Evidence – Pierce – Fall 2011
I.
II.
III.
IV.
In General
i.
Procedures
ii.
Review of Evidentiary Rulings
i.
ii.
iii.
iv.
v.
Logical Relevance
Conditional Relevance
Subjective / Explanatory Relevance
Narrative Relevance
Categorical Exclusions
a. Outside the Presence of the Jury
b. Examining the Witness
c. Objections
Relevance
a.
b.
c.
d.
e.
f.
g.
Categorical Relevance Exclusions in General
Subsequent Remedial Measures
Payment of Medical Expenses
Offers to Compromise or Settle
Offers to Plead Guilty or Nolo Contendere
Liability Insurance
Similar Events / Happenings
Physical Evidence
i.
ii.
iii.
iv.
Authentication
Shortcuts for Authentication
Chain of Custody
Original Document Rule
i.
ii.
iii.
In General
Habit
Exceptions
iv.
Other Common Forms of Impeachment
v.
Sex Crimes
The Propensity Rule
vi.
a.
b.
c.
d.
e.
a.
b.
c.
d.
e.
Opinion / Reputation Requirement
Criminal Defendant’s Good Character
Alleged Victim’s Bad Character
Character Evidence of a Witness
Impeachment by Prior Conviction
Bias / Interest / Motive
Contradiction
Prior Inconsistent Statement
Defects in Perception, Memory, Description
Religious Beliefs
a. Victim’s Past Sexual Behavior or Sexual Disposition
b. Prior Crimes Evidence in Cases of Sexual Assault
c. Prior Crimes Evidence in Cases of Child Molestation
Witness Rehabilitation
V.
Hearsay
i.
ii.
iii.
iv.
v.
vi.
VI.
In General
Definitional Exclusions
Exceptions for Which Availability is Immaterial
Exceptions Conditioned on Unavailability
The Residual Exception
Constitutional Provisions Which Trump Hearsay Prohibition
a. Compulsory Process
b. Due Process
c. Confrontation Clause
Privilege
i.
ii.
iii.
iv.
v.
vi.
Attorney / Client Privilege
Work Product Exemption
Waiver of A/C Privilege and Work Product Exemption
Doctor / Patient Privilege
Family & Religious Privileges
Government Privileges
a.
b.
c.
d.
Relationship Between FOIA & Gov’t Privilege
Executive Privilege
Identity of Informants
National Security Privilege
VII. Expert Witnesses
i.
ii.
iii.
iv.
Selection & Preparation of Expert Witnesses
Discovery & Expert Witnesses
Qualification of Expert Witnesses
Admissibility of Expert Testimony
I.
In General
i.
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Procedures
a. Outside the Presence of the Jury
Motion in Limine: a pre-trial process to deal with anticipated evidentiary problems
o Does a better job of "hiding the elephant in the room"
o Can be either to exclude or admit evidence in the case of an anticipated objection
 In the case of trying to get evidence admitted, it might be better to let the jury see the
other side trying to hide the evidence with objections
o A preliminary ruling only, judge can change mind later
 If you want to preserve it for appeal, judge must say ruling is "definitive"
Voir Dire Hearings: A "mini trial" outside the presence of the jury as to the admissibility of evidence
o The witness testifies what he *would* say w/o the jury in the room
b. Examining the Witness
FRE 611(a): Courts exercise extreme discretion in the order and presentation of evidence, manner of
questioning the witness
FRE 611(b): Cross examination should be limited to the grounds of direct, but a judge may use discretion
to alter this
FRE 611(c): Leading questions should not be used on the direct examination of a witness, except as
necessary to develop testimony (i.e. jog memory, help young witnesses)
o Exception: When a party calls a hostile witness, adverse party, or witness identified with adverse
party. Ask for "permission to treat as hostile."
c. Objections
Timeliness:
o An objection to a question is timely if made before the witness answers the question.
o An objection to the admission of any other evidence is timely if the objection is made at the
time the evidence is submitted for admission.
Specificity: An objection must state the grounds upon which it is based.
o If a party fails to make a specific objection, it is considered a general objection.
 A general objection that is sustained (i.e., evidence is not admitted) will be upheld on
appeal if there were any grounds for the objection. If, however, the general objection is
not sustained (i.e., evidence is admitted), the objection is not preserved for appeal,
unless admission of the evidence constituted plain error.
o A plain error is when the evidence would be inadmissible under any circumstance.
Offers of Proof: If an objection is sustained, the proponent must make an offer of proof to preserve the
right to appeal.
o The substance of the evidence which would have been admitted and
o A statement as to why the question or evidence is valid.
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FRE 105: Limiting Instructions - If evidence is admissible for one purpose but not for another, the judge
can instruct the jury to consider the evidence only for the permissible purpose and not for any other
purpose
o Can brings more attention to the evidence you don’t want to bring attention to

FRE 103: Rulings on Evidence
o (a) Harmless error standard: a "substantial right" must be affected by the ruling for error to be
found
ii.
Review of Evidentiary Rulings
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o
o
o
(1) If the error is in one admitting evidence, there must have been a timely and specific
objection
 (2) If the error is one excluding evidence there must have been an offer of proof
 The ruling on the admissibility must be "definitive" (as opposed to tentative) to be
preserved. If a tentative ruling is given, the objection must be renewed to preserve it.
(b) The court can add the substance of the evidence to the record in the form of a statement or
question/answer
(c) To the extent possible it should be done outside the hearing of the jury
(d) Escape clause: "Nothing in this rule precludes taking notice of plain errors affecting
substantial rights although they were not brought to the attention of the court."
 The appellate court can (but rarely does) ignore the fact that an objection was waived in
the face of substantial injustice in the outcome

Erroneous evidentiary rulings are rarely the subject of appeal
o Many evidentiary rules are written for trial judges to exercise discretion, i.e. "should"
 Judges are especially given extreme discretion over mode and order of presentation,
how witnesses are questioned
o Even where the judge has no discretion and ruled wrongfully, harmless error standard
 If the erroneous ruling didn't substantially influence the outcome, no overruling
If the erroneous ruling has constitutional implications, it must be harmless
beyond a reasonable doubt to stand
 If the erroneous ruling is coupled with a substantively seemingly "unjust" outcome,
more likely to get overruled
o Circuit judges often know the rules of evidence less than trial judges = they trust trial judges

