Evidence, Fall 2010
I. Evidence is...
A. Whatever proof is offered (information through which jurors make
B. A system of rules which guide the introduction of proof
C. The material from which inferences may be drawn as the basis for proof of the truth or falsity
of a disputed fact.
II. Burden of Proof
A. The risk of nonpersuasion/persuasion burden
B. The duty of producing evidence/production burden
C. What is "likely", is often presumed; Access to evidence is often the basis
for creating a presumption
D. A presumption involves a relationship between a proven or admitted fact
or group of facts (a), and another fact or conclusion of fact (B) which is
sought to be proven
E. The conclusive/irrebuttable presumption = If A is shown, then B is to be
presumed without question and a court will not entertain other evidence
showing the nonexistence of B
F. Proponent of the evidence or claimant of the privilege has the BOP as to preliminary facts
(whether a witness is qualified to testify; whether the witness is privileged to testify, etc)
G. Smith v. Rapid Transit
1. Sup. Ct. of MA, 1945
2. Facts: A bus was traveling opposite of Plaintiff and Plaintiff alleged that the bus caused her
to turn to the right and hit a parked car
3. Issue: Was there evidence for the jury that the Plaintiff was injured by a bus of the
defendant that was operated by one of its employees (on the job)?
4. Holding: No.
5. Rationale: The ownership of the bus was a matter of conjecture. It could have been a
private or chartered bus. A proposition is proved by the preponderance of evidence if it is
made to appear more likely or probable in the sense that actual belief in its truth, derived
from the evidence, exists in the mind of the jury (notwithstanding any lingering doubts).
6. Plaintiff needed to prove: accident, location, schedule for defendant's bus, going west,
proximate cause (plaintiff got hit by defendant's bus), certificates for main street of
defendant's bus, no other certificates
H. Dyer v. MacDougall
1. US COA, 2nd Cir., 1952
2. Complaint for slander and libel
3. Facts: Plaintiff attempted to shift the burden of proof to Defendant, wanted to use
Defendant's denials as evidence
4. Defendants may have the burden of proof if alleging an affirmative defense
5. Typically, the burden of proof will not shift in civil/criminal cases
6. In cases that can damage character/reputation, the court will generally require clear &
convincing evidence
I. Procedural consequences of burden of proof
1. When encountering a motion for judgement as a matter of law: Taken in a light most
favorable to the plaintiff, no reasonable juror could find for the Plaintiff on any essential
element by a preponderance of the evidence (civil)/ beyond reasonable doubt (criminal)
2. Make both legal and factual arguments; claim insufficient evidence
3. Plaintiff retains the burden of persuasion throughout trial (if motion for directed verdict is
overruled); defendant can go forawrd by choosing NOT to produce evidence
J. Direct evidence does not have problems of logical relevancy, only
K. Circumstantial evidence has problems with both logical relevancy and
III. Relevance and Probative Value
A. Key Rules: R103 (Admissibility), R104 (Relevancy conditioned on a fact,
circumstantial evidence), R403 (Exclusion of relevant evidence), R404
(character evidence)
B. When looking at a rule...look at your given case facts, consider the given
elements of the rule, and know the context and background of the rule
C. Relevance and Inference
1. Looks at whether there is a logical connection between one fact and another; then
compare to a key issue in the case
2. How much weight to give "relevant" evidence deals with its probative value
3. Relevance is only an admissibility issue; must know what the contested issues are and
understand the elements of the claims made
4. When an item of evidence tends to prove or disprove any proposition, it is relevant to that
proposition (R 401)
5. All relevant evidence is admissible unless excluded by a specific rule (R 402)
6. If evidence is admissible on one ground and not on another ground, then the trial judge
must instruct the jury to consider the evidence only for the admissible purpose. (R 402)
7. Knapp v. State
a) Sup. Court of IN, 1907
b) 1st degree murder case; State rested and Defendant made motion for directed verdict, court denied and
defendant went on to present evidence
c) Defendant testifies that he heard victim killed a 3rd party, alleges self-defense; State rebuttal, 3rd party
died of natural causes
d) Key element: Defendant's state of mind; any other evidence is not relevant
D. Probative Value vs. Prejudicial Effect
1. R403
2. Old Chief v. U.S. - ask Prof. Adams about this case
a) U.S., 1997
b) Facts: Old Chief was involved in a fight with gunshots fired; Federal law prohibits prior felons from
possessing a gun; Old Chief was also charged with assault with a dangerous weapon and another crime;
Had a previous conviction of assault causing bodily injury.
c) Issue: Did the district court abuse its discretion if it spurns the defendant's stipulation to a prior
conviction when the name and nature raises the risk of a tainted verdict?
d) Holding: Yes.
e) Rationale: Disclosing the name and nature of the prior conviction can evoke a different emotional
response from the jury ("bad person" aspect)
f) Gives a template for assessing probative value
3. Probative value + need for evidence vs. harm likely to result from admission.
4. Def of unfair prejudice = undue tendency to suggest decision on improper basis.
5. Judge shall consider (1) probable or lack of effectiveness of limiting instruction and (2)
availability of other means of proof [Old Chief]
6. Theory for allowing relevant but prejudicial evidence...would rather give the jury
the most relevant evidence, then balance any prejudice with a jury instruction; on
appeal, the court would look for an abuse of discretion
7. Ballou v. Henri Studios, Inc.
a) US COA, 5th Cir., 1981
b) Issue on appeal regards a motion in limine that sought to exclude evidence that Plaintiff was intoxicated
at the time of the accident; trial court sustained the motion and ruled the BAC test inadmissible; judge
found a lack of credibility in the BAC tests versus testimony of the nurse; also found evidence harmful
& prejudicial to plaintiff
c) Courts can consider the attitude of the jury
d) Don't make conclusory statements in your argument re: whether your evidence has or does not have
probative value/why it's fair or unfair
8. Relevancy Problems That Need Balancing (for probative value)
a) Ex: the fact a P has litigated a tort claim before is not relevant
b) Ex. prior accidents.
c) Ex. subsequent accidents
d) Ex. absence of accidents
E. Character and Habit, FRE 404-415
1. Generally relevant, but can be systematically inadmissible
2. Different forms of character evidence have different values/weights in reference to
relevance and probative value
3. Evidence of a character trait is generally inadmissible to show action in conformity with
that trait on a particular occasion i.e. the D is a bad person or propensity to commit the
crime; Rationale: relevancy is outweighed by prejudice and risk of confusion of issues
4. Must first ask if character is genuinely at issue OR circumstantial; if at issue
-->R405; if circumstantial-->R404(b)
5. Character in Issue
a) If character is an operative fact in a parties' rights or liabilities, then it is
typically "at issue"
b) Cleghorn v. NY Central & H. River Railway Co.
(1) COA of NY, 1874
(2) Facts: PI suit against railway company and switchmen for negligence of not closing the
switch after a train had passed; plaintiff offers evidence that the switchman was frequently
intoxicated and may have been at the time of the incident
(3) Result: The evidence was deemed proper (on appeal) because the character and habits of
the negligent employee was an element of an award of punitive damages against the
c) Wellman Article
(1) Talked about a libel suit
(2) In cases where libel or defamation is claimed, plaintiff's character is directly material on the
issue as to how much he/she was damaged by the defendant's actions; R405(b)
(3) Truth of statement (defense) - specific acts could then be admissible to show plaintiff was
the "sort of man" to do certain things; becomes essential element
d) For example: defamation (evidence of P’s character to prove or disprove the truth of what D said about
P) negligent entrustment (D’s knowledge of entrustee’s bad charcter), child custody (prove
character/fitness of parents) insanity defense, entrapment, character of the decedent in wrongful death
(when computing emotion and economic loss) self-defense (re: victim’s knowledge of the attackers violent
e) Example for negligent entrustment:
(1) Reputation (everyone knows X is a horrible driver)
(2) Opinion (X drives like a mad woman, in my opinion)
(3) Specific Acts (speeding ticket and reckless driving citation)
f) Unlike reputation testimony, opinion testimony requires that the witness actually know the individual
about whom he/she is testifying.
g) Courts have construed that reputation CAN be in the negative. (“I haven’t heard anything bad about
h) Rule 803(21). Reputation as to character. Reputation of a person’s character
among associates or in the community [is an exception to the hearsay rule.]
i) Note: character evidence must still be relevant . . . person on trial for embezzlement
can’t have someone on the stand talk about how he is passive and docile
6. Character as Circumstantial Evidence
a) Michelson v. U.S.
(1) US, 1948
(2) Facts: Bribery case (crime of dishonesty), defendant did testify on his own behalf and
admitted to several prior crimes; also brought out 5 additional witnesses to prove that he
had a good reputation; defendant trying to prove that a person of his character would not
commit the crime charged
(3) R404(a) says his character is circumstantial, he could be acquitted without offering
reputation evidence
(4) Counsel must ask specific and precise questions to elicit character trait evidence: (1) what
is ___'s reputation for truth and veracity? (2) what is ___'s reputation for honesty?
