Introduction to Evidence/Reasoning of Evidence Rules
Reasons for Limiting Evidence that makes it into the Jury:
1. Timeliness
2. To protect constitutional rights (privileges)
3. To protect certain communications
4. To achieve the right and truthful verdict
The rules of evidence presume that certain evidence would distract the jury from their search for
truth and would lead to the wrong result.
Three Sections of Evidence Rules:
1. Relevance
a. Want to focus the jury on issues at hand and not distract them from
facts/questions at issue
2. Reliability
a. Want to ensure the evidence the jury hears is true and accurate, or good.
3. Privileges
a. Exclude evidence that is reliant and reliable, in order to serve other societal
interests
***42 States have adopted the Federal Rules of Evidence
Evidence rules are important because:
 The justice system engages in very little quality control at the back end of the process (we
don’t really monitor what the jury does with the evidence-little juror testimony as we see
in Tanner, so important to regulate the quality of the evidence.
Juror Testimony
Tanner v. U.S.: petitioners (who have been convicted) want a post-trial hearing to present
evidence about juror misconduct.
 Issue: is juror testimony about juror intoxication admissible?
o Juror testimony about intoxication was inadmissible under 606(b) because its
“matter occurring during the course of the jury’s deliberations” and “effect of
anything on the mind of the jury” and should NOT fall within the “outside
influence exception.”
o Court looked to the intent behind version of 606 adopted. Congress adopted the
stricter, Senate version of 606(b)
Rule 606(b)- upon an inquiry into the validity of a verdict or indictment, a juror may NOT
testify about 1) any matter or statement occurring during the course of the jury’s deliberations or
2) to the effect of anything upon the deliberations or 3) any other juror’s mind or emotions as
influencing the juror.
BUT under 606(b) juror may testify about:
1. Whether extraneous prejudicial information was improperly brought to jury’s attention
2. Outside influence improperly brought to bear on jury
3. Whether there was a mistake in entering verdict on the verdict form.
Purpose of 606(b):
1. By being so protective of jury deliberations, want to enhance the finality of judgments
2. Protect jurors from harassment by lawyers
3. Enable jurors to deliberate without fear of oversight
4. Preserve the community trust in the legitimacy of juror verdicts
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I. RELEVANCE
Relevance really involves probativeness, materiality, and whether the probativeness outweighs
the possibility that the evidence would prejudice one of the parties or waste time or confuse the
jury (with 403, will exclude even relevant evidence if there is a strong risk of prejudice)
A. Probativeness and Materiality
Rule 401: Relevant Evidence- evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.
Two aspects of 401 relevance:
1. Materiality: evidence is material if it bears on a fact that is of consequence to the
determination
2. Probativeness: probative if it makes fact more or less likely
**Rule 401’s standard of Probativeness is very lenient. An aspect will be probative if it
contributes “just one brick to the wall of truth.”
Rule 402: All relevant evidence is admissible unless barred by statutory exception or otherwise
barred by the rules
Rule 403: Relevant evidence may be excluded if it poses problems that substantially outweigh the
probative value.
Relevant evidence may be excluded if its probative value is substantially outweighed by
danger of:
o Unfair prejudice
o Confusion of the issues
o Misleading the jury
o Considerations of undue delay, waste of time, needless presentation of
cumulative evidence
U.S. v. James: James is appealing a conviction of aiding manslaughter, she handed the gun to
her daughter (who killed James’ boyfriend). She is claiming she acted in self-defense and
wants to admit evidence of victim’s past violent crimes (even crimes she did not have
knowledge of at the time).
 Why the evidence of his convictions is relevant: the fact that he was convicted of these
violent crimes makes it more likely that he told her about them (as she said he did) and so
this corroborates her argument/story that she acted in fear of him and James’ argument
was built on the fact that she was afraid James would do something violent. exclusion of
this evidence was error and it was a prejudicial error.
o The fact that James had been convicted of these crimes made it more likely that
she was telling the truth when she said James had told her about committing
these violent crimes.
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B. Conditional Relevance
Rule 104(b): Relevancy conditioned on fact- when the relevancy of evidence depends upon the
fulfillment of a conditional fact, the court shall admit it only after there has been sufficient
evidence introduced to support a finding (by preponderance of the evidence) that the conditional
fact is fulfilled.
 EX: if evidence “XYZ” would only be relevant if A was true, you must first present
evidence sufficient to prove A before admitting XYZ evidence. BUT only have to prove
A (the conditional fact) by a preponderance of the evidence, which is the lowest standard
of proof.
Cox v. State: (applying 104(b) to Cox/Hammer/Leonard) Cox is appealing his conviction for
murder. Cox is accused of killing Leonard (motive-Cox’s best friend Hammer was accused of
molesting Leonard’s daughter). At trial, prosecution presented evidence that felony charges
were being brought against Hammer.
 Cox argues that evidence of charges were inadmissible because only relevant if Cox was
aware of the charges (this is a conditional fact)
o Applying 104(b): For this evidence to be relevant under 401, under 104(b) it
must be sufficient evidence to find by a preponderance of proof that Cox knew
about the charges against Hammer.
o The court said evidence that Cox was always at Hammer’s house, Hammer’s dad
and mom were at the hearing when charges were handed down (so surely they
would have gone home and talked about it) was sufficient to prove by a
preponderance of evidence that Cox knew.
Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of
Time-Relevant evidence may be excluded when Probativeness is substantially outweighed by:
 Risk of unfair prejudice
 Risk of confusion of the issue/misleading the jury
 Undue delay, waste of time, needless presentation of cumulative evidence.
Under 403, we talk about: photos, videotape, court animation, evidence of flight,
and probability evidence.
Standard of review for 403 balancing – will only overturn trial judge’s decision that evidence
passes 403 balancing if there is evidence of egregious error
State v. Bocharski:
 Issue: are gruesome photos of victim’s body admissible under 403’s balancing test?
**Photo rule: if photo is of a nature to invite passion or inflame the jury (such as dead baby
photos), the court must determine whether the danger of unfair prejudice substantially
outweighs the probative value of the photo. (under rule 403)
 In this case, photos were probative only of cause of death which was uncontested so the
risk of prejudice (inflaming the jury) likely substantively outweighs the minimal
probative value of the photo, so probably shouldn’t have been admitted under 403.
o But, there was no evidence that the jury was at all affected by the photo in their
deliberation/verdict, so the court let the conviction stand. (It was a harmless
error).
Tyco Videotape case:
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o
Defendant is accused of embezzlement. Prosecution admitted video to show
extravagant lifestyle of defendant. Judge would allow the video (evidence of
extravagant lifestyle was probative of the defendant having lots of money at his
disposal) but cut all racy scenes/images (ice statute of the David “peeing” vodka
and cake in the shape of woman’s body with sparklers protruding from her
breasts) because they added little probative value to the video as a whole and
carried the risk of unfair prejudice.
Commonwealth v. Serge: (CGA animation case)
 Prosecution wants to present CGA digital animation of the crime scene showing how
prosecution thinks the death occurred.
 Defendant claims this video is inflammatory and so shouldn’t be admitted under 403
 Rule: CGA should be admitted as demonstrable evidence IF:
o 1. It is a fair and accurate representation of the physical evidence it purports
to portray
o 2. It is relevant pursuant to 401 and 402, and
o 3. The probative value is NOT substantially outweighed by risk of unfair
presentation (403)

Court said the CGA was probative because it depicted the prosecutions theory of how the
events unfolded (as based on physical evidence) and is not prejudicial because it is no
different from the chalk drawings on the ground at crime scenes.
***CGA Limiting Instruction -- When CGA animation of the crime scene is admitted,
judge should give a limiting instruction that “demonstrative animation is only as good as the
underlying testimony, physical evidence, data, assumptions and opinions it is based on.”
[garbage in, garbage out]
**also when reviewing CGA evidence offered by the prosecution under 403 balancing, court
should consider whether giving the defendant the opportunity to present his own CGA video
will mitigate the prejudicial impact of the prosecution’s evidence (the monetary disparity
between the state and the defendant in obtaining a CGA is a relevant factor when considering
the prejudice to the defense)
US v. James revisited
 In his dissent Judge Kleinfeld said that, the fact that evidence of the prior convictions
was admissible (because it was probative/relevant) is not sufficient to make exclusion
of that evidence an abuse of trial judge’s discretion
o this judge thinks that the risk of unfair prejudice to the victim was great and
so the trial judge may exclude it under 403.
 Definition of unfair prejudice – an undue tendency to move the tribunal to decide
on an improper basis (usually an emotional one)
Evidence of Flight:
US v. Myers
 At issue in the case was whether Myers was the bank robber or not. Myers argued that the
lower court erred in instructing the jury about the proper use of evidence indicating that
he fled from FBI agents on two occasions after the robbery.
 The jury instruction basically said that intentional flight immediately after commission of
a crime is not enough to find a defendant guilty but it can be considered probative of guilt
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along with other evidence if the jury finds that it shows defendant had consciousness of
guilt
But the only evidence of flight cabe from testimony of FBI agent that was inconclusive
and seemed to be in conflict with other testimony. Also, Myers had committed another
bank robbery and so could have been fleeing the agents because of that – so flight is not
necessarily probative of guilt in this case.
Court reversed the conviction because there was not enough evidence to support the
inferences required to find evidence of flight probative of guilt – so jury shouldn’t have
been instructed on evidence of flight.
 evidence of flight as evidence of guilt is generally admissible but should be carefully
weighed under 403
 Rule from U.S. v. Meyers: flight’s probative value as circumstantial evidence of
guilt depends on FOUR inferences:
o 1. Inference from the defendant’s behavior to flight
o 2. Form flight to consciousness of guilt
o 3. From consciousness of guilt to consciousness of guilt concerning
particular crime that they are charged of
o 4. From consciousness of guilt concerning the crime to actual guilt of crime
charged
 because of the inherent unreliability of evidence of flight, and the danger of
prejudice its use may entail, a flight instruction (telling the jury to consider the
evidence of flight as probative of guilty) is improper unless the evidence is
sufficient to furnish reasonable support for all 4 of the necessary inferences
C. Probability Evidence (as weighed under 403)
People v. Collins: robbery case, witness saw a woman with blonde ponytail and a black man
with a mustache fleeing in a yellow car.
 Prosecution wants to admit mathematical probability evidence that it’s a 1 in 12
million chance that there would be 2 such couples in the area maintaining that
description.
 This particular probability evidence caused 2 prejudicial errors:
o 1. Lacked adequate foundation (made up the statistical figures on which he
applied the product rule – prosecution had the expert witness ASSUME
probability factors for all the different charactersistics he pointed out)
o 2. The evidence distracted the jury from proper, critical weighing of actual
evidence.
 Court worried about mathematics as “some land of sorcery that might cast a spell
over the jury”…distract the jury.
 Must be cautious about admitting probability evidence.
Sneed Rule: Mathematical odds are NOT admissible as evidence to identify defendant in a
criminal case so long as the odds are based on estimates, the validity of which has not been
demonstrated.
D. Effect of Stipulation and 404(b)
U.S. v. Jackson: Defendant is accused of robbing a bank at gunpoint in NY. The police
picked him up in GA where he was using a fake name and was arrested for possession of
guns. Prosecution wants to offer evidence about this latter arrest to prove flight.
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D argues this evidence of other wrongs/crimes is prejudicial. (because their offer of proof
of flight entails the risk that unrelated crimes will be brought to the attention of the jury)
404(b) excludes evidence of other acts if offered to show D’s propensity to commit
crimes.
o But prosecution argues evidence that he was in another state using a fake name is
flight evidence probative of guilt
Effect of Stipulation: Court said that evidence relating to D’s arrest in GA will be
inadmissible IF D will stipulate that he was in GA shortly after the robbery.
o Stipulation removes the risk that D will be seen by jury as a national crime figure
but will afford the jury a concrete basis that D left NY to escape the capture for
bank robbery
Old Chief v. U.S: (another stipulation case)
 D is accused of possession of a firearm by a felon. He didn’t want the jury to hear the
specifics of the felony he had been convicted of.
 The D offers to stipulate that he’d been convicted of a crime with a sentence of more than
1 year, but prosecution wants the full evidence that the D was convicted of assault
causing serious bodily injury
o Under 404(b), evidence of act/wrong/crime is NOT admissible to show
propensity and action in confirming therewith but this probably falls under “other
purposes”to prove that he was a felon, which is an element of the crime
charged.
 Court said Judge should have ruled for the stipulation in this case
because the prejudice outweighed probativness of the evidence offered
by prosecution
 Rule: a judge applying Rule 403 could reasonably apply some discount
to the probative value of evidence when there is less risky (prejudicial)
proof that goes to the same point at issue.
 (“if an alternative were found to have SUBSTANTITALLY the
same or greater probative value but a lower danger of unfair
prejudice, sound judicial discretion would discount the value of
the item first offered and exclude it if its discounted probative
value were substantially outweighed by unfairly prejudicial
risk”)
 BUT courts will likely find that the evidence survives 403 balancing
even though there is a less risky stipulation if that evidence helps to
present a coherent narrative of what happened (and because the
prosecution has the right to present the case they want to, we don’t want
defendants to be able to stipulate their way out of the full evidentiary
weight of the case against him)
Specialized evidence rules (Committee decided these fail 403 balancing test)
o 407-remedial measures
o 408-compromises and statements/conduct during negotiations
o 409-offer to pay medical expenses
o 410-guilty pleas/statements made regarding pleas
o 411-evidence of liability insurance or lack of liability insurance
Rule 407: bars evidence of subsequent remedial measures to prove:
 Negligence
 Culpable conduct
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 Product defect
 Need for warning or instruction
BUT evidence of remedial measures may be admitted to prove other things (for
other purposes) such as:
 Ownership
 Control
 Feasibility (if controverted)
 To impeach testimony
Purposes/reasoning of 407: we want to encourage remedial measures, and
because evidence that a remedial measure was subsequently taken does not
necessarily mean they were negligent before. Authors of Rule 407 are saying
probativeness is outweighed by prejudice.
Truer v. McDonald: (malpractice) Plaintiff died because Heparin (a drug) was
stopped before surgery (regular practice at the time).