Exception: All decisions to admit or exclude scientific evidence on the preliminary question of its
reliability (see Expert Witnesses) shall be reviewed for abuse of discretion – General Electric v. Joiner
iii.
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II.
FRE 602: Witness must have personal knowledge of the matter on which he/she is testifying
o Exceptions:
 Admissions
 Opinion testimony of expert witnesses
FRE 701: Witness opinions must be
o Rationally based on perceptions
o Helpful to a clear understanding of testimony or the determination of a fact at issue
o Not based on technical or other specialized knowledge falling under the scope of expert
testimony
FRE 603: Witnesses must take an oath
State Requirements: Sometimes witness competency is controlled by state law in cases based on state
law issues under the Erie Doctrine
o Example: Dead Man’s Statutes - prohibits a witness who is an interested party from testifying
about communications or transactions with a deceased person unless there is a waiver because
the decedent's representative fails to object to the testimony, the decedent's own
representative testifies to the communication, or the decedent's testimony is brought before
the jury in the form of a deposition or in another form.
Relevance
i.
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Preconditions to Testimony
Logical Relevance
FRE 402: Relevant evidence is presumptively admissible unless one of the many exceptions applies
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FRE 401: "Relevant evidence" means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable than it would be
without the evidence
o Two Components to Relevance:
 Probative
 To a material fact
Probative Value: a piece of evidence's power to persuade a reasonable person about a fact in issue
o There are no "degrees" of relevance. A piece of evidence is either relevant, if it alters the
probability of a fact by even a tiny amount, or it isn't. Probative value is how you measure the
quantitative weight of evidence.
Circumstantial Evidence: serves as a basis from which a reasonable trier of fact could make reasonable
inferences about a matter in issue
Direct evidence: testimonial evidence which, if believed, resolves the matter at issue
o Not necessarily always of higher probative value than circumstantial
 Ex: witness providing direct evidence isn't credible at all
Reality Hypothesis: some plausible view of "how the world works' that explains why the facts offered in
evidence are linked with facts the party must prove.
o Must pass the "straight faced test"
o Needs only the slightest inference for it to be relevant
o When conflicting views of how the world works are both plausible, the court will admit the
evidence and allow the jury to decide which position appears more likely.
ii.
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Conditional Relevance
Preliminary Facts - When the admissibility is predicated on the existence of a preliminary fact, a voir
dire hearing may occur to determine the existence of that fact, and hence admissibility.
FRE 104(a): The court generally determines questions of admissibility, qualifications of witnesses, or the
existence of privilege.
FRE 104(b): When relevancy of evidence is conditioned on a fact the judge must determine whether a
reasonable person could believe that the fact exists, and if so, admit the evidence and allow the jury to
decide whether or not the fact does actually exist
o This standard applies when whether the witness has personal knowledge is the preliminary fact
at issue
 Ex: Did witness A actually see the accident she is about to testify about?
o This standard also applies when a factual question goes to the ultimate issues of the case
 Both jury and judge decide; judge makes a preliminary ruling which he keeps secret
from the jury
 May result in inconsistent decisions as to the existence of the preliminary fact between
judge & jury, except that judge's decision was based on a different burden of proof and
access to inadmissible evidence
I.e. judge thinks fact is extant and admits evidence, jury doesn't believe the fact
is extant and acquits
o When the relevance of one item depends on the receipt of another item to place it in context,
the first item may be received in evidence over objection with the understanding that later
evidence will "connect it up" to matters at issue in the case.
FRE 104(e) : Once the judge has admitted the testimony, both parties may still admit evidence that adds
to or subtracts from the probative value of the evidence in the jury's perception
Determining Whether A Fact is Conditionally or Logically Relevant:
o Degree to which the conditioning fact increases the evidence's probative value
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o
o
iii.
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Subjective / Explanatory Relevance
Subjective Relevance - testimony, such as that of an expert, which does not make a fact more or less
probable, but which aids the jury in understanding the evidence. It affects the appearance of the
plausibility of some fact at issue to the fact finder.
o Experts can provide either objectively relevant evidence
 Ex: DNA expert says he got a match
o Or subjectively relevant evidence
 Ex: accident reconstruction expert
See “Expert Witnesses”
iv.
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If the preliminary fact will drastically increase the evidence's probative value, the
evidence should be considered conditionally relevant
Whether good evidence of the factual condition is likely to be available
Precedent - have other judges considered a similar item of evidence's relevance conditional?
Balancing Admissibility & Narrative Relevance
FRE 403: when evidence that bears some logical relationship to the matter at issue, and thus should be
relevant and admissible, but threatens to confuse the bias jury, be unduly repetitious or timeconsuming, or unfairly bias the jury in its evaluation of the case; a judge must weigh the probative value
of the evidence and balance it against the possible detrimental effects of its admission.
To be excluded, the risk of unfair prejudice, etc. must substantially outweigh the evidence's probative
value.
o Unfair prejudice falls into three general categories:
 Estimation problems - the judge believes there is a serious risk that lay people will
overestimate the probative value of an item of evidence.
 Change in regret matrix - the evidence will cause the jury to decide the case based on
factors outside the legal elements
I.e. "I don't care whether or not I think this man robbed this lady, because I
know he committed all these other crimes and so should be off the streets"
 Limited admissibility AND the probative value of the evidence is low for the permissible
purpose but very high for the impermissible purpose
Factors to be Balanced:
o Availability of other evidence on the matter
 Is there a better way of getting this information to the jury which is less prejudicial?
o Opposing counsel's willingness to stipulate to whatever facts the offending evidence might be
legitimately used to prove
 It's usually better to say "yeah he's a convicted felon" than allow the prosecution to
expound upon the defendant's prior felonies only to prove one count of possession of a
firearm by a convicted felon which is collateral to the real story
 Ex: Old Chief v. United States - it is an abuse of discretion to admit an item of evidence
when objected to over another item offered as an alternative with the same or greater
probative value and a substantially lower danger of unfair prejudice
Where the evidence has no bearing on the actual main story, i.e. it goes only
to a collateral legal issue, the less prejudicial option should be chosen if it is
equal or greater probative value.
There is still a lot of latitude to apply this precedent.
o The court may give weight to one side's need to tell an effective story
 In Old Chief the Supreme Court recognizes narrative relevance.
v.
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Categorical Exclusions
a. Categorical Relevance Exclusions in General
These types of evidence are not admissible for certain purposes because…
o The evidence is normally of relatively low probative value compared to the unfair prejudice
o The evidence is likely to be misestimated by the jury
o The admissibility of the evidence would discourage beneficial behavior
b. Subsequent Remedial Measures
FRE 407: evidence that a person took remedial measures (i.e. repairing the wobbly staircase) can't be
introduced for the purpose of showing liability (negligence, culpable conduct, defect in a product or
product design, or need for a warning or instruction)
o Applies to negligence & strict liability claims
 Not all states will apply this rule to strict liability, but the federal rules do
o Can be used for other purposes, which might include
 Showing the person who took remedial measures had control or ownership
 Showing that safer designs were feasible
An important element in product liability cases
 Impeachment, if controverted
o Evidence that a third or non-party took remedial measures is admissible
 Public policy: a non-party is unlikely to be deterred from taking beneficial action simply
because it might be introduced to prove another's negligence
c. Payment of Medical Expenses
FRE 409: Offers to pay or payment in fact of medical expenses are not admissible to show liability
o Can be introduced for other purposes
o Promissory estoppel – action taken in reasonable reliance on a representation which caused
material detriment—is usually a good theory to get these offers to pay in on.
 The proponent of the evidence isn’t offering to try and show that the defendant is liable
for the injury, but that he reasonably relied on the representation that his medical bill
would be paid for when he went to the hospital.
d. Offers to Compromise or Settle
Policy Considerations:
o This rule encourages people to admit liability (even falsely) in compromise negotiations to
encourage settlement. Settlement is many times more likely to be reached if a party admits
fault, because people value apologies.
o Low probative value of statements made in negotiations. They are only indicative of one's
willingness to "buy peace."
o Substantial risk of misrepresentation out of context in court.
FRE 408: offers to compromise, settle, or plead guilty, as well as statements made during
compromise/settlement/plea negotiations are not admissible to:
o Show Liability
o Show disputed invalidity or amount of a claim
 Can be used to show undisputed invalidity of a claim
Ex: “we both know this is a bogus lawsuit, so why don’t you just pay me off?”
o Or to to impeach through prior inconsistent statement
 Other methods of impeachment are valid, such as impeachment for bias
-
Ex: Car accident involving three people. Person 1 and 2 have a settlement
agreement, and person 2 testifies against person 3 in favor of person 1. The
settlement agreement can be used as evidence of person 2’s bias.
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Exception:
o FRE 408(a)(2): when statements are offered in a criminal proceeding and the negotiations were
related to a claim by a public office or agency in the exercise of regulatory, investigative, or
enforcement authority.
 Ex: You offer the IRS to settle their civil claim against you for back taxes. Later, a
prosecutor brings a criminal claim against you for tax evasion. The discussions with the
IRS agent are admissible only in the criminal proceeding.
o Threats can be argued to not fall under the scope of the rule.
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What is a "compromise negotiation"?
o Different jurisdictions have different rules.
o Might depend on who the parties are:
 Ex: Statements made to an investigator with no authority to accept a plea bargain are
usually not protected
o This applies in both civil and criminal proceedings.
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e. Offers to Plead Guilty or Nolo Contendere
FRE 410: Pleas of nolo contendere, withdrawn guilty pleas, and statements made during plea bargain
discussions that did not result in a guilty plea are not admissible for any purpose when offered against
the defendant
Exceptions:
o FRE 410(4)(i): the defense introduces a statement made during plea bargains which opens the
door to another statement which in fairness ought to be considered "contemporaneously"
o FRE 410(4)(ii): In trials for perjury when Fed. R. Crim. P. 11 proceedings are the subject of the
trial
Waiver: a prosecutor can get a defendant to waive FRE 410 protection as a condition to plea bargaining
process. This is used basically every single time.
o U.S. v. Mezzenatto - S.Ct. has upheld the use of this waiver to introduce statements at least for
impeachment purposes (i.e. the defendant has to say something at trial different than what he
said in plea bargaining that "opens the door" for prosecutorial rebuttal.)
o It is not clear from Mezzenatto opinion whether the prosecution can introduce the evidence first
as part of their case-in-chief as opposed to just for impeachment purposes.
When is a discussion with a prosecutor geared toward plea bargaining (FRE 410 applies) and when is the
prosecutor just trying to elicit a confession (FRE 410 does not apply)?
o Two -tiered test:
 Did the defendant believe he was negotiating a plea?
 Was the defendant's belief reasonable under the circumstances?
f. Liability Insurance
FRE 411: Evidence of having or not having liability insurance is not admissible for the purpose of
showing liability by either…
o The plaintiff to show defendant was careless because he either had or didn't have insurance
o The defendant to show that low policy limit or lack of insurance gave him an incentive to be
careful
Evidence of other types of insurance (such as “first party” indemnification insurance, or any kind of nofault insurance) is admissible.
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It is admissible to show agency, ownership, control, or bias or prejudice of a witness.
o Especially control: “is this your car? Well do you have insurance on it?”
Indirect ways to get this in:
o Asking jurors on voir dire about their connections to the insurance industry to "plant the seed"
o Impeaching investigators or expert witnesses by showing they were hired by insurance company
to testify for defendant
o "This rule is so easy to circumvent that it accomplishes little or nothing that is not already
achieved by FRE 402 & FRE 403".
g. Similar Events / Happenings
There is no specific rule as to this type of evidence, but it is a frequent category under FRE 403.
Whether evidence that a similar event happened is admissible is a 403 balancing act:
o What is sufficiently similar to be relevant?
 Time, place, logical relation
o Would introduction cause unfair prejudice, confusion or misleading the jury, undue delay, waste
of time or cumulative evidence?
o Special cases in contracts law are governed by contracts doctrine
 "Course of dealings"
III.
Physical Evidence
i.
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Authentication
FRE 901(a): Authentication or identification is a prerequisite to admission. Offered item must be
supported by evidence sufficient to support a finding that the matter in question is what the proponent
claims.
o Standard for admissibility = FRE 104(b)