(5) Give the jury some basis to assess the value of the witness's testimony
(6) Reputation evidence is generally more probative
U.S. v. Carillo
(1) US COA, 5th Cir., 1993
(2) R404(b) case
(3) Specific acts can only be admitted if not used as proof of conduct and conformity; i.e. "he
did the other crime before, so he must have done this one..."
(4) Prior specific acts can be used to prove identity
U.S. v. Beasley
(1) US COA, 7th Cir., 1987
(2) Facts: Appeal based on the district court using evidence of other drug sales/purchases as
"pattern" evidence (pattern of conduct); pattern can also be used to show identity
(3) Specific acts admitted at the district court level: (1) doctor shopping for prescriptions (2)
gave drugs to other associates (3) showed a patient how to fake pain for drugs (4) patient
became addicted and institutionalized
(4) Issue: Was the admission of the "pattern of conduct" improper?
(5) Holding: Yes.
(6) Rationale: Trial court erred in not having the government explain how the pattern
evidence was going to be used to show intent. Also, did not consider R403 weighing the
probative value of that evidence.
(7) Trial court had to lay out the basis of wanting to admit the doctor shopping against the
unfair prejudice it could cause
(8) Court looks at timing of specific acts, must be "specially close in time" to establish intent
U.S. v. Cunningham
(1) US COA, 7th Cir., 1996
(2) Facts: Nurse Cunningham was convicted of tampering with a consumer product with
reckless disregard for the risk of another. Gov't introduced evidence of prior acts (1) prior
demerol addict (2) license suspended for addiction and stealing demerol (3) falsified drug
tests while suspended (4) previously convicted of stealing demerol <---All introduced to
establish MOTIVE (to do current act charged)
(3) Issue: Was the admission of the prior bad acts an abuse of discretion by the trial court?
(4) Holding: No.
(5) Rationale: It was the addiction driving the specific acts and not the desire to steal. If there
were a lawful route to satiate her addiction, then that would have been the means
(establishes mental compulsion or motive)
Tucker v. State
(1) Sup. Ct. of NV, 1966
(2) Facts: Man was indicted for murder, alleged he did not murder anyone, but only stumbled
upon the victim after awaking from his sleep. Gov't offered evidence that Tucker was
connected with a prior murder that had similar circumstances.
(3) Issue: Was it improper to admit evidence of a prior anonymous (unconvicted) crime of
(4) Holding: Yes.
(5) Rationale: Anonymous crimes can have no relevance in deciding whether the defendant
committed the crime with which he was charged. Has to be clear, convincing,
INDEPENDENT evidence that the defendant committed the prior crime.
Huddleston v. U.S. ask prof. adams about this case
(1) US, 1988
(2) Facts: Huddleston was charged with selling stolen good in interstate commerce and
possession of stolen property. Gov't introduces similar acts of defendant selling
televisions and other appliances where he was arrested. Wants to offer as proof of
knowledge that the goods were stolen.
(3) Issue: Does the district court have to make a preliminary finding that the government has
proved the "other act" by a preponderance of the evidence before admitting it?
(4) Holding: No.
(5) Rationale: Uses "packaging theory", evidence of other similar acts is enough to preclude
the defendant's knowledge of the stolen goods. The Court simply examines the
government's offer of proof and decides whether the jury could reasonably find the
conditional fact by a preponderance of the evidence R104(b)
(6) Balance need, strength of other crime evidence
Perrin v. Anderson
(1) U.S. COA, 1986
(2) Facts: Plaintiff's decedent was shot and killed by a police officer during an inquiry into a
car accident; officers offered evidence that decedent had several violent encounters with
uniformed officers prior to his death; officers also alleged self-defense
(3) Issue: Was the admission of decedent's prior conduct prejudicial error?
(4) Holding: No.
(5) In a self-defense situation, a defendant or eyewitness may allege the victim was the first
aggressor; can then rebut with reputation or opinion evidence
(6) R404(b) says the defendant must have personal knowledge of the victim's past acts;
offered to show state of mind (i.e. I feared for my life, and deadly force was the only
appropriate response)
Halloran v. Virginia Chemicals, Inc.
(1) COA NY, 1977
(2) Facts: Plaintiff was injured when a can of freon exploded, VA Chemicals offered evidence
that Plaintiff had used an immersion coil (contrary to the label warning not to) to heat cans
of freon in the past as a habit
(3) Issue: Was the admission of this evidence proper?
(4) Holding: Yes.
(5) Rationale: Proof of a deliberate, repetitive practice by one in complete control of the
circumstances is highly probative and should be admitted.
State v. Cassidy
(1) App. Ct. of CT, 1985
(2) Facts: Victim testified that defendant raped her; defendant offers evidence of prior sexual
conduct between another male where she exhibited similar erratic behavior
(3) Issue: Was the exclusion of this evidence proper? Did it violate the defendant's
constitutional rights?
(4) Holding: Yes/No.
(5) Rationale: No violation of defendant's constitutional rights because evidence offered did
not constitute a false report of sexual abuse. One similar instance is not sufficient to prove
a pattern of conduct.
j) Olden v. Kentucky
(1) U.S., 1988
(2) Facts: Victim alleged she was raped by Olden and Harris, there were conflicting stories at
trial; Olden offered evidence that Mathews (victim) lived with Russell (extramarital affair)
to demonstrate Mathews had a propensity to lie
(3) Issue: Was the exclusion of Olden's offer of proof proper? Did it violate Olden's
constitutional rights (6th amend)?
(4) Holding: No/Yes.
(5) Rationale: Olden had a right to confront his accuse despite speculation as to the effect of
jury biases.
(6) In another case: in order to ensure defendant's constitutional rights are protected,
defendant must be allowed to present evidence attesting to prior sexual relationships
k) Johnson v. Elk Lake School District
(1) US COA, 3rd Cir., 2002
(2) FRE 415 prior sexual conduct rule at issue in this case; only for use in civil trials...must
satisfy R413(d) the act has to be "sexual assault"
(3) Facts: Student claimed she was sexually assaulted by her HS guidance counselor; plaintiff
wanted to introduce testimony of another school employee who mentioned that she had
been harassed by the counselor as well
(4) Result: The testimony was properly excluded...not sure if there was intent for the act of
sexual assault, isolated incident; and there were differences in the alleged assaults between
Johnson and other victim which made the other victim's testimony less probative
(5) Rationale: When considering evidence of past sexual assaults, the trial court need not
make a preliminary finding by a preponderance of the evidence under FRE104(a) that the
act in question qualifies as a sexual assault and that it was committed by the defendant.
The court may admit the evidence so long as it is satisfied that the evidence is relevant,
with relevancy determined by whether a jury could reasonably conclude by a
preponderance of the evidence that the past act was a sexual assault and that it was
committed by the defendant ---R104(b) referenced
(6) "We think that in cases where the past act is demonstrated with specificity and is
substantially similar to the act(s) for which the defendant is being sued, it is Congress's
intent that the probative value of the similar act be presumed to outweigh R403's
(7) Congress intended R413-415 to include admission of prior convictions for sexual offenses
and uncharged conduct
7. D may always introduce evidence of her good character to show likely that D did not do it.
8. D however has opened the door and the P can rebut by showing D’s bad character or
impeachment by cross-examining D.
9. Character evidence is INADMISSIBLE in CIVIL CASES to proved conduct in
conformity therewith on a particular occasion [a doctor who has not “committed
malpractice in 30 years” is an inadmissible piece of evidence that shows the doctor has
character trait of carefulness.]
10. These rules are still subject to the FRE 403 Balancing Test.
11. Habit - R 406
a) Character evidence: refers to a person’s general propensity
b) Habit evidence: refers to a person’s specific, routine, and continuous behavior in particular situations
(1) Ex. giving a hand-signal when turning. Going down stairs two feet at a time.
(2) Things like going to church on Sundays are too volitional sometimes.
(3) Whittemore v. Lockhead: evidence that decedent had flown the airplane four times
before admitted to prove that he was piloting rather than a guest on a plane which
crashed and killed all on board.
c) Habit evidence describes a person’s regular response to a repeated situation
(1) Ex: Y is good and careful and driver, and thus likely not failing to stop at a stop
sign. This is not admissible since it is character. However, evidence from X that X
and Y drive to work every day on the same route and stop at a stop sign
demonstrates habit, and thus admissible.
(2) Ex. Correspondence of X is always shredded by X’s secretary on Fridays at noon.
[business org]
F. Similar Happenings
1. Used to show defect or dangerous condition; notice; causation...must be
substantially similar incidents
2. Simon v. Kennebunkport
a) Sup. Ct. of ME, 1980
b) Slip and fall case; also involved R104(b)
c) Facts: Plaintiff wanted to introduce evidence that two witnesses had seen nearly 100 people fall or trip
on the sidewalk in question (all weather, and physical conditions the same, sidewalk had not been
changed since its construction)
d) Issue: Was it an abuse of discretion to not allow Plaintiff's offer of proof?
e) Holding: Yes.
f) Rationale: Because the evidence was to be offered through personal observations of 2 witnesses, its
introduction would not have consumed an inordinate amount of time or caused confusion. The city was
aware of the witnesses before trial began and could have prepared to rebut their testimony.
g) Safety history is generally admissible from the defendant, to prove the negative (no defect, no notice, no
G. Subsequent Precautions/Remedial Measures
1. General Rule: Evidence of repairs made or precautions taken by D after injury to P
is not admissible to prove D’s negligence, culpable conduct, or defect in the
product or product’s design.