 P wants to admit evidence that, after death occurred, hospital changed its
policy, now they don’t take patient of of Heparin until they are in the
operation room.
 Dr. had testified that it would have been unsafe to readminister Heparin so
close to time of operation.
 Could admit evidence of substantial remedial measure (change Heparin
policy)
o Court said his testimony was that readminstering was not advisable,
not that it was unsafe, so not admissible to impeach him
o Feasibility was not called in to question so not admissible by that
purpose
o Should NOT admit evidence of change in protocol under rule 407.
Rule 408: bars evidence of compromise/attempts to compromise all statements or
conduct that occurs during negotiations to prove liability. BUT will admit evidence of
compromise to prove other things like witness bias, lack of undue delay, obstruction of
criminal investigation
Purpose of Rule 408: to encourage compromise (no one would be willing to
negotiate if feared it could be used against them) AND compromise isn’t
necessarily probative of guilt/liabilitymight be motivated by a desire for peace
rather than a place of weakness
Bank Card Case: suit for breach of contract between bank and independent seller
organization who signs up merchants on behalf of the bank.
 Does 408 bar evidence that D thought it had reached a settlement that
allowed it to convert the accounts before the 1 year ban had expired (so
evidence of settlement was offered to prove that D didn’t thin ti was
breaching the K)
 Rule 408 bars evidence of compromise/settlement to prove liability BUT
doesn’t bar evidence of compromise for other purposes
 Court allowed in the evidence to explain why universal had rolled over
the accounts (not to prove liability)
 7th circuit said that it would be an abuse of Rule 408 to let Bankcard lull
Universal into breaching the K (because thought the had a settlement)
and then prevent Universal from explaining its actions just because the
lulling took place during settlement
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o
court is obviously weighing interests: need for Universal to
explain it though a settlement had been reached outweighed any
potential for discouraging future settlements (purpose of 408 is
to encourage future settlements)
Ramada Development v. Rauch: K to build hotel, was substantially completed
but D refused to pay the balance. The district court excluded evidence of report
showing defects in the construction under Rule 408 because report was created to
be the basis of a settlement that fell through.
 Allowing the report to be admitted would go against the spirit of rule 408
because it would chill settlements if any report created for purpose of
settlement could be used against them; it wouldn’t have the report done.
Rule 409: exclusion of offers to pay for medical expenses. BUT it doesn’t say anything
about statements made in the course of talking about offers to pay expenses.
 EX: “I’m sorry I ran the red light. Let me take care of your bills.” 408
does NOT bar the first sentence
 Reasoning of 409: offers to pay medical expenses usually spur form
humane impulses. AND because admitting evidence of these offers
would tend to discourage assistance.
Rule 411: excludes evidence of liability coverage to prove party acted negligently or
wrongfully, BUT can offer evidence of insurance for other purposes (such as proof of
prejudice of witness)
 Reasoning of 411: having insurance is in no way probative of negligence or
wrongdoing. Don’t want the jury to lay the loss on the party with deeper insured
pockets.
Williams v. McCoy: P wants to admit evidence of liability insurance to explain
why she got a lawyer after her accident before she even went to the doctor.
The liability insurance claims adjuster came to visit her in the hospital and made
her concerned. The court said it is not barred by Rule 411.
o Rule: in reviewing whether to admit/ exclude evidence under 411, should
consider the 403 balancing test.
Rule 410: evidence of the following is NOT admissible against the defendant in any civil
or criminal proceeding:
 Plea of guilty later withdrawn
 Plea of nolo contender
 Any statement made in the course of rule 11 of criminal proceedings regarding
pleas.
 Any statements made in the course of plea that doesn’t result in plea or a plea
that is withdrawn.
Reasoning of 410: even though a P is not guilty, might offer a plea to avoid risk of loss of
trial and an even greater penalty (we want to promote plea bargaining)
U.S. v. Biaggi: D rejected the offer of immunity negotiation and wants to admit
as evidence of innocence.
 Court said this should be admitted under 403 because rejection of an
immunity offer is actually probative of an innocent state of mind (at least
more so than rejection of reduced sentence/charge offer)
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E. Character Evidence and the Character propensity rule
Rule 404: Character Propensity Rule-basically everything is excluded except that which is
specifically permitted.
Under 404(a), evidence of a persons character is NOT admissible to prove action
was in conformity therewith. EXCEPT
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Permits criminal defendant’s to offer evidence of pertinent character traits
about D and the prosecution can offer evidence of D’s character trait to
rebut (if D opens the door)
If D presents evidence of a certain character trait of the victim, prosecution
can present evidence that D (the accused) possesses that same character trait
Permits D in criminal trial to offer evidence of victim/accuser’s character
trait (and prosecution as well if D opens the door)
o EX: D may claim he acted in self defense and offer evidence
of victim’s violent character. Prosecution may, in rebuttal,
offer evidence that victim is a peaceful person.
And Prosecution can present evience of victim’s character trait for
peacefulness if D claims victim was first aggresor
People v. Zackowitz:
 D was accused of killing a guy who made insults at his wife. The D admits to
shooting the guy.
 Issue: the degree of murder he should be convicted of (was it premeditated?)
At the time the shooting occurred D had in his apartment 3 pistols and a tear
gas gun (guns weren’t with him at the scene of the crime).
o Prosecution entered these 3 guns into evidence.
 Did court err in allowing this?
o Court acknowledge that the only reason for offering
evidence of these 3 guns was to portray D as a man of
murderous dispositionman with type of character that he
premeditated sucha shooting and so was not acting out of
impulse here.
 Rule: (common law before FRE) character is NEVER an issue in a
criminal prosecution UNLESS the defendant chooses to make it one.
o Reasoning for character evidence bar: courts worry that
evidence of past crimes or character will cause the jury to
pin blame on D without looking at the facts of the case, that
the jury might convict him just because he’s a bad person.
 This case would have been different if the pistols had been brought in
expectation of D’s encounter with the other guy because it would have
been admissible as evidence of preparation and design.
Rule 404(b): evidence of other crimes, wrongs, acts is not admissible to prove the character of a
person in order to show actor in conformity therewith, BUT MAY be admissible for “other
purposes”
 Other purposes:
o Proof of:
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 Motive
 Intent
 Plan
 Preparation
 Knowledge
 Identity
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Reasoning for character propensity rule: admission of evidence of past
wrongs/character may cause unfair prejudice again in 3 forms:
o 1. Risk that jury will give excessive weight to the record of crime and take it to
mean that D committed the crime of which he is accused
o 2. Risk that jury might take proof of character as justifying condemnation
irrespective of guilt
 convict him because he’s a bad person even if they don’t necessarily
think he committed this particular crime
o 3. Evidence about specific acts offered to prove character might confuse/distract
the jury
Rule 404 reflects the judgment of the actors that as a matter of law, the probative value of
propensity evidence is substantially outweighed by the risk it poses of unfair
prejudice/juror confusion/waste of time (or as a matter of law, character propensity
evidence fails the 403 balancing test)
Chain of inferences:
o Character propensity evidence requires too many inferences to be probative of
guilt:
 Character propensity chain of inferences=
 1. Admit evidence of wrongs/acts
 2. Infer that these acts prove a certain character
 3. Infer from character that D acted in accordance with it in this
particular situation and so is guilty
o Can get around the Propensity Box if evidence is probative of something other
than D’s character trait, BUT evidence offered for “other purposes” will still be
subject to 403 balancing test.
 You can use limiting jury instructionjudge instructs jury that evidence
should be considered only to prove whatever the specific purpose is,
identify or notice
Specific routes around the Propensity Box (the “other purposes”)
o 1. Proof of knowledge
 ( EX: evidence of prior hacking charge in order to show the D had
knowledge of how to hack)
o 2. Proof of motive
 (EX: evidence of warrant for D’s arrest to show he had motive to kill FBI
agent)
o 3. Proof of identity
 (EX: evidence of lottery tickets and drugs and D’s prior regard of illegal
gambling to show the drugs belonged to him.
o 4. Proof of modus operandi to prove identity
o 5. Proof of negative integrity
o 6. Proof of absence of accident
 (EX: proof D had killed his first wife when gun accidentally discharged
it while cleaning and to show unlikelihood that such and accident would
happen a second time)
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o
7. Doctrine of chances
1. Modus Operandi
 Used to prove guilt when identity of perpetrator is at issue (when its disputed that
D is the person who committed the crime)
o Show that the crime matches D’s modus operandi
 For modus operandi purpose to apply, crimes must match in such
idiosyncratic ways that it could not have been committed by
anyone else but this defendant. (its not enough to say that this is
the type of crime a D would commit, must be so strong you
would say this is they type of crime ONLY this D could have
committed.
 Idiosyncratic ways: similarities must be so distinctive
that the inference that no one else would have committed
this crime outweighs the possibility of propensity
reasoning
U.S. v. Trenkler: D accused of making bomb that exploded at a friend’s house.
D’s identity as the guilty party is at issue.
 Prosecutor wants to admit evidence that D had created a similar bomb as
proof of identity. Prosecutor claims that the modus operandi compelled
the conclusion that the D made both bombs.
 D claims that the incidents were not sufficiently similar to make
evidence about the first bomb probatie of identity
 In this case, court said acts were similar enough to be probative of
identity (special relevance) and prejudice did NOT outweigh probability.
o Most judges come down on the side of admitting evidence of
modus operandi to prove identity
 Two-Part test for determining admissibility of evidence under Rule
404(b):
 1. Must determine whether evidence has some special relevance other
than showing criminal propensity
 2. If there is special relevance (its probative for some “other purpose”)
then you must do a 403 balance to determine if the probative evidence is
not substantially outweighed by danger of unfair prejudice.
Modus Operandi Rule: 404(b) evidence of other acts/wrongs, to be admitted to
prove identity there must be a high degree of similarity between the other act and
the charged crime
 High degree of similarity: “commonality of distinguishing features
sufficient to earmark them as the handiwork of the same individual.”
o When examining similarity, you must consider all the evidence.
o
2. to show narrative integrity-- Theory behind offering evidence to show “narrative
integrity” (or lack thereof) (aka res gestaethe whole thing)
 Idea is that evidence is probative to “flesh the story out” and to give a
complete picture of what happened…to show that testimony is likely true and
not false.
o Testimony/evidence giving details of the incident etc. is probative
because testimony as more credibility if it’s fleshed out.
3. Doctrine of Chances
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Doctrine of Chances: the belief that multiple misfortunes, if similar enough and
rare enough, suggest guilt because of the unlikelihood of such innocent
coincidence.
Rex v. Smith: guy accused of killing his wife, he claims she had a fit (seizure) in
the bathtub and died…this is how his first two wives died and in all three
situations he had just taken out insurance policies on them.
o The doctrine of chances focused on the sheer impossibility that his 3
wives could all die in the bathtub without foul play.
Different views on the doctrine of chances: some scholars say it differs form
propensity evidence because it focuses on whether the incidents are so
objectively improbable (regardless of who D is) that too many unhappy accidents
would happen to 1 person. But others say it requires you to conclude they are
guilty because an innocent person couldn’t appear guilty so many times.
HUDDLESTON STANDARD
Huddleston v. US: D is charged with the sale of stolen videocassette tapes in
1995. Evidence that he possessed other illegal appliances (TVs) to show that he
knew the tapes were stolen (so for “other purpose” of proving knowledge)
o Prosecution wants to offer evidence that he possessed other stolen
property.
o D claims this is not admissible because theres not sufficient proof
that the TVs were actually stolen
o Court in this case said you only have to find that evidence is
sufficient so that jury would be warranted in concluding the TVs
were stolen.
 Huddleston Standard: for evidence of other acts/wrongs to be admissible under
“other purposes in 404(b), must be sufficient evidence to support a finding by the
jury that the defendant committed the similar/prior act/wrong
 4 safeguards of evidence offered under 404(b):
 the requirement of 404(b) that the evidence be offered for a proper
purpose (“other purpose”)
 relevancy requirement of rule 402
 403 balancing (must find that danger of unfair prejudice does not
substantially outweigh Probativeness)
 D can request/judge may give a limiting instruction to prevent the jury
from looking at evidence or character propensity
ALLOWING CHARACTER PROPENSITY EVIDENCE IN SEXUAL
ASSAILT/CHILD MOLESTATION CASES
Exceptions to character Propensity Rule allowing prosecution to admit
evidence of prior acts of sexual assault/child molestation (to prove guilt in cases
where the D is charged with that crime or in a civil case:
 413: other acts of sexual assault will be admissible in any matter to
which it is relevant in criminal cases for sexual assault
 414: other acts of child molestation will be admissible if relevant in
criminal case for child molestation
o Enacted as part of Violent Crime Control and Law Enforcement
Act in 1994: can admit evidence of other acts of assault
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molestation to prove D’s propensity to commit sexual
assault/child molestation
 415: applies 413/414 to civil cases
***In ALL of thses, still have to weigh under 403!!!
Lannon v. State: Wisconsin Supreme Court case. Prosecutor introduced evidence
of prior molestation of different child victims under “depraved sexual instinct
exception” and states rule barring bad act evidence.
 Reasoning for depraved sexual instinct exception:
o 1. Recidivism rationale: assumption that sexual offenders repeat
their crimes more often than other kinds of criminals
o 2. Evidence of prior similar acts by D is often needed to bolster
testimony of victims (lend credibility to accusations)
 State v. Robbins: molestor’s charge was a credibility
conflict between a child and a pillar of the community.
Introduced testimony of other child victims.
o 3. Public Policy Justification: protection of children
 In Lannon, the Wisconsin court said the justifications weren’t enough to
justify the open-ended depraved instinct exception. (could still admit
evidence for purposes other than propensity under 404(b)
State v. Kirsh: New Hampshire state court. D accused of molesting 3 young girls.
3 other young women testified that he sexually abused them too. Testimony
admitted under 404(b) to prove motive and common plan
 To prove evidence is probative of common plan/scheme (for the purpose
of 404(b), other bad acts must be consistent with parts of overall
plan/scheme (its not enough to show tha D had a similar plan each time)
 In this case, court ruled that the evidence was really introduced to show
D had propensity for child molestation so the evidence should not have
been admitted under 404(b).