The judge should admit the evidence if a reasonable fact-finder could agree that the
evidence is what the party claims.
FRE 901(b): Examples/illustrations establishing necessary foundation for common pieces of evidence
o (1) Testimony by a witness with knowledge that a matter is what it’ claimed to be
o (2) Lay testimony based on personal familiarity with handwriting not acquired for litigation
purposes
o (3) Comparisons between authenticated exhibits may be done only by the trier of fact or by a
qualified expert
o (4) Distinctive characteristics “taken in conjunction with circumstances”
o (5) Voice identification by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
 Ex: Someone left a threatening record that said “this is Bob” with a gravelly voice.
Defendant Bob has an unusually gravelly voice.
o (6) Telephone conversations are authenticated if the number is shown to have been assigned to
the person or business at the time and
 (A) If a person, circumstances including self-identification show the person answering to
be the one called
 (B) If a business, the call was made to a place of business and the conversation related
to business reasonably transacted over the telephone.
o (7) Evidence that a writing is from a public office where public records/reports of the like are
kept.
o (8) Ancient documents or data compilation
 (A) In such condition as to create no suspicion as to its authenticity
 (B) Was in a place where, if authentic, it was likely to be, and
 (C) In existence for 20 years or more at the time offered
o
o
(9) Evidence describing a process or system used to produce a result and showing that the
process or system produces an accurate result
(10) Any method authorized by Congress or the Supreme Court pursuant to statutory authority.
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Solicit and reply doctrine: A writing is authenticated if there is evidence that it was written in reply to a
communication sent to the alleged author, and that the written reply refers to the initial
communication.
o Under this doctrine, you need only authenticate the solicitation and then the reply
authenticates by referring to the solicitation.
o Usually covers receipts for payment.
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Authentication Procedure:
o Marking - ask clerk to number exhibit for identification
o Showing - gives opposing counsel a chance to inspect, and in some courts the judge wants to
see the evidence before the witness as well
o Authenticating - two step process
 Present evidence and describe it in general terms
 Then present sufficient evidence to support a finding that the exhibit is what the
proponent claims
o Motion to Admit
o Opportunity to Object & Voir Dire
o Ruling
o Publication - making contents of the exhibit known to jury
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Procedural Shortcuts for Authentication
o During pretrial conference FRCP 16(c)(2)(C)
o Requests for admissions in discovery FRCP 36
 "admit the authenticity of X…"
o Standing orders by judges to do pretrial exchanges
 As to authenticity only, other objections to admissibility are usually preserved
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FRE 902: Self-authenticating items
o This is an exclusive list, if it's not on this list, it's not self-authenticating.
o See rule for more detail, but in general it includes … public records/documents under seal or
certified, commercial paper & related documents, official publications, trade inscriptions, news
papers & periodicals, ancient documents.
 Note: trade inscriptions can include company logos on products
o Just because it's self authenticating doesn't mean its credibility can't be attacked
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Chain of Custody
o Almost always only applies in criminal cases
o Certain evidence, in addition to authentication, must be shown to have been handled with a
certain degree of care to avoid damage, tampering, and mix-up.
o This rule is not a specific rule of evidence, but a matter of practice
 A five-justice majority Supreme Court opinion once said in a footnote that chain of
custody is not a prerequisite to admission. However, many lower courts continue to
apply it as a prerequisite.
o Usually applies if the evidence is not unique
ii.
iii.
Shortcuts for Authentication
Chain of Custody
o
iv.
Original Document Rule
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There is NO SUCH THING as a common law "best evidence rule" in federal court.
Original Document Rule - FRE codify the "best evidence rule" but only for writings and recordings.
o Does not apply when writing is introduced to prove merely its existence for some other
purpose; only applies when contents of the writing are at issue
 ODR probably doesn’t apply when a transcript of a recording is introduced into evidence
because that’s generally to prove what someone said, not the content of the writing.
o Original Document Rule does not apply to show that a document was examined and found to
have no reference to the matter at issue
 Ex: "Well I looked at the contract and didn't find anything.”
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FRE 1001: Definitions
o FRE 1001(1): What is a writing or recording
o FRE 1001(2): What is a photograph
o FRE 1001(3): What is an original
 Photographs: any print created from the negative is “an original”
 Printouts from computers, so long as they reflect the data on screen accurately, qualify
as “originals”
o FRE 1001(4): What is a duplicate
FRE 1002: to prove the contents of a writing the original is required
FRE 1003: A duplicate is admissible to the same extent as the original unless
o There is a genuine question raised as to the authenticity of the original or
o It would be unfair, for example because the duplicate has been tampered with
FRE 1008: Jury determines the preliminary facts of…
o Whether the writing existed
o Whether another writing which purports to be the original in fact is the original
o Whether other evidence of contents correctly reflects the contents
When any of these are at issue.
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Exceptions to the Original Document Rule:
o FRE 1004:
 FRE 1004(1): Lost or destroyed (in good faith!)
 FRE 1004(2): Unobtainable by any means available in judicial process or procedure
 FRE 1004(3): Document is in opponent's possession/control
 FRE 1004(4): Collateral, writing is not closely related to the controlling issue
o FRE 1005: Public documents
o FRE 1006: Extremely voluminous documents
o FRE 1007: admission, testimony, or written deposition from opposing party which proves the
content of the writing
IV.
The Propensity Rule
i.
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 Ex: a little baggie of cocaine indistinguishable from any other little baggie of cocaine
Judges have adopted a "reasonable probability/certainty" standard that the evidence was
unaltered/not mistaken for admission.
In General
FRE 404: "The Propensity Rule"
(a) Character evidence may not be used to prove conforming conduct with the exception of….
(1) character evidence offered by an accused in a criminal case and
evidence offered by prosecution to rebut the same and/or
evidence offered by prosecution to attack character of the accused where accused has
opened the door by attacking the character of the victim under FRE 404(a)(2)
(2) character evidence of victim offered by accused and
evidence offered by prosecution to rebut the same
(3) Evidence of the character of a witness to attack credibility only
 FRE 608: The evidence must go only to the characteristic of "truthfulness"
 FRE 405: Credibility must first be attacked by opinion or reputation evidence before
specific instances can be brought up on cross
 FRE 609: Evidence of a witness' crimes can be introduced to damage credibility (if the
crime goes to truthfulness) subject to many limitations (Impeachment, below)
(b) Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order
to show action in conformity. It may be introduced for many other purposes, some of which are listed in
this subsection, with advanced notice upon defendant request.

When the Prosecution May Introduce Specific Instances During Case-in-Chief:
o Character itself is at issue - FRE 405(b)
 Child custody case
 Entrapment defense always puts propensity to commit the crime at issue
o Res Gestae – the evidence is necessary for the jury to understand the story
o Identity / Skill / Opportunity
 Ex: evidence that an item the defendant acquired by an otherwise unidentified
perpetrator was used in committing the charged crime
o Motive
 Use of prior crimes to show that motive for charged crime arose
 Use of prior crimes to show that motive carried over from a prior crime
o Common Plan or Scheme
 Sometimes "absence of mistake or accident"
o Knowledge
 sometimes evidence of other crimes tends to prove knowledge where knowledge of a
fact is an element at issue in the case at bar
 Or consciousness of guilt
o Intent
 evidence of prior acts may show that the defendant took certain actions with the
expectation of certain results seen in the past
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FRE 406: Evidence of habit (of a person) or routine practice (of an organization) is relevant to prove
conforming conduct regardless of corroboration.
o Habit evidence is presumably admissible because habits tend to be less prejudicial than
character evidence.
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Determining whether something is character evidence or habit evidence:
o Habit - a person's regular practice of responding to a particular kind of situation with a specific
type of conduct
 "semiautonomous"
o The stimulus at issue in the case should be “close” to the stimulus which the proponent of the
evidence claims results in the habitual behavior
o The more morally blameworthy a certain “habit” is, the more likely it is character evidence.
 The more morally blameworthy, the stronger the correlation between the stimulus and
the response must be
ii.
Habit
iii.

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
Exceptions
a. Opinion / Reputation Requirement
FRE 405: When evidence of character is admissible under an exception:
o (a) Proof must first be offered by "reputation or opinion" evidence. Inquiry into specific
instances of conduct may then be made on cross-examination.
o (b) Specific instances of conduct may be offered on direct only if character or a trait of character
is an essential element of a charge, claim, or defense.
Extrinsic Evidence and Character Evidence Offered under an Exception: The point of asking about the
specific instances on cross isn't to prove that the instances occurred, but to make the witness vouching
for another person seem like a liar.
o There must be a good faith belief by the cross-examining lawyer that the instances asked about
on cross actually occurred.
o In the event of witness denial, the examiner cannot attempt to prove the occurrence of the
instance via extrinsic evidence.
b. Criminal Defendant’s Good Character
FRE 404(a)(1): Criminal Defendant's Good Character
o Accused may introduce character evidence to show lack of propensity to commit the crime
 Only applies to pertinent character traits which go to the crime
o Criminal cases only in federal court
 Some other jurisdictions extend this to civil cases where the defendant's behavior
would/could be punishable by criminal law
o Opens the door for prosecution to rebut by introducing character evidence showing propensity
to commit the crime.
 Defendants should not introduce their own good character unless they are spotless.
c. Alleged Victim’s Bad Character
FRE 404(a)(2): Alleged Victim's Bad Character
o Typically only allowed to bolster a self-defense claim or first aggressor defense
o Opens the door for the prosecution to both:
 Bolster the victim's character
 AND attack the defendant's character
o In homicide cases only, the self-defense claim itself opens the door to bolstering the victim's
reputation even if the defense doesn't offer any negative character evidence against the victim
because the victim is dead and can't testify.
 In all non-homicide cases, some evidence must be introduced to open the door.
d. Character Evidence of a Witness
FRE 404(a)(3): Character Evidence of A Witness
o Character evidence of a witness is admissible from either party to impeach - FRE 607
 Abrogates the common-law rule that a party couldn’t impeach “its own” witness
o Impeachment by Evidence of Bad Character - FRE 608(a)
 Reputation or opinion evidence must go to the character trait of truthfulness only
 Opens the door for attack on both:
Truthfulness of the person the witness is testifying about AND
Truthfulness of the testifying witness himself

o


A witness whose character for truthfulness has been attacked may be "rehabilitated"
with reputation or opinion testimony from other witnesses who attest to the original
witness' good character for truthfulness
Opens the door to specific instances about original witness on cross
Impeachment by Prior Bad Acts (Non-Criminal) - FRE 608(b)
 Once truthfulness has been put at issue via opinion/reputation testimony, on cross,
specific instances of dishonest conduct (as opposed to just telling lies) may also be
inquired into at the discretion of the court, but may not be proven by extrinsic evidence.
e. Impeachment by Prior Conviction
FRE 609: Impeachment by Prior Convictions
For purpose of attacking truthfulness of a witness, admissibility of a prior criminal conviction is
dependent on how long ago the crime occurred, how the crime was punishable (a proxy for severity)
and whether the crime contains an element or readily showable component of dishonesty.
o Age:
 Older crimes are presumptively inadmissible, but can be admitted if the probative value
substantially outweighs its prejudicial effect
 This test weighs against admission.
More than 10 years from conviction or release date (whichever is later)
o Punishment:
 If punishable by death or greater than one year…
If offered against a witness other than the accused presumptively admissible
subject to FRE 403.
If evidence of conviction of such a crime is offered against the accused, then an
even balancing test applies which neither favors nor weighs against admission. If
the probative value as to veracity (using severity of the crime as a proxy for
tendency to lie) outweighs prejudicial effect, the conviction should be admitted.
 Note: if the conviction is of the same crime which is at bar, the
prejudicial effect almost always outweighs probative value.
o Type of Crime:
 Admissible subject to 403 regardless of punishment and regardless of whom it is offered
against if readily can be determined that establishing the elements of the crime
required proof or admission of dishonesty
Generally doesn't include armed robbery, murder, assault
Generally does include embezzlement, fraud
 The age of the crime still trumps its type. If the conviction for fraud is more than 10
years old, for example, it is presumptively inadmissible.