2. R407 "by an event" - injury must have occurred before design change/subsequent
remedial measure; does not limit discovery, only offers of proof
3. Tuer v. McDonald
a) COA of Maryland, 1997
b) Med Mal case; R407 at issue
c) Facts: Plaintiff's decedent went in for surgery and was on a heparin drip, the doctor stopped heparin a
few hours before scheduled surgery and Plaintiff's decdent had a complication and had emergency surgery,
died the next day; Plaintiff is looking to admit evidence of the hospital and doctors remedial measures
of continuing heparin until immediately prior to surgery
d) Plaintiff also argued change was not remedial because the hospital did allege that policy was applicable
standard of care, and changing it was not remedial
e) Issue: Did the court err in excluding Plaintiff's offer of proof re: remedial measures?
f) Holding: No.
g) Rationale: The rule (407) was designed to encourage re-evaluation of procedures and policies in light of
certain incidents.
h) If feasibility was challenged (defendant has to raise this issue), subsequent remedial measures can be
(1) Plaintiff can introduce other alternatives to show that defendant adopted those
(2) Court will look at feasibility at the time of the event
(3) Because heparin restart was "unsafe" at the time doesn't challenge feasibility, only reflects
a judgment call of the defendant
i) To admit subsequent remedial measures does not impeach credibility of the witness per se, just goes to
4. Evidence of subsequent repairs is admissible for other purposes
(1) to impeach (if disputed) D’s witness as to the safety of the condition
(2) to show ownership or control of the injury-producing instrumentality
(3) to show D’s attempts to conceal or destroy evidence
(4) to show that precautionary measures were feasible [when feasibility brought into issue]
H. Offers in Compromise
1. R408
2. A direct admission of liability will not be admissible
3. Permitted uses. This rule does not require exclusion if the evidence is offered for
purposes not prohibited by subdivision (a). Examples of permissible purposes
include proving a witness's bias or prejudice; negating a contention of undue
delay; and proving an effort to obstruct a criminal investigation or prosecution. i.e.
X, Y, and Z get hit by C in an accident. C settles with Y and Z, and in return they are to testify against
X in trial. In this situation, X can offer into evidence that Y, Z, and C settled, but ONLY for purposes
of demonstrating bias and NOT liability.
4. Davidson v. Prince
a) COA of Utah, 1991
b) Facts: Plaintiff was injured by a cow that had escaped (from Defendant's truck) onto the road upon
which he was traveling. Plaintiff appeals the jury verdict because he felt the trial court made an error by
admitting statements he made in a letter to defendant, claimed they were part of settlement negotiation
c) Result: The letter was merely an attempt to inform defendant as to the facts of the incident and also stated
that the defendant should remit payment in full and didn't have the tone that he would compromise at
5. Admissions under FRE 408 (offers to settle) are treated different than admission under
FRE 409 (offer to pay medical bills).
a) Under FRE 408, admissions in conjunction with settlements offers are inadmissible to prove
negligence, liability, or a claims value.
b) Ex: At negotiations, X says I am sorry, it was my fault. I will pay you $5,000. Accompanying
admission to settlement offer is not admissible nor is the offer to settle/settlement itself.
c) Under FRE 409, admissions in conjunction with an offer to pay medical bills are admissible.
d) Ex. “I’ll pay your medical bills . . . it was my fault” are admissible.
I. Admissibility of Pleas
1. R410
2. Typically relevant, but not admissible
3. Any discussions with prosecutors that do not result in a guilty plea or a guilty plea
later withdrawn R410(4) blanket provision
4. Government can ask defendant to waive R410 privileges; not a constitutional right
to have those statements protected
5. Plea discussion with an attorney for the government
6. Being found guilty by a jury is considered hearsay (if less than 1 year as the
punishment) traffic offenses; conviction (inadmissible) guilty plea (admissible)
IV. The Hearsay Rule
A. Key Rules: R801, R802, R803, R804, R805, R806, R807
1. Definitions
a) 801(a) Statement - 1) an oral or written assertion OR 2) nonverbal conduct of a person, if it is intended
by the person as an assertion
b) 801(b) Declarant - a person who makes a statement
c) 801(c) Hearsay - a statement, other than one made by the declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the matter asserted
d) 801(d) Statements that are not hearsay...
(1) Prior statement by witness
(2) Admission by party-opponent - has 4 distinct parts
e) The truthfulness of the out-of-court statements do not matter; the statement itself is the "operative fact"
2. Crawford v. Washington: court held that the Roberts test fails to comport with the intent
underlying the confrontation clause. It also held that when prior testimonial evidence is
at issue, the evidence is inadmissible UNLESS the declarant is unavailable and
the D had an opportunity to cross-examinationine the declarant at the time the
statement was made.
3. Applications of Confrontation Clause
a) The Courts modification of the Roberts ruling applies to all testimonial evidence, including testimony
given at a preliminary hearing, grand jury, or former trials, as well as statements taken by police officers
during interrogations. [Crawford]
b) Confrontation Clause does not pose any barrier to the admission of co-conspirators statements as long
as they are offered under an exception similar to the federal exception. A showing of unavailability and
trustworthiness is not required.
c) Statements that fall within firmly rooted hearsay exceptions and are admissible without particularized
showing of trustworthiness.
d) A confession by an accomplice (incriminating D) may not be used against D unless the accomplice is
unavailable and D had an opportunity to cross-examinationine the accomplice. [Sir Francis Drake]
The CC is intended to guarantee a criminal defendant the right to be confronted with the
The CC provides procedural guarantees at trial, including the right to be present at trial, the
right to learn what evidence is being offered against him or her, and the right to
cross-examinationine witnesses.
Applicable only in criminal trials.
If an out-of-court declaration is introduced under a FIRMLY ROOTED HEARSAY
EXCEPTION, this will by itself be enough to establish the required reliability under the
a) If it doesn't fall within firmly rooted exception, the CC is violated unless there are particularized facts
surrounding the statement to show its reliability. [Factor: whether the declarant had been
cross-examined at some point.]
b) List of Firmly Rooted Hearsay:
(1) Former Testimony given at prior proceeding [804(b)1)]
(2) Excited Utterance [803(2)
(3) Statements by Coconspirators [801(d)(2)(E)]
c) Likely Firmly Rooted Hearsay:
(1) Admissions by a party-opponent [801(d)(2)]
(2) Recorded Recollections [803(5)]
(3) Business Records [803(6)]
(4) Dying Declaration [804(b)(2)]
(5) Statements Against Interest [other than penal interest]
(6) Declarations against interest prob don’t qualify as firmly rooted.
8. Four Factors to Consider when examining hearsay...
Recall (then existing state of mind)
9. Fun-Damental Too, Ltd. v. Gemmy Industries Corp.
a) US COA, 2nd Cir., 1997
b) Patent infringement case
c) Facts: Plaintiff wanted to offer direct testimony of its sales manager to demonstrate confusion of its retail
customers; Dist. Ct allowed the testimony
d) Issue: Was the evidence hearsay?
e) Holding: No.
f) Rationale: Hearsay is an out-of-court statement admitted for the truth of the matter asserted. The
statements were probative of the declarant's confusion. (Defendant's packaging copied Plaintiff's and
cause retailers to believe Plaintiff was overcharging them) R801
10. U.S. v. Hernandez
a) US COA, 5th Cir., 1985
b) Facts: Hernandez was arrested and convicted of possession and distribution, objected to testimony by
DEA agent that he had been though to be a drug smuggler by US Customs; "received referral from US
customs"; Gov't claimed that they were not offering the testimony for its truth
c) Issue: Was the evidence admissible?
d) Holding: No.
e) Rationale: The gov't offered the testimony as part of the evidence of Hernandez's guilt of being a drug
smuggler. Did not use the agent's testimony as proof of their own state of mind. Did not have any
probative value.
11. U.S. v. Zenni
a) US Dist. Ct. E.D. of KY, 1980
b) Illegal bookmaking case
c) Facts: Gov't wanted to introduce evidence of phone calls where people were calling and making bets on
various sporting events; Defendant objected on various grounds of hearsay
d) Result: The gov't may have been relying on a 3rd party's underlying belief that defendant ran a betting
operation. Court held that the betters were exhibiting "nonassertive verbal conduct" and were relevant
for an implied assertion.
e) Must look at the credibility of the caller using the 4 factors of cross-examination PRCS
f) Courts look at the underlying reliability of inferences to be drawn from the assertion sought to be
admitted; Is the inference viable without cross-examination?
g) Example: A defendant runs away from officers when he was sought to be arrested; can the prosecutor
offer the flight as evidence? This will be an implied assertion and will not be excluded; can infer
knowledge of guilt
12. Wilson v. Clancy
US Dist. Ct. of MD, 1990
Assertion looking to be admitted: Lawyer's silence in telling the decedent to change his will
R801(d)(2) must have manifestation of an adoption or belief in its truth
Will keep the "silence" out on the basis of its probative value not being outweighed by its risk of unfair
prejudice; Silence is ambiguous
e) "Silence, at least where this is no showing of intentional silence on a particular occasion intended as an
assertion when the silence was kept, is no longer hearsay..."