Submitting prior acts of domestic abuse as proof of overall plan/scheme
under 404b in a murder trial
 Overall scheme in domestic violence cases: data shows that, in domestic
violence, each individual act of abuse forms a blue print of control (so
can argue that abusers murder of the victim is the final act of control in
the murder
US v. Guardia: gynecologist charged with sexual assault while doing exams.
Prosecution wants to admit testimony of 4 other women that claim gynecologist
assaulted them under 413.
 Evidence offered under 413 must meet 3 threshold requirements:
o 1. Must find that D is accused of sexual assault
o Must find that evidence is evidence of past acts of sexual assault
o Must be relevant under 401 (any tendency to make any fact of
consequence more/less probable)
 Evidence offered under 413 will be subject to 403 balancing.
o 413 contains NO language that suggests a lenient application of
403.
o So 413 evidence will be subject ot the same degree of as all other
evidence
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
Court in Guardia found that evidence failed 403 test because so much
depended on what was medically appropriate: to admit testimony of the
other 4 women would basically have to have 4 mini-trials and that
creates a large risk that will confuse the jury and waste time.
U.S. v. Meachum: evidence offered under 414 (child molestation) is subject to
403 balancing test
U.S. v. Mound: government offered evidence of prior acts of sexual assault. D
claimed that rule 413 (prior cts of sexual assault admissible in criminal trial for
sexual assault) violates his due process rights
 Court said 413 is constitutional. Just because the rule that propensity
evidence is inadmissible is old does not necessarily mean its aligned with
the Constitution.
o BUT: Justice Arnold dissented, said 413 goes against the
centuries old tradition of viewing propensity evidence with a
skeptical eye.
Rule 404(a) when you CAN INTRODUCE CHARACTER EVIDENCE:
1. Permits criminal defendant’s to offer evidence of pertinent character
traits about D and the prosecution can offer evidence of D’s character
trait to rebut (if D opens the door) (if D offers evidence that victim
possesses certain character trait, prosecution can offer evidence that D
possesses the same trait (amendment passed in
2. Permits D in criminal trial to offer evidence of victim/accuser’s character
trait (and prosecution as well if D opens the door)
a. EX: D may claim he acted in self defense and offer evidence of
victim’s violent character. Prosecution may, in rebuttal, offer
evidence that victim is a peaceful person.
3. And Prosecution can present evience of victim’s character trait for
peacefulness if D claims victim was first aggresor
Michelson v. US: D charged with bribing a federal revenue agent. He called 5
witnesses to prove that he had a good reputation (under 404(a)(1))
 On cross examination of the character witnesses, prosecution asked
witness if she knew aobut D’s prior convictionsupposedly to test how
well she kewn the D’s reputation
 Rule: character evidence offered under 404(a)(1) and (2) is controlled
by 405(a) permits character testimony only in the form of evidence
of opinion (about D) or reputation (D’s reputation)
o CANNOT prove character (under 404(a)(1) and (2)) through
evidence of specific acts
 BUT, rule 405 permits inquiry into relevant specific acts on cross
examination of character witness only to test the character witness’s
knowledge of the D’s reputation or his familiarity with the D.
o This only works if the D opens the door by offering witness to
testify as to his reputation/witness’s opinion about the D’s
character
 REMEMBER: under 404(a)(1) and (2) only CRIMINAL
Ds are able to bring up the issue of character
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

Under 2000 amendment to 404(a)(1)if D offers
evidence of particular character trait of victim,
prosecution may offer evidence tht D possess the same
trait (even if D doesn’t offer evidence about his own
character)
Reasoning for allowing only criminal Ds to operate matter of character
evidence:
o Character evidence is never very probative and criminal Ds have
lowest burden of proof.
 Only have to present testimony that raises a reasonable
doubt of guilt.
Rule 405(b): in cases where character or character trait is of essential element of the
charge or defense or claim, may offer specific instances to prove existence of
character trait.
 Examples of when Character trait is an “essential element” of charge or
defense:
1. Rebutting an entrapment defense: if D claims government induced
him to commit crime he would not have committed normally.
Prosecution can rebut this claim by showing D was predisposed to
commit this crime.
2. When rebutting a defense of truth in slander case: plaintiff can argue
that D is a liar
3. Resolving a parental custody dispute
Specific act offered to prove character traitjust to prove existence of trait, not to prove
D acted in conformity with that trait
Rule 406: Habit-evidence of the habit of a person (or an organization) is relevant to
prove the conduct of the person on a particular occasion was in conformity with that
person.
 Habit is when you encounter some stimulus and your response is always the
same.
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IMPEACHMENT
Impeachment of Witness
1. Non-character impeachment: can impeach witness by showing he is lying by:
a. Contradiction by conflicting evidence
b. Contradiction by witness’s past inconsistent statement (613)
c. Evidence of bias
i. Bias: when witness has a self-interest in preferring one outcome
over another
2. Character-based impeachment of witness
a. 607: either party may attack a witness’s credibility
b. 608(a): either party may offer evidence of witness’s character for
untruthfulness and then the other side can rebut with evidence of witness
possessing character trait that he is truthful. But:
i. Evidence may refer only to character of
truthfulness/untruthfulness
ii. Admissible only after character of truthfulness has been attacked
3. 608(b): on cross-examination party may ask witness about specific instances of
conduct to support or attack character for truthfulness
4. 609: past convictions to impeacheither party may seek to impeach witness by
showing her past conviction of a sufficiently serious (punishable by death or
imprisonment over 1 year) or deceptive crime (elements of crime required
proof/admission of an act of dishonesty or false statement)
U.S. v. Whitmore: (page 250) convicted of firearm charges, claims court erred in not
allowing him to impeach credibility of witness, the arresting officer testified that, as
D was fleeing he held right side of his jacket like he had a gun and they found a gun
in the stairwell where he ran.
 D claims the officer fabricated the story and planted the gun in the stairwell
 Wanted to call 3 different witnesses to testify under 608 as to their opinion or
knowledge of the officers’ character of untruthfulness
o Also wanted to cross-examine witness about specific act of
untruthfulness under 608(b)his license suspended but he didn’t inform
the force. This was admissible because he had reasonable basis to ask
about that specific instance (driving record supported the belief that
officer had suspended license.)
Rules about 608(a): for reputation and memory to be admissible under 608(a),
character witness must be qualified by having acquaintance with the witness, his
community and the circles in which he moves
 But foundational requirement when offering opinion evidence regarding
witness’s character for truthfulness under 608(a) is less stringent
o BUT an opinion of character may be excluded if it amounts to no
more than a conclusory observation
***can ONLY present opinion/reputation evidence about witness and character for
truthfulness being good AFTER character for truthfulness has been attacked.
Rule 608b rules:
16

LIMITS to 608(b):
o To get in question about specific acts of untruthfulness to impeach
witness under 608(b), these instances must be:
 1. Probative of truthfulness
 2. Proven without extrinsic evidenceif witness denies specific
instance, counsel can’t introduce any outside evidence to prove
instance occurred.
 3. Must survive 403 balance
 4. Lawyer must have reason/good faith belief that the specific act
occurred (must know/present facts that support belief that the act
was actually committed)
 5. Judge exercise reasonable control to protect witness from
harassment/undue embarrassment
Rule 609: impeaching credibility of witness by evidence of prior convictions
(a)(1): evidence that witness (other than the accused) has committed a crime will be
admitted (subject to rule 403, if the crime was punishable by death or imprisonment for
more than 1 year.
 Evidence that an accused (when testifying as a witness) has been convicted of
such a crime if probative value outweighs prejudicial effect (609 balancing)
(a)(2): evidence that one’s witness has been convicted of a crime, no matter the
punishment if it can readily be determined that the elements of that crime required an
admission of an act of dishonesty/false statements.
 Example of an act of dishonesty: tampering with a meter
 (B) Time limit: not admissible if more than 10 years since conviction or release
of witness from imprisonment for that conviction (whichever is later) UNLESS,
in the interest of justice, court determines probative value of the conviction
substantially outweighs prejudicial effect (but must give notice)
 BUT (C) Will not be admissible if
o (1) conviction had been pardoned, annulled, certificate of rehabilitation
or equivalent procedure based on finidng of rehabilitation and person has
not been convicted of subsequent crime or
o (2) conviction has been pardoned, annulled, etc based on finding of
innocence.
 (D) Juvenile convictions not admissible except, in criminal case, will allow
evidence of juvenile conviction of witness (often the accused) if conviction of
such offense could be admissible to attack credibility of adult AND evidence of
conviction is necessary for fair determination of issue of guilt or innocence
U.S. v. Brewer:
 Issue: when does the 10 year time limit of 609(b) start running?
o Court said 10 years from conviction or release date, whichever is
later, and that includes the release date for the second confinement
for that charge (so 10 years started running on day witness was
relased from prison the second time, after being put back in because
he violated parole)
 When weighing 609(a) conviction evidence of accused to see that
probative value outweighs prejudicial value, look at FIVE factors
established by Justice Berger in Gordon case:
1. Notice of the crime
2. Time of the conviction and witness’s subsequent history
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

3. Similarity between past crime and the charged crime
4. Importance of accused’s testimony
5. Centrality of the credibility issue
Acts of violence 609in Gordon, Justice Berger said acts of violence are
generally not probative under 609 (impeaching witness’s credibility by prior
conviction) because have little bearing on honesty and veracity
Convictions for the same type of crime charged (against accused) should be
admitted sparingly because high risk of prejudice. Risk that jurors will think
“if he did it before he probably did it this time.”
Luce v. US: at trial the defendant refused to testify because he was told that, if he
testified, the opposing counsel could ask him about his prior convictions on
cross-examination because he made this decision, the weighing of
probative/prejudice value of 609(a) evidence of priors is not appealable
Oher v. US: supreme court case. Rule: If D voluntarily offered evidence of past
conviction herself , then she wiaved any right to complain about admission of
that prior conviction evidence later.
F. Rehabilitation of Witness’s character/credibility
Rule 608(a)(2): can submit evidence in support of witness’s character for truthfulness only
AFTER credibility/truthfulness has been attacked by:
 Opinion/reputation testimony by another witness [608(a)]
 Questions about specific acts that are probative of untruthfulness (asked on cross608(b)
 609 evidence of prior convictions
 Submitting evidence that contradicts what witness has already testified to at trial by
impeach credibility
According to committee notes to 608(a), evidence of bias does NOT constitute attacking
witness’s character for truthfulness and so does not open door to rehabilitation
 BUT in US v. Bonner, court ruled that credibility had been attacked when witness was
asked if she was receiving VA benefits (suggesting a bias towards a finding for the VA)
Rules about Extrinsic Evidence and Character/Creidbilty (These SPECIFIC acts are
COLLATERAL issues)
1. Extrinsic evidence to prove specific act of untruthfulnessif you ask about witness’s
specific act of untruthfulness on cross and witness denies it, you CANNOT present
extrinsic evidence of the act. BUT can offer extrinsic evidence to prove bias because
bias is not governed by 608
2. When asking a character witness about a specific act committed by D under 405(a) to
test the character witness’s familiarity with the witness, cannot present extrinsic
evidence to prove the specific act
3. Extrinsic evidence bars don’t apply to prior conviction evidence that comes in under
609
U.S. v. Abel: evidence tending to show a witness’s bias, prejudice, and motive to lie is so
significant that its not considered a collateral mater and so may be established by extrinsic
evidence
Hitchcock Common Law Rule (no longer the rule): old rule that a litigant could offer
evidence on a particular subject to contradict a witness if subject had such connection
18
with the issue in dispute that it would be admitted into evidence independent of its value
to impeach the witness
o Now, when you want to impeach witness with non-character evidence (prior
contradiction, conflicting evidence, evidence of bias) it will be balanced/weighed
under 403 (will weigh the probativeness for impeachment against risk of
prejudice)
II. Rape Shield Law
Rule 412:
 (a) Generally evidence to prove victim engaged in other sexual behavior and evidence to
prove victim’s sexual predisposition is NOT admissible
o will NOT ADMIT:
 (1) evidence offered to prove that any alleged victim engaged in other
sexual behavior
 (2) evidence offered to prove any alleged victim’s sexual predisposition
 (b) EXCEPT: in criminal case
o (1)(A) can offer evidence of specific instances of sexual behavior by victim to
prove that some person other than the accused was the source of physical
evidence in the case (semen, other physical evidence)
o (1)(B) evidence of sex between victim and accused to prove consent (or for any
purpose if offered by the prosecution)
o (1)(C) evidence the exclusion of which would violate the D’s constitutional
rights
 (2) in a civil case, evidence to prove sexual behaviour or predisposition of victim is
admissible if probative value substantially outweighs risk of prejudice and victim
 evidence about victim’s reputation is admissible only if first placed in
controversy by the victim
Common Law on Rape Sheild before FRE:
People v. Abbot:
 issue: is evidence of victim’s prior prostitution admissible?
o In Rex v. Clark, court held that not permitted to inquire into
victim’s connection with other men
o BUT court in People v. Abbot said you may prove victim is a
common prostitute
Rex v. Aspin Hall/Rex v. Martin
 Can show that prosecutrix (victim) has had previous voluntary
connection with the accused.
State v. Sibley: could impeach both men and women witnesses by testifying tht
their character for chastity and virtue is bad.
Sherry Colb articlethe inclination of a woman to say yes to sex (sexual
propensity evidence about victim) has very little reliance in a rape prosecution
because the fact that the victim has accused someone of rape overwhelms any
relevance of sexual propensity
 It is more likely that a slutty woman would falsely accuse someone of
rape than a virgin
Harriet v. Galvin: thinks the rape shield rule goes too far, that evidence of
victim’s sexual history should be treated under 404(b)inadmissible to prove
sexual propensity but admissible for other purposes subject to 403 balancing test
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PAST FALSE ALLEGATIONS OF RAPE/SEXUAL ASSAULT
State v. Smith: (past false accusations)
 Rule/Holding: evidence of prior false allegations of sexual assault made
by victim are NOT barred by rape shield law.
o Similar to State v. Allen where court ruled that a defendant
could present evidence regarding prior false allegations of
sexual molestation made by victim (if court determines there are
such false allegations) b/c evidence of false allegations is NOT
evidence about sexual behavior, its impeachment evidence
offered to attack victim’s credibility.