Extrinsic Evidence & Impeachment by Prior Conviction
o In the event of witness denial, can be proven by extrinsic evidence, i.e. criminal record

Luck v. United States - D.C. Cir factors which help judges in exercising discretion under FRE 609
o Whether conviction is for a crime OF dishonesty
 More admissible if dishonesty is an element rather than if only readily showable
o Similarity between the crime and the prior conviction
 More similar to the case at bar = more prejudicial because more likely to be used for
propensity purposes.
o The relative age of the conviction
 9 years? 1 year? Both are less than 10, but have different weights.
o The relative seriousness of the crime = proxy for dishonesty
iv.



Other Common Forms of Impeachment
a. Bias / Interest / Motive
Bias - Impeachment through bias is generally favored over character evidence.
o Less prejudicial and more probative.
o Davis v. Alaska - a defendant's right to impeach for bias on cross is encompassed in the Sixth
Amendment
United States v. Abel - bias, unlike character, is "not collateral" and therefore may be proven by
extrinsic evidence in the event of witness denial.
o Technically witness denial is not a prerequisite to the introduction of extrinsic evidence because
the federal rules don't specifically mention impeachment for bias, but this is a matter of
practice.
b. Contradiction
Contradictory Evidence - Evidence which tends to prove that something the witness said is false

Extrinsic Evidence & Contradictory Evidence: FRE 403 balancing determines whether extrinsic evidence
to prove a contradiction should be admitted in federal court in the event of witness denial.
o Collateral Matter Rule – in state common law jurisdictions, prevents introduction of extrinsic
evidence for the sole purpose of contradicting a prior witness where that evidence is not
relevant independent of the contradiction.
 Even though the collateral matter rule does not apply in federal court, the fact that the
evidence is a collateral matter can be used as a basis for a good 403 objection.
Ex: introduction of the evidence will waste time or confuse

Relationship Between Contradictory Evidence & Character Evidence: Every piece of contradictory
evidence is not necessarily an attack on credibility. Depends on…
o the degree of contradiction
 Massive and material to the case?
o purpose for which it is offered
 Clearly suggest that another witness is lying, then it can qualify as an implied attack on
character of another witness.
 If the contradictory testimony could be the product of merely different witnesses
honestly perceiving the same event differently, then the introduction of the
contradictory testimony is not necessarily an implied attack on credibility.


c. Prior Inconsistent Statement
FRE 613: Prior Inconsistent Statement - Witness said something which contradicts himself
o Testimony before grand juries, at preliminary hearings, at suppression hearings, in pretrial
depositions, statements given to the police, investigators, and insurance companies.
o Generally, impeachment by prior inconsistent statements does not depend on the accuracy of
the prior statement. The inconsistency itself casts doubt on both statements.
o Inconsistent prior statement doesn't have to be shown to witness, but must be shown to
opposing counsel on request.
FRE 801(d)(1): Ordinarily prior statements are not admissible for the truth of the prior statement.
o (A) However, a prior inconsistent statement can be offered for the truth of the statement if it
 was truly inconsistent,
 Is asked about on cross to impeach,
 and was made under oath.
o
(B) If the witness made a prior consistent statement and it is offered to rebut a recent charge of
fabrication or improper influence or motive (i.e. to rehabilitate), the prior consistent statement
can be offered for the truth of the statement.
 Need not have been made under oath if consistent

Extrinsic Evidence & Prior Inconsistent Statements:
o If the statement only qualifies to be introduced under FRE 613,
 In the event of witness denial, extrinsic evidence can be introduced to prove that the
prior inconsistent statement was made, as long as…
the witness is given a chance to explain or deny at some point
the witness is given a chance to be rehabilitated.
o If the statement qualifies to be introduced under FRE 801(d)(1),
 In the event of witness denial, extrinsic evidence may be introduced to show that the
prior inconsistent statement was made
 No requirement that the witness be given a chance to explain/deny and be
rehabilitated.
o Introduction of extrinsic evidence under either FRE 613 or 801(d)(1) is subject to FRE 403 in
federal court.
 Collateral Matter Rule - in state common law jurisdictions, prevents introduction of
extrinsic evidence for the sole purpose of showing an inconsistent statement where that
evidence is not relevant independent of the inconsistency.
 Even though the collateral matter rule does not apply in federal court, the fact that the
evidence is a collateral matter can be used as a basis for a good 403 objection.
Ex: introduction of the evidence will waste time or confuse

Relationship Between Contradictory Evidence & Character Evidence: Not every prior inconsistent
statement is necessarily an attack on character. Depends on…
o The probative value of the inconsistency
o The degree of the inconsistency




d. Defects in Perception, Memory, Description
Two types:
o General disposition to misperceive, misremember & misdescribe are disfavored
 Ex: "the witness is an alcoholic"
o Specific defects in perception memory and description are favored for admission
 Ex: "the witness was drunk at the time"
Extrinsic Evidence & Defects in Perception, Memory, & Description:
o If the issue is extremely important to the case, such as an eye witness to the crime, a court may
allow introduction of extrinsic evidence.
o Lay testimony is preferred.
o If expert testimony is allowed, medical is preferred to psychological.
e. Religious Beliefs
FRE 610: Impeachment by Religious Beliefs
Religion is not admissible for the purpose of showing impaired or enhanced credibility.
o Might come in indirectly (ex: “I was at church the night of the murder”), but lawyers should in
general word questions so as to avoid mentioning the religion of a witness or party.
o Religion should not be used as a roundabout way of showing belief
 Ex: “Are you a Quaker? And do Quakers believe in non-violence?” should be…

v.









“Do you believe in non-violence?”
Sex Crimes
a. Victim’s Past Sexual Behavior or Sexual Disposition
FRE 412:
o Applies in both civil and criminal proceedings
o Applies to all instances involving sexual misconduct, from civil harassment to rape
(a) Not Allowed:
o Evidence offered to prove that any alleged victim engaged in other sexual behavior.
o Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions:
o (1) In criminal cases:
o These exceptions are still subject to FRE 403 and other rules, including prohibition on hearsay.
 (A) evidence of specific instances of sexual behavior by the alleged victim offered to
prove that a person other than the accused was the source of semen, injury, or other
physical evidence;
 (B) evidence of specific instances of sexual behavior by the alleged victim with respect
to the person accused of the sexual misconduct offered by the accused to prove
consent or by the prosecution; and
 (C) evidence the exclusion of which would violate the constitutional rights of the
defendant.
o (2) In civil cases:
 Evidence offered to prove the sexual behavior or sexual predisposition of any alleged
victim is admissible if it is otherwise admissible under these rules and its probative
value substantially outweighs the danger of harm to any victim and of unfair prejudice
to any party.
Weighed in favor of exclusion
Evidence of an alleged victim's reputation is admissible only if it has been placed
in controversy by the alleged victim.
(c) Where an exception under (b) applies, special procedures must be followed
o (1)(A) Written motion 14 days before trial
o (1)(B) Service on all parties
o (2) In camera hearing
b. Prior Crimes Evidence in Cases of Sexual Assault
FRE 413: Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the
defendant's commission of another offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
o This is the exact opposite of 404
(b) Prosecutor must give defendant 15 days notice of intent to admit
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other
rule.
o Courts have interpreted it to be subject to FRE 403 to ensure Constitutionality.
(d) “Sexual Assault” =
(1) any conduct proscribed by chapter 18 USC 109A;
(2) contact, without consent, between any part of the defendant's body or an object and the
genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of
another person's body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).










c. Prior Crimes Evidence in Cases of Child Molestation
FRE 414: Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of
the defendant's commission of another offense or offenses of child molestation is admissible, and may
be considered for its bearing on any matter to which it is relevant.
(b) Prosecutor must give defendant 15 days notice of intent to admit
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other
rule.
o Courts have interpreted it to be subject to FRE 403 to ensure Constitutionality.
(d)
o "Child" = <14 years
o "Offense of child molestation" =
(1) 18 USC 109A committed in relation to a child;
(2) 18 USC 110
(3) contact between any part of the defendant's body or an object and the genitals or anus of a
child;
(4) contact between the genitals or anus of the defendant and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on a child; or
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
d. Similar Acts Evidence In Civil Cases Involving Sexual Assault or Child
Molestation
FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged
commission of conduct constituting an offense of sexual assault or child molestation, evidence of that
party's commission of another offense or offenses of sexual assault or child molestation is admissible
and may be considered as provided in Rule 413 and Rule 414 of these rules.
(b) Plaintiff must give 15 days notice.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other
rule.
o Constitutionality isn’t an issue in civil cases so 403 balancing should not come into effect.
Only specific instance evidence, as opposed to the usual reputation evidence, allowed.
o In this rare instance, specific instance evidence might actually be less prejudicial.
vi.

