OUTLINE – EVIDENCE – SALTZBURG 2011
1 INTRODUCTION
 Trial Judges Have Discretion to Make Judgment Calls –
o Rule 403  Evidence May be Excluded if It Clearly Will Do More Harm Than Good
o Rule 611(b)  Cross-examination should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness.
 Judge may permit wide open cross
 Direct Examination / Cross-Examination
o Straub v. Reading Co. (3d Cir. 1955): Here the Lawyer Effectively Testified
 Held: Trial Judges Have Wide Discretion to Permit Leading
o United States v. McKenna (E.D. La.): Judge Told Defense Counsel Not to Lead on Cross Unless Witness
Became Difficult:
 Ordinarily leading Qs are allowed. Non-Leading Questions May Be Required of Friendly Witnesses
o US v Williams (4th Cir. 2006): Judge said W must testify and be cross-examined if he demonstrates
fanny pack. Govt said if he testifies it will offer his prior convictions to impeach (2 drug convictions
and 1 handgun conviction). W testifies, tries on pack, and says he did not gain weight since arrest, was
not wearing the pack and did not have a gun. Govt impeaches
 Cir. Ct. Held: Fanny pack demonstration was not testimony and W did not have to testify. W chose
scope of testimony -- went beyond the fanny pack
o Macaulay v Anas (1st Cir. 2003): Spinal fusion surgery. On direct, expert Dr. testifies, says that screws
were mis-positioned.
 Held: Defense could cross on this seeming claim of malpractice: not required to let potentially
damaging inference hang in the air.
2 OBJECTIONS AND OFFERS OF PROOF
 Rule 103 (a)(1)  To claim error on appeal there must be 1) a substantial right of the party affected and
2) a timely objection made stating a specific ground if it was not apparent from the context
o Generally Objections to Questions Must Precede Answer, must be prompt and usually be
accompanied by motion to strike
o Don’t need to repeat objection at trial if Judge’s in limine ruling was definitive
o US v Spriggs (D.C. Cir. 1996)  If no contemporaneous objection at trial, failure to object results in
failure to preserve claims.
 Can only review for Plain Error (103 (d))
 Rule 103 (c)  Arguments Outside Hearing of Jury [d] after 12.1. 2011
o “proceedings must be conducted, to the extent practicable, so as to prevent inadmissible evidence
from being suggested to the jury by any means, such as making statements or offers of proof or
asking questions in the hearing of the jury.”
 Luce v US (1984): D wanted to testify, but prior convictions would have come out on cross
o Held: D waives any objection to ruling – no harm realized b/c didn’t testify
 Ohler v US (2000): After judge ruled against in motion in limine, D brought out on direct.
o Held: waives right to appeal
 US v Wilson (7th Cir. 1992): raised wrong objection during trial to preserve for appeal; otherwise can only
review for plain error. But, if you win an objection on the wrong ground, an Appellate Court can
sometimes affirm using the correct objection
 Owen v Patton (8th Cir. 1991): Didn’t object during trial, app. Ct. agrees would have been irrelevant if had
objected. B/C didn’t, can’t overrule. Also doesn’t rise to level of “plain error.”
 Plain Error: must affect fundamental rights and properly preserved issue.
o Do not need to object to preserve for appeal
o Olano (S.Ct): must be error, clear or obvious, and must affect outcome of case
 103(a)(2) Offers of Proof: If objection to evidence is sustained, party that lost must make offer of proof to
show what evidence was excluded (out of hearing of jury). May cause court to change mind/preserves for
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appeal.
o US v. Winkle (5th Cir. 1979): Defendant’s testimony was improperly excluded, but D made no proffer.
Ct.App. cannot determine what would have been said.
o How to offer: Counsel’s proffer, in writing, by citation to deposition, in Q&A form
 Cross examiner not required to make same offer as direct.
Rule 103 (b) [c] after 12.1.11: court may make record to support admitting/excluding
All evidence objections are resolved by trial judge under either:
o Rule 104 (a): the judge is a fact finder and final decision maker
 Preliminary questions concerning the qualification of a person to be a witness, relevancy,
competency, the existence of a privilege, or the admissibility of evidence are determined by the
Court
 Judge not bound by rules of evidence other than privileges  Court may consider any evidence
except privileged information
 Court may have to decide facts in order to rule
 Preponderance of evidence standard is used
 Hearing may be required
 Burden is on party claiming the benefit of any rule
 Example: Party offers expert testimony: Opponent objects that it is not reliable. Judge decides
o Rule 104 (b): the judge screens evidence but the jury ultimately decides whether it is relevant and
what it purports to be
 When one item of evidence is only relevant if some other evidence is also adduced, the Court
decides whether there is sufficient evidence for a jury to find that both items exist
 Court is not a fact finder here. Question is whether there is enough evidence for the jury to find
that the proposition at issue has been proven
 If evidence is relevant, the standard under Rule 104 (b) and Rule 901 (a) is: could a reasonable
juror believe the evidence is what the proponent claims.
 Personal knowledge (Rule 602) (by a preponderance)
 Conditional Relevance: “When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the condition.”
 Judge decides whether a reasonable jury could believe a witness
 Ex): Evidence is admitted subject to connection to something else
 Judge must find that there is sufficient evidence for the jury to find both acts by a
preponderance of the evidence
 If not, judge will strike the evidence, tell the jury to disregard it
I Jury decides whether to believe the evidence
 104 (b) applies in 4 situations
I When fact B is needed to make fact A relevant
II Personal knowledge – Rule 602
III Authentication – Rule 901
IV Rule 1008
 Otherwise, 104 (a) applies (Judge is fact finder/decision maker)
Rule 104 (c): Hearings must be outside presence of jury for:
o Admissibility of Confessions
o Other disputed questions: when the interests of justice require, or when an accused is a witness and
so requests.
Rule 104 (d): Testimony by accused:
o Accused does not become subject to cross-examination as to other issues in a criminal case by
testifying on an evidence issue
 E.g., Motion to suppress evidence or claim of privilege
o Defendant does not waive privilege against self-incrimination; e.g. may only be cross-examined as to
the foundation testimony
 Rule 104 (e): If the judge decides to admit evidence, an opposing party generally may offer other, relevant
evidence to attack the weight/credibility of the evidence
3 RELEVANCE
 Rule 401: - Relevance: Evidence is relevant if it
o Has any tendency
o To make any fact of consequence
o More or less probable
o Encompasses relevance and materiality
 US v Foster (D.C. Cir. 1993): No such thing as “marginal relevance” – it’s either relevant or not. Relevance:
defined by 401.
o Degree (probative value) is much different (Rule 403).
 Rule 402: Relevant evidence is admissible unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute;
 these rules; or
 other rules prescribed by the Supreme Court.
o Irrelevant evidence is NEVER admissible
o US v Lowery (11th Cir. 1999): State Bar Rules are not sources of exclusion under 402 except for
competency, privilege and presumptions.
 Rule 403: The Balancing Rule
o The court may exclude relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.
 Harm must substantially outweigh probative value
 Danger of unfair prejudice, confusion or misleading, undue delay or waste or time or needless
cumulative evidence
 Rule tilts strongly in favor of admission.
 Must be relevant (or would be excluded under 402)
 Cite by number. Balancing should be on the record
o McQueeney v. Wilmington Trust Co (3d Cir. 1985): P’s counsel wants to witndraw deposition, D wants
to use it. C.App says relevant. (Jury can make inference that P or his lawyer support perjury and
therefore had a weak case.)
o People of Guam v. Shymanovitz (9th Cir. 1998): sexual assault case, magazines. Possession of reading
materials not relevant
o US v Curtin, 489 F.3d 935 (9th Cir. 2007) (en banc) (not in reading): Held: Abuse of discretion under
Rule 403 for T.Judge not to read all stories about sexual conduct with minors in full before admitting
them
o US v Hankins (8th Cir. 1991): Evidence of Flight (right after crime) allowed in to show Consciousness of
Guilt. 4 Inferences:
 Behavior to Flight
 Flight to Consciousness of Guilt
 Consciousness of Guilt to Guilt of Crime Charged
 Consciousness of Guilt to Actual Guilt
o Hall v. Montgomery Ward (Iowa 1977): Amount a D has is relevant for punitive damages.
o Similar events -- may be relevant to prove product defect or negligence
 Degree of similarity matters. Similar accidents more likely to be admitted to prove notice.
Differences that could explain why one happened one way, instead of another not likely to let it
in. Absence of additional accident claims may be relevant.
o Sprint/United Management Co. v. Mendelsohn (US 2007): Relevance and prejudice under Rules 401
o
o
and 403 are determined in the context of the facts and arguments in a particular case, and thus are
generally not amenable to broad per se rules.
Related Acts- Evidence of other lawsuits or claims by plaintiff generally is not relevant
 Prior dealings between parties may be relevant
 Other sales may be relevant (for eminent domain cases)
Terry v State (Tex. Crim. App. 1973): wanted to use photos of body after autopsy. Held: Unfair
prejudice is a use of the evidence for a purpose other than to prove the point for which it is offered.
Proved what doctor did, not murderer.
4 HOLMES, OLD CHIEF, RULES 407-409
 US v McVeigh (10th Cir. 1998): Alternative Perpetrator Evidence Was Relevant. Undercover Witness’s
Testimony Was Speculative. Ct. of App. upheld: Fact That Govt May Not Have Investigated Others Once it
Focused on McVeigh Does Not Weaken Any of Evidence Against McVeigh
 Holmes v S. Carolina. (2006): Court looked at just P’s evidence to exclude D’s evidence of 3d party guilt.
Can’t do this. Violates D’s right to have a meaningful opportunity to present a complete defense.
 Old Chief v US (1997): Old Chief offered to stipulate to a “felony conviction,” govt refused. S.Ct held that
the nature of the felony is irrelevant. If one item is extremely prejudicial and an alternative is not, trial
judge must consider substituting the alternative, non-prejudicial evidence. Congress has treated all prior
felons alike.
5 RULES 410 - 411, PROBLEMS; CHARACTER EVIDENCE I
 Cannot argue against any FRE by arguing a reverse of 403 (that something is probative).
 Rule 407—Subsequent Remedial Measures: only applies to “repairs” made after a specific accident
o “When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
 negligence;
 culpable conduct;
 a defect in a product or its design; or
 a need for a warning or instruction.
o But the court may admit this evidence for another purpose, such as impeachment or — if disputed —
proving ownership, control, or the feasibility of precautionary measures.”
o Repairs Must be Subsequent to Event Causing Harm (to be excluded)
 Repairs made prior are admissible to show negligence (knowledge, forseeability)
 Since test for negligence involves forseeability – what they do AFTER someone was raped on the
train platform affects the negligence of a future rape. We care what the D knew or should have
known before the event.
o Reports of accident investigation are not remedial measures
o Third party repairs generally not excluded by 407 – but see Rules 401 and 403
 Rule 408 – Compromises and Offers to Compromise (Dec. 1 Rule):
o (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to
prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
 (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept —
a valuable consideration in compromising or attempting to compromise the claim; and . . .
 (2) conduct or a statement made during compromise negotiations about the claim — except
when offered in a criminal case and when the negotiations related to a claim by a public office in
the exercise of its regulatory, investigative, or enforcement authority.
o (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s
bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
o Otherwise Discoverable Evidence Not Immunized from Discovery by Disclosure during settlement
discussion
 Whatever was discoverable remains discoverable, even if brought up during discussion
o Evidence Not Excluded for Other Purposes
 Fact that one party settled and agreed to help the other party they settled with, admissible
 Existence of settlement in general will be admissible. – Credibility
 Negativing undue delay
o Alpex Computer Corp. v. Nintendo (S.D.N.Y. 1991): broad interpretation of 408 to include settlement
offers before litigation.
o Settlement Statements cannot be used to impeach for prior inconsistent statements
 Can be admissible to show possible bias
o Civil settlement -- generally not admissible in a subsequent criminal prosecution
 But, if a D makes a statement admitting fault to a public officer conducting a regulatory
investigation, the statement is admissible in a criminal case
o Takes precedent over Rule 409
 Rule 409: “Good Samaritan Rule”: When a party offers to pay medical, hospital, similar expenses, this
can’t be admitted unless the person admits fault.
o If admit fault, (i.e. just say to try to make other side feel better), can be admitted.
o Galarnyk v Hostmark Management, Inc (7th Cir. 2003): expressions of regret and dismay are
inadmissible since they are not admissions of liability.