 But evidence of prior false allegations will be subject to 403 and 404
 In State v. Allen on remand, court applied the Huddleston
Standardonly have to present enough evidence so that a reasonable
jury might conclude from preponderance of the evidence that these
allegations occurred and were false (this is a LOWEr threshold than
having to prove the prior false allegations by a preponderance of the
evidence
Unless admissible under 404(b)(2) “other purposes”, courts will NOT allow
evidence of mode of victim’s or accused’s speech or lifestyle.
 BUT can use eidnece of past sexual behavior to prove “other purposes”
under 404(b)
o To prove bias, Olden v. Kentuckynot allowing D to present
evidence of victim’s extramarital affairs with a witness to
victim’s motive as a witness violates CL.
 Also, Olden said could present this evidence to prove
bias of witness
OFFERING EVIDENCE OF PAST SEXUAL RELATIONSHIP TO PROVE
BIAS
Olden v. Kentucky
 Russel (a witness) testified that the victim told him (when he saw her getting
out of the accused’s car) that she had been raped by the accused. Russel and
the victim were having an extramarital affair
o Defense wanted to admit evidence of that extramariatal affair to
impeach the victim’s tetstimony accusing D of raping her. (basically
the prosecution’s strongest case was the victim’s testimony and the
only corroboration was the testimony of Russel – victim had motive
to lie to Russel in telling him that she was raped (because she doesn’t
want him to be mad at her, they were having an affair remember)
o Overturned the lower court’s decision not to allow him to cross
examine victim about her extramarital affair/living situation to show
bias/motive to fabricate
 Said his confrontation clause right to reasonable crossexamination should have allowed him to ask about this (to
show bias)
Davis v. Alaskaconfrontation clause guarantees criminal D the right to crossexamine a witness to show bias (about sexual history)
20
Stephens v. Miller: D in rape case wants to admit evidence that while having
consensual sex and accuser said “switching partners” and then said you like it
like this because this testimony is admissible as res gestae to flesh out the whole
narrative
 Res gestae: evidence of happenings near in time and place which
completes the story of a crime…BUT not part of federal rules of
evidence!!
 These statements do not fit under exception 412 and are evidence of past
sexual history. Not admissible.
III. Competency of Witness
601: every person is competent to be a witness except as otherwise provided in the rules
602: personal knowledge: a lay witness may not testify to a matter unless introduce sufficient
evidence to support a finding that witness has personal knowledge of the matter.
 Evidence of personal knowledge can be in the form of a witness’s own testimony.
 602 personal knowledge rule does NOT apply to testimony by expert witnesses
introduced under 703
603: requires all witnesses to swear/affirm to tell the truth
Competency of Children Witness
 Some states used to have an age limitchildren under the age of 5 are incompetent to
testify but that has mostly been done away with
Factors of whether a child is competent:
1. Whether child understands the difference between truth and falsehood and the obligation
to tell the truth
2. Whether child can respond intelligently to questions posed on cross-examination
ORR ability to observe, remember, and relate.
o Must meet these qualifications in order to be a competent witness
State v. Swan: GET NOTES!!!!
Alabama, Connecticut and Utah declare child victims of physical or sexual abuse
competent as a matter of law.
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IV. Hearsay
A. Reasoning behind the hearsay problem:
 Testimonial capacities-regular in-court testimony has 4 possible sources of
unreliability:
1. Perception (did witness perceive event correctly?)
2. Memory (is witness remembering correctly?)
3. Narration (is witness saying what she means to say?)
4. Sincerity (does witness mean to deceive?)
3 In-Court tools that ensure the accuracy of in-court testimony:
1. The Oath (swear to tell the truth or face perjury)
2. Demeanor Evidence (jurors scrutinize faces and mannerisms to judge intellect,
accuracy and trustworthiness of witness
3. Cross-examination (opposing counsel probes for deficiencies in witness’s
perception, memory, narration, sincerity
Hearsay: when an in-court witness testifies as to something said by another declarantdoubles the problems of testimonial capacities (memory/perception/narration/sincerity)
and the declarant is not subject to in-court tools that ensure accuracy (oath, demeanor,
evidence, cross)
801(c): defines hearsay as: a statement, other than one made by declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.
801(a): for purposes of hearsay rule, a statement is:
1. An oral or written assertion
2. Nonverbal conduct only if it is intended by the person to be an assertion
801(b): a declarant is a person who makes a statement
So, unless it fits into an exception, an out of court statement offered to prove the truth of
what it says is hearsay!
o Common non-hearsay purposes to present out-of-court statements (admitting
statement for purposes other than proving the truth of what the statement asserts):
 1. To prove the impact that statement had on someone who heard it
(like to prove a defendant acted out of fear or to prove motive)
 2. To prove a legal right or duty was triggered by uttering a
statement or that a criminal offense was committed by uttering a
statement
 EX: saying “I will kill you” is a threat. Saying “He’s a thief” is
slander regardless of truth
 3. To impeach the declarant’s testimony (if the out of court statement
contradicts his testimony) (613)
22
See-Do Rule: conduct can be an implied assertion and a statement for purposes of
hearsay rules (Under 801(a)) only if it is intended by the “declarant” as an assertion.
 EX of see-do rule: Old English vicar writing letter to deceased. Letter by the
vicar to the deceased (the action of writing the letter to him) was NOT intended
by vicar to be an assertion that he believed the deceased to be of sound
body/mind.
o So cannot be a statement under 801(a)
 Under 801(a) can inaction be be a statement if the inaction is intended by
“declarant”
B. Exceptions to Hearsay Rule:
1. 801(d)(1): Prior statements by witness (that is now subject to cross and
present at trial)
a. (a) prior statement that is inconsistent with declarant’s testimony AND
was given under oath, subject to perjury
b. (b) prior inconsistent statements offered to rebut a charge against
declarant of fabrication, improper influence, or improper motive
c. (c) statement identifying a person made after perceiving the person
(FOR 801(D)(1) TO APPLY, WITNESS MUST NOW BE PRESENT IN COURT AND
SUBJECT TO CROSS)
2. 801(d)(2) statement offered against party-opponent and is
a. (a) that party’s own statement (in an individual or representative
capacity)
b. (b) a statement that party has manifested an adoption of or belief in
c. (c) a statement by a person authorized by the party to make a statement
concerning that statement, or
d. (d) a statement by that party’s agent concerning a matter within the scope
of the agency/employment AND made during the existence of the
relationship
e. (e) statement by a co-conspirator of that party during the course of the
conspiracy and in furtherance of that conspiracy
i. EX of 801(d)(2):
1. If there is an offer statement against Fred ant it is (a)
Fred’s statement (b) statement Fred manifested adoption
of or (c) made by person authorized by Fred to make a
statement about that subject
Reasoning behind 801(d)(2):
 Party’s own statement exception is that a party’s own words are not
hearsay when offered against her at trial
 Most of the time these statements were made by party against her own
interest so are likely to be truewhy would you lie if it harms rather
than helps you???
 A party should not be able to complain that her own statement may be
unreliable
 Because of the adversarial nature of litigation, if party makes a statement
against herself, it should be admissible against her
23
Under 801(d)(2)(B):
 A statement that party has manifested adoption of or belief in is not
hearsay. What makes it an adopted statement if party just
doesn’t deny/respond?
o Will have adopted/manifested belief in statement only if
party 1)hears the statement, 2) understands the comment 3)
its natural that party would respond to such a statement
under the circumstances, and 4) party doesn’t say anything
Mahlandt v. Wild Canid Survival and Research Center: Wolf in custody of D
(head of center) bit a little boy. Could the court admit testimony by witness about
statement made by the people at the board meeting and minutes of board meeting
where legal aspects of the bite were discussed?
 Court said yes, under 801(d)(2)(D) a statement by a party’s
agent/employee is not hearsay so long as statement is within scope of
agency/employment and made during the agency relationship.
**Under 801(2)(C) a statement will not be hearsay if by person who is
authorized by the party to make a statement concerning that subject.
 801(d)(2) provides that the contents of the statement can be
considered when determining authority, but are not alone sufficient
to prove declarant had authority under 801(D)(2)(C)
 ***Contents of the statement shall be considered but alone are NOT
sufficient to establish:
o declarant’s authority under 801(d)(2)(C),
o the agency or employee relationship and scope required
under 801(d)(2)(D) or
o the existence of conspiracy under 801(d)(2)(E)
In order for statement to come in under 801(d)(2)(E) coconspirator’s statement, the offering party must prove 3 preconditions by a preponderance of the evidence:
1. That a conspiracy existed at the time the out-of-court statement
was made
2. That the conspiracy included both the declarant and the party
against whom the statement is being offered
3. That the statement was made during the course of and in
furtherance of the conspiracy.
(and remember, under 801(d)(2), the contents of the statement alone
is not enough to establish these preconditions but it can be
considered as part of the proof)
805: Double Hearsayhearsay included within hearsay is NOT excluded if each part of the
statement comes in under an exception of the hearsay rule.
 EX: prosecution wants to present testimony by detective that Lyman told him that
Delbert talked to him about what they could do to put Bill out of his misery
o This double hearsay would be admissible if statement by Delbert and Lyman fit
in an exception and statement by Lyman to detective also fit in an exception.
(Delbert to Lyman fits in 801(d)(2)(A) statement by party offered against party
24
but can’t find exception for statement by Lyman to Detective not 801(d)(2)(E)
because it was NOT made in furtherance of conspiracy
Bourjaily v. U.S.:
o criminal case involving drug charges. Prosecution wanted to admit recorded
phone conversation between Lonardo and Greathouse (FBI informant) that
Lonardo had a gentleman friend (Bourjaily) that wanted to buy cocaine from
him, under co-conspirator statemtn exception 801(d)(2)(E)
o Does this satisfy pre-conditions of 801(d)(2)(E) that conspiracy existed, declarant
(Lonardo) and party (Boujaily) were involved and that statement was made in
furtherance of it?
 The district court said that the events that occurred (drug deal going
down in the parking lot) combined with the telephone conversation
established a conspiracy by preponderance of the evidence and so
admitted the recording under 801(d)(2)(E)
 But the defendant argues that the preconditions for co-conspirators
exceptions must be established by evidence independent of statement
that party seeks to admit
 The court says the Glasser decision can be interpreted to say that a court
must have some proof aliunde (independent evidence) establishing
conspiracy along with evidence from the statement itself.
 Under rule 104(a): preliminary questions of admissibility shall be
determined by a judge considering any evidence it wishes
unhindered by rules of admissibility, subject only to rules of
privilege. (so, judge NOT barred from considering the hearsay statement
as part of the evidence supporting that conspiracy existed for purposes of
establishing hearsay exception)
o Affirmed lower court’s decision-there was enough evidence that, taken
together with the statement (telephone convo) itself, established the precondition
of conspiracy.
Reasoning behind 801(d)(2)(E):
o A conspiracy is a common undertaking where the conspirators are all agents of
each other.
o In a conspiracy, acts and statements of the one conspirator can be attribute to all
conspirators
o Learned Hand said, “when men enter into an agreement for an unlawful end, they
become ad ho agents for one another.
***Co-conspirator exception almost never applies to a confession made
knowingly to the police implicating one’s partners in crime because such
statement would not have been made “in furtherance of the conspiracy”
Rule 613: impeach witnesss with prior inconsistent statement -- can question a
witness about a prior inconsistent statement to impeach the witness’s credibility.
But these past inconsistent statements are offered under 613 only to show that
witness said different things at different times (to impeach), CANNOT be
admitted under 613 to prove the truth of what the prior statement asserts.
Rule 613(b)-- if witness denies making such a prior inconsistent statement, counsel can
offer extrinsic evidence to prove he did.
25
U.S. v. Barrett: D claims the court erred in excluding testimony of a waitress that
heard Adams (a witness) say “it was a shame that Bucky got arrested because I
know he didn’t have anything to do with it.” D wanted to admit this testimony
under 613 to impeach Adam’s testimony implicating him (Bucky) in the crime
(as a prior inconsistent statement)
 Rule from US v. Barrett: to be received as a prior inconsistent statement
under 613, the contradiction does not have to be in plain terms. It will be
admissible under 613 if, as a whole by what it says or omits, the
statement indicates that the fact was different from what the witness
testifies to it being.
U.S. v. Ince: the prosecution tried to impeach its own witness just so that they
could get in a prior statement made by that witness that otherwise would be
inadmissible under hearsay rules. (D told witness Frank didn’t shoot the gun, “I
shot the gun.”)
 Court said this is impropertrial judges should rarely, if ever permit the
government to impeach its own witness by presenting what would
otherwise be inadmissible hearsay if that hearsay contains an alleged
confession to the crime for which the D is charged.
 Evidence under 613 can ONLY be used to impeach witnesses, not as
substance truth. And in weighing under 403, should weigh the
impeachment value against risk of prejudice to the D.
Past inconsistent statement as substantive evidence:
o But under 801(d)(1)(A), can offer a witness’s past inconsistent statement as
substantive evidence so long as that statement was given under oath subject to
perjury at a hearing, trial, or other proceeding or deposition and witness is now
subject to cross
o To fit under 801(d)(1)(A) the prior statement does NOT have to have been made
while witness was subject to cross exam (just under oath, subject to perjury) and
so it covers statements made in front of a grand jury that are inconsistent with
witness’s current testimony.
C. Past Consistent Statements
Focus on Past CONSISTENT statements meant to rebut charge of fabrication, etc:
Tome v. US:
 Issuewhether out-of-court statements made AFTER the motive for
fabrication arose can be admitted under 801(d)(1)(B) as consistent
statements by witness to rebut charge of fabrication?
 Tome was accused of sexually assaulting his daughter, but the defense’s
theory is that the little girl fabricated these charges so that she could stay
in her mother’s custody.
 Prosecution wants to admit testimony by 6 witnesses that little girl had
made out-of-court statements consistent with her accusations, in order to
rebut the defense’s theory/charge of fabrication (little girl had testified)
 But, all these statements had been made AFTER her mother had tried
and failed to get primary custody and so her little girl already had motive
to make up the accusation.