V.
FRE 608(a): The credibility of a witness may be attacked OR SUPPORTED by evidence in the form of
opinion or reputation evidence
o The evidence must go only to the characteristic of "truthfulness"
o Can only be admitted after credibility attacked by "opinion or reputation evidence"
Hearsay
i.

Witness Rehabilitation
FRE 801:
In General
o
o
o
(a) A "statement" is an oral or written assertion or nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) A "declarant" is a person who makes a statement.
(c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.

Out-of-court:
o Any statement except those made by the witness during the current proceeding
o Absent exception, the witness' own prior statements can count as hearsay, even if they were
made in a different court proceeding

Statement:
o There must be either implicitly or explicitly a claim that some fact or circumstance exists
 The speaker must intend to communicate the substance of the claim
o Questions can contain implied statements.
o Assertions from other assertions should probably be excluded, despite that they are not literally
“offered to prove the truth of the matter asserted.”
o Hearsay rule does not apply to machine or animal "statements"
 Unless the computer is reporting a human statement
o Silence as Assertion:
 Depends on whether it is a communicative silence
 General silence is unlikely to be considered an assertion
 Silence in response to a question is more likely to be considered an assertion

Offered for the Truth of the Matter Asserted:
o Verbal Acts - out-of-court statements that are not hearsay because the very fact that they were
spoken or written carries legal consequences
 Ex: a statement made about a plaintiff in a libel case
o Verbal Parts of Acts - explain the legal significance of an act
 Ex: "Here, I'm just loaning you this money."
o Statements Manifesting Awareness / State of Mind - where state of mind is an issue, the fact
that someone said or heard something is not offered for the truth of the matter asserted, but to
show state of mind.
 Ex: insanity, reasonableness of fear, knowledge, constructive knowledge

FRE 805: Multiple Hearsay - an assertion which regards another out-of-court statement.
o To be admissible, each level of multiple hearsay must fit an exception.
ii.


Definitional Exclusions
FRE 801(d) Statements which are not hearsay:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is
o (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding, or in a deposition, or
 (See impeachment by prior inconsistent statement)
o (B) consistent with the declarant's testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive, or
o (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent.
o

FRE 104(b): Conditional Relevance
o The judge should admit the admission by party-opponent unless no reasonable fact finder could
conclude that the necessary factual condition existed.
 Ex: that the person was an agent, or that the person was authorized to make a
statement
o There must be some corroborating evidence beyond the statement itself to show the existence
of a factual precondition, otherwise by definition there is not enough evidence for any
reasonable fact finder to conclude that the condition existed.
 Ex: a paystub showing that the person who made the statement was employed as a
public relations officer for the company
iii.

The statement is offered against a party and is
 (A) the party's own statement, in either an individual or a representative capacity or
 (B) a statement of which the party has manifested an adoption or belief in its truth, or
Silence As Adoptive Admission:
 Reasonable probability that declarant heard the statement AND
 Declarant was capable of denying the statement AND
 Under the circumstances, a reasonable person would have denied the
statement were it not true
 (C) a statement by a person
authorized by the party to make a statement
concerning the subject, or
 (D) a statement by the party's agent or servant concerning a matter
within the scope of the agency or employment,
made during the existence of the relationship, or
 (E) a statement by a coconspirator of a party
during the course and
in furtherance of the conspiracy.
Exceptions for Which Availability is Immaterial
FRE 803. The following are not excluded by the hearsay rule, even though the declarant is available:
o (1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.
 Must describe the event, not merely relate to it.
 Characteristics of the 803(1) Exception:
The described event or condition need not have caused excitement
The declaration need not directly relate to the principal litigated event
The speaker need not have been a participant in the perceived event
The speaker must have been a percipient witness
The speaker need not be identified
The speaker need not be shown to have been oath-worthy
Subject matter is restricted to a description of the observed event
Minimal time-lapse is permissible
Present sense impressions are not cumulative
 a speaker's present sense impression is not inadmissible for being
duplicative simply because the speaker is also a witness who testifies to
the described event to the stand
Impressions in opinion form are admissible
o (2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.

o
o
o
o
Event giving rise to statement must be startling enough
Judge decides himself under FRE 104(a) conditional relevance
 Declarant must be under the influence of the event at the time the statement is made
 Statement only must relate to the event somehow
Doesn't have to describe it, but an excited utterance which describes the
startling event might fit under either 803(1) or (2)
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
 Must be a condition extant at the time of the statement
Ex: "I have a headache" vs. "I had a headache yesterday"
 Must be a spontaneous statement, i.e. not a self-serving statement
 Hillmon – Necessity of corroborating evidence
Charles: "I'm going to the movies" can be offered to show that Charles went to
the movies even absent any corroborating evidence.
Charles: "I'm going to the movies with John" can only be offered to show that
John went to the movies if there is additional corroborating evidence that John
actually went to the movies. The corroborating evidence is meant to protect
against a person incorrectly expressing another's intent.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes
of medical diagnosis or treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.
 Not limited to statements made to a treating physician, can be made to nurses, EMTs
 The subjective part-- the purpose-- is the most important, because that is what ensures
the reliability of the statement such that it shouldn't be considered hearsay.
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable the witness to testify fully
and accurately, shown to have been made or adopted by the witness when the matter was fresh
in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum
or record may be read into evidence but may not itself be received as an exhibit unless offered
by an adverse party.
 Must relate to something the witness once knew firsthand (foundation)
 Memory must have faded to the point that the witness cannot fully and accurately
testify
 Record made or adopted by witness when memory fresh
 Record accurately reflects witness' knowledge at the time written
 Witness must testify that either she remembers making an accurate recording or that
there's no reason she would have written some description unless it was an accurate
reflection of her perception
 See also, FRE 612, a functional alternative.
Witness must testify that, having refreshed her memory, she now has enough
recollection to testify fully and accurately
 Might be subject to a more effective cross examination
 Might be more persuasive than reading a recollection
(6) Records of regularly conducted activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with knowledge, if kept in the course of a
o
o
regularly conducted business activity, and if it was the regular practice of that business activity
to make the memorandum, report, record or data compilation, all as shown by the testimony of
the custodian or other qualified witness, or by certification that complies with Rule 902(11),
Rule 902(12), or a statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. The term "business" as
used in this paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
 Person must be qualified to make the assertion (person with knowledge)
 Assertion made at or near the time of the event
Is the statement sought to be introduced in the past tense?
 Kept in the course of a regularly conducted business activity
The activity must be regular, not necessarily the record
 Absence of routine renders records inadmissible only when their nonroutine nature indicates a lack of trustworthiness
 Don’t want to encourage businesses to cook up books for litigation
Custodian or other qualified witness - the person knows that this is the kind of
thing we regularly record and how it is recorded.
 Need only one person, not every person in the chain of command.
 Johnson v. Lutz - when records are based on the statements of informants, those
records are only admissible if the statements are transmitted as part of regular business
activity
 Statements in business records which did not originate with someone within the
business create a multiple hearsay issue
Ex: customer says something to manager who writes it down
 Escape Clause: where circumstances indicated a lack of trustworthiness, the judge may
choose not to admit.
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6).
Evidence that a matter is not included in the memoranda reports, records, or data compilations,
in any form, kept in accordance with the provisions of paragraph (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a
memorandum, report, record, or data compilation was regularly made and preserved, unless
the sources of information or other circumstances indicate lack of trustworthiness.
 In this case, silence may be offered for the truth of the assertion and is not hearsay.
(8) Public records and reports. Records, reports, statements, or data compilations, in any form,
of public offices or agencies, setting forth
 (A) the activities of the office or agency, or
 (B) matters observed pursuant to duty imposed by law as to which matters there was a
duty to report, excluding, however, in criminal cases matters observed by police officers
and other law enforcement personnel, or
 (C) in civil actions and proceedings and against the Government in criminal cases, factual
findings resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness.
Criminal defendants can introduce police reports which otherwise can't be used
against them to support a civil claim against the government
 Ex: in a Bivens action for civil rights violation
 Factual findings based in large part on hearsay are not necessarily inadmissible, but the
hearsay within investigatory reports will be redacted (unless another level of hearsay
exception applies) and these reports are vulnerable to exclusion under the
trustworthiness requirement of the last clause in 803(8).
o
o
o
o
o
o
o
o
o
o
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths,
deaths, or marriages, if the report thereof was made to a public office pursuant to requirements
of law.
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or
data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a
record, report, statement, or data compilation, in any form, was regularly made and preserved
by a public office or agency, evidence in the form of a certification in accordance with rule 902,
or testimony, that diligent search failed to disclose the record, report, statement, or data
compilation, or entry.
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or
family history, contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate
that the maker performed a marriage or other ceremony or administered a sacrament, made by
a clergyman, public official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have been issued at the
time of the act or within a reasonable time thereafter.
(13) Family records. Statements of fact concerning personal or family history contained in family
Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on
urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property. The record of a document
purporting to establish or affect an interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by whom it purports to have
been executed, if the record is a record of a public office and an applicable statute authorizes
the recording of documents of that kind in that office.
 Provides evidence that the transaction took place
(15) Statements in documents affecting an interest in property. A statement contained in a
document purporting to establish or affect an interest in property if the matter stated was
relevant to the purpose of the document, unless dealings with the property since the document
was made have been inconsistent with the truth of the statement or the purport of the
document.
 Provides evidence of the scope of the transaction
Ex: Was it an easement or a fee simple absolute?
(16) Statements in ancient documents. Statements in a document in existence twenty years or
more the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories,
or other published compilations, generally used and relied upon by the public or by persons in
particular occupations.
(18) Learned treatises. To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science
or art, established as a reliable authority by the testimony or admission of the witness or by
other expert testimony or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
 This rule basically covers everything in scholarly literature.
 Witness must acknowledge that a treatise is a reliable source before statements in it can
be used for/against the expert during direct or cross.
 Process for Cross:
Ask the witness if they have heard of the treatise
Ask them if it's a reliable source