 Rule 410: Pleas and Plea Bargaining
o (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the
defendant (participant in the discussion) who made them:
 (1) withdrawn guilty plea;
 (2) nolo contendere plea
 (3) statement made during a proceeding on either of those pleas under Federal Rule of Criminal
Procedure 11 or a comparable state procedure; or
 (4) a statement made during plea discussions with an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
o (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
 (1) in any proceeding in which another statement made during the same plea or plea discussions
has been introduced, if in fairness the statements ought to be considered together; or
 (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement
under oath, on the record, and with counsel present.
o Only Covers Plea Bargaining with Prosecutor -- Most Confessions are outside the scope of the Rule.
Confessions to police not protected.
o US v Mezzanatto (US 1995): 410 rights can be expressly waived.
o U.S. v. Burch (D.C. Cir. 1998): statements made after plea is accepted outside protection of 410.
 Rule 411: Insurance Inadmissible on Negligence or Wrongfulness
o May be admitted for Other Purposes – Agency, Ownership or Control, or Bias or Prejudice of W
o Bernier v. Bd of Co. Rd. Commissioners (W.D. Mich. 1983): door to insurance could open, but didn’t
here when D claimed inability to maintain road.
6 CHARACTER EVIDENCE
 Rule 404 (a):
o Rules 404 (a) (1) & (2) Apply Whether or Not a Particular Person Testifies
o 404(a)(1) Evidence of character or character trait not admissible to prove propensity
 Never admissible in a civil case
o 404(a)(2): Exceptions for a Defendant or Victim in a Criminal Case:
 404(a)(2)(A): a defendant may offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
 Applies When D Claims Charged Act is Inconsistent with Character Trait
 Entrapment defense is the most common means of D’s character being in issue in a criminal
case
404(a)(2)(B): subject to the limitations in Rule 412, a defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
 (i) offer evidence to rebut it; and
 (ii) offer evidence of the defendant’s same trait
 Pertinent: Usually comes up in self-defense cases. Victim is aggressive, etc.
 Rule 404(a)(2)(C): in a homicide case ONLY, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
o Rule 404(a)(3): Exceptions for a Witness. Evidence of a witness’s character may be admitted under
Rules 607, 608, and 609.
 Rules 607, 608 and 609 Permit Attacks and Rehabilitation of a W Only After the W Testifies
o Ex) Atty lacks experience – not propensity evidence, either had experience or did not
o Nicknames: can be relevant to prove ID. e.g. “Monster” is admissible – evidence of identity
o Prosecutor May Not Initiate Inquiry into Character Evidence
o D controls scope of character evidence – cross must relate to character traits asserted
 Rule 404(b): Crimes, Wrongs, or Other Acts.
o (1) Evidence of a crime, wrong, or other act is not admissible to prove propensity
o (2) Can be admissible for another purpose, such as: motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or lack of accident
o Upon request, prosecutor must
 (A) provide notice that intends to use this evidence
 (B) before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
o Rule 403 Applies -- Probative Value of Non-Propensity Purpose Versus Likelihood It Will Be Used as
Propensity
o Other purpose:
 US v Carroll (8th Cir. 2000): harmless error to admit 1 conviction of bank robbery to prove
plan/pattern – too generic
 US v Potter (9th Cir. 1979): performance of oral sex was admissible as motive for Dr. prescribing
prescription drug
 Gang Membership can be admissible to show motive for murder
 Limits on Drug use to Prove Motive for Robbery; Not Always Excluded; Admissibility Hinged on
Temporal or Other Relationship
 US v Martinez (9th Cir. 1999): Witness’ prior drug activity admissible to Prove His Understanding
of Code between courier and Martinez
 US v Jones (7th Cir. 2006): Court States Traditional 4- Part Test
 1. Was evidence offered to prove something other than propensity?
 2. Was Other Act Similar Enough and Close Enough in Time to Be Relevant?
 3. Was There Enough Evidence for Jury to Find Existence of Other Acts by a Preponderance?
 4. Was Probative Value Substantially Outweighed by Prejudicial Effect?
 Similar enough: drugs OK, no matter if same type
 US v Woods (4th Cir. 1973): 20 episodes of suffocation of 9 children admissible to prove absence
of mistake in murder of 8 month old foster care son
 Would not have been admissible if had, for example, shot someone. That is propensity to
commit murder.
 US v Crowder (D.C. Cir. En Banc) – 2 Drug Cases: Ds offered to stipulate that whoever sold drugs
had intent to distribute to keep out other drug convictions. P refused. Ct: intent was not a
required element in jury instructions, trial courts can consider offers to stipulate in making 403
rulings.
 Knowing prior activity helps juries decide what Ds were doing at time of crime.
 Huddleston v. US (1988) – D charged with selling stolen tapes, contested that they were stolen.
Same suppliers for TVs. Contest that TVs were stolen.
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Test: Whether a Jury Could Find by a Preponderance That the Other Act is True. Judge uses
104(b), conditional relevance.
I Some States Require Trial Judge to Find Clear and Convincing Evidence of Other Acts
(Higher standard)
II Acquittal of another act does NOT Preclude Use of Acts -- Standard of Proof Differs
(Dowling v US (1990))
III Mere fact of arrest by itself is generally not sufficient to prove Act (just has probable
cause)
IV Inextricably Intertwined Acts (Acts that are part of the crime charged) are treated as
outside Rule 404 (b) by many courts (e.g. overt act in furtherance of a conspiracy  so
are admissible
 Some courts treat other acts as “inextricably intertwined” if they explain or provide
background for a charged act, treat them as outside 404 (b)
 Rule 403: Objections are made with Rule 404(b) objections b/c overt act evidence always
prejudicial
 Notice for 404(b):
 Only Applies in Criminal Cases
 Only Applies to Government
I Defendant Must Request Notice. Only General Notice of the kind of 404b evidence that
they will offer is provided
 Judge may, if requested, delay Notice Until Trial (i.e. protect witnesses)
 Rule 405: Methods of proving character
o (a) On Direct: Testimony of Reputation or opinion. On cross: specific instances
o (b) only when the person’s character is an essential element of a charge, claim or defense
o Ginter v. Northwestern Mutual (E.D. Ky. 1984:)
o Opening the door
 US v Holt (7th Cir. 1999): need to be careful of scope: if character witness testifies to law
abiding open door to any question about unlawful activities on cross
 US v Bruguier (8th Cir. 1998): character witness testify that D was good father, opens door to
Substantial Neglect Finding by social services agency
 Generally, Good Faith Basis for “Do You Know” Requires A Showing
I That the Act Occurred, and
II The Witness or Community Should Have Known About It
 US v. Monteleone (8th Cir. 1996): no good faith basis for asking if W heard about D’s testimony
before a grand jury b/c those proceedings are secret
 Can’t ask a character witness to assume D is guilty in hypotheticals
 Can’t ask character witness on cross if have heard about charges in current case
 Can ask whether opinion would change as to part D admits (aka walking into bank with
grenade, but disputes intent)
 Questionable: Witness says D was devoted to niece, P question about knife fight w/father?
 Needs to be opinion of person at time of charged act
7 HABIT & SEXUAL ASSAULT RULES 412, 413, 414, 415
 Rule 406: “Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in conformity with the habit or routine
practice.”
o Specificity and regularity of act
o =s Number of Times of Act/Total Possible
o Need an adequate sample and Uniformity of Response. If less than half the time, not a habit
o
o
Tends to be reflexive/semi-automatic
US v Angwin (9th Cir. 2001) – stopped at border patrol w/14 Mexicans, Angwin sought to offer
testimony regarding Coast Guard training. Judge excludes, Ct.App affirms.
o Judge could find training was not sufficiently parallel.
o Perrin v. Anderson (10th Cir. 1986) – Saltz doesn’t think these 5 incidents rise to habit, but could show
bias.
 Rule 412: Rape Shield. Not on Test
 Rule 413 Other Sexual Assaults & Rule 414 Other Child Molestations – Permitted Uses
o (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court
may admit evidence that the defendant committed any other sexual assault. The evidence may be
considered on any matter to which it is relevant (i.e. to prove propensity).
o (b) Imposes a 15 day notice requirement (or for good cause)
o (c) Assures that evidence remains admissible under other rules
o (d) Defines the type of assault/molestation covered and includes attempts
o US v. LeMay: 414 is Subject to 403 Balancing
 Rule 415 Sexual Assaults and Child Molestations in Civil Cases
o (a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault
or child molestation, the court may admit evidence that the party committed any other sexual assault
or child molestation. Considered as provided in Rules 413 and 414.
8 Privilege
 Rule 501: Privilege in General
o The common law — as interpreted by United States courts in the light of reason and experience —
governs a claim of privilege unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute; or
 rules prescribed by the Supreme Court.
o But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies
the rule of decision.
 Attorney/Client
o Communications From Client to Lawyer and Sometimes Reverse
o Privilege Protects Communications (Any legal advice) Not Facts;
 E.g., Witnesses Can Be Called Before Grand Jury and Asked Whether They Paid Bribes; No
Immunity for Answering Simply Because They Confided in a Lawyer; Facts Are Fair Game
 Client’s Statement, “I Buried the Body at X Location” -- Privileged
 Privilege is Absolute unless waived by disclosure to 3d party. Survives death (Swidler)
 Holder can waive (Whoever Governs Corp. Has Power to Waive)
  waiver occurs when you say “I told my counsel these facts: x, y, z”
o Not privileged / Exceptions
 Identity of Client and Amount of Fees Paid Generally Not Privileged
 Generally What a Lawyer Observes is Not Privileged; May be Work Product
 Lawyer’s Trip to See the Body -- Not Privileged; is work product.
 Wills (privilege does not apply)
 Crime/Fraud: Attorney is Not a Tool To Be Used for Ongoing Criminal or Fraudulent Purposes
(Privilege Does still Apply to Communications About Past Crimes or Fraud)
 Test: “What the Client Knew or Reasonably Should Have Known”
 Exception Applies Even if Attorney is Absolutely Innocent of Wrongdoing
 Intent of attorney doesn’t matter – doesn’t have to know what is happening.
o Lawyer-Client Relationship Only
 Individual -- Client is the Communicator and the Holder of the Privilege
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Joint representation -- If A and B go to a lawyer and want joint representation, represents both. If
end up fighting each other, lose privilege between two of them.
 Common interest -– hire 5 different law firms, want to cooperate, share information. But don’t
want to lose the protection; are protected by atty/client privilege.
 Corporations? They Can Only Speak Through Individuals
 Fed Courts Use a Scope of Employment (Upjohn) Test -- Any Communication by an Employee
Relating to the Scope of Employment is Privileged if Provided so That the Corporation May
Obtain Legal Advice (does not bind state courts)
I Federal common law under 501
o Upjohn Co. v. US (1981): Internal Investigation. Chairman Signed Letter Instructing Managers to
Complete Questionnaire But Maintain Confidentiality. General Counsel and Outside Counsel
Interviewed Recipients and 33 Other Officers and Employees. Upjohn Declined to Produce Interviews
on Privilege Grounds. Communications Made:
I (1) At Request of Upjohn Corporate Superiors. (2) To Secure Legal advice, (3) Information
Was Needed from Employees to Get Advice; (4) Matters Were Within Scope of Duties;
and (5) Employees Were Aware Company Was Seeking Legal Advice
 Ct: Privilege Only Protects That Which Was Created In Reliance On It.
o People v Meredith (Cal. 1981) – if defense counsel removes evidence (burned wallet from trash bin),
no privilege as to original location and condition of evidence
o Lindsey – Any advice given to Pres. Clinto re: Paula Jones was private advice, not covered by
atty/client privilege.
o Swidler & Berlin v US (1998): Foster met with private counsel. Privilege-GJ could not subpoena
Marital (Spousal Immunity)  Applies Only in Criminal Cases
o Holder of the privilege: Witness of Spouse (Trammel) who is called to testify
o Requires: Valid Marriage at time the spouse is called to be witness
o Exceptions to privilege
 Once divorced or permanently separated, no longer have privilege
 Crimes Against the family (child/spousal abuse)
 Joint Criminal Activity (commit crime together) (Judge would have to make a finding)
 Furtherance of Crime or Fraud
Marital (Marital Communications)  Applies in All Cases, Civil & Criminal
o Holder: Both Spouses (to waive, both must)
o Requires:
 1. Valid Marriage
 2. Confidential Communication between husband/wife only
o Presence of 3d Party Capable of Understanding Invalidates privilege
 Infant Would Not Destroy Privilege
 Child old enough to understand what spouses are saying, does destroy
o Duration: Forever
o Exceptions
 Crimes Against Family
 Joint Criminal Activity ? See infra
 Joint Participants Do Not Lose Privilege for Confidential Communications Not In Furtherance
of a crime or fraud
 Furtherance of Crime or Fraud (just like atty/client  not protected))
o Protects Only Communications; Not All Info Learned
Doctor/Patient
o No general doctor/patient privilege in federal court
Medical/Mental Health
o Jaffee v. Redmond (1996): police officer who shot someone sees social worker, estate sues. Officer
claims Psychotherapist-Patient Privilege
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S.Ct relies on unenacted Rule 504
Applies to Social Workers
 Provide Significant Mental Health Svs.