26

Rule from US v. Tome: 801(d)(1)(B) permits intro of witness’s
consistent statements to rebut charge of fabrication where the
statement was made BEFORE motive to fabricate/improper
influence arose.
 Because its is NOT relevant to rebut fabrication if it was made
after there was already motive to fabricate. Even though 801(d)
statements are all admissible as substantive evidence, this must
be relevant to rebut fabrication, improper influence or improper
motive (because of the language in 801(d)(1)(B)
 In the advisory committee notes, committee noted the new
inclusion of common law presentation of prior consistent
statement offered to rebut charge of fabrication being admissible
as substantive evidence, so if they had meant to do away with the
pre-requirement that the statement be offered to rebut charge of
fabrication then wouldn’t they have done so in those notes?
U.S. v. Owens:
 Statement by witness of identification
 Issue: is statement by witness identifying a person admissible under
801(d)(1)(c) even though witness can’t explain the basis of that
identification because of memory loss?
 D claims this creates a confrontation clause violationhe can’t
successfully cross-examine the witness if can’t remember.
 Confrontation clause does NOT guarantee effective cross-examination,
just that D will have opportunity to cross.
 ***Under 801(d)(1)(c) witness must be available for cross-examination
(like present in court, willing to testify) memory loss on a particular
topic does NOT make witness “unavailable for cross-exam” in a way that
death would
 Court said this is admissible despite memory loss
 Because Identification made shortly after witness perceived the
event is more reliable than identification at trial because memory
of faces fades and appearance of person might change
 And the witness is technically subject to cross in order to satisfy
requirement of 801(d)(1) that declarant must now be present in
court and subject to cross (confrontation clause guarantees
opportunity to cross, does not guarantee effective cross)
Most of the exceptions to hearsay are justified by NECESSITY (there is a special need
for that type of evidence) or trustworthiness (there is reason to think this hearsay is more
reliable than run-of-the-mill hearsay).
IN ORDER TO GET IN UNDER 804 EXCEPTION, DECLARANT MUST BE
UNAVAILABLE!!!!
Rule 804Hearsay Exceptions where Defendant is Unavailable
Examples of Declarant being “unavailable” under 804(a), makes them unavailable:
1. Exempt because of privilege
2. Persists in refusing to testify as to the subject matter of the statement
3. Declarant testifies as to lack of memory of that statement
4. Declarant is unable to be present because of death or illness
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5. Declarant is unavailable and the party wishing to admit evidence is unable to
procure declarant’s attendance at trial.
Wrongdoing ruleUnder 804(a) declarant is not considered unavailable for purposes
of 804(a) if he is unavailable due to wrongdoing by the party wishing to admit the
statement for the purpose of preventing the declarant from being able to testify
Different hearsay exceptions that apply where declarant is unavailable :
1. Former testimony
2. Dying declaration
3. Statement against declarant’s own intent
4. Forfeiture by wrongdoing
804 former testimony exception
804(b)(1) Former testimony given by declarant as a witness in a proceeding/deposition
will be admissible if the declarant is unavailable ONLY IF the party against whom the
testimony is being offered had opportunity and similar motive to develop that testimony
by direct, cross-examination, or redirect of declarant.
Lloyd v. American Export Lines (about former testimony exception 804(b)(1))
 In civil cases involving a violent altercation between crew members on a ship,
the defendant AmEx wants to admit former testimony by Alvarez (who is
unavailable) in prior coast guard hearing
 So, this would be admitted against Lloyd under 804(b)(1) exception, but did
Lloyd (or a predecessor-in-interest) have opportunity and similar motive to
cross Alvarez??
o Here, the court said the coast guard is sufficient predecessor in interest
for Lloyd and had similar notice to develop the testimony on cross
 Predecessor in interest rule: will be predecessor in interest if the cases involve
the “same nucleus of operative facts” and the predecessor’s community of
interests” is the same as the party
o “there was a sufficient community of interests shared by the coast guard
in its hearing and Lloyd in his individual interest in recovering for his
injuries.” Also, the nucleus of operative facts was the samethe
altercation on the ship
804 statement against declarant’s own interest exception
804(b)(3): statements against interest exception will admit a statement, which at the
time is:
 so far contrary to the declarant’s pecuniary/proprietary interest
 so far tends to subject declarant to criminal or civil liability
 so far tends to render invalid a claim held by declarant,
that a reasonable person in declarant’s position would not have made the statement unless
believing it to be true
when statement exposes declarant to criminal liability and exculpates the accused
804(b)(3)(B):statement exposing declarant to criminal liability and offered to exculpate
the accused is not admissible unless offer corroborating circumstances/evidence/ that
clearly indicate the trustworthiness of the statement of facts
28
List of possible “corroborating factors” that would indicate the trustworthiness of
804(b)(3) statement against interest: (from U.S. v. Hall)
1. timing and circumstances under which statement was made
2. declarant’s motive for making the statement
3. whether declarant repeated the statement under different circumstances
4. party to whom the statement was made
5. relationship between declarant and party who opposes admission of evidence
6. nature and strength of evidence independent of statement tending to show
declarant’s guilt
Williamson Problem under 804(b)(3): (Williamson problem is a confrontation clause
problem)
Williamson v. US: Harris told the DEA officer something that implicated himself
in a drug smuggling operation but also implied that he was doing the smuggling
for Willamson (D). Harris refuses to testify against Williamson so prosecution
wants to admit his statement to the DEA under 804(b)(3) (is a statement against
his interest-exposes to criminal liability) as substantive evidence that Williamson
was running a drug smuggling operation.
 Williamson objects-says this violates his rights under the Confrontation
Clause (which is the right to confront those who testify against you)
(because the declarant is not testifying)
Williamson rule: if testimony/confession includes multiple statements, must
separate them into individual statements and 804(b)(3) will only admit those
statements that are truly against declarant’s own interest (that are selfinculpatory)
 The collateral statements that are NOT against declarant’s interests are
not admissible under 804(b)(3) (because there are no assurances of
trustworthiness for the parts of the statement that aren’t against party’s
interest)
o Should not have admitted the part of the statement implicating
Williamson
o ???Williamson Rule ONLY applies when confession/statement
is made to the police. ???? (holly had questions here)
 Reasoning behind Williamson rulethe fact that a person is making a
broadly self-inculpatory confession does NOT make more credible than
the non-self inculpatory parts of the confession because one of the most
effective ways to lie is to mix falsehood with truth.
Arrest statements of codefendants have traditionally been viewed with
special suspicion. Due to strong motivation to implicate a codefendant and
exonerate himself, a codefendant’s statements about what a defendant did say
less credible than ordinary hearsay.
804 Dying Declarations Exception
804(b)(2): in prosecution for homicide or in a civil proceeding, statement made by
declarant while believing that his death was imminent, concerning the cause or
circumstances of what the declarant believed to be his impending death.
Shepard v. US
29
D was convicted of murdering his wife. At trial, the prosecution admitted testimony of
nurse that the wife told her “Dr. Shepard poisoned me. I am not going to get well. I am
going to die.” She died a few weeks after the statement
Could they admit under dying declaration 804(b)(2) exception?
 Issue: did she believe her death was “imminent” for purposes of 804(b)(2) at the
time she made this statement?
 The court said no. the statement was not made with “hopeless expectation
that death was near at hand” because at the time, doctors thought she would
recover and she did for a few weeks her health improved.
State of mind necessary for “dying declaration” exception:
 Fear or even belief that your illness will end in death is NOT enough to make
it a dying declaration. Must be a settled hopeless expectation that death is
near at hand
o To come under 804(b)(2), statement must be made in the hush of
death’s impending presence without hope of recovery.
Attacking hearsay declarant’s credibility
Defense in US v. Shepard also questioned wife’s competency in saying that
husband poisoned her (did she have personal knowledge under 602)
Rule 806: permits litigants to attack the credibility of a hearsay declarant by
the same techniques available against an in-court witness (proof of bias,
contradiction by inconsistent statement, evidence of untruthful character)
But 806 does NOT apply when statement comes under 801(d)(2)(A) or
(B)-party’s own statement or 801(d)(1) witness’s past statements
E. Forfeiture by Wrong Doing Exception
804(b)(6): will admit hearsay statement when declarant is unavailable and the statement is offered
against a party that has engaged or acquiesced in wrongdoing that was intended to and did
procure unavailability of the declarant or a witness.
U.S. v. Gray
Gray killed 2 husbands and a boyfriend supposedly for insurance money. In her trial for mail
fraud prosecution presents out of court statements by Robert Gray (husband #2, now dead,
because she killed him) under 804(b)(6)she made him unavailable by killing him.
D argues this is improper because she did not harm him with intent/purpose of making
him unavailable to testify at mail fraud case (murdered him because he knew too much
about first murder)
Elements of 804(b)(6) that must be established by preponderance of the evidence
before statement can come in under wrongdoing by forfeiture:
o Must prove:
1. D enaged in or acquiesced in wrongdoing
2. Wrongdoing was intended to render the declarant unable to
testify
3. Wrongdoing did render declarant unavailable
Intent required for forfeiture by wrongdoing: (from US v. Gray)
o Requires only that D intend to render declarant unavailable as a witness, does not
have to intend to prevent witness form testifying at that particular trial.
o AND only has to be part of the intent behind the wrongdoing.
30
Rule 804(b)(6) does NOT limit the subject matter of statements coming in under
forfeiture to events distinct from those at issue in the trial (can bring in
statements about plot to kill the declarant)
**** what constitutes “wrongdoing” for forfeiture by wrongdoing exception: any
significant interference with the declarant’s appearance as a witness, including
the exercise of persuasion and control or an instruction to invoke the 5th
amendment privilege amounts to wrongdoing that forfeits the defendant’s right to
confront the declarant
F. 803 Hearsay Exceptions EVEN though Declarant is Available (because the out of court
statement is more reliable)
o In 803 situations hearsay statements are sometimes more reliable than in-court testimony
on same issue:
1. Present sense impressions
2. Excited utterances
3. Statement of declarant’s then existing state of mind
4. Statements for medical diagnosis/treatment
5. Recorded recollections
6. Records of regularly conducted activity
7. Absence of entry in regularly recorded
8. Public records/reports
9. Absence of public record
10. Ancient document exception
803(1): Present sense impressions exception: a statement describing an event or
condition while the declarant is perceiving it or immediately after.
o But does Not apply to a conclusory statement (EX: in the graduate when Ms .
Robinson calls and says “we have a burglar here” might not come in when “a
strange man with brown hair” probably would)
803(2): Excited Utterances exception: a statement relating to a starling event/condition
if made while declarant is under the stress of excitement caused by the
event/condition. (probably won’t apply if statement was made after declarant had a
couple hours to calm down)
803(3) Existing mental/emotional/physical condition exception: will admit statement
of declarant’s state of mind, emotion, sensation or physical condition.
o Does NOT apply to statement of memory or belief if offered to prove the fact
remembered or believed UNLESS belief/memory relates to the declarant’s will
(document)
o Statements of the existing physical/mental/emotional condition often include
statements about declarant’s:
 Intent
 Plan
 Motive
 Design
 Mental feeling
 Pain
 Bodily health
31
Mutual Life Insurance v. Hillman
(suit to recover on life insurance policy)
o Issue: whether Hillman is actually dead, whether it was his body that was found
at Crooked Creek Campground or body of a man named Walters (insurance co. is
trying to prove it was Walters)
o Insurance co. wants to present in evidence letters written by Wlaters in which he
says he’s going to leave Wichita on March 5th (offered to prove he was in
Crooked Creek, intent to go to Crooked Creek)
o This letter describes declarant’s then-existing intent to travel with
Hillman. Under 803(3), declarant’s present intent is a then-existing
mental condition and so should be admitted as a hearsay exception.
o The letters are a bit problematic because his plans to travel with Hillman
implies that he made an agreement with him therefore the statement also
describes a fact remembered (inadmissible under 803(3)
 Court said that’s not too problematic and later admitted the
letters
Shepard v. US
(again, case where wife told nurse husband poisoned her). The wife told the nurse that
she knew she would die, etc. Could the defense admit nurse’s testimony about this
statement as evidence that wife committed suicide (plan/design is admissible as a thenexisting mental condition under 803(3)).
o Court said no, because those statements were NOT originally offered to prove
her intent to commit suicide. Wouldn’t allow it in.
803(4) statements made for purpose of medical diagnosis/treatment exception: statements
made for purposes of medical diagnosis or treatment that describe:
1. Medical history
2. Past/present symptoms, pain sensations
3. The inceptor or general character of the cause/source of the symptoms/pain
***will be admissible in so far as reasonably pertinent to medical diagnosis or treatment
U.S. v Iron Shell
(assault/rape of Lucy, 9 yr. old niece)
o Prosecutor wants to admit testimony of ER doctor about statements made by Lucy
about being dragged back to the bushes, chocked, her clothes pulled off.
o The D claims these hearsay statements do not fit under the 803(4) purpose of medical
treatment/diagnosis exception because were not reasonably pertinentbecause the
doctor’s exam would have been exactly the same had she not revealed this information.
2 part test for whether statements should be admitted under 803(4) statements for
medical purpose exception:
1. Is the declarant’s motive consistent with the purpose of 803(4) exceptionis
he providing infor in order to receive the most accurage diagnosis/best
treatment?
2. Is it reasonable for the physician to rely on the information in making his
diagnosis/treatment?
Court said statements about what happened to cause pain/ symptoms are generally
admissible (but those about who aren’t really pertinent to treatment)
o Court said the information provided by declarant was pertinent to
diagnosis/treatment because it created guidelines of how to conduct the exam
(aligned with purpose of the rule, reasonable or would rely)
32
Rationale behind 803(4) medical diagnosis/treatment exception:
o (from US v. Iron Shell)
o This rule relies upon the patient’s strong motive to tell the truth because
diagnosis/treatment will depend in part on what the patient tells the doctor.
Declarant’s motive for truth in this situation guarantees trustworthiness sufficient
to allow an exception to the hearsay rule.
o Facts which a doctor deems are reliable enough on which to base a medical
diagnosis are reliable enough to escape the hearsay ban.