13. U.S. v. Jaramillo-Suarez
a) US COA, 9th Cir. 1991
b) Facts: Defendant accused of cocaine and conspiracy crimes, Gov't wanted to introduce a pay/owe sheet
that recorded drug transactions found in a location visited by the defendant
Issue: Is the pay/owe sheet admissible under hearsay rules?
Holding: Yes.
Rationale: The pay/owe sheet was admitted for the specific and limited purpose of showing the character
and use of the apartment (where sheet was found). Role was no different than the large amounts of money
found in the apartment.
A limiting instruction was given by the court saying the pay/owe sheet should not be used to prove the
truth of the matters asserted
14. U.S. v. Brown
a) US COA, 5th Cir., 1977
b) Tax fraud case
c) Facts: Gov't is seeking to admit testimony from an IRS auditor that 90-95% of the tax returns
submitted by defendant had overstated deductions; Defendant says it's hearsay because there was no
opportunity to cross-examine the 160 taxpayers; no way to know deductions were overstated without
talking to the taxpayer
d) Issue: Are the IRS auditor's inferential statements admissible?
e) Holding: No.
f) Rationale: The jury had no way to examine the trustworthiness of Peacock's testimony or reliabilty of
the out-of-court statements made by the taxpayers
g) Case of implicit hearsay
h) Negatory response to investigative testimony will typically be viewed as hearsay
i) Cannot use prior statement made to others to show credibility of declarant "bootstrapping credibility"
15. City of Webster Groves v. Quick
a) St. Louis COA, 1959
b) Traffic violation case
c) Facts: Gov't seeks to admit testimony by city officer as to the readings on device showing defendant's
speed as 40 mph
d) Issue: Is the radar gun reading inadmissible?
e) Holding: No.
f) Rationale: The hearsay rule cannot be applied to what a witness observed either through his own senses
or through use of scientific instruments. The electric speed reading results relied upon by the officer is not
dependent on the perception, memory, and sincerity of an absent declarant.
g) Hearsay rules only apply to persons!
16. Wilson v. Tatham stands for the proposition that in holding conduct even
when not intended as assertive, is hearsay when offered to show the actor's
belief; conduct (other than assertions) when offered to show the actor's
beliefs and hence the truth of the facts so believed ought to be admissible
whenever the trial judge in his discretion finds that the action so vouched
the belief as to give reasonable assurance of trustworthiness
17. USEFUL OUTLINE: Is there an out-of-court statement/assertion? Is it
oral or written? Was the conduct intended to be assertive? Is it offered for
the truth of the matters asserted?
B. Exceptions and Exemptions
1. Spontaneous and Contemporaneous Exclamations
a) R803(1) Present sense impression
b) R803(2) Excited Utterance
c) Truck Insurance Exchange v. Michling
(1) Sup. Ct. of TX, 1963
(2) Facts: Statement of the husband made to the wife that he hit his head at work and did not
feel well; Plaintiff died about a month after the incident
(3) Elements of R803(2): occasion must be startling enough to cause shock which in turn
creates an emotional state; utterance made under the stress of that emotion; must be
spontaneous and natural response; so clearly connected with the occasion that the
declaration may be said to be the spontaneous explanation of the real cause (scope)
(4) Rationale: The Court did not allow the testimony of the wife because the statement had to
have been made in connection with an act proven. There was no other evidence to show
that Plaintiff's decedent was in an accident.
(5) "Must be evidence of an act itself admissible in the case independently of the declaration
that accompanies it."
(6) In federal court, the evidence will generally be admissible and can be used to show event
R104(a) allows this (preponderance of the evidence)
d) Lira v. Albert Einstein Medical Center
(1) Sup. Ct. of PA, 1989
(2) Medical malpractice action
(3) Facts: Plaintiff offered a non-party physician's statement of "Who's the butcher who did
this?" as admissible hearsay under excited utterance and present sense impression
(4) Rationale: Court found that the physician's statement was inadmissible hearsay because his
comments were expressions of opinions based on medical training and experience.
(5) An excited utterance must be instinctive, rather than deliberate.
(6) May have gotten in if tried in federal court under R803(1)
2. Admissions, R801(d)(2)
a) Must prove statement is applicable to the facts being litigated; show the
statement's relevance
(1) Perception - Party could argue that the declarant's perception closer to the time of the
event has since changed
(2) Sincerity
(3) Recall
(4) Communication - could be argued as faulty
(5) Included as non-hearsay because the party is generally available to explain or refute those
b) Reed v. McCord
(1) COA NY, 1899
(2) Statement: Defendant employer made statements about the cause and circumstances of
plaintiff's accident to the coroner
(3) Result: Statements made by this declarant were not based on personal knowledge; but
court still held him responsible for those statements
c) U.S. v. Hoosier
(1) US COA, 6th Cir., 1976
(2) Statement: "Sacks of money" and Defendant's silence in the face of an accusatory
(3) Result: there has to be some showing that Defendant heard and perceived the
statement/perceived the original event itself; must show that the silent declarant was
compelled to respond to the out-of-court statement sought to be admitted
(4) Manifesting belief = agree with the outcome
d) State v. Carlson
(1) Sup. Ct. of OR, 1991
(2) Possession of meth case
(3) Statement/conduct: Defendant was shaking his head back and forth in response to the
wife's statement
(4) Case involved conditional relevance R104(b): evidence that is supposed to be admitted if
the proponent has already produced other material that shows its relevance to the trial or
if the proponent promises to produce the contextual information later; it's left to the jury
to determine whether the underlying context has been proven
(5) Rationale: Court looks to R104(a) preliminary fact/preponderance of the evidence and
considers the potential for misuse of the evidence by the jury (stronger possibility of
misuse in this case)
e) Mahlandt v. Wild Canid Survival & Research Center, Inc.
(1) US COA, 8th Cir., 1978
(2) Dogbite case
(3) Three issues pertaining to admissibility of Mr. Poos' note to employer, statements to
director, and board meeting noted
(4) Facts: Plaintiff wanted to introduce 3 pieces of evidence against the doctor individually
(Poos) and WCS& RC
(5) Rationale: Poos may not have had personal knowledge of the actual incident; but the note
manifested such a belief that Poos had accepted the out of court statements (that a wolf bit
someone) as his own; Poos' statements were also admissible against WCSRC; the Rules do
not require personal knowledge of the agent; Poos' statements were related to control
given by the principal (employer); corporate board meeting minutes also admissible
against WCRSC, but not Poos
f) Big Mack Trucking Co., Inc. v. Dickerson
(1) Sup. Ct. of TX, 1973
(2) Wrongful death case
(3) Facts: Employer seeks to have employee's statement of negligence inadmissible as to
(4) Rationale: Court found that employee's statement was inadmissible because there was no
evidence that he was authorized to speak on behalf of the company per R801(d)(2)
g) Sabel v. Mead Johnson & Co.
(1) US Dist. Ct., 1990
(2) Facts: A user of an antidepressant brought suit against a manufacturer claiming the
medication caused an adverse medical condition; wanted to introduce evidence of a
special conference hosted by the manufacturer and attended by two of its employees
regarding the side effects of the medication in question
(3) An agency relationship has three essential characteristics: 1) the power of the agent to alter
the legal relationships between the principal and third parties and the principal and
himself; 2) the existence of a fiduciary relationship toward the principal with respect to
matters within the scope of the agency; 3) the right of the principal to control the agent's
conduct with respect to matters within the scope of the agency
h) U.S. v. Doerr
(1) US COA, 7th Cir., 1989
(2) Further explanation of "in furtherance of the conspiracy" requirement of R801(d)(2)(E)
(3) The statement is a part of the information flow between conspirators intended to help
each perform his role
(4) Pixley's statement was only a narrative, did not further objectives of the conspiracy
(5) Statements that advance the conspiracy
(6) New co-conspirators are responsible for previous conduct/statement made by the other
i) Bourjaily v. U.S.
(1) Case regarding the requirements of R801(d)(2)(E)
(2) Gov't wanted to introduce evidence that defendant was participating with a friend in the
illegal transaction
(3) Rationale: The Court determines that there must be evidence that there was a conspiracy
involving the declarant and the nonoffering party, and that the statement was made in
furtherance of the conspiracy. A co-conspirator's statements could themselves be
probative of the existence of a conspiracy and the participation of both the defendant and
the declarant in the conspiracy.