Blanket Rule  No Balancing test; Participants Must Be Able to Predict With Certainty
 No need for the information can take away the privilege
 There may be exceptions, but those aren’t defined today
I Leaves for another day. Exact Contours are Not Set
II One for sure that will result in loss of the privilege: if you put mental health in issue (claim
damages b/c of mental anguish, etc.)
9 COMPETENCY & OATH
 Rule 601:
o If Federal Law governs a case (or a part of a case)  every person is competent to be a witness except
as otherwise provided in the FRE
o If State law governs a civil case (regarding a claim or defense for which state law supplies the rule of
decision)  state law on competency governs
 Competency: (if can take an oath, generally competent)
o Judge decides competency, jury decides credibility.
o US v. Bedone: prior inconsistent statements do not render witness incompetent
o Judge may temporarily render witness incompetent: intoxicated
o Judge may choose to watch witness, then rule
o Mental examinations are exception, not rule
 Rule 606 (b): Inquiry into validity of verdict or indictment. -- Cannot Impeach Verdicts Based On Mental
Processes of jury
o Exceptions: Extraneous Prejudicial Info (judge can look at without invading deliberations)
 Ex) Juror claimed to have read about a case, bailiff told jury D was a liar, bribe offered, Newspaper
Accounts of Case, Jury Experiments that are never put into evidence
o Juror Lies on Voir Dire  May be Explored
o Deliberations are off limits!  Ignoring instructions, pressure from other jurors, averaging of a total,
etc. or concentration (if a juror was drunk) is off limits for appeal. Courts might be willing to look at if
one juror threatened to kill another, but generally won’t.
o Tanner v US (1987): Drugs (Script or otherwise), Alcohol are no more outside Influence Than Virus,
Bad Food or Lack of Sleep – All Ok. Saltz disagrees.
 Rule 606 (a):
o A member of the jury may not testify as a witness before the very jury on which the members serves
o If a juror is called to testify, the opposing party must be afforded an opportunity to object out of the
presence of the jury
 Rule 605: presiding judge may not testify. No objection necessary
 Rule 603: The Oath. (doesn’t have to say anything specifically)
o Every witness must give an oath or affirmation
o Must be in a form designed to awaken the witness = conscience and impress the witness = mind with
the duty to do so
o Ferguson v. Commissioner (5th Cir. 1991): Forbidden to “swear or affirm” according to religious beliefs.
Agreed to “declare” and say that she is subject to penalties. Ct. App says this is fine.
o Child Witnesses:
 Capps v. Commonwealth (KY 1977): just because she was a “sassy and uncontrolled child” didn’t
make her incompetent to testify. Her understanding of the obligation to tell the truth is key.
 Federal – no minimum age
 State (or in diversity case) – often have presumptions.
 If incompetent, hearsay might be admitted.
o US v. Phibbs (6th Cir. 1993): No abuse of discretion in not having competency exam as long as find
witness could understand oath and capable of perceiving, remembering an describing events.
10 PERSONAL KNOWLEDGE, RECOLLECTION, TRANSLATORS
 Rule 602: Generally, a lay witness may not testify to a matter unless evidence is introduced that is
sufficient to support a finding that the witness has personal knowledge of the matter
o Can be established by Witness’s own testimony. Eval by 104(b)
o Doesn’t matter if witness is inconsistent with prior statement (i.e. previously said wasn’t there—just
goes to credibility)
o US v. Davis (1986): Issue of when firearms were released. Officer testified; couldn’t have had
p.knowledge of that. Looking up paperwork ≠ p.knowledge
o Absolute certainty: not required; BUT cannot say “I imagine”
o May support a lay opinion – e.g. D was driving drunk
o Relationship to hearsay: may have personal knowledge of hearing something that is hearsay
 Rule 612: Refreshing Recollection –
o 18 USC 3500 is the Jencks Act – Govt Does Not Have to Disclose Statements of Witnesses Until After
They Testify on Direct Examination
 Otherwise, Judges May Compel Lawyers to Share with Opposing Counsel Material used to Refresh
Recollection
o In Court:
 Opposing counsel gets to see the refreshing document
 Do not offer into evidence. Show witness. Witness reads to herself.
 Opposing counsel may offer relevant portions of the document to support a contention that the
witness is reading & faking memory
 Judge will decide which portions are relevant. Probably trumps Jencks
o Before Trial:
 Courts Don’t Distinguish Between “Refreshing” and “Preparing” for trial
 Courts Have Discretion to Order Production of Material Used Before Trial to Refresh Recollection;
Particularly Pertinent for Experts
 Counsel Must Assume if An Expert Sees Something It Might be Disclosed to other side
 Work Product and Privilege Claims Might Well Be Waived If Documents are Used to Refresh
Recollection and the Court Orders Production
o Can use Anything to refresh: Baker v State (MD 1977: officer forgot something. D tried to refresh
w/other officers’ reports. TJ forbade, Ct.App reversed.
o Hypnosis: Rock v. Arkansas (1987, 5-4): S. Ct. holds that per se rule excluding post-hypnotic testimony
infringes on defendant’s right to testify on her own behalf
 State can’t stop a Defendant from testifying just because she’s been hypnotized. Court did not
prohibit insistence on procedural safeguards
 Like hypnosis did not change testimony
 Rule 803 (5) -- Recorded Recollection: Witness can no longer testify fully (memory need not be
completely gone). Adopted a record (W need not make or sign), was made when matter was fresh (3 yrs)
in witness’ memory. Document is used to prove contents rather than to refresh memory.
o Read into evidence. Exception to hearsay rule.
o Q of whether foundation was satisfied: Rule 104(a)
o US v Williams (6th Cir. 1978): Witness made statements to Secret Service. Said memory was fresh.
Agent wrote, witness adopted.
 Rule 604 - Interpreters: Must be expert, methodology must be reliable, must take an oath
o Watson v State (Tex Cr App 1980): Interpreter is caretaker. Interpreter claims to be able to tell what
he says. No way to test the interpretation for reliability. W is held incompetent at time of trial.
11 Prior Convictions; Bad Acts; Character Evidence
 Impeachment defined: the casting of an adverse reflection on the truthfulness of a witness
o Need not positively controvert the prior testimony. Needs to only discredit the witness.
 Impeaching Witnesses –
(1) The Attack on Character
 Should Not Matter Who Parties Are or What Issues Are (E.g., A Witness is a Felon, a Liar)
(2) Case Specific Attacks
 Bias -- Relationship to a Party -- Will Vary From Case to Case
 Prior Inconsistent Statements -- Relevant in One Case, Collateral in Another
 Rule 607: Any party can attack the witness’ credibility
o May Not Call a Witness Solely to Impeach with Otherwise Inadmissible Evidence
 For 613 - The key is whether plaintiff’s counsel knew that Witness would deny the statement.
 If so, he/she cannot call the witness to impeach with an inconsistent statement.
 For 801 - If the Witness testified about X’s statement in a deposition and later denies having
heard the statement, the rules change.
 Plaintiff’s counsel may call the Witness for the purpose of eliciting the deposition testimony
once the Witness denies the statement.
o Good Faith Basis for Inquiry Required
o Any Form of Relevant Impeachment is Permissible Unless Rules Say No
o Difference Between Rules 801 (d)(1) and 613
 801 (d)(1)(a) – prior inconsistent statements made in a proceeding, subject to penalty of perjury-are Substantive Evidence as Well as Impeaching
 613 Statements (all other prior inconsistent statements) are only admissible to Impeach
 Rule 610: Religious Beliefs or Opinions
o Only Limit on Religious Beliefs or Opinions is to Prove Credibility of a Witness
 E.g., Cannot X-Exam Witness about Beliefs
o Evidence of Religious Affiliations May be Admissible
 To Show Bias or Motive
o Slagle v. Bagley (6th Cir. 2006): Qs that elicited bias and motive did not violate 610
 Rule 402 – Makes Relevant Evidence Generally Admissible
o Use of Alcohol or Drugs is Relevance Based (At time of event  No rule against this).
 Affects ability to perceive
o Psychiatric History – Nothing bars this.
 Rule 403 Comes Into Play with some judges – if a party to the case, that party will be prejudiced if
jury learns about history.
o Memory Problem
 Rule 609 (a) (1) (A), (B) – Evidence of a criminal conviction in civil and criminal cases
o (a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
 (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for
more than one year, the evidence must be admitted
 (A) in a civil case or in a criminal case in which the witness is not a defendant
I  BUT subject to Rule 403 (probative substantially outweighs prejudice)
 (B) in a criminal case in which the witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that defendant
I  note, not 403 (not substantially), just ANYTHING greater!
 609 (a)(2) Automatic Impeachment
o When attacking a witness’s character for truthfulness by evidence of a criminal conviction: . . .
o (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily
determine that establishing the elements of the crime required proving — or the witness’s admitting
— a dishonest act or false statement.








Dishonest act (Saltz definition): misrepresentation, associated w/lying. Perjury or Offenses
Involving Some Element of Deceit, Untruthfulness or Falsification
 Crimes of force not dishonesty offense
 Courts Disagree Whether Petty Larceny, Robbery and Narcotics Possession = Dishonesty
o Two Approaches to Dishonesty Offenses
 (1) Examine Facts Underlying Conviction
 (2) Examine Elements of Crime for Which Convicted
o US v. Gant: Court cited 5 factors a trial judge should consider:
 (1) the impeachment value of the prior crime
 (2) the point in time of the conviction and the defendant’s subsequent history
 (3) the similarity between the past crime and the charged crime
 (4) the importance of the defendant’s testimony
 (5) the centrality of the credibility issue
o *Ohler v. US (2000) -- Party Who Elicits Objectionable Evidence on Direct Examination Waives Right to
Appeal
o *Luce v. US (1984) -- Defendant Must Take Stand and Testify to Complain About In Limine Ruling That
Prior Conviction Can Be Used for Impeachment
609 (b): Limit on Using the Evidence After 10 Years
o Applies if more than 10 years have passed since the witness’s conviction or release from confinement
for it, whichever is later.
o Reverse 403 balancing (favors keeping something out). Need to identify specific facts/circumstances.
Notice.
609 (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation
609 (d) Juvenile Adjudications
o criminal case, witness other than D, similar adult conviction would be permissible to attack credibility,
necessary to fairly determine guilt/innocence.
609 (e) Pendency of an Appeal
o Appeal Does Not Negate Impeachment Use. Evidence of Appeal is Admissible
Impeaching a Corporate Witness
o Misdemeanor convictions must fit within 609(a)(2).
o Knowingly filing a false tax return is a crimen falsi offense, admissible pursuant to 609(a)(2).
o In order to be impeached, the employee witness must have been directly connected to the underlying
corporate act.
608 (a) Reputation or Opinion Evidence
o Witness’s credibility may be attacked or supported by reputation/opinion testimony about
truthfulness/untruthfulness
o Cannot Offer Favorable Evidence of truthful character until Witness is Attacked
 Attack May Be By Character Evidence
 “Or Otherwise” – E.g., Slashing Cross-Exam
608 (b) Specific Instances of Conduct
o Specific instances may be inquired into on cross-examination, if they are probative of the character
for truthfulness or untruthfulness of:
 (1) the witness;
 (2) another witness whose character the witness has testified about
 Note: the instance need not be criminal
o Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
 if bad act is denied, can’t bring in more evidence
 Can still admit extrinsic evidence offered for other grounds of impeachment (such as
contradiction, prior inconsistent statement, bias and mental capacity)
 3d Party Actions for (1): Permissible Q: Did You Embezzle $ From Your Employer?

If Witness Says No, Improper to Ask: “Didn’t Your Employer Fire You For Stealing Money?”
Extrinsic evidence. Not an act of the witness; only asked to provide evidence that employer
disagrees w/witness’ denial.