o
o
o
o
o
iv.
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Admission of Witness - can include that the witness has cited the
treatise in his own article.
Read a statement to them
Give them an opportunity to embrace or reject the statement, or otherwise
explain
(19) Reputation concerning personal or family history. Reputation among members of a
person's family by blood, adoption, or marriage, or among a person's associates, or in the
community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family
history.
(20) Reputation concerning boundaries or general history. Reputation in a community, arising
before the controversy, as to boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or State or nation in
which located.
(21) Reputation as to character. Reputation of a person's character among associates or in the
community.
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon
a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime
punishable by death or imprisonment in excess of one year, to prove any fact essential to
sustain the judgment, but not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments against persons other than the
accused. The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of
matters of personal, family or general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
Exceptions Conditioned on Unavailability
FRE 804: Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.
o (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the
subject matter of the declarant's statement; or
o (2) persists in refusing to testify concerning the subject matter of the declarant's statement
despite an order of the court to do so; or
o (3) testifies to a lack of memory of the subject matter of the declarant's statement; or
o (4) is unable to be present or to testify at the hearing because of death or then existing physical
or mental illness or infirmity; or
o (5) is absent from the hearing and the proponent of a statement has been unable to procure
the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3),
or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.
o Conditional Relevance: Whether or not proponent caused the unavailability with intent to
prevent testimony is a 104(a) conditional relevance issue. There must be a preponderance of
the evidence of responsibility.
(b) Hearsay Exceptions
o (1) Former testimony. Testimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course of the same
or another proceeding, if the party against whom the testimony is now offered, or, in a civil
o
o
action or proceeding, a predecessor in interest, had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
 Can be from a different proceeding entirely
 Can be live testimony or a deposition
 In a civil case, can be against the same defendant or a defendant who is in privity.
Subrogation in insurance creates privity
Indemnification clauses do not create privity
Joint interest in property creates privity
Estate of a decedent creates privity
 In a criminal case, can only be used against the exact same defendant.
 Party against whom the testimony is now offered must have had similar motive and
opportunity to develop testimony by direct, cross, or redirect examination.
Need only have had an opportunity need not have actually done so.
Substantial identity of issues test - a similar motive exists if the issues of the first
proceeding and hence the purpose for which testimony was offered, were such
that the present opponent had adequate motive to cross.
 If objections were not made during the prior testimony that should have been made….
If there should have been merely objections to form they shouldn't be made the
second time around
 Ex: “leading questions”
If there should have been objections to the substantive admissibility of the
evidence or competency of the witness, they can be made the second time
around.
 Ex: “no personal knowledge”
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action
or proceeding, a statement made by a declarant while believing that the declarant's death was
imminent, concerning the cause or circumstances of what the declarant believed to be
impending death.
 Declarant must have subjectively believed own death was imminent
 Statement must relate to the death.
Whether the statement concerns the cause or circumstances of the death is
decided as a FRE 104(b) conditional relevance question.
(3) 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 or pecuniary interest or had so great a tendency to invalidate the declarant’s
claim against someone else or to expose the declarant to civil or criminal liability; AND
Tends to invalidate declarant's own civil claim against another
Or might expose declarant to civil or criminal liability
 Must be a statement against one’s formal legal interests
 Can include pecuniary interest
 (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.
Corroborating circumstances may include:
 Whether declarant had an apparent motive to lie
 General character of the declarant
 How many and what people heard the statement
 Whether the declaration was made spontaneously
 The timing of the declaration
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o
o
v.
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The Residual Exception
FRE 807: Residual Exception. A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the
court determines that
o (A) the statement is offered as evidence of a material fact;
o (B) the statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and
o (C) the general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the proponent of it makes
known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party
with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant.
Making a "single near-miss" argument that "this item of evidence almost fits into X exception” will not
be sufficient to qualify under the residual exception.
o FRE 807 should not be used to circumvent carefully considered categories of evidence
vi.

The relationship between the declarant and the witness
Whether there is any other evidence other than the statement which
links the declarant to the crime
 104(b) Conditional Relevance: The judge should admit unless there is not enough
evidence for any reasonable fact finder to conclude that the statement was in fact
against one’s interest.
It depends on what the statement is introduced to prove, because a statement
could be in one's interest for one type of claim, and against for another.
Where a statement could go either way, courts should probably only admit
those parts of a statement which are disserving - Williamson v. United States.
 Escape clause: "Made only if person believed it to be true". Can argue it's not so
contrary to the person's interest that he wouldn't have made it, even if it’s against his
formal legal interest.
 If made by one of the parties to the litigation, these statements often also fall under the
admissions by party opponent definitional exclusion.
(4) Statement of personal or family history.
 (A) A statement concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact
of personal or family history, even though declarant had no means of acquiring personal
knowledge of the matter stated; or
 (B) a statement concerning the foregoing matters, and death also, of another person, if
the declarant was related to the other by blood, adoption, or marriage or
was so intimately associated with the other's family as to be likely to have
accurate information concerning the matter declared.
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
Constitutional Provisions Which Trump Hearsay Prohibition
a. Compulsory Process
Applies in criminal cases only
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If a criminal defendant has reason to believe that someone who the gov't is not choosing to present
voluntarily as a witness has exculpatory evidence, the defendant can compel the gov't to issue a
subpoena that requires that person to appear in court as long as the court has jurisdiction over the
individual
o Must show individual would be likely to testify in a manner which would tend to exculpate
If the person's presence cannot be obtained...
o How powerfully exculpatory does the judge believe this testimony will be?
 The more likely the judge will require additional steps by the prosecution
Such as pressuring a foreign gov't
o Has the defendant had some prior opportunity to question this individual?
 If there is already a pretrial deposition, prelim hearing, then there is less need for the
person on the stand that day
Effectively limits the government's use of hearsay evidence against a criminal defendant.
b. Due Process
Applies when the gov't is trying to deprive someone of life, liberty, or property
Might apply where the rules of evidence might otherwise exclude a certain kind of evidence which may
be exculpatory
o Ex: evidence that someone else confessed to the crime
A balancing test:
o Weight of the defendant's interest in avoiding deprivation
o Probability of erroneous deprivation
o Likelihood that safeguard will reduce risk of error
o Cost to gov't of providing additional safeguard
Chambers v. Mississippi - "where constitutional rights directly affecting the ascertainment of guilt are
implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."
c. Confrontation Clause
Applies in criminal cases only
Crawford v. Washington –
o Under the Confrontation Clause, testimonial statements are only admissible under a hearsay
exception when
 the declarant is unavailable AND
The Confrontation Clause may require more than mere absence as a
precondition to invoking 804 hearsay exceptions. "How much more is required
is unclear."
 Barber v. Paige and Mancusi v. Stubbs - the Confrontation clause
appears to allow a state to establish the unavailability required to
introduce prior testimony either…
 By failing in a good faith effort to secure speaker's presence Barber (state must at least subpoena a prisoner witness in an
out-of-state penal institution before claiming unavailability).
 Or, by showing that the speaker cannot be compelled to be
present and that the speaker's prior testimony was thoroughly
tested by cross-examination. - Mancusi (Confrontation clause is
satisfied where witness was thoroughly cross-examined in prior
testimony and has since moved out of the country).
 where there was prior opportunity to cross
o Where the defendant wrongfully procured witness unavailability with the purpose of
preventing testimony, then the sixth amendment right is forfeited and FRE 804(b)(6) applies.
o

VI.
The court expresses no opinion as to whether the "dying declaration" exception to the hearsay
rule applies even over this holding because it was recognized at the time of the Framers.
Testimonial Statement – the setting in which the statement is made, to whom it is made, and the
purpose for which the statement is made determines whether it is “testimonial”
o Testimony given in preliminary hearings is testimonial – Crawford v. Washington
o Statement made to police at home where violence is over is testimonial – Hammon v. Indiana
o Statements made to 911 operators during ongoing emergency for the purpose of seeking
emergency assistance are not testimonial – Davis v. Washington
Privilege
i.
Attorney / Client Privilege

