
the factors are not exclusive. The court added some other factors to the analysis, but ultimately excluded it.
iii. Clip – sexual harassment lawsuit; expert testifying about Rape Trauma Syndrome. Defense argues his testimony won’t be
helpful because basically every behavior fits under his RTS theory. Prosecutor could argue it is an area of expertise, the
methodology is sound, and there is sufficient data, & it’s just background info – just the facts, will help the jury recognize that
some people may not act immediately and in the time in between may act normally.
**Davis compares this to child abuse cases – experts not proffering testimony that D abused child, but rather that it is possible
that some parents do abuse their child – help understand battered child syndrome to explain that such a thing can happen.
iv. Kinney (SC of VT, 2000) - state called an expert on rape trauma victims. He defined rape trauma syndrome, explained the
responses of rape victims to their attacker, typical patterns of reporting rapes, and rate of false reporting is very low. Ct held
(1) Testimony of rape trauma syndrome & associated typical behaviors is admissible. It meets Daubert & will assist the
jury’s evidence evaluation; but (2) testimony of false reporting rates is inadmissible, however D did not make any specific
objection and it was not plain error so conviction affirmed.
v. Two psychologists argue PTSD (post-traumatic stress disorder) and MPD (multiple personality disorder) are not generally
accepted, thus experts have an affirmative ethical duty to refuse to give testimony that would not reasonably be expected to
pass Daubert/Kumho scrutiny, even if opposing counsel doesn’t challenge its admissibility
Alberico (1993) – finds a general acceptance in psychology of PTSD and found it admissible, but Rape Trauma Syndrome
testimony is inadmissible bc it is not part of the specialized manual on mental disorders).
Chauvin (2003) – finds PTSD, although widely accepted, not a reliable indicator thus expert testimony on it is inadmissible
vi. 9.16 separation violence – expert testifies that batterers tend to call and isolate their victims; recounting the basic facts of the
case at hand. Court said it was really character evidence and it was improperly admitted. But remember under 404(B) character
evidence can be admissible to show certain things, i.e. motive, overall plan or scheme and it might have fallen under that.
Davis: you can have expert testimony on battered child syndrome, which was a phrase that medical doctors coined and experts
testify that it does happen and when it does this is what you typically see, BUT when experts testify and define their
characteristics specifically to D – courts say that goes too far
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UNIT 2: RELIABILITY CHAPTER 10 AUTHENTICATION, IDENTIFICATION, AND THE “BEST EVIDENCE RULE”

AUTHENTICATION & IDENTIFICATION: 901 - authentication analysis when documents, records, or other physical things are described
in testimony/offered into evidence; analysis determines relevance; jury decides authenticity.
(A) AUTHENTICATION/IDENTIFICATION AS A CONDITION PRECEDENT TO ADMISSIBILITY IS SATISFIED BY EVIDENCE SUFFICIENT TO SUPPORT A
FINDING THAT THE MATTER IN QUESTION IS WHAT ITS PROPONENT CLAIMS.
(B) ILLUSTRATIONS (not exhaustive) - EXAMPLES OF AUTHENTICATION/ID CONFORMING W RULE:
(1) TESTIMONY OF WITNESS WITH KNOWLEDGE THAT A MATTER IS WHAT IT IS CLAIMED TO BE.
(2) NON-EXPERT OPINION ON HANDWRITING BASED UPON FAMILIARITY NOT ACQUIRED FOR PURPOSES OF THE LITIGATION.
(3) COMPARISON BY TRIER OR EXPERT WITNESS WITH SPECIMENS, WHICH HAVE BEEN AUTHENTICATED.
(4) DISTINCTIVE CHARACTERISTICS AND THE LIKE. APPEARANCE, CONTENTS, SUBSTANCE, INTERNAL PATTERNS, OR OTHER DISTINCTIVE
CHARACTERISTICS, TAKEN IN CONJUNCTION WITH CIRCUMSTANCES.