 If denies, can’t call employer to say person embezzled $
 3d Party Actions for (2): Fair game.
 May Ask a Witness Who offered (opinion/reputation) testimony about X’s truthfulness “, “(Do
you know/Have you heard) that X was fired for stealing from his employer?”
I If yes  did that affect X’s reputation/your opinion?
o Need good faith basis for Qs. – this basis doesn’t have to be admissible, though.
o Permissible: Qs on aliases, false CC applications, lied about drug use when applied for employment,
understate income tax on Fed Return,
o Impermissible: Drug use, prostitution, cheat on spouse
o Self-incrimination: When witness is on stand and asked question he doesn’t want to admit b/c would
expose him to criminal prosecution, retains right to remain silent.
 Rule 613
o Showing or Disclosing the Statement During Examination
 Need not show or disclose statement’s contents to the witness (must show counsel)
o Extrinsic Evidence of a Prior Inconsistent Statement
 Can’t offer a prior inconsistent statement unless give witness chance to explain/deny
 Exception: Admission by a Party. No requirement for opposing party to give opportunity to
explain/deny
 CAN call 3d party to testify about prior inconsistent statement if impeaches on substance of case.
 not a Q about a 608(b) act.
o Relationship to Rule 801 (d)(1)(A)-- May Not Call a Witness Simply to Get a Prior Inconsistent
Statement Before a Jury Unless the Statement is Admissible as Substantive Evidence
12 LAY OPINION; EXPERTS, DAUBERT
 Rule 701: Lay Opinion
o (a) rationally based on the witness’s perception;
o (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
o (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
o Advisory Committee Note – Cites State v. Brown: Lay Witnesses Use Reasoning Familiar in Everyday
Life. Experts Reason in Specialized Way
 Exact Nature of Testimony Matters
 E.g., Senior Citizen Sees Drug Deal
 Testimony that D was operating as a Steerer – Expert. Testimony that D Dropped Drugs -- Lay
 Witness Can Be Lay Witness & Expert
 Police officers can do this about events personally observed & testify as an expert
 Rule 704(a): Ultimate Issue: An opinion is not objectionable just because it embraces an ultimate issue.
o Testimony Must Satisfy Rule 701 and Other Rules -- e.g., Relevance, must be helpful, etc.
o US v Hoffner (10th Cir. 1985): nurses not present when Dr. proscribed drugs, so no personal
observation, so nurses would have to be qualified as experts (weren’t here).
 Examples:
o Witness May Opine on Meaning of Records When She Prepared Some (Rivera)
o Bank teller who testifies as to what he does everyday is lay testimony.
 US v. Yazzie (9th Cir. 1992): In statutory rape case, important that reasonable mistake is a defense in j/d.
Witnesses could testify as to how old they thought she appeared, how she behaved, how she looked
 US v Rea (2d Cir. 1992): Lay witness can’t usually testify to intent. Witness can tell jury he told Rea that
J&J didn’t have gas tax license, but can’t say any more about knowledge.
 Kostelecky v. NL Acme (8th Cir. 1988): Investigation of accident that came to legal conclusion about cause
of accident was entered in error.
 US v Perkins (4th Cir. 2006): Original officers permitted to testify b/c based on eyewitness observations.
Officers who weren’t at the site should not have been permitted to give lay testimony
 Rule 702: Expert may testify if have:
o Specialized knowledge that will assist trier of fact
o Qualifications by Knowledge, Skill. Experience, Training, Education
o Sufficient Facts or Data (to form basis of opinion)
o Reliable Principles and Methods, and
o Reliable Application of Principles and Methods
o Berry v. City of Detroit (6th Cir. 1994)  Distinguishes two kinds of experts: Distinction between
scientific and non-scientific opinion
 Aeronautical engineer could explain how bees fly. Beekeeper -- can testify how bees take off with
wind. Don’t need to know aeronautics
 Principles of Expert Testimony
o A witness may be an expert on the basis of experience
o Police officers may have expertise regarding vehicles or investigating auto accidents
o A witness may be an expert in a subject but not as to a particular aspect of the subject
 E.g., mechanical and electrical engineer -- Substantial experience with safety issues but might lack
experience designing or evaluating warnings
o The question is not simply whether a witness has qualifications generally. It is whether the witness
has training, experience, etc. with respect to the issues being tried
 Scott v. Sears (4th cir. 1986): Under VA law P was not excused from seeing defect in curbing, so testimony
that accident was waiting to happen was prejudicial. But, testimony that yellow curb might “prompt
human eye to fill in discontinuities” is good expert testimony.
 US v Cruz (2d Cir. 1992): testimony that drug dealers use brokers not helpful. Ct says this is commen
knowledge
 US v. Castillo (2d cir. 1991) – testimony that drug dealers force buyers to use drugs at gunpoint
o Ct of App: Known to NY jurors (Saltz disagrees)
 Code words: agents can testify to, but not to things that don’t need an expert (e.g. “tonight is the night”).
 Daubert v. Merrell Dow Pharmaceuticals, Inc. (US 1993):
o Rejects Frye’s general acceptance standard
o Blackman, J.  4 Daubert factors
 Can theory or technique be tested? Can a hypothesis be falsified?
 Peer review and publication -- component of good science
 New techniques may not be published
 Those of limited interest may not be published
 What is the known or potential rate of error?
 Is there general acceptance? Acceptance good; skepticism bad
 General acceptance is not the “end all, be all” anymore!
 Trial judge must be aware of 703 (data relied upon), may consider 706 (court-appointed expert) and may
use 403
 Focus solely on principles & methodology, not conclusions
13 JOINER, KUMHO; 2000 AMENDMENT; RULES 703-705
 General Elec. Co. v. Joiner 522 U.S. 136 (1997) (Opinion by Rehnquist, (C.J.)
o Abuse of Discretion is Proper Standard
o Conclusions and Methodology are Not Entirely Distinct
 Have to ask if applied methodology correctly. Just b/c started with right methodology doesn’t
mean conclusions are reliable.
 Westberry (4th Cir. 1999): Could expert rule Talc “In”? Only way to do reliable differential diagnosis is to
rule other things out. Can’t just rule it in.
 Kumho Tire Co., Ltd. V. Carmichael (U.S. 1999) - Gatekeeping Role Applies to All Expert Testimony, even
experiential expert testimony. Trial Judge can always Consider Daubert Factors, But Has Discretion to
consider other factors (e.g. how to assess reliability).
o Expert couldn't say how many miles tire went before balding. No evidence others in industry did what
expert did. Subjective analysis.
 2000 Amendment—Advisory Committee Note: Purports to Codify Daubert and Kumho (not Joiner)
o Identifies Other Factors:
 Study Done Independent of Litigation (suggests independence)
 Unjustified Extrapolation  bad
 Failure to Account for Alternatives  bad
 As Careful in Court as Out of court
 Field of Expertise Known to be Reliable
 i.e. astrology done right still isn’t coming into court.
o Rejection is the Exception Not the Rule
o (1) “Sufficient facts or data” is Quantitative Not Qualitative Analysis
o Use of “Expert” Does Not Mean that Jury Should be Told that Someone is an “Expert”
 Statistical Evidence
o People v. Collins (Cal. 1968): prosecutor argued mathematical probability of D’s guilt. Used flawed
statistics. Factors not independent of each other. This use must be critically examined.
o Munoz v Orr (5th Cir 2000)(statistician excluded who began with assumption of discrimination)
o Sheehan v. Daily Racing Form (7th Cir. 1997)(age discrimination case, statistician excluded who failed
to include certain personnel and correct for variations other than age)
 Rule 703: Inadmissible Facts and Data
o An expert may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed.
o If experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted.
o But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose
them to the jury only if their probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect. (Reverse 403 test for telling jury)
 Rule 705: Opinions and Reasons
o Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it —
without first testifying to the underlying facts or data. But the expert may be required to disclose
those facts or data on cross-examination (opens the door to inquiry)
o Read Together With Rule 703: Combination Means An Expert May Reveal Inadmissible Facts or Data
Only if Rule 703 is Satisfied
o Thomas v. Metz -- Typical of Experts to Read Depositions; No Error Found
 Experts May Attend Trial
 Experts May be Asked Hypothetical Questions
 US v Leeson (4th Cir 2006): Expert relies on observations at BOP evaluation institution. Report said 2
inmates (no way to examine the inmates themselves, but expert est. that could reasonably rely on the
info.) Properly made 703 ruling to permit jury to hear what inmates said.
 US v Perkins (4th Cir 2006):
 Best way to determine whether an opinion is helpful is to ask whether the terms used by a
witness have a separate, distinct and specialized meaning in the law different from that present in
the vernacular
 Examples of unhelpful
 Defendant was negligent; Defendant engaged in fraud
 Examples of helpful testimony
 Defendant drove recklessly, in extreme disregard for human life
 Use of dog was inappropriate in X situation
 Rule 704 (b) (Exception to 704 (a)): Mental State in Criminal Cases
o In a criminal case, an expert witness must not state an opinion about whether the defendant did or
did not have a mental state or condition that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.
o US v. Thigpen (11th Cir. 1993): OK to ask whether a schizophrenic necessarily is unable to appreciate
wrongfulness of his actions. Thinly Veiled Hypothetical With Defendant’s Characteristics Violates the
Rule
 Fed. R. Civ. P. 26
o (a)(2)(A)(1): a party shall disclose to other parties the identity of any person who may be used at trial
to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
o (a)(2)(B): this disclosure shall be accompanied by a written report prepared and signed by the
witness. * * *
o report shall contain a complete statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the qualifications of the witness,
including a list of all publications authored by the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition within the preceding four years.
o Experts Can Only Testify to What is in Reports Unless There is Supplementation
14 HEARSAY, CONDUCT AND IMPLIED ASSERTIONS
 Rule 801: 3 Basic Requirements to Constitute Hearsay
o Declarant Makes Statement that Asserts Something
o Statement is Not Made While Testifying in Current Trial or Hearing
o Statement is Offered for The Truth of the Matter Asserted
 Assertions of Fact
 Offered for truth
 Valid or Invalid
 Rule 802: Hearsay is not admissible unless any of the following provides otherwise:
o a federal statute;
o these rules; or
o other rules prescribed by the Supreme Court.
 “Exceptions” to hearsay inadmissibility -- Rules 801 (d), 803, 804 and 807
o Statutes May Create Hearsay Exceptions
o Federal Rules of Civil or Criminal Procedure May Create Hearsay Exceptions
o In Rare Cases, Due Process Clause or Compulsory Process Clause Might Require Admission of Hearsay
o Just to show effect on listener
o Circumstantial evidence of speaker’s state of mind (such as sanity)
 Declarants Must be Human
o However, people generated assertions -- e.g., Computer Printouts -- Can Be Hearsay; Declarant is
Generator of the Assertion
o Radar Guns – Not Hearsay. Foundation Required for Authentication
o It is Possible That Witness and Declarant are Same -- Rule 801 (d)(1) covers this: (“I said…”)
 Hearsay Concerns - witness who is repeating what someone else said, can’t answer questions you would
ordinarily want to ask about sincerity, narrative, perception, memory
 Truth of the Matter Asserted - If it is not offered for truth, not hearsay
o A witness is entitled to testify as to what she heard as what she saw.
o When law attaches significance to utterances, they are not hearsay
 If a party must prove a statement to prevail on claim or defense, statement is unlikely to be
hearsay
 Offers are not hearsay; acceptances are not hearsay
 Oral statements establishing a contract, gift, or demand are not hearsay
Questions are not hearsay unless they contain a factual assertion
 “What time was it when you shot x?” will be hearsay if offered to prove that “you” shot x
o Orders and Threats are Not Hearsay
 “Disperse Immediately or You Will be Arrested”  Not Hearsay
 “Put Your Hands Up. I Am Arresting You Because You Committed an Armed Robbery” is Hearsay
if Offered to Prove that Person Committed an Armed Robbery
o Statements Offered as False or Misleading are Not Hearsay
 Securities Fraud Cases, Libel Cases (we care only about what was said, not its truth)
o Laws and Regulations Are Not Hearsay
Offeror Controls Purpose -- May Offer it for Its Truth or For Some Other Purpose
o If Offered for Another Purpose, that must be relevant
 Police Officer “I arrested the Defendant Because X Said ‘The Defendant Robbed the Bank’” 
Relevant at Suppression Hearing, Not Relevant at Trial
Limiting Instructions and Rule 403
o Upon request, limiting instruction will be given to the jury explaining that evidence is being admitted
for a limited purpose (rule 105)
Rule 403 objection may be made where evidence will be used for its truth despite instruction
Creaghe v Iowa Home Mutual (10th Cir. 1963): Insured’s statement has legal effect. It is a direction to
insurer that must be obeyed -- Not for Truth
US v Anfield (9th Cir. 1976): inconsistent statements can be brought out for perjury; When Two
Statements are Made Under Oath and Conflict, Both Are Admitted to Show that One Must be False
Vinyard v. Vinyard Funeral Home (Mo. Ct. App. 1968):
o P offers complaints  Not Hearsay if Offered to Prove Only Notice of dangerous condition (was not
offered to show whether it was actually slippery!)