FRE 501: Privilege is governed by common law.
o "Dynamic" common law, not common law as it was when the federal rules were codified.
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PFRE 503: never promulgated; provides a useful template for understanding common law privileges.
(a) Definitions. As used in this rule:
o (1) A "client" is a person, public officer, or corporation, association, or other organization or
entity, either public or private, who is rendered professional legal services by a lawyer, or who
consults a lawyer with a view to obtaining professional legal services from him.
o (2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to
practice law in any state or nation.
o (3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of
professional legal services.
o (4) A communication is "confidential" if not intended to be disclosed to third persons other than
those to whom disclosure is in furtherance of the rendition of professional legal services to the
client or those reasonably necessary for the transmission of the communication.
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications made for the purpose of facilitating the rendition of
professional legal services to the client,
o (1) between himself or his representative and his lawyer or his lawyer’s representative, or
o (2) between his lawyer and the lawyer’s representative, or
o (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or
o (4) between representatives of the client or between the client and a representative of the
client, or
o (5) between lawyers representing the client.
(c) Who may claim privilege. The privilege may be claimed by the client, his guardian or conservator, the
personal representative of a deceased client, or the successor, trustee, or similar representative of a
corporation, association, or other organization, whether or not in existence. The person who was the
lawyer at the time of the communication may claim the privilege but only on behalf of the client. His
authority to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. There is no privilege under this rule:
o (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit what the client knew or reasonably should
have known to be a crime or fraud; or
o (2) Claimants through same deceased client. As to a communication relevant to an issue
between parties who claim through the same deceased client, regardless of whether the claims
are by testate or intestate succession or by inter vivos transaction; or
o (3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of
duty by the lawyer to his client or by the client to his lawyer; or
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o
o
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(4) Document attested by lawyer. As to a communication relevant to an issue concerning an
attested document to which the lawyer is an attesting witness; or
(5) Joint Clients. As to a communication relevant to a matter of common interest between two
or more clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients
Applies only to confidential communications between an attorney (or agent) and client.
o Client:
 No $ exchange or retainer necessary
 Who is a “client” in the case of a corporate client? - Upjohn Co. v. United States
Control-Group Test - the client in the context of corporations is anyone who can
control/direct the corporation's actions in response to legal advice.
After Upjohn, the control-group is presumptively covered by the attorney client
privilege, and there may also be some protection for communication with
lower-level employees
Factors that may go to privilege where employee is not in the control group:
 To what degree that it was for the purpose of giving legal advice or
gaining information for the formation of legal advice
 Whether or not the employee knew that the communication was for
this purpose / thought it would be confidential
 The subject matter of the communication
 Within the scope of the employee's duties?
o Attorney:
 The client must only reasonably believe the person to be a lawyer or lawyer’s agent.
 Covers those acting on behalf of the lawyer
Paralegals, interpreters, and other agents
o Communications:
 Must be for purposes of obtaining legal advice or legal services
Tax preparation is usually considered an accounting function, not a legal service
Companies can't get away with disclosing things to their lawyers just for the
purpose of protecting the information.
 Dual-purpose communications:
If the primary purpose is non-legal, privilege is unlikely to apply to any of the
information conveyed
If the primary purpose is legal, the court will attempt to protect those aspects of
the conversation pertaining to legal advice and admit those relating to the nonlegal purpose.
Where they are inseparable, courts will construe against the party claiming
privilege because of the preference for admitting all relevant evidence.
 Usually only what is said and not the underlying information is covered by the privileged
 Exceptions to the "communications only" rule, in which information can be protected by
the attorney-client privilege:
The identity of a client may be protected:
 Bagman cases - the attorney is acting as a go-between
 Whistleblower cases - the attorney brings a claim on behalf of someone
claiming another's wrongdoing
 Sugar daddy cases - the attorney defends someone or brings a claim on
behalf of another who pays for the actions of a third party

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ii.
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Work Product Exemption
Work product protection is available only if material is produced in anticipation of litigation.
o Limited by some implied "reasonable prospect" of litigation, can't be too remote.
Work product protection is also available for those acting as agents for a lawyer
Two different types of work product:
o Ordinary work product - Facts gleaned by lawyer through investigatory work in anticipation of
litigation
 Should generally not be discoverable unless relevant and non-privileged facts remain
hidden in an attorney's file and where production of those facts is essential to one's
case. – Hickman v. Taylor
Admissible in evidence
Give clues as to location / existence of facts
Useful for impeachment / corroboration
Where witnesses are no longer available
o Opinion work product - Opinions, legal theories, mental impressions, inferences, conclusions
 Subject to heightened protection
Only discoverable under extreme circumstances of need
Rarely if ever achieved
iii.
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
BUT: “Courts are particularly reluctant to sustain claims of
privilege in the sugar daddy situation if there is a suggestion
that the third party payment was part of a criminal enterprise."
When the information is being introduced with the intent to force the holder of
the privilege to waive the privilege and disclose confidential communications in
order to rebut an improper inference.
 Ex: “So, you went to go see a lawyer one day after your husband was
killed?” is not a confidential communication, but it is underlying
information which should be protected in the spirit of the A/C privilege.
Communication must be made while taking reasonable steps to ensure confidentiality.
Waiver of A/C Privilege and Work Product Exemption
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
(a) Scope of waiver. When the disclosure is made in a Federal proceeding or to a Federal office or
agency and waives the attorney-client privilege or work-product protection, the waiver extends to an
undisclosed communication or information in a Federal or State proceeding only if:
o (1) the waiver is intentional;
o (2) the disclosed and undisclosed communications or information concern the same subject
matter; and
o (3) they ought in fairness to be considered together.
(b) Inadvertent disclosure. When made in a Federal proceeding or to a Federal office or agency, the
disclosure does not operate as a waiver in a Federal or State proceeding if:
o (1) the disclosure is inadvertent;
o (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
o (3) the holder promptly took reasonable steps to rectify the error, including (if applicable)
following Federal Rule of Civil Procedure 26(b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a State proceeding and is not
the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a
Federal proceeding if the disclosure:
o (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or
o (2) is not a waiver under the law of the State where the disclosure occurred.
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(d) Controlling Effect of a Court Order. A Federal court may order that the privilege or protection is not
waived by disclosure connected with the litigation pending before the court—in which event the
disclosure is also not a waiver in any other Federal or State proceeding.
o So if the corporation waives in front of an agency proceeding, for example, the judge can agree
that the waiver will not apply outside that proceeding.
(e) Controlling effect of a party agreement. An agreement on the effect of disclosure in a Federal
proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to State
proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the
circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law
provides the rule of decision.
iv.
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Doctor / Patient Privileges
There is no broad doctor-patient privilege in federal court.
Doctor-patient privilege exists in state courts, but has many exceptions:
o Health condition is placed at issue
o Furtherance of crime or fraud
o Actions involving breach of duty arising out of doctor-patient relationship
o Required public reporting of certain medical conditions
o California probably has the most exceptions – see page 961
Psychotherapist-patient privilege - created as a federal common-law privilege in Jaffee v. Redmond
o Also exists in all state common-law jurisdictions
o Extends to licensed social workers engaged in the course of psychotherapy in federal
jurisdictions.
 Varies amongst state jurisdictions.
Must be licensed -- what does it take to be "licensed"?
Most jurisdictions require at least a master’s degree.
o Even the existence of the relationship itself is within the scope of the privilege.
o May extend to volunteers acting under a licensed psychotherapist supervisor
PFRE 504:
(a) Definitions.
o (1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.
o (2) A "psychotherapist" is (A) a person authorized to practice medicine in any state or nation, or
reasonably believed, the patient so to be, while engaged in the diagnosis or treatment of a
mental or emotional condition, including, drug addiction or (B) a person licensed or certified as a
psychologist under the laws of any state or nation, while similarly engaged.
o (3) A communication is "confidential" if not intended to be disclosed to third persons other than
those present to further the interest of the patient in the consultation, examination, or
interview, or persons reasonably necessary for the transmission of the communication, or
persons who are participating in the diagnosis and treatment under the direction of the
psychotherapist including members of the patient's family.
(b) General Rule of Privilege. A patient has a privilege refuse to disclose and to prevent any other
person from disclosing confidential communications, made for the purposes of diagnosis or treatment of
his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or
persons who are participating in the diagnosis or treatment under the direction of the psychotherapist,
including members of the patient's family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, by his guardian or
conservator, or by the personal representative of a deceased patient. The person who was the

psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is
presumed in the absence of evidence to the contrary.
(d) Exceptions.
o (1) Proceedings for Hospitalization. There is no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize the patient for mental illness, if the
psychotherapist in the course of diagnosis or treatment has determined that the patient is in
need of hospitalization.
o (2) Examination by Order of Judge. If the judge orders an examination of the mental or
emotional condition of the patient, communications made in the course thereof are not
privileged under this rule with respect to the particular purpose for which the examination is
ordered unless the judge orders otherwise.
o (3) Condition an Element of Claim or Defense. There is no privilege under this rule as to
communications relevant to an issue of the mental or emotional condition of the patient in any
proceeding in which he relies upon the condition as an element of his claim or defense, or, after
the patient's death, in any proceeding in which any party relies upon the condition as an
element of his claim or defense.
v.
Family & Religious Privileges

Spousal Immunity / Adverse Testimony Privilege
o Applies only in criminal cases in which one of the spouses is accused of a crime.
o The non-accused spouse cannot be compelled to testify against the accused.
o Applies only during the duration of the marriage.
o Trammel - in federal court can be waived by the testifying spouse.
 Unlike most privileges, it is held by the testifier and not the person against whom they
are testifying.
If the marriage has reached the point where someone is willing to voluntarily
testify, there is not a healthy relationship worthy of protection.
 Most states have followed this.
 A minority of states have rejected the Trammel approach because it is rare that the
testifying spouse's testimony is actually voluntary in all respects.
The prosecutor often threatens the spouse who refuses to testify with charges
of conspiracy or being an accessory if she doesn't waive the privilege.