(5) VOICE IDENTIFICATION WHETHER HEARD FIRSTHAND OR THROUGH MECHANICAL/ELECTRONIC TRANSMISSION/RECORDING, BY OPINION
BASED UPON HEARING VOICE AT ANY TIME UNDER CIRCUMSTANCES CONNECTING IT W ALLEGED SPEAKER.
(6) TELEPHONE CONVERSATIONS BY EVIDENCE THAT A CALL WAS MADE TO THE NUMBER ASSIGNED AT THE TIME BY THE PHONE CO TO A
PARTICULAR PERSON OR BUSINESS, IF (A) IN THE CASE OF A PERSON, CIRCUMSTANCES, INCLUDING SELF-IDENTIFICATION, SHOW PERSON
ANSWERING TO BE THE ONE CALLED, OR (B) IN THE CASE OF A BUSINESS, CALL WAS MADE TO A BUSINESS & THE CONVERSATION
RELATED TO BUSINESS REASONABLY TRANSACTED OVER THE PHONE.
(7) PUBLIC RECORDS OR REPORTS. EVIDENCE THAT A WRITING AUTHORIZED BY LAW TO BE RECORDED OR FILED AND IN FACT RECORDED OR
FILED IN A PUBLIC OFFICE IS FROM THE PUBLIC OFFICE WHERE ITEMS OF THIS NATURE ARE KEPT.
(8) ANCIENT DOCUMENTS OR DATA COMPILATION. EVIDENCE THAT A DOCUMENT OR DATA COMPILATION, IN ANY FORM, (A) IS IN SUCH
CONDITION AS TO CREATE NO SUSPICION CONCERNING ITS AUTHENTICITY, (B) WAS IN A PLACE WHERE IT, IF AUTHENTIC, WOULD LIKELY
BE, AND (C) HAS BEEN IN EXISTENCE 20 YEARS OR MORE AT THE TIME IT IS OFFERED.
(9) PROCESS OR SYSTEM. EVIDENCE DESCRIBING A PROCESS OR SYSTEM USED TO PRODUCE A RESULT AND SHOWING THAT THE PROCESS OR
SYSTEM PRODUCES AN ACCURATE RESULT.
(10) METHODS PROVIDED BY STATUTE OR RULE. ANY METHOD OF AUTHENTICATION OR IDENTIFICATION PROVIDED BY ACT OF CONGRESS OR
BY OTHER RULES PRESCRIBED BY THE SUPREME COURT PURSUANT TO STATUTORY AUTHORITY.
DOCUMENTS
10.1 – How can we go about showing that D is the one who actually signed and sent these forms.
901(b)(2) Nonexpert opinion on handwriting - a witness familiar with his handwriting (p. 306 rule bk - lay identification of
handwriting may be acquired by seeing him write, exchanging correspondence, or by other means).
901(b)(2) Comparison by trier or expert witness – show it to jurors or have expert make connection
901(b)(4) Distinctive characteristics – circumstantial connections i.e. having wire transfer forms in his suitcase/car
10.2 – 901(b)(2) “based upon familiarity not acquired for purposes of the investigation.” Someone intricate to case is being asked to
id, as a layperson, D’s handwriting based on her case research. Second Circuit admits it - that part didn’t apply under this
case’s circumstances, but court could have gone either way on this.
Stelmonkas (1997) – DAVIS authenticity questions - in every case like we want to ask if someone was trying to frame him: (1)
Why would anyone seek to frame D? (would they frame such a small player?) & (2) if anyone was going to frame him is this
the way they would do it? (plant docs that would be inaccessible for decades only to be unearthed many years later?).
- Allegations that D was involved in murder of Jews during the Holocaust. Government introduced archived records that
clearly demonstrated his enlistment, involvement, and assignments. 901(b)(8) Ancient docs are admissible as exceptions to the
hearsay rule provided they are (A) in authentic condition, (B) in a place where they likely would be located if authentic, and
(C) have been in existence for 20 years or more at the time offered. D argues that (A) and (B) are not met in this case. The docs
were obtained from the Lithuanian capital and German sources. 2 experts testified to the authenticity of the docs.