McClure v State (Tex. Crim. App. 1979): Killed his wife and offered to testify as to what he was told about
her infidelity to raise issue of voluntary manslaughter. Appellate court says ok, not offered for truth. Is not
rule everywhere!
State of Mind
o US v Norwood: D could testify that person who gave him a stolen credit card said it was ok to use it –
whether true or not, D could rely
 Statement of authorization is not hearsay – it is neither true nor false.
o US v Cantu: Error to exclude Cantu’s testimony about what agent told him offered to support
entrapment defense – whether true or not could affect behavior
 Statements often admitted to explain why police investigated
US v Wicks (10th Cir. 1993): Formula for Meth, List of Precursor Chemicals, and Recipe to “Cook” Crack
Found in Wicks’ Briefcase in motel room admissible b/c not being admitted to show how to cook crack.
o But see Pelster v Ray (8th Cir. 1993): testimony by investigator that odometer on Ps’ car was turned
back and Ds turned back odometers on other cars assumed what documents said was true and was
hearsay. Had to compare odometer on car in past to what it says presently. If using it to prove that car
really had X amount of miles on it, that’s hearsay.
Conduct – Back to Rule 801 (a)
o Statement means a person’s nonverbal conduct, if the person intended it as an assertion.
o Stevenson v Commonwealth (VA 1977): wife gives clothes to officers who ask for ones H wore when
returned home on night of murder. Conduct =s Statement “These are the Clothes My Husband Was
Wearing”. Offered to Prove That Husband Wore Clothing on 1 Day – Hearsay
Conduct Involving Statements:
o US v Zenni (E.D. Ky. 1980): Demand to place a bet is not hearsay. Calls were Non-assertive Verbal
Conduct. Federal Rules ask: did the person intend to make a statement?
Implied Assertions: May be Hearsay
o Silence May be an Implied Assertion
o
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o
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Intent-Based Approach May Work - Was the Declarant Intending to Make An Assertion?
Ex) “I Didn’t Tell Them Anything About You” -- Conspiracy to Steal a Social Sec. Check (offer to prove
person was really saying “you were involved”)
Cannot Escape the Hearsay Rule by Asking Witness, “Now, What Did You Say After X Spoke to You” If
Purpose is to Infer What X Said
 Back Door Way to Admit What Cali Said. Can’t do this.
15 RULE 801 (D)
 Rule 801 (d)(1)(A): Can call them exceptions, 801(d)(1) statements
o A Declarant-Witness’s Prior Inconsistent Statement Is Not Hearsay.
 Statement is inconsistent with the declarant’s testimony and was given under penalty of perjury
at a trial, hearing, or other proceeding or in a deposition;
 When witness is subject to cross examination NOW (not when made other stmt)
 Grand Jury Testimony is Admissible if Inconsistent
o Trial Judge Decides What is Inconsistent
o Statements Admissible Under Rule 801 (d)(1)(A) Can Be Given Same Weight as Trial Testimony
 Whether Sufficient to Prove a Case Without Supporting Evidence Doubtful But Possible. Would
depend on detail the witness provided in the prior statement
o If Does not qualify Under 801 (d)(1)(A) May be Admitted for Impeachment under Rule 613
o Some States -- e.g., California -- Admit All Prior Inconsistent Statements for Their Truth
o Witness May Deny Prior Statement, and Another Witness May Testify Statement Was Made
o US v Livingston (D.C. Cir. 1981): statements made to private investigators do not qualify for prior
inconsistent even thought she signed under oath.
 Statements not made to independent officer, no recordings made, interrogation at Hester’s home,
not a formal place, no warnings provided
 Prejudicial error -- Statements Provided Most Direct Evidence of Guilt
 Rule 801 (d)(1)(B): A Declarant-Witness’s Prior Consistent Statement.
o Rule:
 is subject to cross-examination about a prior statement, and the statement:
 is consistent with the declarant’s testimony and is offered to rebut an express or implied charge
that the declarant recently fabricated it or acted from a recent improper influence or motive in so
testifying;
o Assumptions:
 Certain Prior Consistent Statements are Especially Important
 Triers (juries) will Use Them for Their Truth Anyway Because They are Same As Trial Testimony.
Would be confusing to not allow this.
 Jury will either believe or disbelieve both pieces of testimony
o Tome v US (US 1995)
 Mother Makes Allegations While Daughter Was With Her on Vacation
 Defense Argued that Daughter Lied to Stay with Mother
 judge admits 4yo’s stmts to babysitter, social worker. Held: Statement Must Have Been Made
Before Alleged Improper Motive or Influence Arose to be admitted under 801db
 This does Not Bind State Courts (evidence, not constitutional, decision)
o Witness must testify and be subject to cross-examination
o Third party witness may corroborate that prior statement was made
o Trial judge decides 1) whether charge of fabrication is made and 2) when motive to lie arose
o Prior consistent statements may be offered for non-hearsay use -- e.g., to explain the circumstances
of an inconsistent statement. If so used, need not satisfy rule 801
o US v Lewis -- criminal defendant may use prior (to arrest) consistent statement to rebut government
allegation that defense was an afterthought
 Rule 801 (d)(1)(C): A Declarant-Witness’s Prior Statement that makes Identification.
o
Rule:
 Declarant testifies and is subject to cross-examination about a prior statement,
 The statement identifies a person as someone the declarant perceived earlier
o Identification May be Consistent or Inconsistent with Trial Testimony
o Rationale: prior IDs more reliable
o US v Owens (US 1988): Can’t ID attacker in court. Does remembering IDing him previously.
 Held: Confrontation clause satisfied if witness is in court and present for cross-examination for
purposes of 801
 Even if witness cannot recall making identification, third party can testify that witness did make
identification. This satisfies the cross-examination requirement.
 Rule 801(d)(2): An Opposing Party’s Statement
o Admissions/Opposing Party’s Statement/Exceptions/801(d)(2) Statements
o Basics:
 Statements need not admit anything
 Need not be based on personal knowledge
 Different from declarations against interest (804(b)(3))
 Trial judge decides whether statement is admissible (Rule 104(a))
 Admissions are ONLY admissible AGAINST parties who made or are responsible for statements 
this is a 1-way street
 Limiting instructions given in multi-party cases (Bruton)
 Co-Defendants or Co-Plaintiffs Generally Are Not Party-Opponents for purposes of
admissions/statements (maybe if cross-claimed)
o Rule 801(d)(2)(A): A party’s own statement
 Rule:
 The statement is offered against an opposing party and
 Statement was made by the party in an individual or representative capacity
 Johnson -- Willfully Failing to Deposit Withholding Tax
 Johnson’s Statement to Accountant saying he knew he was supposed to deposit
 Offered for its truth. Admissible Against Him b/c own statement
 Johnson Not Permitted to Elicit Statements He Made (Hearsay)
o Rule 801(d)(2)(B): Adoptive Statements
 Rule
 The statement is offered against an opposing party and
 is one the party manifested that it adopted or believed to be true
 Judge Decides Admissibility Under Rule 104(a).
 If Judge Does Not Believe Statement Was Made, It is Excluded (not allowed in)
 Judge is a Fact Finder for whether this rule is satisfied
 Carr v. Deeds (4th Cir. 2006): Mom sued law enforcement for causing son’s injuries/death. Carr
indicated that Deeds inflicted the injuries.
 Held: P failed to show Deeds made an adoptive admission by silence
I No convincing argument that officer would respond in this situation
 US v. Hoosier (6th Cir. 1976): D told witness plan to rob bank. Witness saw D with $, D doesn’t say
anything. Held: adopted statement (would have denied if untrue)
 Adoptions by silence: (801 (d) (2) (B))
 Accusation is Made that a Normal Person Would Deny
 Party Accused Heard the Accusation & Understood
 Party Accused Had the Opportunity to Deny the Accusation
 Party Accused Remained Silent
 Limitations:
I Can’t use silence after Miranda warnings
o
o
o
II Company silence to customer complaint – not adoption, just ignoring
801 (d)(2)(C): Authorized Statements
 Rule:
 The statement is offered against an opposing party and:
 was made by a person whom the party authorized to make a statement on the subject
I i.e. press spokesperson
 Judge decides whether declarant was authorized to make a statement
 Mahlandt v Wild Canid (8th Cir. 1978): person who kept wolf at home (injured child found with
him) tells Pres. it bit someone, meeting minutes reflect same,
 Held: lack of personal knowledge of what happened irrelevant
I Poos’ statements admissible against Poos (d)(2)(A)
II Poos’ Statements Admissible Against WC-- (d)(2)(D)
III Minutes are Admissible Against WC -- (d)(2)(C)
IV Minutes are Not Admissible Against Poos -- No Authorization
 Fact that statement is made internally does not disqualify it
Rule 801 (d)(2)(D): Agent/Employee Statement
 Rule:
 The statement is offered against an opposing party and:
 Was made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed
 Trial Judge decides whether rule is satisfied (scope and whether statements qualify)
 Preponderance standard
 Personal knowledge not required
 Lawyer Statements May Be Admissions
 In Criminal Cases, Cts look to whether or not the D seemed to ratify
Rule 801 (d)(2)(E): Coconspirator’s Statements
 Rule
 The statement is offered against an opposing party
 made by the party’s coconspirator during and in furtherance of the conspiracy
 Bourjaily v US (1987): almost inapplicable due to new rules
 Whether Lonardo’s Statements on Phone that had friend w/Qs about drugs were Admissible
(Yes)
 S.Ct  Establishes 3 Main Points
I 1) Preponderance of Evidence Standard Applies to Factual Disputes
II 2) Contents of Challenged Statements Can be Considered -- Rule 104(a)
 Left Open Whether Challenged Statements Alone Could Prove Conspiracy
III 3) Statements that Satisfy a Firmly Rooted Hearsay Exception Satisfy Confrontation (No
longer Important After Crawford v Washington)
 Conspiracy Does Not Have to Be Charged to Rely Upon Rule
 Trial judge is fact finder!
 In furtherance of: Anything That Helps
 During: ends when goals are met or all are arrested (may continue if proceeds have not been
divided)
 Statements to law enforcement admitting guilt will not be in furtherance even if made during
the conspiracy
 **Statements to undercover agents may be both during and in furtherance of conspiracy
 in furtherance of another conspiracy  may be admitted if relevant
 Persons
 Person to Whom a Statement is Made Need Not Have Been a Conspirator

o
The Declarant and the Party Against Whom a Statement Is Offered Must Have Been
Members of the Conspiracy
 City of Tuscaloosa v Harcros (11th Cir. 1998): price fixing conspiracy
 CEO’s admission of conspiracy to friends admissible against his company under (D)(2)(d) only
– not in furtherance
Amendment to 801(d)(2)
 The statement must be considered but does not by itself establish the declarant’s authority under
(C); the existence or scope of the relationship under (D); or the existence of the conspiracy or
participation in it under (E).
I Conspiracy: How Much Independent Evidence?