3. Former Testimony
a) Travelers Fire Ins. Co. v. Wright
(1) Sup. Ct. of OK, 1958
(2) Civil case (insurance bad-faith)
(3) Facts: Ins. company wants to offer testimony from 2 witnesses from the defendant's
criminal cases
(4) Four elements for admissibility of former testimony: 1) unavailable witness; 2)
opportunity for cross-examination at former trial; 3) identity or substantial identity of
issues 4) identification of parties
4. Declarations against Interest
5. State of Mind, R803(3)
a) Adkins v. Brett
(1) Sup. Ct. of CA, 1920
(2) Out of court statement: Wife stated that plaintiff her husband (D. accused of
seducing plaintiff’s wife and thereby causing alienation) was distasteful; also
mentioned that defendant took her dining, gave flowers, and gave her a good time
(3) The issue here was whether to exclude the statement because it was prejudicial
against the defendant; court reversed because the judge did not give an adequate
jury instruction
b) Mutual Life Ins. Co. of NY v. Hillmon
(1) U.S., 1892
(2) Insurance company is alleging that body recovered is not that of the decedent
(Hillmon), heirs are suing the insurance company to recover the life insurance
(3) Out of court statement: letters sent by Walters showing that he was traveling with
Hillmon at the time of death at Crooked Creek (circumstantial proof of intent, and
of that intent being carried out)
(4) Court says that the letters are not necessarily proof that Walters traveled away from
Wichita, and traveling with Hillmon; the intent to go made the fact that he did go
to crooked creek more probable than not (if there were no letters written)
(5) Court found that the letters were competent evidence (due to corroboration of the
evidence) and that there were a material fact bearing upon the issue in dispute
(6) Potential for fabrication would not be enough to keep this evidence out
c) Shepard v. U.S.
(1) U.S., 1933
(2) Army doctor is convicted of murdering his wife, poisoned her because he wanted a
different wife
(3) Out of court statement: Wife’s statement to her nurse to get a bottle of whisky to
test for poison, that it looked and smelled strange, and “Dr. Shepard has poisoned
(4) Jury is less likely to misuse intent, than statements of past events
d) U.S. v. Pheaster
(1) US COA, 9th Cir., 1976
(2) Facts: Larry Adell was kidnapped by defendants, and the government offered
statements from Larry’s friend that he was going to meet with Angelo (defendant)
at Sambo’s North
(3) Defendant argued that Larry voluntarily disappeared in order to extort money
from his father
(4) Government wants to use the statement to rebut the affirmative defense of false
kidnapping; the name in the statement will be deemed highly prejudicial
(5) Government also wants to use the statement to prove the actual fact that he did
meet the defendant at the parking lot at Sambo’s North (because he had the intent
to do so)
(6) Issue: Is the statement admissible under R 803(3)?
(7) Holding: Yes.
(8) Rationale: The court admitted the statement using Hillmon doctrine (when the
performance of a particular act by an individual is an issue in a case, his
intention/state of mind to perform that act may be shown). The statement is used
inferentially to prove other matters which are in issue. A statement that refers to
another person’s intent OTHER THAN those of the declarant, will not be
e) Zippo Mfg. Co. v. Rogers Imports, Inc.
(1) US Dist Ct., Southern Dist. Of NY, 1963
(2) Intellectual property case
(3) Zippo alleging that Rogers infringed their trademark, offered surveys as evidence
to show consumer confusion and secondary meaning
(4) Rogers alleges surveys are hearsay
(5) Court says that typically surveys are admissible, even beyond the exceptions listed
in R 803
(6) Says that there is a necessity for this kind of case, cannot bring in a million people
and show them the lighters
(7) Court looks at the trustworthiness of the survey the company should have had
other brands of lighters available for the consumers to delineate from
(8) Rogers alleges survey 3 was inadmissible because
(9) Issue: Are the 3 surveys admissible?
(10) Holding: Yes
(11)Rationale: There are 4 dangers of hearsay: recall, sincerity, communication,
perception. Court says that there is either no danger or minimal danger from the
responses given in the surveys. People who are usually polled generally have no
interest in the results of the survey. The determination that a statement is hearsay
does not end the inquiry into admissibility; there must still be a further examination
of the need for the statement at trial and the circumstantial guaranty of
trustworthiness surrounding the making of the statement. Also, was necessary to
have the polling because you cannot show that the copied features have a
secondary meaning with the consumer base.
6. Medical Diagnosis or Treatment, R803(4)
a) Allows for testimony by the declarant of what caused the patient’s problem so long as
the descriptions are reasonably pertinent to diagnosis or treatment
b) Such statements may be presumed reliable since the declarant most likely believes that
the effectiveness of the treatment received may depend in large part upon the accuracy
of the information given to the physician
c) Can be from anyone associated with medical services
d) Will generally need expert testimony to support any kind of causation claim (pertinent
to diagnosis or treatment)
7. Dying Declarations, declarant unavailable
a) Rule applicable only to homicides and civil cases
b) Declarant must be conscious of their impending death; and have an objectively
reasonable basis that their death is imminent
c) Based on the theory that when a person who believes death is near has to motive to
make false statement since there is nothing to be gained from them
d) Used only to show the declarant’s belief about the cause of what the declarant believed
to be his or her impending death
e) Can still be a dying declaration if the speaker survives; if death was believed
imminent...Delcarant must divulge the causes or circumstances of what he believed to
be certain death.
f) State v. Jensen
(1) Wisconsin Circuit Court, 2008
(2) Involved a conviction of the defendant of murdering his wife via poison
(3) Government sought to introduce evidence of a letter written by the wife
attributing any future homicide to his husband
(4) Letter was written 3 weeks before her death
(5) Court doesn’t say that there is a time limit on the rule on the belief of impending
(6) Result: Court found letter to be admissible under R804(b)(2); found that the letter
was a statement by the victim, and based upon religious foundations that the
“dying person is not presumed to lie”
(7) Questions to ask: Is a declarant who is about to die, is their communication skills
better than any other out of court declarant? Is the recall, perception,
communication, sincerity any clearer when death is imminent?
(8) R610 prohibits impeachment based on religion or lack thereof
8. Prior Identification, R801(d)(1)(c)
a) The purpose of this provision was to make clear, in line with recent law, that
nonsuggestive lineup, photographic and other identifications are not hearsay
and therefore are admissible
b) Only admissible when the person who made the prior identification testifies at
trial and is subject to cross-examination
c) U.S. v. Owens
(1) Involved a case where the declarant had identified the defendant in prior statements but
then could not recall at time of trial whether the defendant was the person who attacked
(2) Court says the statements were still admissible and constitutional (against the 6th
amendment confrontation clause); because declarant was available for cross-examination;
out-of-court identifications are preferred as opposed to courtroom identifications; the rule
was directed at these type of incidents i.e. memory loss
9. Past Recollection Recorded
a) R803(5)
b) Must establish (1) that the record was made by or adopted by the witness at a time when the witness did
have a recollection of the event and (2) that the witness can presently vouch for the fact that when the
record was made or adopted by him, he knew that it was accurate
c) Requires the presence of the declarant, going to be cross-examined about why the witness has a lack of
memory…is this a kind of thing that a witness could forget?
d) Can have diminished recollection, but cannot be NO recollection
e) Present Recollection Revived/Refreshed
(1) The only source of evidence is testimony of the witness himself
(2) The stimulus may jog the witness’s dormant memory, but the stimulus itself is not
received in evidence
(3) Baker v. State…”The catalytic agent or memory stimulator is put aside, once it has
worked its psychological magic, and the witness then testifies on the basis of the
now-refreshed memory”
(4) The adverse party has the option to introduce the document into evidence; will
otherwise only be allowed to be read
f) Adams v. The NY Central RR Co.
(1) Court of Common Pleas, Cuyhoga County, Ohio 1961
(2) Issue of double hearsay, can be gotten around by offering Raith’s statement as an
admission by a party opponent
10. Business and Public Records
a) R803(6)
b) Will often be admissible
c) Must show that the document was made as part of the usual activities of the organization
d) That a person with knowledge of what the record says made the record or reported the information to the
person who made the record
e) That the record was made near the time of the occurrence of what it describes
f) Witness must testify about how the record meets those requirements
g) May often include hearsay within hearsay…under R805 will not necessarily be excluded if each part
of the combined statements conforms with an exception to the hearsay rule
h) If there is something about the business record that indicates a lack of trustworthiness, the court may still
i) U.S. v. Vigneau
(1) Drug transaction case; there was evidence submitted of the defendant using western union
slips to send money
(2) Good case for setting up an exam answer...
(3) "Hearsay is an out of court statement offered in evidence to prove the truth of the matter
asserted R801(c)...whoever wrote the name of the defendant was making an assertive
statement...if other evidence were offered to show that defendant was the writer of the
western union slips that would be non-hearsay under R801(d)(2) admission by party
opponent...however the government may not use the western union forms themselves as
proof that defendant made the admission."
j) U.S. v. Duncan
(1) US COA, 5th Cir., 1990
(2) Defendants are challenging their convictions of conspiracy and insurance fraud
(3) Defendants alleged that the insurance company should not have been allowed to
introduce unauthenticated medical records and statements by doctors; no
custodial verification; hearsay that does not fall within the R803(6) exception
(4) Court rejects defendants’ claims
(5) Result: The ins. co. compiled their records from the business records of hospitals.