Held: The docs were properly admitted as exception to the hearsay rule (Affirmed.) Their authentic condition was not in the
least suspicious.
PHONE CALLS
Clip – Hanks calls wife trying to call mistress and wife recognizes his voice - Lay witness identification
Clip – Voice recognition - 901(b)(3) comparison by trier of fact – possible problem p. 308 example 5 – comment “since oral voice
id is not a subject of expert testimony the requisite familiarity might be acquired before . . .” It’s not likely they were referring
to other kinds of expert testimony – voice print analysis or other kinds of technology developed today.
10.4 – Robbery at pizza place; later robber calls and asks if everyone is okay; star 69 calls him back; the number was from another
pizza place they go and arrest D.
901(b)(6) might be able to use call tracing (what they were trying to do above in clip)
Small (2007) - D charged w/ murder. Victim’s friend testified victim was in debt and fearful for his life. Victim used friends phone
to call about debt. Friend called back Dominique to try and make arrangements repay victim’s debt. D’s wife testified at trial
that Dominique was a nickname Small used. Trial Ct admitted friend’s testimony.
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- D’s statements on the phone can be admissible under the party-opponent admission exception to the hearsay rule if the state
can authenticate that the person speaking on the phone was D. Used 901(b)(4): The state authenticated the person to whom
Ellos spoke on the phone was Small (i.e. “Dominique”) through distinctive characteristics that indicated that the caller could
only be Small. *Note: 901(b)(5) or (6) would not work here b/c Ellos did not know Small’s voice
*2 other methods for authenticating phone convos are acceptable for purposes of 801(d)(2)(A), and are less vulnerable to
cross: (1) evidence that call was made to a number assigned by phone co to D; (2) voice ID, where caller knows D’s voice
PHOTOGRAPHS - ASK (1) For what purpose are you offering it? & (2) Is it reliable? (Wagner )
Simms v. Dixon (1972) – Photo Admissibility Test is whether the photos accurately depict what is shown. A photographer does
not need to be present to admit a photo, so long as a witness testifies, from personal knowledge, that the exhibit fairly and
accurately represents what it is supposed to represent.
- No need to be taken at or near the time of the litigation however it must accurately represent the facts allegedly portrayed
- No need for the photographer to have seen it, rather just someone who saw the thing from the perspective
- Staged photos: Admissible if offered to illustrate witness/victim testimony.
- The judge has discretion to exclude demonstrative evidence if he believes it will likely be misleading or useless (403)
10.6 – CGA to show previously formed opinion of witness.
Option 1: 901(3) analysis: Comparison by trier or expert witness
- First, expert testimony presented to show trajectory without CGA; Then show CGA – ask, “is it a fair and accurate
representation of the events you just testified to that formed the basis of your opinion?” If CGA accurately reflected his
testimony it would be admissible subject to 403.
Option 2: 901(b)(9): Process/system – testify that he constructed the animation.
** IDEALLY YOU WOULD D BOTH OPTION 1 AND OPTION 2
Thelma and Louise Clip: security camera tape from store being robbed. Options: (1) ask a person who was there if it is a fair and
accurate depiction of the robbery (gives victim 2 chances to tell his story); (2) if no witness is available, a technical person
could be put on the stand to talk about installation and monitoring of the camera.
- You may not put the cop on the stand to testify that he got the tape from the store clerk a few days after he was robbed. This is
bc anyone can tamper with a camera. You must have a witness to say it a fair and accurate depiction
Wagner v. State (Ct of App of FL, 1998) – chain of custody issue here. Cop videotaped an undercover drug deal. Tape was
introduced & cop testified to recording equipment’s installation. Informant unavailable, but another witness ID’d D on tape.
Gov. used 901(b)(9) [Process/System] proof to authenticate tape. Relevant, reliable photographic evidence is admissible
upon a consideration of 5 factors (affirmed) to establish reliability: evidence (1) establishing time & date; (2) showing
edits or tampering; (3) of operating condition & equipment as it relates to the accuracy and reliability of photographic
product; (4) of the procedure employed as it relates to the preparation, testing, operation, and security of the equipment
used to produce the photographic product, including the security of the product itself; (5) testimony identifying relevant
participants in the photographic evidence.