 Silverman –”Fairly Incriminating”; We Suggest “Suspicion of Conspiracy”
16 RULE 803 (1),(2)(3),(4)
 Rule 803:
o THE FOLLOWING ARE NOT EXCLUDED BY THE RULE AGAINST HEARSAY, REGARDLESS OF WHETHER
THE DECLARANT IS AVAILABLE AS A WITNESS:
 803 (1) – Present Sense Impression -- Requirements
o Rule
 Statement Describes or Explains Event or Condition
 Made While Perceiving It or Immediately Thereafter
o How Long is Too Long? Above 20-30 Minutes, Skepticism
o Example: phone call “that was john, he was calling about X”
 911 Calls  Present Sense Impressions and/or Excited Utterances
o US v Brewer (2d Cir. 1994): IDs made over a year after robbery not present sense impressions
o Most Federal Courts Read a Corroboration Requirement Into Rule
 Before judge admits present sense impression, needs some evidence that the event occurred.
o Personal Knowledge Required
 803 (2) – Excited Utterance
o Rule
 A statement relating to a startling event or condition
 Made while the declarant was under the stress of excitement that it caused.
o Not limited to describing or explaining a condition, needs to only relate to the event or condition
o Longer opportunity than PSI; Continuous State Possible
o US v Marrowbone (8th Cir. 2000): teen tells police about assault 2 hrs after telling mother. Error to
admit statement to police as excited utterance – no showing of continued stress of excitement
o Miller v. Keating (3d Cir. 1985): unidentified man approached them and said “the bastard tried to cut
in”
 Personal knowledge problem where there is no evidence of perception other than the statement
and insufficient detail
 Lack of showing of excitement
 803 (3) – Then-Existing Physical, Emotional and Mental Condition (Including Intentions)
o RULE
 A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or
 emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
 NOT including a statement of memory or belief to prove the fact remembered or believed unless
it relates to the validity or terms of the declarant’s will.
o “My Leg Hurts” is 803 (3); “My Leg Hurts Because X Hit Me” is Not; My leg hurt an hour ago - not
o Mutual Life Ins v. Hillmon (1892): letters that showed Walters’ intent to travel were excluded in error.
 “evidence that he expressed that intention at that time is as direct evidence of the fact, as his
own testimony that he then had that intention would be.”
 Circumstantial evidence that he did go (Made it more probable that he did go with Hamilton.)
o
Statements By Victims Subject to Rule 403 Analysis
 Exception for Backward Looking Statements in Will Cases
 Protect Intent of Deceased. Necessity for Accuracy
o Shepard v US (1933):
 Nurse’s Statement that Mrs. Shepard Said, “Dr. Shepard poisoned me.” Admitted as Dying
Declaration--Mrs. Shepard Said She Was Going to Die. S.Ct Held that was error: b/c no Showing of
Impending Death and Absence of Hope
 “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes
out.”
 Says Hillmon marks the “high water mark” beyond which courts are reluctant to go
 Rule 803 (4) – Statement Made for Medical Diagnosis or Treatment
o A statement that:
 (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; AND
 (B) describes
 medical history;
 past or present symptoms or sensations;
 their inception;
 or their general cause.
o Statement Need Not Be By Patient  Could Be Relative, Friend, First Responder
o Rock v Huffco (5th Cir. 1991):
 Issue: was it reasonably necessary for docs to know how either accident occurred
 Ankle twist yes; details no
o Does Cause Matter?
 Family abuse cases – ID may be relevant
 Statements for Litigation Admissible
17 Rule 803 (5),(6),(8),(18), Problem
 Rule 805: Hearsay within Hearsay
o “Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.”
o Typical Case: Statement Within a Document
o When A Statement is Included within Another Statement and Both Are Each Offered For Their Truth,
Both Must Either Be Non-Hearsay Under Rule 801 or Fit an Exception
o Many Business Records and Public Records Have Hearsay w/in a Record
o Past Recollection Recorded May Contain Hearsay
 E.G., Insurance Investigator or Cop Interviews Witness
 Rule 803 (6) – Business Records
o (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or
diagnosis if:
 (A) the record was made at or near the time by — or from information transmitted by —
someone with knowledge;
 (B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
 (C) making the record was a regular practice of that activity;
 (D) all these conditions are shown by the testimony of the custodian or another qualified witness,
or by a certification that complies with Rule 902(11) or (12) or with a statute permitting
certification; and
 (E) neither the source of information nor the method or circumstances of preparation indicate a
lack of trustworthiness.
o Business duty concept: records kept by business expected to be made by someone with a duty to the
business. (employee) (Johnson v. Lutz (N.Y. 1930))
Business required to check ID = admissible  US v. Bland (9th Cir. 1992): Federal Regs. Require sellers
of handguns to verify name of purchaser, admissible to prove X purchased gun
 US v. Vigneau (1st Cir. 1999): Western Union money forms offered to prove V sent $. Held: not
business record – anyone could fill out form. No duty, not an employee of Western Union.
 US v Cestnik (10th Cir. 1994) – Narcotics and Money Laundering: Govt had independent evidence
to prove that C used aliases. NO hearsay problem to admit Western Union forms. Forms just
showed names used by someone.
o Custodians:
 Witness needs to know enough to satisfy the requirements of the rule but need not have personal
knowledge of any particular recording or how it was made
 If an event recorded is an isolated incident or a type not regularly recorded, there is a problem –
although some courts have taken a liberal view toward such records
o Palmer v Hoffman (1943): just b/c RR made recording of statement of accident does not make it “in
the regular course of business.” Business of RR is railroading!
o Computerized Records Treated Like Paper Records
o Reporters: Notes are business records, what 3d parties say are not
 803 (7) – Absence of an Record or Regularly Conducted Activity:
o Evidence that a matter is not included in a record described in paragraph (6) if:
 (A) the evidence is admitted to prove that the matter did not occur or exist;
 (B) a record was regularly kept for a matter of that kind; and
 (C) neither the possible source of the information nor other circumstances indicate a lack of
trustworthiness.
o Must Satisfy (6) Before You Can Use (7)
 Rule 803 (8) – Public Records:
o A record or statement of a public office if:
 (A) it sets out:
 (i) the office’s activities;  admissible in all cases
 (ii) a matter observed while under a legal duty to report, but not including, in a criminal case,
a matter observed by law enforcement personnel; or excludes criminal cases (confrontation
problem)
 (iii) in a civil case or against the government in a criminal case, factual findings from a legally
authorized investigation; and
 (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
o Beech Aircraft Corp v. Rainey (1988): Safeguards
 Factual Findings Require Factual Investigation
 Trustworthiness Requirement is Present; can be excluded as untrustworthy
o Ministerial Reports Generally Admitted Under (B)
 E.g., Firearm Numbers Recorded by Police (Grady)
o Non-final Reports Not Admissible
o Opinions Must Be By Qualified People
o Broader than business record exception
o Doesn’t have to be Federal agency. ANY agency: state, other govts, international ones
o 1. Opinion must be made by qualified person using reliable methods
o 2. Opinions that are legal conclusions are suspect
o 3. Preliminary reports and superseded reports are out
o 4. Suspect motivation may exclude reports
o 5. Hearings increase reliability
o 6. Timeliness of investigation may matter
o 7. Some statutes exclude reports (NTSB reports excluded in actions for damages in aircraft crashes
cases – Congressional policy)
o Third Party Hearsay Is generally Excludable, But Courts Take a Flexible Approach
o
 i.e. Public report that quotes someone and is being used for its truth.
 803 (10): Absence of a Public Record
o That a diligent search failed to disclose a public record or statement if the testimony or certification is
admitted to prove that:
 (A) the record or statement does not exist; or
 (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a
matter of that kind.
o E.g., Prosecution for failure to file a tax return.
 IRS Declaration No Tax Return is Found in Records
 Rule 803 (18) – Learned Treatises
o A statement contained in a treatise, periodical, or pamphlet
o Must Have Expert on Stand
 Treatise Must be Shown to Be a Reliable Authority
 Admission of Witness or Party
 Other Expert Testimony
 Judicial Notice
 Cross-Examinee Need Not Recognize Treatise as Reliable or Have Relied Upon It
o If admitted, the statement may be read into evidence but not received as an exhibit.
 Exception When Parties Stipulate or When Treatise Cannot Be Read (A Chart, Audio or Video
Tape)
o Costantino v. Herzog (2d Cir. 2000) – Malpractice Suit: Doesn’t matter if witness disagrees with
treatise so long as it is reliable or witness says it is reliable, can use it
 D. Ct. and C.A. Agree that Training Tape Can = Treatise
 Contents of a Periodical Cannot Automatically be Qualified “Wholesale”
 Need testimony about a particular article
 But Reputation of Periodical is Relevant
 803 (22) – Judgments of Previous Conviction – Super important
o Evidence of a final judgment of conviction if:
 (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
 (B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
 (C) the evidence is admitted to prove any fact essential to the judgment; and
 (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the
judgment was against the defendant.
o Can be admitted against anyone in a civil case, not just the person who committed the crime (eg.
Saltz’s fixed contract bidding example)
o Judgments of conviction after pleas or trials in felony criminal cases (federal or state) can be used to
prove any fact essential to the judgment in a civil case – against anyone, not just the person who
pleaded or was found guilty.
 Judgments can only be used in criminal cases against the person convicted
18 RULE 804: Unavailability of the Declarant  (A); (B)(1),(2),(3)
 Conditions Admissibility Upon a Showing of Unavailability
o Rule 804 (a) Defines Unavailability
 does not apply if the statement’s proponent procured or wrongfully caused the declarant’s
unavailability as a witness in order to prevent the declarant from attending or testifying
o Rule 804 (b) Provides 5 Hearsay Exceptions
o Both (a) and (b) Must be Satisfied for Admission of Evidence
 Trial Judge Decides Factual Questions Under Rule 104 (a) - Preponderance of Evidence Standard
 Rule 804 (a)(1),(2) – Privilege
o (a) A declarant is considered to be unavailable as a witness if the declarant:
 Exempted b/c a privilege applies (ex privilege of protecting against self incrimination)
 Refuses to testify about the subject matter despite a court order to do so;
Party May Not Refuse to Testify and Claim Unavailability (US v Kimball)
US v. Pelton (8th Cir. 1978): Lawyer subpoenas witness but did not call her. Says witness’ lawyer said
witness would claim 5th. Held: Cannot assume she will not testify -- need to call her and find out that
she has a valid privilege (or have her lawyer say she won’t testify).
Rule 804(a)(3) – Memory
o Considered to be unavailable if the declarant testifies to not remembering the subject matter
o US v Amaya (5th Cir. 1976): No Showing Memory Would Ever Return so no Abuse of Discretion in
Admitting Testimony
Rule 804 (a)(4) – Disability
o Unavailable as a witness if the declarant:
 cannot be present or testify at the trial or hearing because of death or a then-existing infirmity,
physical illness, or mental illness;
o If someone is sick and in hospital, cts can have her testify from bed (closed circuit TV, or ct go there)
o US v Faison (3d Cir. 1982): Wire Fraud Case Involving Stolen Checks – Need to weigh competing
factors on the record
Rule 804(a)(5)--No Deposition
o unavailable as a witness if the declarant:
 is absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure:
 (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6);
or
 (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule
804(b)(2), (3), or (4).
o Campbell v Coleman Co. (8th Cir. 1986): unavailable at trial? Made declaration against interest
(inadmissible b/c testimony is available) and deposition (admissible).
Intentional vs Unintentional Conduct
o Intentionally Releasing a Witness From a Subpoena May Be Sufficient to Constitute Wrongdoing
 Probably wrongly making a witness unavailable.
o Govt’s Failure to Grant Immunity is Not Wrongdoing
 Positive Conduct is Required (action);
804 (b)(1): Former Testimony
o Not excluded by the rule against hearsay if the declarant is unavailable as a witness if:
 (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and
 (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had
— an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
o Doesn’t matter who is offering evidence. Party against whom evidence is offered is key!
o In Re Johns-Mansville (N.D. Ill. 1981): Asbestos Case -- Medical Testimony – Fair to Admit Testimony
X-Examined by 1 JM Sub Against All JM entities
 Does Not Matter That Earlier Cases Alleged Negligence, Breach of Warranty and
Misrepresentation While This Case Alleges Intentional and Fraudulent Activity
 Third Circuit (Lloyd) -- Expansive Reading -- Similar Motive =s Predecessor
 Also 1st circuit. Saltz says they are not the same. Doesn’t like this.
 Narrower Alternative -- Some Juridical Relationship Between Parties
 Legal relationship like in Mansville
 Limiting instruction to use testimony against one D and not suppliers
o US v Salerno (1992): Grand Jury testimony couldn’t be used when P had called witnesses who gave
exculpatory answers at GJ re: D and then refused to testify at trial. Held: motive to examine may differ
from trial Q&A.
Rule 804 (b)(2) – Dying Declaration (Statement Under the Belief of Imminent Death)
o
o






o
Not excluded by the rule against hearsay if the declarant is unavailable as a witness:
 In a prosecution for homicide or in a civil case, a statement that the declarant, while believing
own death to be imminent, made about its cause or circumstances.
 Criminal -- ONLY homicide cases! Pay attention to this on EXAM! Have to die.