State v. Pirot
when a child identifies a member of household family as their abuser (to the physician)
that is reasonably pertinent to treatment of the child (doctor has to call social services,
take steps to prevent it form happening again, address child’s mental health) and do that
identification statement should be admitted under 803(4)
o BUT 803(4) probably wont admit statements of patient that is too young to
understand importance of telling the truth to a physician.
803(5): refreshing witness’s memory with past recollections will admit a memorandum or
record concerning a matter about which a witness once had knowledge but now has insufficient
recollection to testify if the statements should have been made by or adopted by witness when the
mater was fresh in the witness’s memory and the record reflects witness’s knowledge correctly.
Johnson v. State
in capital murder case prosecution watns to admit statement made by witness at police
stateion because she doesn’t remember what she said.
Rule: pre-requisites that must be shown for past recollection exception (803(5)):
1. Witness must have had first hand knowedge of the event
2. Written statement must be a memo/record made at or near the time of the
event while witness had a clear and accurate memory of it.
3. Witness must lack sufficient recollection of the event
4. Witness must vouch for the accuracy of the meo/record
Ruleto vouch for the accuracy of past recollection memo/record, declarant
must testify that:
1. She presently remembers recording the fact correctly or recognizing the
writing as accurate at earlier time or
2. That she knows the memo/record must be correct because of declarant’s
habit to record matters accurately .
In Johnson v. State Witness didn’t testify to accuracy and so inadmissible in
803(6): records of regularly conducted activity exception: a memo/report/record of
acts/events/conditions/opinions/diagnosis made at or near the time of the event by a person with
knowledge may be admitted if record was kept in the course of regularly conducted business
activity and was the regular practice of that business to make such a record.
o Must be Shown by testimony of the custodian who made the record or some
other qualified witness)
o For purposes of 803(6), business is defined to include callings of every kind
whether or not conducted for profit.
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Palmer v. Hoffman
railroad accident, 2 days after the accident, the engineer of the train was interviewed by the
assistant superintendant of the railway pursuant to a regularly filed accident report. The engineer
died before trial. Can his statements form the interview contained in the accident report come
under 803(6) records of regularly conducted business activity?
o Court said even though they are regularly made, accident reports are NOT a
routine part of the railroad business
o Test for whether a record/memo is record of regularly conducted business
activity: made as part of the systematic conduct of the business as a business.
o Examples of systematic records kept in the course of regular business:
 Payrolls, accounts, receivable, accounts payable, bills of landing
o Court in Palmer ruled the statements made in accident report were NOT admissible
under 803(6), not record of regularly conducted business activity.
o Rule about accident reportsaccident reports are not generally trustworthy
records because they are calculated for use essentially in court, not for use in
the business. Primary utility of accident reports is litigating.
US v. Virginia
drug selling/money laundering case. Prosecution wants to admit western union money order
forms with the defendant’s signature on them as proof that the money laundered.
 Issue: there is no independent evidence that it was the D who signed his signature ot
the form (Western Union didn’t have policy requiring driver’s license/photo id or
anything)
o If there was independent evidence that D did sign the forms, they would be
admissible as 801(d)(2) party admission.
o Admissible as record of regularly conducted business activity?
o Outside Information Rule: (from Johnson v. Lutz) 803(6) business records
exception does NOT admit statements contained with a business record that were
made by someone who is not a part of the business (if offered to prove their truth)
o Statement of bystander included in a police report NOT admissible under
803(6)
 Under outsider Information Rule, D is not a part of the Western
Union business so not admissible under 803(6)
Reasoning Underlying the Outsider Information Rule:
o No safeguards of regularity or business checks to automatically assure the truth
of a statement to the business by a stranger. If the declarant is not part of the
business, he might not have the same motivations to be truthful
o Court said could have admitted the forms with the signature redacted
o As for the forms found in D’s vanthat is enough circumstantial evidence to
show it was D who signed the form and so those could have been admitted under
801(d)(2) party admission if they had originally been offered in that context.
803(8): Public Records Exception: records/reports of public officer/agencies that set
forth:
o 1) The activities of the agency
o 2) Matters observed pursuant to duty, imposed by law as to which there was a
duty to report
o 3) In civil actions against the government in criminal cases, factual findings
resulting form an investigation made pursuant to authority granted by law will be
34
admitted unless the sources of info or other circumstances indicate lack of
trustworthiness
Beech Aircraft Corp v. Rainey
civil case brought against manufacturer on behalf of victims in navy flight crash.
Defense wanted to admit investigatory reports (prepared by navy) that contain factual
findings and conclusions/opinions about the crash under 803(8)(c).
Issue: was 803(8)(c) meant to admit only facts (and so not conclusions/opinions of the
author)?
o The House advocated a strict reading of 803(8)(c) “factual findings” but Senate
advocated a broad reading and the advisory committee notes “assumes the
admissibility of evaluative reports.”
o So according to this court – factual findings for purpose of public
records exception can include conclusions/opinions
o Here the court adopted a broad reading of 803(8)(c) factual findings
based on two points:
1. Neither the language of the rule or the authors intent calls for a
distinction betweenf act and opinion here, and
2. Broad reading is consistent with the relaxed/liberal thrust of the
FRE
**** advisory committee proposed a nonexhaustive list of 4 factors to look at when
deciding whether to admit investigatory reports that have conclusions/opinions:
o The timeliness of the investigation
o The investigator’s skill or experience
o Whether a hearing was held
o Possible bias when reports are prepared with a view to possible litigation
Reasoning behind 803(8): assumes that a public official will perform his duty properly
and won’t likely remember the details
Rule 803(16): ancient documents exception: will admit statements in a document that’s been in
existence 20 years or more, the authenticity of which is established.
807 Residual Exception to Hearsay
Rule 807: statement that is not specifically covered by 803/804 exceptions but has equivalent
circumstantial guarantees of trustworthiness will not be excluded by hearsay rules if:
 1). Statement is offered as evidence of material

2). Statement is more probative on the point for which it is offered than any other
evidence which proponent can produce with reasonable efforts (necessity)
 3). The general purpose of the FRE and the interest of justice will be served by
admission of statement into evidence
Dallas County v. Commercial Union Assurance Co.
the courthouse collapsed.
Issue: whether it was struck by lightening, causing a charred smell or a fire 60 yrs ago was
the source of the smell
o Can D admit a newspaper article from 1901 as evidence that there was a fire that
year in the building?
Prerequisites for Hearsay Exception: (Wigmore on evidence)
35
a. Necessity: unless the hearsay statement is admitted, the facts may be lost (show
that otherwise great practical inconvenience would be experience in making
proof of those facts
b. Trustworthiness
Sets of circumstances where hearsay evidence is trustworthy enough to
substitute for cross-exam:
i. Where the circumstances are such that a sincere and accurate statement
would naturally be formed and there would be no plan for falsification
ii. Where other considerations, such as danger of easy detection or fear of
punishment for lying, would probably counteract any desire to fabricate.
iii. Where statements as made under such conditions of publicity that an
error would have been detected and corrected.
Holding for Dallas County: in matter of local interest where the fact is:
1. Of a public nature
2. Would be known generally throughout the community, and
3. Occurred so long ago that testimony of an eyewitness would probably
be less trustworthy
Court may suspend the exclusionary rule as to the extent of admitting the article.
 Didn’t admit article as business record, instead the court admitted
the newspaper article because it was:
1. Necessary
2. Trustworthy
3. Relevant
4. Material
U.S. v. Laster
Laster had been ordering hydiodic acid, which is used to make meth, using his
employer’s name. Prosecution wants to admit sales invoice for the hydroidic
acid.
 Court said could not be admitted under 803(6) business records
exception because prosecution did not properly lay the
foundationthe narcotics officer that took the stand to describe the
invoice might not have been knowledgeable about the company’s
record keeping system.
 The Laster court took a broad view of 807, that an analysis of a
hearsay statement should NOT end when a statement fails to qualify
under traditional hearsay exception, it should then be evaluated
under the residual hearsay statement.
Near Miss Rule: if statement does not quite fit under 803 or 804
(hearsay exceptions), if it is relevant/necessary and has
guarantees of trustworthiness, it sometimes will come in under
807 residual exception.
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Hearsay and the Confrontation Clause
Confrontation Clause: in the 6th Amendment, in ALL criminal prosecutions the accused shall
enjoy the right to be confronted with the witness against him.
Mattox v. US
2 witnesses from the prior trial had died. Prosecution wants to admit the prior testimony
from first trial (wouldn’t be a hearsay problem today because of exception 803(b)(1)
which is former testimony but this is before the FRE). D claims that this violates his CC.
 Original purpose of the Confrontation Clause:
 prevent depositions and ex parte testimony from being used against
criminal defendant-want defendant to have opportunity for witness
to stand face to face with the jury and defendant to test the
recollection/truthfulness of the witness.
 What CC meant to guarantee:
1. Witness present in court
2. Subject to oath
3. D’s opportunity to cross-examine the witness
4. Jury has opportunity to observe the witness
5. Face to face/eye to eye confrontation between accuser and
accused
 Rule from Mattox about Hearsay and CC: exceptions to the hearsay rule
that don’t undermine the spirit of the confrontation clause should be
admitted
 Holding: court admitted the testimony of former in-court testimony because
defendant already had opportunity to confront them (did not violate CC)
California v. Green
at a preliminary hearing where he was under oath and subject to cross, juvenile
accused D of being his pot supplier. Then the juvenile testified differently at trial.
Prosecution wants to introduce his former testimony under 801(d)(1)(A) prior
inconsistent statement of witness.
o
Two rules about Hearsay and CC: (basically if you’re subject to cross either
when you made the statement or now, like you’re testifying at trial, then CC
won’t be violated)
1. If declarant is present, testifies at trial and responds to questions about
hearsay statement, the confrontation clause does NOT bar admission of the
37
prior out-of-court statement REGARDLESS of whether that statement was
made subject to oath and cross.
i. D has a chance to cross now
2. If prosecution made every effort to produce declarant but could not, the
confrontation clause does not bar admission of out-of-court statement if that
statement was made under oath and subject to cross
Holding: juvenile’s prior testimony was subject to oath/cross and so admissible.
Maryland v. Craig
the majority opinion written by O’Conner ruled that it did not violate the Confrontation
Clause to allow a child victim of sexual assault to testify via closed circuit TV.
o Reasoning for decision in Craigstate interest in protecting child witnesses from
trauma of testifying in a child abuse case is important enough to justify special
procedure.
o The judge will make a case-by-case decision if he thinks it would
traumatize children further to testify in same room as accused.
o Scalia’s dissent: a barrier between witness and defendant violates the
Confrontation Clause.
Coy v. Iowa
the court said it was unconstitutional to allow victim to testify behind a screen because
the Confrontation Clause guarantees face-to-face confrontation between the accuser and
accused.
****Old rule from Ohio v. Roberts
2-part interpretation of the confrontation clause:
1. rule of necessity – whether or not the out-of-court statement was subject to
cross, the prosecution must either produce or demonstrate the unavailability of
the declarant whose statement it wished to use against the defendant
2. reliability – if the declarant is unavailable, the hearsay statement is
admissible only if it bears adequate indicia of reliability (reliability will be
inferred in a case where the evidence falls within a firmly rooted hearsay
exception)
* Roberts’ “adequate indicia of reliability” was overturned by Crawford
Crawford v. Washington
stab murder. D claims he acted in self-defense. D’s wife gave a tape-recorded statement
to police at the scene, made statement that indicates the victim did not have a weapon. At
trial, wife claims spousal privilege and refuses to testify. Prosecution played the taperecorded statement at trial (to jury)
o History of Common law supports 2 inferences about CC:
1. Principle evil at which CC is directed was the civil law approach to
criminal procedure allowing the use of ex parte testimony against
criminal D.
2. The framers would not have allowed admission of testimonial
statements of witness who did not appear at trial unless he was
UNAVAILABLE and D HAD ALREADY HAD PRIOR
OPPORTUNITY TO CROSS.
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o
The confrontation clause is really concerned with testimonial statements but
Crawford court does not specify what constitutes a testimonial statement
o Statements taken by police officers in the course of investigation are
testimonial under any standard
2 Proposals offered by Scalia in Crawford majority:
1. Apply CC only to testimonial statements
2. Absolute bar against testimonial statements absent a prior opportunity to
cross-examine declarant
Holding: wife’s statement to police in course of investigation is testimonial under any
definition so CC applies and D had no prior opportunity to cross so will not be admitted
CC is a procedural rather than substantive guaranteecommands that reliability of
testimony be assessed in a particular manner by testing the crucible of cross-exam.
o Scalia said the constitution prescribed a procedure for determining reliability and
court lacks the authority to replace it.
Crawford rule: where testimonial evidence is at issue, the CC demands 1).
That the declarant be unavailable 2) that defendant had a prior opportunity
to cross.
Limitations to Crawford holding:
1. Applies only to criminal prosecutions
2. Does not apply when witness testifies and is available for cross (even if
statement was made prior and not subject to cross
3. Only applies to statement that is testimonial in nature
Crawford said “Testimonial”, at a minimum, includes:
1. Prior testimony at preliminary hearing
2. Testimony before grand jury
3. Testimony before grand jury
4. Testimony at prior trial
5. Police interrogations
Wharton v. Bockting: Supreme Court ruled that Crawford overruled Roberts.
Crawford is NOT retroactiveso inmates serving time for conviction based on
testimony that violates Crawford are not affected.
Davis v. Washington and Hammon v. Indiana: dual cases that define “testimonial”
statements for purposes of Crawford rule. (opinion written by Scalia.)
o Facts of Davis: domestic disturbance case, are recorded statements “he’s beating
me” and statement identifying the perpetrator on 911 call admissible? Are they
testimonial?
o Facts of Hammon: after the domestic violence was over, the victim filled out a
handwritten affidavit and answered police officers questions, telling them
Hammon “shoved me on the floor into broken glass, etc.”
Testimonial/Non-testimonial defined in Davis using primary purpose test:
 Non-testimonial: statements made in the course of police investigation under
circumstances that objectively indicate the primary purpose of investigation
is to enable police assistance to meet ongoing emergency.