902 EXTRINSIC EVIDENCE OF AUTHENTICITY AS A CONDITION PRECEDENT TO ADMISSIBILITY IS NOT REQUIRED WITH RESPECT TO THE
FOLLOWING: (1) DOMESTIC PUBLIC DOCUMENTS UNDER GOVERNMENTAL SEAL; (2) DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL; (3)
FOREIGN PUBLIC DOCUMENTS; (4) CERTIFIED COPIES OF PUBLIC RECORDS; (5) OFFICIAL PUBLICATIONS; (6) NEWSPAPERS AND PERIODICALS; (7)
TRADE INSCRIPTIONS AND THE LIKE; (8) ACKNOWLEDGED DOCUMENTS; (9) COMMERCIAL PAPER AND RELATED DOCUMENTS; (10) PRESUMPTIONS
UNDER ACTS OF CONGRESS; (11) CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY; (12) CERTIFIED FOREIGN RECORDS OF
REGULARLY CONDUCTED ACTIVITY.
THE BEST EVIDENCE RULE – unless you are really trying to prove the content of the writing, photo, or recording (you are often not
trying to do this – in a copyright case you would be trying to prove the content)
1001
1002
1003
1004
(1) WRITINGS AND RECORDINGS. CONSIST OF LETTERS, WORDS, NUMBERS, OR EQUIVALENT SET DOWN BY HANDWRITING, TYPEWRITING,
PRINTING, PHOTOGRAPHING, MAGNETIC IMPULSE, MECHANICAL OR ELECTRONIC RECORDING, OR OTHER FORM OF DATA COMPILATION.
(2) PHOTOGRAPHS. "PHOTOGRAPHS" INCLUDE STILL PHOTOGRAPHS, X-RAY FILMS, VIDEO TAPES, AND MOTION PICTURES.
(3) ORIGINAL. THE WRITING OR RECORDING ITSELF OR ANY COUNTERPART INTENDED TO HAVE THE SAME EFFECT BY A PERSON EXECUTING OR
ISSUING IT. PHOTOGRAPH ORIGINAL INCLUDES THE NEGATIVE OR ANY PRINT THEREFROM. COMPUTER DATA ORIGINAL INCLUDES ANY PRINTOUT
OR OTHER OUTPUT READABLE BY SIGHT, SHOWN TO REFLECT THE DATA ACCURATELY, IS AN "ORIGINAL".
(4) DUPLICATE. COUNTERPART PRODUCED BY SAME IMPRESSION AS ORIGINAL.
TO PROVE CONTENT OF A WRITING, RECORDING, OR PHOTO, ORIGINAL IS REQUIRED, EXCEPT AS OTHERWISE PROVIDED IN FRES OR BY CONGRESS.
A DUPLICATE IS ADMISSIBLE UNLESS (1) A GENUINE Q IS RAISED AS TO ORIGINAL’S AUTHENTICITY OR (2) UNDER THE CIRCUMSTANCES IT
WOULD BE UNFAIR TO ADMIT THE DUPLICATE IN LIEU OF THE ORIGINAL.
THE ORIGINAL IS NOT REQUIRED, AND OTHER EVIDENCE OF THE CONTENTS OF A WRITING, RECORDING, OR PHOTOGRAPH IS ADMISSIBLE IF-- (1)
ORIGINALS LOST OR DESTROYED, UNLESS THE PROPONENT LOST OR DESTROYED THEM IN BAD FAITH; OR (2) ORIGINAL NOT OBTAINABLE; OR (3)
ORIGINAL IN POSSESSION OF OPPONENT
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PROBLEM 10.7 – NOTE: trial court allowed the evidence; court called counsel to the bench and said to the prosecutor, “of course you
have the right to proceed, it seems when you have a case of perjury and a transcript … you should put it in evidence instead of
proving what it said by a witness memory.”