 All civil cases  Don’t actually have to die! Just belief you will die.
o Almost every one is an excited utterance, so don’t need this anyway!
o State v Quintana (NM 1982): shooting 5 days before dying declaration made. App.Ct. says ok – death
was imminent
o Personal Knowledge is Required (Shepard)
o Statements Are Admissible to Exculpate As Well As to Implicate
 Rule 804 (b)(3): Declarations against interest
o Not excluded by the rule against hearsay if the declarant is unavailable as a witness:
o Statement Against Interest. A statement that:
 (A) a reasonable person in the declarant’s position would have made only if the person believed
it to be true because, when made, it was
 so contrary to the declarant’s proprietary (property—not just real property) or
 pecuniary (financial) interest or
 had so great a tendency to invalidate the declarant’s claim against someone else
 or to expose the declarant to civil or criminal liability; and
 (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is
offered in a criminal case as one that tends to expose the declarant to criminal liability.
o Ghelin v Johnson (Minn 1932) -- No Will left by decedent. Woman Claims to Be His Wife.
o Probate relies on tax returns to find she is Not the Wife. Ct reasoned no one would do that if you
were entitled to more favorable tax treatment by checking “married” box.
o Williamson v US (1994): consents to search, drugs found.
 Held: Each Statement Must Be Examined Since the Rationale Focuses on Whether a Person Would
Have Made a Particular Statement
 Not just story as a whole. Rule says “this statement”
 Remands for Statement-By-Statement Analysis (Only Scalia Joins II C)
o US v Paguio (9th Cir. 1997) – Use By Defendant: father fills out will for H&W
 Difference Between Saying “I accept responsibility” and Saying “I did it but X is more responsible”
 Former Is Unconditional Acceptance (declaration against interest). Latter is Blame Shifting
o How Disserving Must a Statement Be?
 US v. Silverstein (7th Cir. 1984) – 3 x Lifer Confesses to Prison Guard Murder – Not Really
Disserving
 Statements Implicating Third Parties May Qualify. Unlikely for Post-Arrest Statements to Police
o Corroboration
 Until Now, It Was a One Way Street – Corroboration Only Imposed on D
 Rule Now Requires Corroboration in all Criminal Cases
 Some Courts Look to Whether There is Independent, Consistent Evidence; Others Look More to
Circumstances in Which a Statement is Made
19 RULE 804 (B)(4),(6)
 Rule 804 (b)(4): Statement of Personal or Family History
o Rule
 Not excluded by the rule against hearsay if the declarant is unavailable as a witness: A statement
about:
 Declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood,
adoption, or marriage, or similar facts of personal or family history, even though the declarant
had no way of acquiring personal knowledge about that fact; or
 (B) another person concerning any of these facts, as well as death, if the declarant was related to
the person by blood, adoption, or marriage or was so intimately associated with the person’s
family that the declarant’s information is likely to be accurate.
o Queen v. Hepburn, 11 U.S. 290 (1813): slavery case. Didn’t allow stmts about own ancestry. Just an
example of how law changed over time to what it is today.
 804 (b)(6): Forfeiture by Wrongdoing
o Rule: Not excluded by the rule against hearsay, if the declarant is unavailable as a witness:
 Statement offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing
— the declarant’s unavailability as a witness, and did so intending that result.
o US v Cherry (10th Cir. 2000): conspiracy murder case
 Ct. App held: a defendant may be deemed to have forfeited both a hearsay objection and a
confrontation objection if the wrongful procurement was in furtherance, within the scope, and
reasonably foreseeable as a necessary consequence of an ongoing conspiracy”
 Note: Under this test a forfeiture still can be found even if the defendants did not have specific
input into the murder of the witness
 Reasonably foresee: Forfeiture would be found if it was implicitly understood by the conspirators
that all witnesses should be killed if any of their fellow conspirators were brought to trial
 Rule 104 (a) Ruling – Preponderance of the Evidence
20 Residual Hearsay
 Residual Hearsay– 807 (a)
o (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or
804:
 *(1) the statement has equivalent circumstantial guarantees of trustworthiness;
 (2) it is offered as evidence of a material fact;
 *(3) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
 (4) admitting it will best serve the purposes of these rules and the interests of justice.
o Must give notice before trial/hearing
o Factors: (no bright line rule): Relationship between declarant and listener or party; Capacity of
declarant; Personal truthfulness of declarant; Care in making the statement; Was statement
repudiated?; Inconsistent statements; or if there was consistent behavior; Memory problems; clear
statements; Formality of statement; Made in anticipation of litigation (bad); Corroboration (good)
o US v Valdez-Soto (9th Cir. 1994): At trial Cortez says statements to agents were fabricated
 Special Agent testifies to Cortez’s statements
 Trial Judge admits statements under 803 (24), one of the two predecessors to Rule 807
 No confrontation problem because Cortez is present for cross-examination
 Court rejects argument that prior inconsistent statements can only be admitted under Rule 801
(d)(1)(A)
o US v. Laster (6th Cir. 2001) (means only that if a statement is admissible under one of the exceptions, it
o
should be relied upon instead of the residual)
Larez v City of Los Angeles (9th Cir. 1991): Trial judge says unnecessary to call reporters when 3
newspapers printed same quote.
21 Confrontation Clause; Crawford, Davis
 ONLY for criminal defendants!!!!!!!!
 FORMER TESTIMONY (still good law after Crawford)
o Barber (US 1968) - state failed to demonstrate good faith effort to produce witness before offering
preliminary hearing testimony
o California (U.S. 1970) - preliminary hearing testimony of witness present in court may be used
o Mancusi (US 1972) - no showing required of effort to produce witness who had moved to Sweden
o Ohio v. Roberts (U.S 1980) - unavailability shown where witness left state and parents did not know
how to contact her
 Crawford v. Washington (US 2004): wife’s tape recorded statement describing stabbing to police was
played for jury (testimonial statement)
o Court rejects view that Confrontation Clause only applies to in-court testimony
 Held: Today only question is whether the statement is testimonial (S.Ct. doesn’t define)
o Saltz  affidavits, custodial examinations, prior uncross-examined testimony, pretrial statements
declarants would reasonably expect would be used prosecutorially,
o S.Ct  testimony before grand jury or at preliminary hearing, at a prior trial, police interrogations
o If statement is testimonial cannot use it unless you can show:
 A declarant is unavailable.
 If available, have to call. If declarant appears at trial, there are no constraints on admission of
hearsay
 If no available, cannot use testimonial statement unless had prior opportunity to cross
examine (There is no opportunity to cross at GJ).
 Davis & Hammon IV: “Statements are non-testimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.”
o Testimonial when the circumstances objectively indicate that there is no ongoing emergency
  primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.
 Effects of Crawford
o Non-hearsay statements  no Crawford issue
o 801 (d)1) –> no problem b/c witness is present
o 801 (d)(2) (C) and (D) – could be testimonial – but not (E-co-conspirator statements) except in rare
case
o 803 and 804 – must examine statement by statement except for
 804 (b)(1) (former testimony is ok) and
 804 (b) (6) (ok –forfeiture by wrongdoing)
 Melendez-Diaz: neutral scientific testing is not immune from confrontation
o Rejects argument that witnesses who testify regarding facts other than those observed at the crime
scene are exempt from confrontation
o Don’t need to produce everyone in chain of custody (gaps go to weight rather than admissibility)
o Documents prepared in the regular course of equipment maintenance may well qualify as
nontestimonial
o Documents kept in the regular course of business may ordinarily be admitted at trial despite their
hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business
activity is the production of evidence for use at trial.
 Bullcoming v. New Mexico: S.Court reaffirmed Melendez-Diaz and held further that the Confrontation
Clause was not satisfied when such a certificate was entered into evidence through the testimony of a
person who was not involved with and had no personal knowledge of the testing procedure.
 Michigan v. Bryant: “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable police
assistance to meet an ongoing emergency,’
o The relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants would have had, as ascertained from
the individuals' statements and actions and the circumstances in which the encounter occurred.”
 Limiting Instructions and Confessions
o Bruton v. United States, 391 U.S. 123 (1968) (limiting instruction insufficient protection for defendant
implicated by non-testifying co-defendant's confession)
o Parker v. Randolph, 442 U.S. 62 (1979) (plurality creates interlocking confessions exception to Bruton)
But see Cruz v. New York, 481 U.S. 186 (1987) (rejecting Parker and interlocking confession rule)
o Tennessee v. Street, 471 U.S. 409 (1985) (statement offered not for truth, but to rebut defendant's
claim that he was shown co-defendant's confession and directed to say the same thing)
 Don’t have a confrontation problem ever if statement is not being offered for its truth.
 D claimed that although he confessed, police coerced him into it by giving him a codefendant’s
statement and writing down same thing. P entered co-def’s stmt to show it was different
o Richardson v. Marsh, 481 U.S. 200 (1987) (limiting instruction sufficient where non-testifying
defendant does not explicitly implicate co-defendant and other evidence might connect co-defendant
to facts revealed in confession)
o Gray v. Maryland, 523 U.S. 185 (1998) (redacting defendant=s name and leaving a blank space does
not satisfy Bruton) (“I robbed bank with B and C”.  I robbed bank with __ and __”) = not OK
22 Judicial Notice; Presumptions; Impeachment
 Judicial Notice: Substitute for proof. Governs only judicial notice of adjudicative facts (Involve These
Parties and This Case). Notice Binding in Civil Cases; Not in Criminal Cases
o Can be done sua sponte. Ct must take notice if requested by party and supplied with necessary info.
Can be done at any time (even on appeal in civil cases)
o Fact must be one not subject to reasonable dispute in that it is either
 (1) generally known within the territorial jurisdiction of the trial court or
 (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned
o Legislative Facts – i.e. whether cocaine hydrochloride is a controlled substance
o Examples
 Whether street is in “business district”
 US v. Dior – didn’t ask for notice of exchange rate. No proof of value. Acquittal affirmed. Don’t
assume jurors can fill in gaps with own personal knowledge!
o Judicial Records – notice commonly taken
 Existence of Records –OK
 Factual Determinations –Generally Not OK. Can question that court’s answer to a question.
 Presumptions  Only Presumption Rules Are in Civil Cases; No Rule For Criminal Cases
o Govern rebuttable presumptions only
o Rule 301: Unless a statute of the evidence rules provide otherwise,
 In civil cases, a presumption imposes on the party against whom it is directed the burden of
going forward with evidence to rebut or meet the presumption
 It does not shift to such party the burden of proof in the sense of the risk of non-persuasion
 Remains on the party. The burden of proof never changes under 301 (some states and fed.
statutes might shift this)
 But, if presumption is not rebutted, it is binding. If rebutted, presumption disappears.
 Party Against Whom Presumption Operates May Challenge
 (1) The Proved Fact (Letter Mailed),
I Evidence against the proved fact Does Not Destroy Presumption

o
o
(2) The Presumed Fact (Letter Received), AND/OR
I Makes presumption “burst”
Rule 302: Presumptions Where State Law Governs
 State Law Governs When State Law Provides Rule of Decision -- Bow to Erie
Presumptions have 2 facts: 1 proved and 1 presumed (ex mailed letters are received)
23 Contradiction; Bias; Rehabilitation, Hearsay Declarants, Problem
 Contradiction
o No Federal Rule Prohibiting Contradiction on Collateral Issues; Judges Use Rule 403 to prevent
contradictions on things they think are unimportant.
o Contradiction As to Elements of Claim or Defense Will Always Be Permitted
 E.g., State v Gore (S.C. 1989)– D Denies Living in Trailer or Ever Selling Drugs There
 Evidence of Earlier Sales Admissible to Prove Intent
 Admissible Even if D Did Not Testify – 404 (b)
 Bias
o Confrontation Clause Guarantees D Right to Explore Bias of a Govt Witness
o Evidence of bias shows motive to lie  Is most powerful form of impeachment.
 Inferences of bias may be drawn from family/personal relationships, so they can be inquired upon
 Payment for testimony – can be inquired on cross exam
o US v. Robinson (DC): officer testimony that D had said alibi witness was joint venture in drug
transaction admissible to prove bias of alibi witness (never collateral)
o US v. Castillo (9th): Judge allows in prior drug arrest in marijuana case where D portrayed himself as
anti-drug. Held: broad claims on direct can be contradicted.
o Courts May Be More Reluctant to Permit Contradiction of Cross-Examination
 There is No Absolute Bar on Contradiction
o Abel: Supreme Court Holds That Bias Evidence is Admissible Under Rules 401 and 402
 No limits. Also Reasons That Evidence of Bias is Admissible Even Though Same Evidence Would
Not Be Admissible Under 608 (b) if you were simply asking about a bad act.