There is no requirement that the witness who lays the foundation be the author of
the record or be able to personally attest to its accuracy. There is no requirement
that the records that the records be created by the business having custody of
(6) The court has great latitude in determining the trustworthiness of the records
(7) The insurance company records may have still been admissible as nonhearsay
evidence under R801(d)(2)(C-D); a patient will routinely authorize release of
medical records to insurance companies
k) Williams v. Alexander
(1) COA NY, 1955
(2) Plaintiff is looking to overturn a judgment for defendant; wanted to challenge the
admissibility of medical records that included a statement by plaintiff of the cause
of the accident
(3) Result: Court orders new trial because it was the business of the hospital to
diagnose plaintiff’s condition and to treat her for ailments, not to record a
statement describing the cause of the accident in which plaintiff’s injuries were
sustained. Entries of this sort, purporting to give particulars of the accident, which
serve no medical purpose, may not be regarded as having been made in the regular
course of the hospital’s business.
l) Hahnemann Univ. Hospial v. Dudnick
(1) Superior Court of NJ, App. Div., 1996
(2) Debt collection action
(3) Judgment was against the defendant, and defendant appeals alleging that the
computer printout of the bills owed by him were hearsay and not covered by the
business records exception
(4) Result: Court will basically only exclude a business record if it is deemed as
untrustworthy. Lay foundation: The witness must demonstrate that the computer
record is what the proponent claims (2) is sufficiently familiar with the record
system used (3) can establish that it was the regular practice of that business to
make the record
m) Palmer v. Hoffman
(1) U.S., 1943
(2) Railroad accident
(3) Plaintiffs originally won a judgment at the trial court level, and was affirmed at the
circuit court level
(4) Defendants sought to have a statement made by a deceased employee (engineer of
the train) introduced under the business record exception
(5) Result: the court found that the statement by the engineer was not made in the
regular course of business. It was not reflective of transactions with others, or to
provide internal controls. The fact that a company makes a business out of
recording its employees’ versions of their accidents does not put those statements
in the class of records made “in the regular course” of the business…
n) Lewis v. Baker
(1) Injured railroad worker; no one witnessed the accident but the trainmaster did a personal
injury report and inspection report; employer offered these reports into evidence
(2) Trainmaster testified that the personal injury reports were part of the regular course of
(3) Rationale: The reports had to have been prepared for the systematic conduct of the
business as a business and must be made in the regular course of business. The mere fact
that a record might ultimately be of some value in the event of litigation does not per se
mandate its exclusion. The fact that a report embodies an employee's version of the
accident, or happens to work in favor of the entrant's employer, does not, without more,
indicate untrustworthiness. Must be a clear motive to fabricate
o) Sana v. Hawaiian Cruises, Ltd.
(1) Plaintiff’s decedent was injured in the course of his employment (allegedly),
seeking to have statements made by two co-workers and an immediate supervisors
admitted against the defendant (via an insurance investigative report by
Rutherford) admissible as a business record
(2) The trial court initially held Rutherford’s report to be inadmissible hearsay; and
plaintiff was deemed as failing to meet his burden of proof for his claim
(3) The co-workers statements were hearsay within hearsay; and each statement would
have to satisfy an exception to the hearsay rule
(4) The co-workers statements met the exception of “then existing physical
condition” (it was a statement of Sana’s then existing state of mind) R803(3)
(5) Also admissible as an admission by a party opponent under R801(d)(2)(D)
(6) Rationale: Plaintiff sought to introduce a document created by Hawaiian Cruises
insurer, which had no incentive to gather evidence of Sana’s illness (no lack of
p) Beech Aircraft Corp. v. Rainey
(1) US, 1988
(2) Plane crash that involved a naval flight training mission
(3) The cause of the crash was dispute and a JAG investigation was conducted that
deemed pilot error as the major cause of the incident
(4) Plaintiff’s estates brought suit, wanted to have a JAG investigative report deemed
as inadmissible hearsay
(5) R803(8) is the public records and reports exception; which allows for factual
findings to be admissible
(6) Court finds that factual findings are inherently riddled with opinions… “There is
no conceivable statement however specific, detailed or “factual”, that is not in
some measure the product of inference and reflection as well as observation and
memory” p. 367
(7) This rule makes government experts more readily available to regular citizens
(8) Rationale: As long as the conclusion is based on a factual investigation and satisfies
the Rule’s trustworthiness requirement, it should be admissible along with other
portions of the report
q) U.S. v. Oates
(1) US COA, 2nd Cir., 1977
(2) Defendant was convicted of possession of heroin with an intent to distribute and
other conspiracy charges
(3) Government sought to offer the report of a US Customs Service chemist that
analyzed the powdery substance (who was unavailable to testify at time of trial);
used the testimony of another US Customs Service chemist to establish
foundation of Weinberg’s report as being trustworthy and authentic
(4) The defendant objected because they had no opportunity to cross-examine the
actual author of the report (confrontation clause issue); the report was altered from
that which was initially provided to the defendant prior to trial
(5) Defendant challenges the admissibility of the chemist’s reports under the R803(8)
(6) Court finds the chemist’s report is inadmissible hearsay under F803(8)(C) and (B);
the reports by the chemist were specifically made in anticipation of a criminal case
(7) Specific legislative intent of R803(8) was to exclude docs such as these against a
criminal defendant; and will carry over to other hearsay exceptions
(8) Government also argued that it was admissible under R803(6) modified business
records exception; the court denied this argument because the reports might not
indicate a lack of trustworthiness (“circumstances of preparation that indication
lack of trustworthiness” p. 373)
11. Miscellaneous Exceptions
a) Stroud v. Cook
(1) FRE 803(22) Judgment of Previous Conviction
(2) Dist. Ct. of NV, 1996
(3) Plaintiff wanted to use a prior misdemeanor conviction to establish negligence in a
car collision
(4) Federal rule generally only allowed for felony convictions to be used in civil actions
(5) 9th Circuit has decided to allow misdemeanors to be admissible
(6) Result: Allowed the misdemeanor to come in because it was a substantive issue
(burden of proof)
(7) Cannot use someone else’s conviction as evidence of another defendant’s guilt
(“to prove a fact in another defendant’s case”)
(8) Will not allow an acquittal to be used either
b) FRE 803(18) Learned treatises
V. often used to impeach a expert witness
(1) 3 requirements to introduce as substantive proof…
B. Must be called to the expert’s attention
C. Show that it is a recognized treatise (use your own witness, or get an admission from the opponent’s witness)
D. Facts about which there can be no reasonable debate (judicial notice)
a) ONLY READ TO THE JURY, cannot take the treatise to the deliberation room
b) FRE 804(b)(4) Statement of personal or family history; declarant unavailable
E. Statements are not made with an eye toward litigation
F. Typically will not be available in any other way but this
a) FRE 803(19) Reputation concerning personal or family history
G. Not offered to prove the declarant’s pedigree
H. Only reporting what the community believes about the individual
I. Future of Hearsay
1. In order for something to be hearsay, it must be “testimonial” in nature
2. Hearsay and the Confrontation Clause
a) The 6th amendment states that a criminal defendant enjoys the right to be confronted with the witnesses
against him
b) Supreme Court has said that this clause only applies to “testimonial’ out-of-court statements
c) Crawford v. Washington holds that these type of statements will be held as inadmissible UNLESS
(1) the declarant is available at trial for cross-examination or (2) the declarant is unavailable and the
defendant had an earlier opportunity to cross-examine
d) “Testimonial” statements may include: preliminary hearing testimony, grand jury testimony, former
trial testimony, statements made in police interrogations, things done in a context where someone may
believe the statement would be used in a criminal proceeding
e) Things like statements made during a 911 call will NOT be admissible, non-testimonial when objective
circumstances indicate the primary purpose of the questioning was to enable police to responds to an
ONGOING emergency (Davis v. Washington)
f) The statements will be held to be testimonial in nature when the objective circumstances show that there
was no emergency and that the primary purpose of questioning was to establish past events potentially
relevant to criminal prosecution (Davis v. Washington)
g) If a person prevents or makes the declarant become unavailable, Confrontation Clause protections will
be revoked; R804(b)(6) forfeiture by wrongdoing
VI. Impeachment
A. Capacity to observe, recall, communicate
B. Credibility (mistake; fabrication)
1. Contradiction of facts (cross or extrinsic proof)
2. Character for truthfulness (Prior bad acts R608(b); prior convictions R609, reputation,
mental capacity)