Marital Communications Privilege
o Closely analogous to the attorney client privilege.
o Unlike spousal immunity, it is held and can be waived by the person who makes the
communication.
o Scope is like a/c privilege
 Applies in all proceedings of any type, civil/criminal/administrative
 Applies only to communications that take place during the marriage
 Unlike spousal immunity, it lasts beyond the end of the marriage
o Must make the communication while taking reasonable steps to keep confidential
o General exceptions are like that of a/c privilege
 In furtherance of crime or fraud
 Commitment or similar proceeding
 Proceeding to establish competence
 Civil proceedings between spouses
 Criminal proceedings involving spouses & their children

Parent-Child Privilege
o
o

Priest-Penitent Privilege – applies to any religion where there is a communication between a person
and a religious figure for purposes analogous served traditionally by confessions in the Roman Catholic
church.
o Scope is similar to A/C privilege.
vi.
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Exists in a few states and has been applied in two federal district courts.
Almost all states and virtually all federal courts, including all circuit courts, have considered the
parent-child privilege and declined to create it.
Government Privileges
a. Relationship Between FOIA & Gov’t Privilege
Freedom of Information Act (FOIA) – allows full or partial disclosure of previously undisclosed
documents under control of the U.S. government.
o Excludes advice given to the president/vice president, not an “agency” for FOIA purposes.
There are nine exemptions for information not requestable under FOIA.
o Protected by Executive Order b/c related to nat’l security
o Records relating solely to the internal rules and practices of an agency
o Exempted from disclosure by another statute
o Trade secrets given to the gov't with the understanding that they would not be disclosed.
 Ex: documents in competitive negotiation procurement
o Intra-agency letters and memoranda not available by law to anyone not engaged in litigation
o Personnel and medical files containing personal private information
o "Deliberative process exemption" all pre-decisional documents from any decision maker.
o Law enforcement documents which if requestable would impede law enforcement
o Financial oversight documents
o Geological / geophysical data, including maps, concerning wells
Courts use FOIA as a starting point for deciding questions of gov't privilege.
o If the information is available under FOIA, then the government can’t claim a privilege.
o But just because a document falls within an exemption from FOIA does not necessarily mean
that it is also privileged.
b. Executive Privilege
Executive Privilege - we want the President to be able to receive completely candid advice. For that
reason, we want to keep confidential forever and in all contexts any confidential communication from a
presidential advisor to a president.
o If there is any potential that the communication could have made it to the desk of the president,
it is covered.
o Courts have also extended this to the vice president.
c. Informant Identity Privilege
Informant:
o Can apply in any civil or criminal proceeding in which someone has given information relevant to
law enforcement.
o Usually also covers those who provide services for law enforcement
 Ex: introducing an undercover officer to a dealer and “vouching” for him
Scope of the Privilege:
o The privilege belongs to the government, not to the informer.
o The privilege extends only to identity, not to the information supplied.
 Unless the information supplied tends to give away identity.
o Roviaro & McCray - the information must have been supplied with the intent of confidence
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Most courts would not protect the identity of an informer who was not concerned about
his identity being known
Exceptions:
o Government or informer exposes the identity of the informer
o Informer appears as a witness for the gov’t
 No anonymous testimony allowed
o Informant’s testimony is necessary for a fair determination of the merits
 The greater the informer’s involvement in the crime and the fewer other people who
have seen as much of the crime as the informer, the less likely courts are to protect the
informer’s identity.
Constitutional Trump:
o In a criminal case in which a particular informant might testify in an exculpatory manner
d. State Secrets / National Security Privilege
National Security Privilege - When an issue arises in litigation as to whether a document which has been
deemed classified should be admitted into evidence the head of the relevant department must claim
national security privilege, because only that person has broad enough knowledge to understand the
importance of the document were it to get into the wrong hands.
o U.S. v. Reynolds – formally recognized the state secrets privilege
o Judges tend not to exercise discretion, because an error of commission has such huge
implications.
o Applies civil in suits against the government and in suits against third parties involving gov’t
documents
 Ex: Suit against Lockheed for breach of contract
Constitutional Trump: In a criminal case gov't has Brady obligations to turn over exculpatory evidence.
o Gray mail – When an attorney threatens the government not to press a certain charge against a
client because the attorney will request sensitive documents under a plausible argument that
they are constitutionally required.
 Why the gov't is sometimes reluctant to prosecute in civilian courts.
VII. Expert Witnesses
i.
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Selection & Preparation of Expert Witnesses
An expert need not have any previous contact w/ a case
Expert witnesses may be compensated for testimony and time spent preparing to testify.
Rarely have to testify by compulsion.
o Unfriendly expert can hurt you more than help you
o Impossible to prep correctly
o There's always a substitute expert willing to get paid
o Exception: occurrence experts - those who happen to witness significant events in the course of
their professional rules
 Ex: emergency room doc who treated the plaintiff
Why retain an expert if they aren't testifying?
o Non-disclosable conclusion as to exactly what happened
o Helps lawyer understand background material
o Expert shopping; get experts until you find one who says what you want to say, and then use
them at trial
o Buying witnesses away from the other side & limiting their access
ii.
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Discovery & Expert Witnesses
FRCP 26(a)(2): requires extensive initial disclosure for expert witnesses who will testify at trial via
expert reports.
o Requires expert to set forth in a report everything they'll expect to address on direct
o Descriptions of all the exhibits relied upon
o List of all publications going back 10 years written by expert
o A list of all cases testified in previously
o A statement as to whether or not witness is being compensated for their testimony
 All stuff useful for depositions and cross-examinations
FRCP 26(b)(4)(a): A right to depose expert witnesses who will testify at trial.
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Experts who have been informally consulted but not retained are virtually undiscoverable secrets.
o Informally consult until you find an expert who says what you want them to say and who will be
personable in front of the jury.

Non-Testifying Witness Exemption - Experts and their opinions not to be used at trial are subject to
discovery only in exceptional circumstances
o May occur when the field is so limited that other experts are not available
o In-house expert findings may be discoverable if their work was a part of their ordinary duties,
but not if they were specially retained in anticipation of litigation
 An in-house expert may be specially employed even if not paid any extra, if they don't
usually assist in litigation
o Goals of the Non-Testifying Witness Exemption:
 A party should not be able to build its case on the diligent preparation of his adversary
 The purpose of disclosure / deposition of experts who are going to be used at trial is to
aid in preparation of effective cross-examination, which is not necessary if the expert is
not going to testify at trial
A party may change their determination of who will testify at trial
o Litigation is supposed to be flexible and responsive to development of facts
o Although it is rare and expensive to change an expert’s designation of “testifying” or “nontestifying” after formal discovery under FRCP 26(a)(2) and 26(b)(4)(a) has occurred
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iii.
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Decisions as to qualification are decided by the judge under FRE 104(a) conditional relevance
o Even though the court is supposed to make the finding of qualification itself, in practice courts
tend to apply a more lenient standard similar to FRE 104(b) such that there must be "evidence
sufficient to support a finding" of expertise.
Purposes of engaging in lengthy qualification process:
o Establish foundation for the judge under 104(a)
o Bolster the credibility of the witness in front of the jury
 Limitations on the use of character evidence generally do not apply to experts as long as
the evidence can be arguably related to professional qualifications
o Voir dire may be used to embarrass and discredit the witness in front of the jury
iv.

Qualification of Expert Witnesses
Admissibility of Expert Testimony
FRE 702 : If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
o the testimony is based upon sufficient facts or data,
o the testimony is the product of reliable principles and methods, and
o
the witness has applied the principles and methods reliably to the facts of the case.

Daubert v. Merrel Dow Pharmaceuticals – In order to decide admissibility under FRE 702, a judge must
decide two preliminary facts: whether the reasoning/methodology underlying the testimony is
scientifically valid and whether the reasoning/methodology can be applied to the facts at issue.
o Factors: (Non-exclusive list, and none is dispositive)
 Is the theory or technique testable? Has it been tested?
 Subject to peer review and publication?
 Is there and what is the known potential rate of error for the technique?
 Is it “generally” or “widely” accepted? (Incorporates the Frye test superseded by FRE)
o Some circuits have added a post-Daubert the factor of whether the expert is proposing to testify
on matters growing naturally from research they have conducted independent of litigation
 Based on the idea that the theory or methodology is less likely to be polluted by potential
results-based motive if not in anticipation of litigation
o The focus is supposed to be on the methodology, not the conclusion
 However, an absolutely absurd conclusion can indicate to a judge that the methodology
was not faithfully applied. – Advisory Committee Note to FRE 702

Kumho Tire v. Carmicahel – Daubert’s holding applies to “technical” and other specialized testimony, not
just scientific

GE v. Joiner - all decisions to admit or exclude scientific evidence on the preliminary question of its
reliability shall be reviewed for abuse of discretion.

FRE 703: Bases for Expert Opinion Evidence:
o Experts are not restricted to relying on their own perceptions or reasoning.
o Two types of second-hand information on which an expert may permissibly base an opinion:
 Generalized body of knowledge constituting the field
 Other people's observations of the event at issue

Hearsay and Expert Opinions:
o Expert witnesses operate under what amounts to a plenary exemption from the hearsay rule
 FRE 705: Contemplates that an expert might be asked to explain that upon which he
bases his opinion.
See also FRE 803(18): the contents of learned treatises are not hearsay
 FRE 703: facts or data upon which an expert's inference are based need not be
admissible for the inferences themselves to be admitted.
BUT facts or data which are otherwise inadmissible shall not be disclosed to the
jury unless their probative value in assisting the jury in evaluation of the expert's
opinion substantially outweighs prejudicial effect.
 There is a presumption against admissibility when offered on direct
 The purpose of this rule is to prevent people from using their
own expert witnesses to circumvent the hearsay rule.
 Where the facts or data relied upon come from a learned
treatise, they are not “otherwise inadmissible” because they are
covered by hearsay exception FRE 803(18) and therefore are not
subject to this balancing test.
 Where the facts relied upon are statements made for the
purpose of medical diagnosis or treatment, they are not

“otherwise inadmissible” because they are covered by hearsay
exception FRE 803(4) and are not subject to this balancing test.
Under FRE 705 this presumption against admissibility does not apply
when the facts relied upon are asked about on cross.

Ultimate Issue Rule - Prior to the federal rules of evidence, courts prevented experts from giving
testimony that would effectively resolve one of the "ultimate issues" (ex: “the exposure caused the
injury”) because this was seen as invading the province of the jury.
o Today, the ultimate issue rule has been rejected with the exception of FRE 704:
 Where mental state is an issue in a criminal case, an expert may not testify as to
whether or not the criminal had the requisite mental state
Can testify as to mental state in general
 Ex: “he's totally delusional”
May not testify in terms of the jurisdictions' test for insanity, for example
 Ex: “he is unable to tell the difference between right and wrong.”
o Although the ultimate issue rule does not apply in federal court, opinions which are couched in
legal terms will still be excluded for failing to assist the trier of fact or for being outside the
scope of expertise.
 Ex: "defendant should be liable"
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FRE 706: The court may appoint an expert.
o Rarely ever used.