 Testimonial: statements made under circumstances that objectively indicate
there is NO ongoing emergency and the primary purpose of interrogation is
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to establish/prove past events/facts potentially relevant to future or criminal
prosecution
Factors of primary purpose:
1. Is declarant speaking about events as they are actually happening (like in
Davis 911 callemergency)
2. Is declarant facing an ongoing emergency? Is statement a call for help
against bona fide physical treatment?
3. Are the statements necessary to resolve emergency (like in Davis) or to
learn what happened in past (Hammon)
4. What is the level of formality involved in the interview? (less formal,
probably an emergency)
Davis court said statements to 911 operator-where he was still in the house,
etc, objectively indicate primary purpose to get assistance with ongoing
emergencyso not testimonial, so CC does not apply.
 But the statements made to 911 operator after Davis ahd driven away and was
no longer a threat/emergency probably were testimonial.
***if part of the testimony/statement is testimonial, should admit the
statement and redact the testimonial part
In the Hammon case, the emergency was over, primary purpose of police
questioning was to gather facts/evidence that would be used in future prosecution
of abuser.
 Thomas’s dissent from Hammon v. Indiana: agrees that CC only applies to
“testimony” but Thomas would limit definition to formal testimony 1)
affidavits 2)depositions 3) prior testimony 4) confessions
 According to Thomas, his formal approach would
be much easier
Clearly testimonial: prior testimony at preliminary hearing, grand jury, former trial.
Clearly non-testimonial: casual remarks made to an acquaintance, off-hand overheard
remark, remarks made in furtherance of a conspiracy
Does primary purpose test only apply to police questioning?
-If hearsay statement was not the product of police questioning, some courts have
applied 1 of 3 Crawford formulations rather than primary purpose test3
formulations test of “testimonial” from Crawford:
1. affidavidts, custodial examinations, prior testimony, pretrial statements
that the declarants would reasonably expect to be used prosecutarily
2. Justice Thomas’s formal testimony (affidavits, depositions, prior
testimony, confessions)
3. Whether statements were made under circumstances, which would lead
on objective witness reasonably to believe that the statement would be
available for use at a later trial.
Bullcoming Testimonial Test: to constitute “testimonial”, statement must have
primary purpose of establishing or proving past events that the potentially
relevant in a future criminal prosecution.
Giles v. California
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application of “forfeiture by wrongdoing” to extinguish confrontation clause
rights. Scalia wrote the opinion. Holdingin order to forfeit constitutional right
to confrontation must show that D acted (participated in the wrong) with purpose
of preventing the declarant from testifying.
o Back in Davis/Hammon, court mentioned that the rule of
forfeiture by wrongdoing extinguishes confrontation
claims on essentially equitable grounds but did not specify
o BUT if you murder your wife after abusing her for years,
that act could be seen as for purpose of preventing her
from testifying at trial.
3 reasons to doubt that Crawford and Davis will NOT be in favor of criminal Ds:
1. The primary purpose test cuts in favor of defendant only where there is NO
ongoing emergency. Even if the interrogation was partially to gather facts,
if there is an emergency to be resolved, the statement probably won’t be
testimonial.
2. When applying primary purpose to child sex abuse cases, primary purpose
is pretty much always ongoing emergency
3. With demise of Roberts if hearsay is not testimonial, then there are no
constitutional protection against it.
IMPORTANT THINGS TO REMEMBER ABOUT THE CC AND HEARSAY:
 Only applies when hearsay is offered against a CRIMINAL
DEFENDANT
 Does NOT apply when the out-of-court statement is offered for nonhearsay purpose (when its not being offered to prove the truth of what it
asserts)
Confrontation Clause and Child Victims
People v. Coy
victim was assaulted and killed. Prosecutor offered testimony by victim’s friend that
victim had told her she was afraid of her uncle because he would touch her. Court relied
on Crawfordsaid this was clearly non-testimonial because it was made to a friend and
admitted it.
Rule about Child Victims and CC: the younger the declarant is and the more
private the disclosure is (like when made to a close friend) the more readily a
court can declare it non-testimonial.
People v. Cage
boy came in with bloody face and doctor asked him what happened. He told him his
mother cut him with a shard of glass. In applying the primary purpose test, court looked
at what the interrogator’s (surgeon) primary purpose was: surgeon’s purpose was to
address immediate medical needs (needed to know what happened so he knew if there
was dirt/debris in the cut) not to gather facts potentially relevant in criminal
prosecutionso this is testimonial
Rule about whose intent to focus on from People v. Cage: courts will focus the
primary purpose test on whoever had the clearest motives in speaking.
Bobadilla v. Carlson
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court focused on the transparent motives of social workers questioning child abuse case
in the circumstances the social worker clearly conducted the interview to gather facts as
part of criminal investigation. So this is testimonial.
***Most courts have declared that a child’s statements to a doctor/nurse are nontestimonial.
Confrontation Clause and Dying Declarations
Michigan v. Bryant
victim had driven himself away from scene of crime and lay in parking lot bleeding out.
He told police who shot him and where it happened. Police left him to go to the scene.
Victim died soon after. Majority opinion said these statements are nontestimonial because
police werer trying to resolve ongoing emergency of catching a murderer on the loose.
 Dissent by Bryant: did not buy that a murderer on the loose constitutes “on
going emergency” for purposes of Davis, this is too far of a stretch.
Confrontation Clause and Expert Testimony based on Hearsay
Bullcoming
majority barred admission of analysis of D’s blood alcohol content done by a lab tech
that is not available to testify. Because expert was just relaying the results obtained by the
lab tech.
 In her concurring opinion, Sotomayor said the result would be different if expert
was giving her won independent opinion about underlying testimonial reports
without admitting them into evidence. But in Bullcoming, they are admitting the
lab tech’s results.
People v. Williams
Expert witness testified that in her opinion, the DNA profile of defendant mattered that of
semen found in victim. Expert based this opinion on data from the lab that did analysis of
physical evidence ((and is not testifying)
 Different from Bullcoming. Expert is making own independent opinion without
admitting the underlying data into evidence.
 Confessions of codefendant and CC: admitted co-defendant’s admission but
deleted the D’s name, inserting “blank” where name had been but the confession
still implies that there was another actor involved in the beating.
The Bruton Doctrine – confessions of codefendants and the CC
Bruton Rule: a confession by a non-testifying codefendant that is incriminating on its
face and expressly implicates the D violates the Confrontation Clause.
But then in Richardson v. Marsh the court admitted a redacted confession that required
linkage to become incriminating to the co-defendant
US v. Gray
o (according to the court in Richardson v. Marsh) CC will not be violated if
confession is redacted to eliminate any reference to defendant’s existence.
(the one with “blank” still refers to the existence of a non-confessing D.)
o Extrajudicial statements of a codefendant that names a D are so prejudicial that
limiting instruction doesn’t resolve the prejudice.
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o
Gray rule: redactions that replace a proper name with an obvious blank,
the word “delete” or a symbol are similar enough to Bruton’s unredacted confession to warrant the same result (inadmissible because
violates CC)
o Scalia’s dissent in Gray: drawing the line at facial discrimination of D (as in
Bruton where the confession expressly implicates D) makes more sense than
drawing it anywhere else.
Compulsory Process
Chambers v. Mississippi: Chambers is accused of murdering police officer when shots
were fired in a large crowd. The dying police officer fired in the direction of the shots and
struck Chambers. Another man in the crowd named McDonald admitted to shooting police
officer but then took back his confession. Chambers made efforts to present testimony by
others that McDonald had confessed on several occasions because Mississippi rules of
evidence would not allow it.
 Chambers rule: when particular evidence offered is critical to the D’s case AND
bears persuasive assurances of trustworthiness, the constitutional guarantee of a
meaningful opportunity to present a complete defense will defeat a rule of evidence.
 Alternate rule from Rock v. Arkansas -- court held that restrictions of a
defendant’s right to testify may not be arbitrary or disproportionate
to the purposes they are designed to serve – so if the application of the
rule that prohibits him from presenting testimony/defense is arbitrary or
disproportionate then it violates the compulsory process clause
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Lay Opinions and Expert Testimony
LAY OPINION TESTIMONY
Rule 701: (Lay opinions/inference) if witness is not testifying as an expert, opinion/inference
testimony is limited to opinions/inferences that are:
1. Rationally based on perception of the witness,
2. Helpful to give a clear understanding of the witness’s testimony or helpful to a
determination of a fact at issue, AND
3. Not based on scientific, technical or other specialized knowledge within the scope of
702 expert testimony
Rule 701 imposes 3 constraints on lay opinion/inference testimony:
1. Opinion must be reationally based on that witness’s perception
2. Opinion must be helpful to jury’s deliberation/fact-finding
3. Lay opinion may NOT invade the realm of expert testimony
At common law, judges typically gave lay witnesses leeway to testify about two
sorts of opinions:
1. Items that cannot be described factually in words apart form inferences (you
have to make inference to describe it)
a. Prototypical examples of this type of inferential description:
i. Appearance of persons or things
ii. Manner of conduct (person seemed furious…walked fast)
iii. Degree of lightness/darkenss (it was dark in the house)
iv. Sound
v. Size
vi. Weight
vii. Distance
viii. Competency of person
2. Opinions that can be reduced to more fundamental facts/observations but
the description is enhanced by the inference
a. EX: a witness may generally testify that she thought a man was
drunk because that opinion adds something to the foundational facts
Lay opinion/inference testimony about drugsadvisory committee notes:
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
To the 2000 amendment to 701 provide that a lay witness may testify that a
substance appeared to be a narcotic so long as a foundation of familiarity
with the particular substance is established.
U.S. v. Garnier
prosecution wanted to admit testimony of IRS agent who used forensic software
to determine that D had run searches on his computer using search terms relevant
to the investigationas a lay witness, said this wasn’t expert testimony because it
was based on results from commercially available software.
 Court said this software was not like Microsoft office (a lay person wouldn’t
know how to work it) and so it put the testimony to near the realm of
specialized knowledge within scope of 702. (not allowed under 701)
o Compared software like Microsoft Office to a thermometer (lay
person would understand) but the forensic software to specialized
medical tests run by physicians that implicate specialized knowledge
and would require expert testimony.
Particularized knowledge: (loophole to barring lay testimony based on
specialized knowledge) a lay witness may not offer testimony based on
“specialized knowledge” but sometimes may offer testimony based on
“particularized knowledge” gained by virtue of his or her position in a
business (2000 amendment to 701) Committee notes to 701lay opinion
testimony is admitted, not because of experience, training or specialized
knowledge within the realm of an expert, but because of the particularized
knowledge that the witness has by virtue of his position in his business.
o Two different readings of “particularized knowledge rule”
1. 11th Circuit: (Tampa Bay case) took a broad approach to
particularized knowledge of a business allowed by
701admitted testimony by officers, employees, consultants
and subcontractors in the industry to testify that charges
billed for ship repairs here fair.
2. 9th Circuit: took a narrow viewpermitted lay persons to
testify as to opinions based on particular knowledge about
their own business
Expert Testimony
Law places 5 demands on expert opinion testimony:
1. Proper qualifications of expert witnessmust be expert by knowledge, skill, experience,
training or education in the subject on which he is testifying
2. Testimony must concern a topic that is beyond the ken of the jurorsexpert’s opinion
must assist the jurors by supplying info or insight they would otherwise lack
3. Expert must have sufficient factual basis for opinion
4. Testimony must be product of reliable principles and methods and be reliably applied to
the facts of the case (Daubert)
5. Must pass 403 balancing (?) (there was a question mark in Holly’s notes by this)
U.S. v. Johnson
“expert” witness to testify that marijuana was Columbian grown. He had smoked over
1000 times, sold it over 20 times, and accurately identified its origin over 100
timesdoes this qualify as expert testimony?
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
Couldn’t come in under 701 because not testifying that it appears to be a
substance, testifying as to where it was probably gownrequires specialized
knowledge
 Also applied 702
 Court ruled that his experience in identifying Columbian marijuana qualified
him as an expert to identify it
To warrant use of exert testimony, must meet two prerequisites:
1. The subject/opinion must be so distinctly related to some science, profession
business or occupation as to be beyond the knowledge of the average lay person.
2. Witness must have such knowledge in that subject/field that it appears his
inference/opinion will probably aid the jury in its search for truth.
Rule 702: expert testimonya witness qualified by skill, experience, training or
education may testify as to opinion/inference based on scientific, technical or specialized
knowledge if:
1. The testimony is based on sufficient facts/data
2. Is the product of reliable principles and methods, AND
3. The witness has applied the principles/methods reliably to the facts
Jinro America v. Secure Investments
witness with experience in dealing with Korean businesses b/c he was manager
of a detective agency in Korea and investigated Korean companies while in US
Air Force—offered testimomy about the proclivity of Korean businessmen to renig on their contracts (more sociology and social stereotypes…not something he
would have knowledge of because of his experience with Korean business)
 Court said his testimony was outside his area of expertise and so he was
not qualified as expert witnessnot admissible under 702.
 Rule from Jinro America: to testify as expert witness under 702, must
be an expert in the narrow area/subject on which you’re testifying.
 Care must be taken to ensure that a proffered expert witness truly
qualifies as an expert under the requirements of rule 702 (based on skill
experience, training or education) because:
o Testifying as an expert witness will allow to testify based on
hearsay information and observations based on generalizations
o As an expert, testimony will likely be given a lot of weight by
the jury
o
Improper topics of Expert Testimony:
5 topics that will often be improper for experts:
1. Matters of common knowledge (because 702 says opinions based on
scientific, technical, specialized knowledge)
2. Opinions on law (encroaching on judge’s role)
3. Opinions on ultimate issues (just telling jury what to think)
4. Opinions on credibility (it’s jury’s job to determine)
5. Opinions on eyewitness identification (credibility of lay witness)
Opinions of Law and Ultimate Issues:
46
704: expert opinions on ultimate issues: 704(a), except in 704(b) expert
opinion/inference testimony is NOT objectionable just because it embraces an
ultimate issue to be decided by trier of fact
704(b): (Hinkley amendment) No expert testifying in relation to mental state
of a criminal defendant may state an opinion on whether or not D had the
requisite mental state that constitutes an element of the charged crime.
Committee notes to rule 704: they suggest that expert
opinions which “would merely tell the jury what result
breach” are not admissible
”requirements (in 702) that the opinion/inference
testimony must be helpful to the jury and 403 balancing provide
assurances against admission of expert opinions which would
merely tell the jury what result to reach.”