3. Bias or interest
4. Prior inconsistent statements (R613)
C. Can impeach your own witness R607
D. Are there limits on impeachment? Must look to primary purpose…
E. Cross examination should be done by leading questions, direct the witness to answer as you would like to answer;
give the facts in the question allowing them to concur with them
F. Refrain from open-ended questions…what? How? Why?
G. Scope of cross-examination
1. Only those matters discussed within direct examination and matters affecting the
credibility of the witness R611(b)
2. For example, if witness A is testifying as to causation; defendant can cross-examine using
direct and indirect line of questioning (use any inferences made in the direct)
3. Can go into reputation, character (prior bad acts), mental condition, bias, prior
inconsistent statements R613
H. Rule against Impeaching One's Own Witness
1. U.S. v. Hogan
a) If trying to get in other out-of-court statements that you know you could not get
without impeachment is improper use of the impeachment process
I. Methods of Impeachment
1. Impeachment by Contradiction
a) State v. Oswalt
(1) Sup. Court of Washington, 1963
(2) Facts: Defendant has been charged with robbery and first degree murder;
defendant appeals his conviction on the basis that the government offered
evidence constituting impeachment on a collateral matter; evidence was offered on
cross-examination by a witness(an alibi) stating that the defendant had been in a
restaurant in Portland, OR every day the past few months…alluding to the fact
that the defendant was there on July 14th and not in Seattle committing the alleged
(3) Rebuttal evidence was offered by a police officer that showed that defendant had
been in Seattle a few weeks prior to the crime (received a ticket)
(4) General rule: a witness cannot be impeached upon matters collateral to the
principal issues being tried
(5) The test for collateralness: Could the fact, as to which error is predicated, have
been shown in evidence for any purpose independently of the contradiction?
(6) Issue: Does the witness’s apparent error about the defendant’s location for the past
2 months, suggest that he is incorrect about defendant’s location on the date of the
alleged crime?
(7) Could argue mistake, collusion (bias in favor of defendant)
(8) Rationale: The state’s argument requires speculation that the defendant could not
readily commute between Seattle and Portland
(9) McCormick’s rule (has been generally accepted)…can introduce a contradiction to
show a background fact about which the witness could not have been mistaken
about if his testimony were true (Iowa has adopted this view)
b) U.S. v. Copelin
(1) US COA, D.C. Cir., 1993
(2) Facts: Defendant was convicted of unlawful distribution of cocaine; was asked on
cross-examination about whether he saw the transactions, recognized drugs;
government also used three prior failed drug tests to demonstrate that the
defendant was lying/contradicting his current testimony that he had only seen the
drugs on TV
(3) This is not necessarily a contradiction case; involved evidence that could be
testified to specifically by the witness/defendant
(4) Case was overturned because there should have been a limiting instruction to
minimize the prejudicial effect of such evidence…there is now no rule that says the
trial court must give a limiting instruction
(5) Can offer any extrinsic evidence unless it refers to collateral matters (non-collateral
if it is material background information as a matter of human experience)
2. Character of the Witness
a) Prior Bad Acts, R608
(1) Unconvicted bad act may be introduced if the examiner meets the following two
VII. the act or conduct must be probative of witness’ truthfulness, not merely of the witness’ general good character.
(Acts of violence don’t usually qualify)
VIII. the evidence must be brought out solely in cross-examination. No extrinsic evidence can be used for this purpose.
(a) Ex.W1 cannot be impeach by W2’s testimony that W1 has committed an unconvicted
dishonest act.
(2) there is a reasonable good faith basis the witness actually did what is going to be asked
(3) U.S. v. Owens
(a) US Court of Military Appeals, 1985
(b) Facts: Defendant was apprehended and convicted of murdering his second wife by gunshot;
defendant alleged it was a tragic mistake while he was messing with his hunting rifle; on
cross-examination, government asked the defendant about his application to become a military
officer and about omissions of prior arrests and convictions UNDER OATH
(c) Must differentiate between R404 and R405 & R608 and R609 character evidence
(d) The cross-examination is only allowed under R608(b) [the omissions] and must satisfy R403
(no unfair prejudice being more than probative value)
(e) Result: The omissions were inadmissible under R403 because the omissions did not go to the
issue of deceit; the assault and battery and subsequent arrest would have been prejudicial in this
case since he is on trial for murdering his 3rd wife…but all of this was not prejudicial error in
the whole sum of things…conviction upheld.
(4) U.S. v. Drake
(a) US COA, 10th Cir., 1991
(b) Issue: Whether the form of questioning is an introduction of extrinsic evidence of the Univ. of
Illinois records?
(c) Holding: No.
(d) Rationale: Cross-examination questions alone, cannot constitute extrinsic evidence. Though
the questions did not constitute extrinsic evidence, they were arguably improper because they
assumed facts not in evidence. Still did not say that Drake’s substantial rights were affected.
(5) U.S. v. Saada
(a) US COA, 3rd Cir., 2000
(b) Gov’t wanted to prove the declarant (now deceased) had a character for untruthfulness (was a
disbarred judge for unethical conduct)
(c) Discussion of R806 and R608(b)
(d) No extrinsic proof is going to be admitted to get around R806
(e) Could cross-examine other witnesses about the unavailable declarant’s reputation and
b) Prior Convictions
(1) R609 - strictly using the prior conviction for impeachment of the truthful character
of the witness; not being used to prove conduct in conformity
(2) Crimes of dishonesty or false statement are by default admissible; the crime must
have had elements that required proof or admission of dishonesty or false
statement (i.e. perjury, criminal fraud, embezzlement, or false pretense) The
ultimate act must involve deceit
(3) For a witness use R403, for a defendant must have probative value outweigh the
undue prejudice
(4) Crimes that do not involve dishonesty or false statement (i.e. assault with a deadly
weapon) are admissible if they were punishable by death or imprisonment for
more than a year; and subject to a balancing test against certain risks of misuse by
the jury
(5) If the witness is not the criminal defendant, the evidence is only inadmissible if
probative value is substantially outweighed by its prejudicial effects
(6) The court will look at the bearing of veracity of the prior conviction to the
witness’s testimony
c) Bad Reputation for Truth and Veracity
(a) Opinion and reputation evidence of character.
(2) The credibility of a witness may be attacked or supported by evidence in
the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of
the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
(3) Impeachment can be done by (1) reputation or (2) opinion evidence.
(4) Witnesses who take the stand put their character for honesty and veracity in issues;
therefore they can be impeached by evidence that their character is such that they
may lie under oath.
(5) The FRE permits prior inconsistent statements that were made under oath to be
admitted as substantive evidence.
2. Psychiatric Condition
a) U.S. v. Lindstrom
(1) US COA, 11th Cir., 1983
(2) R704(b) governs the expert witness testimony about the mental disease
(3) Gov’t wanted to establish the witness’s past behavior of manipulating others
(4) Case involves convictions of mail fraud and conspiracy to commit mail fraud
(5) Rationale: Certain forms of mental disorder have high probative value on the issue
of credibility.
(6) R608(b) refers to moral ability to tell the truth; not mental capacity to tell the truth
(delusions, fantasies all affect the witness’s ability to recall and observe; can at that
point introduce the fact that the witness may have trouble being credible (uses
R602, NOT 608)
3. Prior Statements to Impeach or Rehabilitate
a) R613(a) prior inconsistent statement - on the theory that a person who says one thing one time another
thing one time has probably lied or suffered from memory deficiencies
b) Extrinsic evidence will not be admissible as showing prior inconsistent statement; must direct the witness
to the time, place, and circumstance of the statement, sufficient so that the witness’s memory would be
c) Prior inconsistent statement must not be collateral (has to have independent value): Could it be offered
on another issue in the case (is it material)? Does it tend to undermine the witness’s testimony on the
substantive issues in the case?
d) A witness may not be rehabilitated until her credibility has been attacked; mere contradiction of
testimony is not enough.
e) The type of rehabilitating evidence admissible depends upon the nature of impeachment evidence.
f) If a witness has been impeach on cross-examination, he may be REHABILITATED by:
(1) explanation of responses on cross-examination
(2) testimony of other witnesses as to the principal witness’ reputation for
(3) prior consistent statements when used to defeat a charge of bias or recent
fabrication [801(d)(1)(B)]. Under the FRE, the statement must have been
made before the alleged improper influence or motive.
g) Refreshing Witnesses though “Items” are not evidence. Evidence is what is elicited from the witness after
her memory is refreshed. The item merely assists in producing evidence. B/C the item is not evidence, it
does not need to comply with the Best Evidence Rule, be authenticated, or comply with the hearsay rule.
h) Impeachment by intrinsic evidence is testimony that discredits the witness, elicited SOLELY from the
witness himself on cross-examination.
i) Impeachment by extrinsic evidence is discrediting testimony from any other source.
4. Bias
a) No specific rule, but uses the balancing test in R403
b) Bias testimony can be demonstrated by extrinsic evidence, very probative of the credibility of the witness
c) U.S. v. Abel
(1) Can membership in an organization be demonstrative as evidence of the witness
perjuring himself? Is it appropriate to use organizational guidelines to show that a
witness would have acted in accordance with those guidelines?