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UNIT 3: PRIVILEGES CHAPTER 11 PRIVILEGES GENERAL PRINCIPLES
PRIVILEGES: 501 - SPECIAL TREATMENT TO A VARIETY OF CONFIDENTIAL COMMUNICATIONS, KEEPING THEM FROM THE TRIER OF FACT
EXCEPT AS OTHERWISE REQUIRED BY THE CONST. OR BY ACT OF CONGRESS OR IN SUPREME COURT’S RULES PURSUANT TO STATUTORY AUTHORITY,
THE PRIVILEGE OF A WITNESS, PERSON, GOVERNMENT, STATE, OR POLITICAL SUBDIVISION THEREOF SHALL BE GOVERNED BY THE PRINCIPLES OF
COMMON LAW AS THEY MAY BE INTERPRETED BY U.S. COURTS IN LIGHT OF REASON AND EXPERIENCE. HOWEVER, IN CIVIL CASES WHERE STATE LAW
SUPPLIES THE RULE OR PRIVILEGE, IT SHALL BE DETERMINED IN ACCORDANCE WITH STATE LAW.
- Generally, other rules keep out evidence that isn’t reliable or trustworthy; Privileges look to external policies; keep evidence out, even if
reliable, to promote social goals. Rationale: communications are socially desirable, and people would be less likely to make them if they were not
privileged.; state should not intrude on personal relationships
Proposed Rules 501-513 were never enacted: 9 specific evidentiary privileges (p. 354 in rule book)
 (1) real diversity among states concerning privilege law; (2) some privileges inexplicably left out of proposal (no inclusion of marital
privilege; proposed 505 did allow accused in crim case to prevent spouse from testifying against him, but not a true privilege)
Rejected privilege rules survive though - Senate wrote that their rejection was not disapproval, but rather determination that privileges should be a
case-by-case determination. **Allows federal courts to define new privileges, in crim cases & federal Q civil cases, by interpreting CL in light of
“reason and experience.” In diversity cases, the state whose substantive law applies, supplies the law of privilege.
Only the actual STATEMENT made in confidential relationships are kept secret by privileges; privilege does not protect against revealing the
INFO a client knows whether or not the client may have communication that info in privileged convos
All privileges are rooted in an imperative need for confidence & trust
Privilege
Policy
Psychotherapist-Patient
Facilitates treatment for individuals
suffering from mental/emotional
problems
Key Case
Jaffee (1996) – Officer shot and killed
a man; went to therapy after with a
clinical social worker. D argues convos
should be privileged. Court holds that
confidential communications between a
psychotherapist and patients in the
course of diagnosis and treatment are
protected from compelled disclosure
under 501 (1) Experience: all 50 states
have some form of it already; & (2)
Reason: discourse promotes mental
health of the patient
Court does not want to water down
the privilege, rejects 7th circuit’s
balancing component bc for privilege’s
purpose to be served, its outcome must
be determinable w certainty.
Dissent (Scalia, Rehnquist): If the
privilege exists, it should not extend to
the social worker
Exceptions
(1) No expectation of privacy “Communication is confidential if not
intended to be disclosed to third persons
other than those present”
(2) Dangerous Patient Exception
(Jafee FN 19 ) – There are situations
where privileges give way to serious
threat of harm to the patient or others.
See Chase (9th Circuit 2003); Hayes (6th
Circuit 2000) – both declined to
recognize this exception. Strong
dissenting opinions advocating for this
exception
Priest-Penitent Privilege
Sacred communication that shouldn’t be sullied
by bringing it into court. *Some jurisdictions
require it to be a formal discussion whereas
others extend it to any discussion
Morales v. Portuondo (SDNY 2001) - Witness
Privilege v. D’s Need for Evidence –
Sometimes, even though there is a privilege and
it’s appropriate for it to be invoked, the
privilege might have to give way to another
compelling circumstance (i.e. constitutional
right to 6A)
- Fornes approached Father Towle w/
confession that he was the murderer, not the 2
convicted. Convicted D’s lawyer filed a motion
to set aside verdict, but Fornes pled 5A. Priest
could not testify due to privilege. Years later,
Fornes died and Father Towle signed an
affidavit attesting to his former statements. D
may introduce hearsay w indicia of reliability
that would otherwise be inadmissible if the
exclusion of such would amount to a denial of
D’s right to “a trial in accord w/ traditional and
fundamental standards of due process.” Fornes’
confession to 4 different people indicate its
trustworthy, they were made in circumstances
where he had no motive to lie, he seemed
remorseful, and the statements were full of guilt
Protects confidential communications made to a
member of the clergy when that person is acting
in a religious capacity. (extends past death of
the privilege holder).