 Rehabilitation: Rule 608(a)
o Evidence of truthful character is admissible only after the witness’s character for truthfulness has
been attacked.
 Generally, bolstering of the witness’ credibility is only allowed after credibility has been attacked
– otherwise “impermissible bolstering”
 Can still bring out impeaching points and weaknesses on direct
 Rehabilitation limited to area that is attacked
 US v Medical Sciences (2d Cir. 1978): D attacked character for truthfulness beyond what P brought
out, so door opened to rehabilitation
o Prior Consistent Statements
 801 (d)(1)(B): Admits Prior Consistent Statements as NonHearsay; Tome Requires Statements to
Have Preceded Motive to Falsify
 Prior Consistent Statements May Put Inconsistent Statements in Context -- Rule 106
 When the W is impeached with a prior inconsistent statement and counsel argues that
another statement consistent with the in-court testimony will serve to explain away the
alleged inconsistency)
 Hearsay Declarants – Rule 806. Attacking and Supporting the Declarant’s Credibility
o Hearsay or 801 (d) (2)(C)-(E) Statements (Not Personal Admissions) Make Declarant a W
o Opposing Party May Impeach W as if W Testified at Trial
o No Requirement for Foundation under 613
o Offering Party May Rehabilitate after an attack as at Trial
o Opposing Party May Call Declarant & X-exam
 806 v 608(b)
o 806 Seeks to Have Opponent (of hearsay) as Well Off Re: Impeachment as if Declarant Testified
o Issue  608 (b)’s No Extrinsic Evidence Rule Poses a Problem
 If declarant is not available (as with Wilson) don’t have opportunity to ask about prior bad act
 Cannot Impeach with Prior Bad Acts if Declarant is Not Present to Admit Them
 What should court do? Allow extrinsic evidence? Saltz doesn’t think this would happen.
24 AUTHENTICATION I
 Rule 901(a): To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent
claims it is.
o Judge is screener – could jury could find by a preponderance? (analogous to Rule 104(b)
 Courts do not assume evidence is what proponent claims.
 Chain of Custody -- Must be Established:
o When Necessary to Identify Evidence Or to Show Condition is Unchanged
o Not Needed When Evidence is Unique and Condition Is Not Important
o Most Courts Hold that a Break in Chain of Custody Goes to Weight, Not Admissibility
o Need a substantially unbroken chain – adherence to a defined system of identification and custody
 Lockhart v. McCotter (5th Cir. 1986): no chain needed for wallet – unique item
 US v Edwards (9th Cir. 2000): receipt should not have been admitted b/c prosecutor tampered with bag –
removed it from courtroom in violation of rule.
 Basic Foundation Questions:
o [1] I show you what has been marked for identification as [Plaintiff’s or Defendant’s] Exhibit #.
o [2] Can you identify it?
o [3] What is it?
o [4] For photographs, we add one question. Is it a fair [or true] and accurate depiction of ___?
 Real & Demonstrative Evidence:
o X-Ray is Demonstrative Evidence (not actually showing the real evidence, i.e. the injury to the knee) –
Foundation May be Laid by Technician, Doctor, or Circumstances
o Real evidence – wallet, bag, etc.
 Carson v Polley (5th Cir. 1982): judge admits knife as one similar to one plaintiff had when arrested. Knife
could have been admitted as demonstrative, but witness could not lay a complete chain.
 Photos, Videos, Tapes:
o Does not matter who took a photo, when it was taken or why it was taken
o Important thing is whether the witness says the photo/video depicts what the witness saw or heard
 Some courts may require showing of no opportunity for tampering.
o Surveillance films – foundation laid by testimony as to the process and the chain of custody – no live
witness
o Recordings:
 Generally, any participant in conversation can authenticate a recording.
 Generally, an agent who overhears can authenticate a recording
 Foundation may increase where machine is automated and no witness heard conversation
 X-Rays: Foundation can be laid like a photo, only may be difficult to tell 1 knee or shoulder, etc. from
another
o Dr. (has no right to refuse to identify), technician,
 Rule 901(b): provides examples only (not a complete list) of evidence that satisfies the requirement
o (2) Non-expert Opinion About Handwriting. – 1 time lay observation is enough (familiarity must
precede litigation)
o (5) Opinion About a Voice – any familiarity with voice will suffice, no matter when became familiar
o (6) Evidence About a Telephone Conversation.

evidence that a call was made to the number assigned at the time to:
 (A) a particular person, if can show that the person answering was the one called; or
 (B) a particular business, if the call was made to a business and the call related to business
reasonably transacted over the telephone.
o (4) Distinctive Characteristics and the Like.
 The appearance, contents, substance, internal patterns, or other distinctive characteristics of the
item, taken together with all the circumstances.
o US v. Parker (5th Cir. 1998): conversation was authenticated by wife placing the call and man calling
Mrs. P his “old lady” – sufficient to show Mr. was on the call.
o Barrickman v. Nat’l Utilities (Mo. Ct. App. 1945) – Like 901 (b)(6): don’t need to be able to ID voice,
just need to think she called the company (here they answered that they were company)
o US v Ranta (8th Cir. 1973): don’t need handwriting expert – jury can make own examination.
o US v McMahon (1st Cir. 1991): circumstantial authentication of handwritten note OK (i.e. that person
was hard of hearing, so reason he might have wanted to send note), but best evidence issue here.
 Rule 902: These documents are self-authenticating (no witness required, but trier may reject evidence)
o (1) Domestic Public Documents That Are Sealed and Signed
o (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified
o (3) Foreign Public Documents
o (4) Certified Copies of Public Records
o (5) Official Publications (i.e. US DOJ)
o (6) Newspapers and Periodicals
o (7) Trade Inscriptions and the Like
o (8) Acknowledged Documents
o (9) Commercial Paper and Related Documents
o (10) Presumptions Under a Federal Statute (i.e. presumed genuine under statute.)
o (11) Certified Domestic Records of a Regularly Conducted Activity
 Added to remove necessity of a custodian of a business having to lay foundation for business
records. Can now certify through pretrial certificate.
o (12) Certified Foreign Records of a Regularly Conducted Activity
o Kassim v. City (2d Cir. 2005): , no foundation because translator did not testify that she translated
accurately (couldn’t read or speak Arabic); Kassim never said he gave her the translations or that they
were accurate.
o US v Safavian (D.D.C. 2006): issue of email authentication. Govt not offering emails as business
records, so 902(11) not applicable. Ct looks to 901(4) (distinctive characteristics) and (3) compares
with specimens that were known to be emails sent by Savafian.
 Safavian complains of chains of email embedded in other email: Ct says jury can draw own
inferences but FBI agent cannot tell jury how to reason.
o Internet and Email Evidence: there is not one right way to authenticate
 What was on Website? Best evidence issue. Someone prints something out.
 Does Exhibit or Testimony Accurately Reflect It?
 If So, Is it Attributable to Owner?  How do you prove this?
I Cts look at how long the data was on website (longer=better, more likely to be attributed
to owner, whether it was taken down & how, whether data was called to attn of owner
who didn’t do anything about it, other types of postings by owner (format, etc),
 E-Mail Factors courts look at:
 Witness or entity received email
 Email bore address of particular person
 E-mail contained typewritten name or nickname in body of e-mail
 Email recited matters normally known to sender
 Recipient witness followed up with conversation with sender
 Saltz: no one way to authenticate. Just like regular documents.
o
 Might be using email to prove that it was forwarded to someone and that person saw it. May
not care who wrote it originally.
Rule 903:
 “The testimony of a subscribing witness is not necessary to authenticate a writing unless required
by the laws of the jurisdiction whose laws govern the validity of the writing.”
 If law says you have to have a subscribing witness ID the document, FRE follows.
 Applies mostly in will contests
25 AUTHENTICATION II; BEST EVIDENCE
 Best Evidence Rule (Original Writing Rule):
o No general rule that best evidence is required
o Applies to – writings, recordings and photographs
o Rule 1002: An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise.
o DeMarco v. Ohio Decorative Products – no original. If original existed, no oral testimony would have
been permitted.
o Proving the contents:
 Real Estate dispute – deed is best evidence
 Meaning of any document – document is best evidence
 Original is NOT required just b/c doc exists – question is whether the contents are disputed
 Witnesses w/personal knowledge generally may testify even if doc available (testimony to being
married OK, certificate not required)
o Rule 1001 (a) – (c)
 (a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
 (b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
 (c) A “photograph” means a photographic image or its equivalent stored in any form.
o Seiler v LucasFilm, Ltd (9th Cir. 1986): originals required to prove copyright infringement of drawings
by Empire Strikes Back. Ct finds bad faith, so can’t use other evidence.
o US v. Duffy (5th Cir. 1972): judge has discretion to require chattels to be brought to court
o Recordings: Howard (11th Cir. 1992): Drug conspiracy case. Recorded conversations. Not trying to
prove conversations were recorded, trying to prove what the conversations were about. So agent can
testify to his recollection of the conversations.
o Pictures & Videos:
 Just b/c a writing, photo, recording, exists doesn’t mean you need it to prove an event.
 Could be used to support understanding of witness’ testimony, so don’t need best evidence rule
 Pictures and Videos Generally Are Not Offered to Prove Contents
 They Are Incorporated Into Testimony.
 Exception -- Obscenity, Pornography -- Contents Must be Proved
o Films and X-Rays
 Films Created to Demonstrate an Event Are Not Offered to Prove the Contents
 They are Illustrative or Demonstrative Evidence
 Usually used in conjunction with experts.
 X-Rays Are Offered to Prove Contents
 Xray used to prove what it is that is on the photograph
 US v Levine (5th Cir. 1977): release prints of pornography made from a prior print. Any print can be
used, does not violate best evidence.
 An original includes negative or any print made therefrom.
Analysis:
 First Step
 Is proponent offering a writing, recording or photograph?

 To prove the contents?
If Not  best evidence objection is overruled
If yes  Second step
 Second Step
 Does Proponent Offer Either the Original or a Duplicate?
 If It is the Original, Rule Satisfied
 If It is a Duplicate, presumptively admissible, but Rule 1003: A duplicate is admissible to the
same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original or
(2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
 If Duplicate Admitted  End of Analysis (So long as you use a copier, you’re fine.)
 Third Step
 When there is No original or Admissible Duplicate, proponent must satisfy Rule 1004:
 An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process; * * *
(c) the party against whom the original would be offered had control of the original; was at
that time put on notice, by pleadings or otherwise, that the original would be a subject of
proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
o Railroad Management Co v. CFS (5th Cir. 2005): Ct of appeals offers 7 factors in deciding whether party
is seeking to prove existence of agreement or its contents
1. Importance of content in the case
2. Simplicity or complexity of content
3. Strength of evidence of content
4. Margin for error that would not undermine point to be proved
5. Presence or absence of actual dispute
6. Ease or difficulty of proving writing
7. Reasons why writing not produced
o Neville Const. Co v. Cook Paint (8th Cir. 1982): If Original is Excused (e.g. destroyed in a fire), Any Form
of Admissible Evidence Will Be Received. No Preferred Degrees of Secondary Evidence
o Rule 1006: Summaries
 The proponent may use a summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in court. The
proponent must make the originals or duplicates available for examination or copying, or both, by
other parties at a reasonable time and place. And the court may order the proponent to produce
them in court.
 US v North American Reporting (D.C. Cir. 1984): a summary is as admissible as the underlying
evidence it summarizes. If summarizes hearsay, inadmissible.
 Distinguishable From 611 (a) Summaries of Trial Evidence (Often Called Pedagogical Summaries) –
summary witness gets on stand, summarizes testimony
o Rule 1005: Public Records
 The proponent may use a copy to prove the content of an official record — or of a document that
was recorded or filed in a public office as authorized by law — if
 the record or document is otherwise admissible; and
 the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a
witness who has compared it with the original.
 If no such copy can be obtained by reasonable diligence, then the proponent may use other
evidence to prove the content.
o Rule 1007: Admissions

o
The proponent may prove the content of a writing, recording, or photograph by the testimony,
deposition, or written statement of the party against whom the evidence is offered. The
proponent need not account for the original.
 e.g. if authenticity is admitted, no reason to require original
Rule 1008: Jury Questions -- in a jury trial, the jury determines — in accordance with Rule 104(b) —
any issue about whether:
 (a) an asserted writing, recording, or photograph ever existed;
 (b) which one is the original
 (c) other evidence of content is credible/reflects the content
 All other questions are for the judge under Rule 104(a)