(2) Prosecution witness was a part of a prison organization that had guidelines was to
lie, cheat, steal, murder, to protect their fellow brother
(3) Supreme Court says yes it is appropriate; allowed it in as relevant evidence and
probative because jury instructions were given, “a secret prison organization” was
used instead of “The Aryan Brotherhood”
IX. Authentication
Specialized form of relevance
Often called “foundation testimony”
What level of confidence does the judge have to have before allowing the evidence?
It is what it claims to be? Is it relevant?
R901(a) - proponent must introduce evidence adequate to support a jury finding (or a finding by the court if there
is no jury) that the matter is what its proponent claims it is
R901(b) offers methods by which parties may use to satisfy the authentication requirement
U.S. v. Dockins
1. US COA, 5th Cir., 1993
2. Government wanted to introduce evidence of a prior conviction through extrinsic
evidence of a fingerprint card and police record sheet reflecting the arrest
3. Needed a source to lay foundation of the fingerprint card, not just a representative of the
4. Needed a custodian of the fingerprint card to authenticate
First State Bank of Denton v. Maryland Casualty Co.
1. US COA, 5th Cir., 1990
2. It was enough that the person who answered the phone, replied that it was the Mills
Self-authenticating documents - newspapers/periodicals are self-authenticating; public records under seal are
usually easy to determine if it is a official seal
Ancient documents - R803(16) grants a hearsay exception
X. Competency
A. R601 - everyone is competent except as provided in the subsequent rules
B. Must be able to comprehend the obligation to tell the truth
1. Do you understand what truth is?
C. A witness [other than an expert] MUST have personal knowledge of the facts about which he testifies.
D. Under FRE 602 and 603, (1) a witness must have personal knowledge of the matter on which he will testify,
and (2) that the witness will testify truthfully.
E. R603 Oath or affirmation (awakens “moral” conscience)
F. Common law: the three elements of competence were the individual’s ability to accurately
observe, remember, and recount facts.
G. Mental competency only goes to the WEIGHT to be given to certain evidence (i.e. if someone
is crazy); and a judge will ultimately decide that
H. Even if the person is shown through character/habit testimony to be a pathological liar, still
deemed competent to testify
I. Hill v. Skinner
1. COA Ohio, 1947
2. Dog bite case
3. Only direct testimony given was by the minor child who was allegedly bitten
4. The court determined the child’s testimony to be a clear explanation of the issues; and
probative coupled with circumstances and other facts shown to exist
5. Hypnosis - one approach is to exclude completely, or defend the hypnosis thru expert
testimony, allow certain guidelines on certain situations
J. R606(b) Inquiry into validity of verdict or indictment
1. In general, jurors are excluded as witnesses (R606a) supposed to be impartial
2. External v. internal testimony (from a juror)
K. Rock v. Arkansas
1. Issue: Whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically
refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as
a defendant in a criminal case
2. Generally, want to record all proceedings; have an expert available; have some
corroborating evidence, favorable jury instructions re: credibility of hypnosis
L. Tanner v. U.S.
1. U.S., 1987
2. Describes what things that are internal to juror testimony, and those which are external
3. External influences do not justify reversal in and of themselves; must demonstrate that the
influence was calculated to and reasonably probable that it influenced the verdict
XI. Opinion Testimony
A. Opinion Testimony by Lay Witnesses - Inferences to be drawn from this testimony are for the jury;
R701 limits opinion testimony by lay witnesses
B. Can be justified if (1) rationally based on the perception of the witness; (2) helpful to a clear understanding of the
witness’s testimony or the determination of a fact in issue; and (3) not based on scientific, technical, or other
specialized knowledge; i.e. acting as a witness in a car accident, “He looked intoxicated”
C. Generally courts allow a shorthand rendering of facts
D. List of other examples allowed, pg. 748
E. Question to ask: can the witness adequately convey the facts, so that the jury can understand the testimony,
without giving an opinion?
F. If it is a conclusion that is commonly reached by the community, the testimony will generally be allowed
G. Commonwealth v. Holden
1. Sup. Ct. of PA, 1957
2. 1st degree murder case
3. Evidence: statement of a witness that defendant winked at him, and said what he thought
the wink to mean
4. Only dissenting opinion listed; said that the wink could not have been that
communicative…said that the case is too serious of a case to allow evidence of just a wink
to be deemed as demonstrative of the defendant’s intent to commit perjury
XII. Expert Testimony
A. R 702
B. A witness can be qualified as an expert based upon knowledge, skill, or experience, training, or education
C. Ultimate question: will these opinions help the jury? Is it within the common understanding of persons of ordinary
or common experience?
1) Who decides who is an expert? Trial judges! Have very broad
discretion in assessing whether a person should be allowed to be an
expert for a particular trial
2) What topics are appropriate for this expert?
3) Probable reliability of the expert testimony
4) What types of data an expert may rely on to form an opinion
5) Whether the style or form of the testimony should be restricted
D. Expert opinion is not allowed on the issues of fault, negligence, or guilt b/c they are conclusions that jurors are
competent to draw from the facts.
E. Expert can be x-examined or impeached like lay witnesses, plus:
1. Lack of expert qualifications
2. Prior inconsistent opinions in the present case
3. Alteration of hypothetical questions
4. Showing compensation
5. Contrary expert views.
F. State v. Odom
1. Sup. Ct. of NJ, 1989
2. Can be an expert without having a degree in a certain field
3. Must demonstrate the extent of the expert’s experience
4. Defendant was convicted of possession with an intent to distribute
5. State offered a police officer as an expert witness regarding whether the amount of drugs
was for personal use or distribution
G. U.S. v. Scop
1. US COA, 2nd Cir., 1988
2. The witness testified in the language of the securities fraud statute
3. When you take the verbiage directly from a statute, appear to be offering an opinion on a
legal subject (drawing a legal conclusion)
4. R 704(b) - an expert cannot make a conclusion about whether the defendant had/did not
have the requisite mental state for the crime charged
5. Translate the testimony into medical expertise sans any type of legal conclusion
6. Firsthand knowledge can qualify as expert testimony
7. The expert must be able to explain the facts that he/she is relying on
H. Hypothetical questions
1. R 705 - an expert witness can testify without prior disclosure of the underlying facts or data
2. Typically the courts do not allow one expert to testify that he based his opinion on
another’s expert’s testimony
I. Daubert v. Merrill Dow Pharmaceuticals - Scientific v. specialized knowledge
1. U.S., 1993
2. Plaintiffs sued claiming that Bendectin caused birth defects; defendant filed a motion for
summary judgment, no epidemiological studies that showed a link of the medication and
birth defects
3. Plaintiffs offered other lab studies(not epidemiology studies) showing defects through
their expert; were also unpublished
4. The district court granted the motion for summary judgment; said scientific evidence is
admissible only if the principle upon which it is based is “sufficiently established to have
general acceptance in the field to which it belongs” (frye test)
5. Method before Daubert: Frye test, the consensus of scientists in the expert’s field controls
the admissibility of the testimony
6. Result: A court must determine the admissibility of scientific evidence by evaluating the
validity of 2 separate pieces of evidence (its scientific method AND the application of that
method to the factual inquiry under consideration)
7. Court may analyze using these questions:
a) Can it be tested, and if it can be tested, has the testing taken place?
b) Has it been described in scientific publications subject to peer review?
c) What are its known or potential error rates?
d) Are there standards that can control its operation, and if so, were they used in developing the expert’s
e) Has it achieved some degree of acceptance in a relevant community?
8. Applies to ALL expert testimony, not just scientific experts
9. Must be able to assist the trier of fact to understand or determine a fact in issue
J. GE v. Joiner
1. U.S., 1997
2. standard of review for admissibility of expert testimony: abuse of discretion
3. trial judge is the gatekeeper
K. Kumho Tire Co. Ltd. v. Carmichael
1. US, 1999
2. Daubert principles still apply to technical or other specialized knowledge
3. Key word in R702 is “knowledge”
4. Trial court must assess the sufficiency of the expert’s underlying data, the reliability of the
expert’s methods, AND the reliability of the expert’s application of those methods to the
facts of the case
5. Don’t always have to analyze the actual field of expertise as was done in Daubert
XIII. General Matters during Trial
A. Rule 611
(a) Control by court.
2. The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.
B. (b) Scope of cross-examination.
1. Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court may, in
the exercise of discretion, permit inquiry into additional matters as if on direct
2. Cross-examination is the most reliable and effective method to test witness’s credibility
and accuracy.
3. Cross-examination is essential to due process and the confrontation clause.
4. Cross-examination is restricted to matters put in issue on direct, including the credibility of
witnesses [opening door].
C. (c) Leading questions.
1. Leading questions should not be used on the direct examination of a witness
except as may be necessary to develop the witness' testimony. Ordinarily leading
questions should be permitted on cross-examination. When a party calls a hostile
witness, an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions.
a) Leading questions SUGGESTS to the witness the desire answer.
b) Leading questions may not be allowed on cross-examination if they are friendly to the
cross-examiner (such as a hostile witness).