Includes any person reasonably believed to be a
clergyman & only applies to religious matters
in which some sort of religious advice or solace
is sought
Reporter-Source Privilege
Public’s right to be informed; First
Amendment –freedom of speech
In Re Grand Jury, Judith Miller
(D.C. Circuit, cert. denied 2005) –
Scooter Libby Case. Dist. Ct. jailed
reporter (1) Reporter source IDs are
not protected under 1A (Branzburg v.
Hayes). (2) While 3 court members
differ about whether there is a CL
privilege, all agree that if there is, it is
not absolute and may be overcome in
appropriate circumstances.
Sentelle Concurrence: reporters
refusing to testify before grand jury
have no CL privilege. Issue for the
legislature.
Henderson Concurrence: We agree
if there is a privilege it doesn’t apply
here – stop there bc breach of security
issue here.
Tatel Concurrence: There should be
a CL privilege, but it cannot be
absolute- look to public interest v.
potential harm. In this case, damage to
the intelligence-gathering function is
greater than news value
NOTE rights meets privilege –
privilege belongs to communicant so
for example a parent cannot waive the
rights of a child – it would be
unauthorized disclosure because child
never waived it
- Privilege attaches to the reporter; not
the source (opposite of other
professional privileges)
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------------------------------------------------------------UNIT 3: PRIVILEGES CHAPTER 12 LAWYER-CLIENT PRIVILEGE
Lawyer-Client Privilege 502: the oldest and most frequently asserted professional privilege
(A) SCOPE OF WAIVER. WHEN THE DISCLOSURE IS MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY AND WAIVES THE
ATTORNEY-CLIENT PRIVILEGE OR WORK-PRODUCT PROTECTION, THE WAIVER EXTENDS TO AN UNDISCLOSED COMMUNICATION OR INFORMATION IN A
FEDERAL OR STATE PROCEEDING ONLY IF: (1) THE WAIVER IS INTENTIONAL; (2) THE DISCLOSED AND UNDISCLOSED COMMUNICATIONS OR INFORMATION
CONCERN THE SAME SUBJECT MATTER; AND (3) THEY OUGHT IN FAIRNESS TO BE CONSIDERED TOGETHER.
(B) INADVERTENT DISCLOSURE. WHEN MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY, THE DISCLOSURE DOES NOT OPERATE
AS A WAIVER IN A FEDERAL OR STATE PROCEEDING IF: (1) THE DISCLOSURE IS INADVERTENT; (2) THE HOLDER OF THE PRIVILEGE OR PROTECTION TOOK
REASONABLE STEPS TO PREVENT DISCLOSURE; AND (3) THE HOLDER PROMPTLY TOOK REASONABLE STEPS TO RECTIFY THE ERROR, INCLUDING (IF
APPLICABLE) FOLLOWING FEDERAL RULE OF CIVIL PROCEDURE 26(B)(5)(B).
Rationale - “to encourage full and frank communication bw attorneys and clients and thereby promote the broader public interests in
observance of law and administrative justice.” (J. Stevens in Jaffe)
Anatomy of a Murder Clip– lawyer explaining “the letter of the law” to his client; he explains how he could defend him on
murder charge. What you need is a legal peg so the jury can hang their sympathy on your behalf. You need an excuse. Client: Was I
crazy? Attorney: Perhaps… in the meantime think about how crazy you were. *Holds his hand toward temporary insanity defense
(1) It is the client’s – only the client or professional on her behalf may assert privilege
(2) It protects only those confidential communications made to facilitate professional services - “friendly chats do not
qualify” (Gionis – Fornes’s “heart to heart talk with Father Towle) - not “Can-A-Man” privilege– if a friend asks a lawyer
can a man do this, probably not protected; nor do talks made to a lawyer acting as a lobbyist or business agent (not as law
advisor); neither do lawyer’s observations – if lawyer makes an observation that third parties could also have made
(3) It protects only confidential communications
Defining Confidentiality - Approaches for considering inadvertent waiver: (1) Traditional SL – party is responsible for their
own accidents; (2) Intent-based (lenient) – waiver is like relinquishment of rights, it cannot be inadvertent; and (3) **Inadvertent
Disclosures Balancing Factors (1) reasonableness of precautions taken to prevent the disclosure; (2) time taken to rectify the error;
(3) scope of discovery; (4) extent of disclosure; and (5) fairness
Howell v. Joffee – Lynch, lawyer, and client left a voicemail for Howell (P). They don’t hang up the phone so continued convo
is recorded. Ds sought to exclude msg under att-cl privilege. Privilege applies where communication originated in
confidence that it would not be disclosed & was made to an attorney in his legal capacity for the purpose of
securing legal advice or services. Primary purpose of D’s convo was to share info protected by privilege. Despite some
extraneous comments, they are still protected.
Koch Foods of Alabama v. GE (2008) – Email exchange bw CFO & Counsel accidentally included in a discovery package
from (P) to D. Immediately after it was sent, P objected that it was privileged and should be returned. P intended to assert
privilege. Mistake of 1 single piece of paper among 3, 758 pages was not a failure to adequately review docs disclosed;
privilege was not waived.
Defining Communications: Source of Fees and Client’s Identity - fine line between fact & confidential communications – just
because it’s verbally communication, historically that’s not regarded as confidential communications
Osterhoudt (9th Cir. 1983) – citing 9th circuit Baird v. Koerner case – tax layer jailed for refusing to disclose who hired him to
pay unpaid taxes. Normally it’s what’s said and not who said it. Osterhoudt case said Baird properly claimed his client’s
privilege in refusing to disclose their identities. Generally identity is not a confidential conversation
12.3 – Dietz v. Doe (1997) – there might be circumstances, like Baird case, where you might not be compelled to divulge
identity of the client if the client’s identity can be seen as something intertwined with the confidential communications, but
if a client paid you w a phony bill, that’s an attenuated circumstance to his visit, so his ID wouldn’t reveal something he
told you in confidence.
Duration of Privilege
Swidler & Berlin (1998) – Supreme Court doesn’t like the balancing test. “Balancing ex post the impt of info against client
interests, even in crim cases, introduces substantial uncertainty into the privilege’s application and for just that reason we
reject its use in defining the controus of the privilege.” See Jaffee. *Noted that since courts have decided on
exceptions/waiver after death, they implicitly concluded that it survived death.
12.7 - Crime fraud exception waiver to attorney-client privilege – when client asks for assistance in carrying out or defending
against future crimes or wrongs, the privilege does not apply.
Government Lawyers – (white water scandal during the Clinton administration, Lindsey case – Monica Lewinsky scandal, Ryan
case) - the need for evidence may outweigh the privilege’s underlying rationale; all three cases had the same result – circuit courts
don’t want to get into the privilege and don’t want to recognize another exception to it
Fn 4 on p. 933: our decision is in conflict with Ryan and in sharp tension with In Grand Jury and Lindsey case – uniformity fosters
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predictability and suppresses forum shopping, but we are in no position to resolve this tension in the law. They are almost inviting
the Supreme Court to resolve this difference, which the Court has not done thus far
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------------------------------------------------------------UNIT 3: PRIVILEGES CHAPTER 13 THE MARITAL PRIVILEGE (TESTIMONIAL PRIVILEGE)
- Different than the other privileges we have seen; the marriage communication privilege is a true privilege bc it protects the
confidentiality of the relationship and encourage free communication
Policy- marital
harmony
Application
Crim/Civ/Both
Who may
assert?
Notes – acts &
observations
Exceptions
Marital Confidences Privilege
- Protects against the disclosure of confidential
communications made by one spouse to another
Promotes marital harmony by encouraging the exchange of
confidences bw spouses
Applies so long as parties were married at the time of the
communication; survives end of marriage
Both
Spousal Testimonial Privilege
- Protects against adverse spousal testimony. I.E. husband
can prevent wife from testifying against him
Requiring one spouse to testify against another can break
up a marriage
Applies only if parties are married at the time of the trial;
doesn’t survive end of marriage
Criminal only
May be invoked by party or non-party (both/either)
May be invoked only by a party; but after Trammel fed
practice ruled testifying spouse may assert/waive their
right
Will cover acts/observations; only protects spouse against
testifying, spouse may be required to give non-testimonial
evidence such as a handwriting sample or fingerprints
Only communications are privileged and only
communications intended to be confidential. Thus the
presence of a third party or couple’s child will often destroy
intent. Most states don’t extend it to what spouses observe
(1) Crime against spouse, (2) Suit between spouses; (3)
criminal case justification; (4) conversation centering around
crime facilitation (i.e. hiding the loot from a robbery)
(1) Divorce, (2) Crime or tort against spouse or children
a.
THE MARITAL CONFIDENCES PRIVILEGE – CONFIDENTIAL COMMUNICATIONS PRIVILEGE
i. 13.1 – sends wife email from desktop computer he invokes marital confidences privilege. Court concluded this was not
privileged bc (1) businesses disclosure policy about monitoring work emails and no expectation of privacy; (2) flash screen that
policy was displayed each log in, thus there was no expectation of privacy
4 factors to consider: (1) Co policy banning personal use? (2) Co monitoring of employee’s computer use? (3) Do third parties
have access to computer/emails? (4) Did Co notify employee of policies and monitoring
ii. 13.2 wife leaves note bc she’s aware of husband and his sister’s illegal activity. If the children could have read it would that
make a difference? This was clearly something that was intended to be confidential
iii. Rakes (1998) – Conversation topic doesn’t affect privilege unless it sheds some light on issue of intent for confidence
iv. 13.3 – criminal D wanting to use woman’s testimony; husband/wife privilege is being claimed. Remember Chambers –
constitutional right to confront witnesses and most typically that will trump privilege.
7th circuit instead uses Rock v. Arkansas (p. 676) – Court held that restrictions of a D’s right to testify may not be arbitrary or
disproportionate to the purposes they are designed to serve. 7 th circuit concluded here that D must show the privilege was
arbitrary or disproportionate to its purposes and he hadn’t done that. *Davis – this is kind of an unusual decision
b.
SPOUSAL TESTIMONIAL PRIVILEGE - PRIVILEGE AGAINST ADVERSE SPOUSAL TESTIMONY
i. Trammel v. United States (1980) – departed from Hawkins rule (at that time the privilege belonged to the defendant spouse
and we left the door open to change it in light of reason and experience) and now holds privilege belongs to witness spouse so
if witness is willing to testify, he/she can, but if spouse invokes privilege than that spouse doesn’t have to testify. A crim D
CANNOT prevent his spouse from voluntarily giving testimony against him bc the privilege against adverse spousal
testimony belongs to the testifying spouse
ii. Exceptions to spousal testimonial privilege: gov. can compel spouse to testify when:
(1) they litigate against each other;
(2) in a criminal proceeding that involves a charge of intra-familial wrongdoing such as assault on a spouse or child;
society’s needs to deter and punish criminal acts in marriages exceeds the needs to foster privacy in a relationship that is
marked by violence;
(3) Joint participation exception to spousal privilege - a developing post-trammel concept which is not adopted in every
jurisdiction **If H and W are both involved in a drug conspiracy, gov. can force W to testify against H by giving her
immunity. Rationale - they have forfeited the right to claim a privilege by engaging in criminal activity
Final Note – Brother’s Keeper – fine line between mistrust and blind faith in our jury system – why we purify our evidence through a
strainer
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