Hugh v. Jacobs
P sued police officer for constitutional violations stemming from a violent arrest;
expert testified that a flashlight strike to the head constitutes deadly force that
was not justified or reasonable under the circumstances. D claims this testimony
invaded the jury’s role as decider-of-fact (telling them the actions of police offers
were not reasonable or justified)
 Basically, by testifying that, in his opinion, the force was not
justified/reasonable in the circumstances of the arrest, the expert was
instructing the jury on how they should find on this ultimate issue of
law (whether or not the force was justified is an ultimate issue)
o Holding: (based on committee notes to 704) court erred in admitting
this testimony that told the jury how to decide on ultimate issue,
but it was harmless error because it was expressed within a larger body
of otherwise unobjectionable testimony concerning police procedures
from which the jury could easily have drawn the same conclusion that
the expert drew for them (that the actions of the officer were not
reasonable/justified)
o Rule: an expert is NOT qualified to compete with the judge as an
instructor of the jury as to issues of law
Opinions on Credibility
State v. Batangan:
child abuse case. Expert who had evaluated the victim/accuser/witness a few
weeks prior testified that she was believable and that she had been abused by the
defendant
Rule: expert testimony as to a particular witness’s credibility is not
appropriate because in most cases, the common experience of a jury provides a
sufficient basis for assessing a witness’s credibility
 Holding: conclusory opinions that the child victim’s report of child
abuse was truthful was of no assistance to the jury and so should not
have been admitted.
(might have been different if was testifying about the
truthfulness/credibility of children in general in order to give the jury the
tools they needed to evaluate the child’s credibility themselves)
 Reasoning for this rule – danger that the jury will abdicate their role
(to assess credibility/truthfulness to the expert, that they will just
47

assess what he says and not think critically about the facts of the
case/testimony of the parties, people involved in the actual case)
Court in this case cited the advisory committee notes to rule 704 that and
expert is not allowed to testify in a way that merely tells the jury what
result to reach
Opinion on Eyewitness Identification
U.S. v. Hines
bank robbery case, the prosecution’s case was based on testimony by eyewitness
who identified D as the robber. D offered on expert to assess the eyewitness
identification process and point out problems and inaccuracies. Claims this is
NOT admissible under 702 because it would not help the jury.
 Court said because the expert witness testimony gave the jury
information and tools that would help them assess the eyewitness
identification themselves, and did not imply that this particular
eyewitness identification was inaccurate, it was admissible.
o Rule from Hines: expert opinion testimony about eyewitness
identification will probably be admitted if it s about the process
in general (not the particular identification in this case) and is
meant to give jury the tools to assess the eyewitness testimony
on their own.
Proper Basis of Expert Opinion Testimony
Rule 703: proper basis of expert testimony. Facts/data in the particular case upon
which an expert bases an opinion may be:
1. Those perceived by the witness himself, or
2. Those made known to the expert at or before the hearing
If facts are of type reasonably relied on by experts in the particular field in
forming opinions/inferences upon the subject, these underlying facts do NOT
have to be admissible in order for the expert opinion to be admitted.
703 Balancingthe inadmissible underlying facts will not be disclosed to the
jury by the party offering the opinion testimony UNLESS the probative value of
the underlying facts in helping the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect
BUT these facts are admissible ONLY to help the jury to assess
expert’s testimony if otherwise inadmissible (so can’t offer as
substantive proof)
In re Melton
the jury’s verdict that Melton should be committed because likely to injure
himself or others depended completely on testimony by 2 expert physicians who
based their opinions on hearsay by Melton’s mother that he had punched in the
face.
 Hearsay (underlying fact) is not admissible but it was the type reasonably
relied on by expert psychiatrists and so the opinion based on this hearsay
was admissible under 703
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
Committee Notes to 703a physician in his own practice bases
diagnosis on information from numerous sources including patients
and relativesso if doctor relies on this, its reasonable to rely on its
opinion/diagnosis. BUT the underlying hearsay statement is NOT
admissible under 703 because it fails 703 balancing (the probative value
of the “punched me in the face” in helping jury assess the opinion that he
is a danger does NOT substantially outweigh prejudicial effect of such a
statement.
 Underlying facts on which expert testimony is based that
are Not otherwise admissible but pass 703 balancing are
admissible only to assist jury in evaluating the expert
testimony, not for any substantive purpose.
 Judge should give limiting instruction as to this if
otherwise inadmissible facts do come in under 703
balancing.
****expert witnesses are typically given wide latitude to chose what
sources/facts/data on which to base his testimony – that’s one of the reasons
its important to ensure that the particular witness is truly qualified in an expert in
that subject
Reliability of Scientific Testimony
Frye v. US
court said expert testimony based on “systolic blood pressure deception test” (lie
detector) was not admissible because not “generally accepted”.
Frye standard: scientific theory/test from which the testimony is deduced must
be sufficiently established to have gained general acceptance in the field in which
it belongs.
Daubert v. Merrel Dow Pharmacies
action against pharmaceutical industry alleging birth defects caused by mother’s
ingestion of prescription-Bendectin. District court said expert testimony was inadmissible
because was not based on a generally accepted technique.
 Supreme Court said 702 supersedes Frye test (generally accepted? Test)
because 702 makes no mention of “general acceptance” and the Frye test
was too rigid to fit with the “liberal thrust” of the FRE.
o Reasoning: 702 requires that testimony be based on “scientific
knowledge” (so derived by the scientific method) and that it be
helpful to the jury (fit requirementmust be valid scientific
connection between the research and the issue)
Daubert Rule: to admit expert scientific testimony, judge must make 2
preliminary assessments;
1. Whether the principles/methodology underlying the testimony is
scientifically valid (good science)
2. Whether that methodology/principle can properly be applied to facts in
issue. (fit requirement)
5 Daubert Factors to Look at When Determining Good Science:
1. Can it be/has it been tested?
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2. Has the theory/method been subjected to peer review and
publication?
3. Is the rate of error known?
4. Existence and maintenance of standards controlling the
theory/test/technique’s operation
5. General acceptance of the theory/method in the relevant scientific
community
Daubert holding: “general acceptance” of a theory/method is no longer a
necessary precondition of admissibility of scientific testimony. Under 702,
judges must determine if testimony is reliable (if the method/theory is “good
science” that is reliably applied to the facts of the case) and relevant

Risk that Daubert may allow in shaky scientific evidence can be resolved
by:
1. Rigorous cross-examination
2. Presentation of contrary evidence
3. Careful instruction to the jury on the burden of proof for
criminal/civil liability.

Rhenquist’s Dissent: Rhenquist agreed that the Frye standard was
inappropriate but he thought the factors are too vaguedoesn’t think 702
obligates judges to act as “amateur scientists” in order to perform their
gate-keeping role.
General Electric Co. v. Joiner
the standard of review for the lower court rulings of Daubert admissibility is “abuse of
discretion”
 Trial judges should scrutinize expert’s results as well as their method.
Daubert II (Daubert on remand)
 Court said 5 Daubert factors are NOT exhaustive nor do they all have
to bet.
 Most important factorwhether expert proposes to testify about matters
growing naturally and directly out of expert’s independent research
o Independent: independent of litigation or whether expert
researched this topic expressly for purposes of testifying).
 **independent research is the best objective proof
that a study comports with “good science.”
 Second most persuasive factor: (if expert testimony is not based on
independent research) has the research been subject to peer review?
(scholarly articles published?)
 Third most persuasive factor: where such evidence (of independent
research or peer review) is unavailable, expert must explain precisely
how reached conclusions and point to some objective source to show that
they have followed the scientific method.
Contradictory Expert Testimony: when a court applying 702/Daubert rules that an
expert’s testimony is reliable, does NOT necessarily mean contradictory expert
testimony is unreliable.
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
Proponents of expert testimony do NOT have to show the expert’s
results/opinions are correct, only that they are reliable/based on reliable
method.
Polygraph Evidence and the Daubert Test
U.S. v. Crumby
D was accused of being inside man in a bank robbery. He wants to submit results of
polygraph test performed by former polygrapher for Phonenix Police Dept to prove his
innocence.
 In Brown v. Darcy, 9th Circuit ruled that absent stipulation/agreement by
parties, polygraph evidence is per se INADMISSIBLE because of four
prejudicial concerns:
1. Polygraph evidence is shrouded in an aura of infallibility and so
jurors might give overly significant height to it
2. Polygraph evidence is opinion regarding ultimate issue
3. Infringes on jury’s role in determining witness’s credibility
4. Judicial resources will be unduly consumed because of testimony
that’s necessary when polygraph evidence is admitted
 Crumby court reassessed 9th Circuit’s approach to polygraph evidence for
two reasons:
1. Daubert calls for courts to reassess traditional approaches to
admissibility of scientific evidence
2. There have been significant increases in reliability of polygraph
evidence
 Crumby court assessed polygraph evidence under factors from Daubert I and
II:
1. PE has been subjected to extensive testing
2. There have been scholarly articles published concerning the validity
of polygraphs
3. The error rate is “remarkably low”
4. Use of polygraph test is widely accepted in the relevant community
(polygraphers)
5. Polygraph test and all the research about it was not developed for
purposes of this litigation
 Crumby court said polygraph evidence was reliable under Daubert I and II
and the “aura of infallibility” could be tested by vigorous cross-examination
and by evidence that demonstrates the fallibility of polygraph tests.
 Crumby court allowed limited admissibility of polygraph evidence subject
to 3 limitations:
1. Proffering party must provide sufficient notice to opposing party
2. Must give opposing party a reasonable opportunity to have its own
competent examiner administer polygraph test materially similar to
the first one
3. Will be admissible only to impeach or corroborate testimony (so
if admitting to corroborate D’s testimony, his credibility MUST be
attacked)

MOST jurisdictions do NOT admit unstipulated polygraph evidence.
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U.S. v. Scheffer
claim the military rule of evidence 707 absolute exclusion of polygraph evidence
violates the 6th amendment compulsory process clause
 MRE 707: excluded results of polygraph test, opinion of polygraph
examiner, D’s offer to take a polygraph test
 RULE: absolute exclusion/bar of polygraph evidence does NOT violate
the constitution; the jury is mean to be the lie detector, to assess
credibility/innocence and guilt.
o O’Connor’s concurrence in Scheffershe agreed that absolute
exclusion is constitutional but she did not think absolute exclusion is
wise in all cases.
o Stevens dissent in Scheffera rule that bars D from introducing
testimony to bolster his credibility impairs his meaningful
opportunity to present a complete defense (Stevens also thinks
polygraph evidence is reliable…says its more trustworthy than
fingerprints and a handwriting analysis.
Reliability of Non-Scientific Testimony
Kumho Tire Co. v. Carmichael
products liability suit against the tire manufacturer. P’s expert has theory that if blow out
wasn’t caused by over deflection, it has probably caused by defect in
manufacturing/design and if deflection was present it would show in at least 2 of 4
physical symptoms.
 11th circuit said Daubert applied only to scientific testimony.
 In Kumho Tire, Supreme Court said Daubert applies to all expert
testimonyscientific, technical and specialized knowledge.
o 3 reasons for this conclusion:
1. 702 makes no distinction between scientific testimony and
technical/ “other specialized” knowledge.
2. Expert witnesses have wide latitude (on what to testify)
regardless of whether that testimony involves scientific
knowledge or some other specialized knowledge.
3. It is generally difficult for judges to distinguish between
what is scientific, technical, or specialized knowledge.
 Rule: Daubert gate-keeping applies to all expert testimony. Trial courts
should consider specific factors identified in Daubert where they are
reasonable assessment of the reliability of that particular expert
testimony.
 Standard of Review for Daubert Analysis: abuse of discretion standard to
the judges Daubert conclusion and his decision about how to reach this
conclusion (decisions about what factors to conclude).
 Court held that the lower court did NOT abuse discretion in excluding expert
testimony because:
o None of the Daubert factors indicated that the testimony/theory was
reliable.
o Court couldn’t think of any other factors in favor of admissibility
o The parties did not indicate any extra focus of reliability
o No indication in the record that the other experts in the tire industry
recognize/use this theory/test
52
o
The test was not referred to in any scholarly articles.
Syndrome Evidence and the Daubert Test (Rape Trauma syndrome and PTSD)
State v. Kiney
expert offered testimony about RTS to explain how a victim might react in a passive way
as if nothing happenedthat type of behavior is not always inconsistent with having been
raped.
 The expert was not testifying as to that particular victim or offering an opinion on
whether that victim was raped or not.
 RTS evidence is the same type of evidence as PTSD evidence that has been
found admissible in child sex abuse cases.
o PTSD in child sex abuse cases: Courts have admitted expert testimony
about PTSD experience by children who are victims of sexual abuse
because the unique psychological effects and the behavior that manifests
them are hard for average jurors to understand.
 RULE: when the Daubert issue is whether a certain category of expert
evidence (PTSD evidence in sexual assault/molestation/rape cases) is
admissible, courts can sometimes rely on the decisions of other appellate
courts as to whether that type of evidence is reliable to the extent the
evaluation of that type of evidence by that court was complete and persuasive
o The judge here relied on other court’s Daubert conclusions (in State v.
Catsam) that were similar types of evidence (PTSD in child sex abuse
cases) expert testimony is admissible.
 Admitted RTS evidence to explain to jury how some victims
might not act, to help the jury in evaluating the evidence of how
victim had behaved, usually in response to claims by the defense
that the “victim’s” behavior was inconsistent with being the
victim of rape (not saying that this victim had PTSD or that she
acted in a way victim of rape does)
 BUT, expert testimony that in 98% of reported rapes, the
rape actually happened was NOT admissible. (because
that’s tantamount to expert opinion on the accuser’s
credibility/truthfulness)
State v. Alberico:
 Court said, because PTSD is found in the “Diagnostic and Statistical Manual”
(book with list of all diseases), it must be generally accepted (for purposes of
Daubert)
o Dean Davis said this is a false or improper conclusion.
 Holding: because PTSD testimony is valid and probative and is not unduly
prejudicial, it is admissible to prove that victim exhibits symptoms of TSD that
are consistent with rape or sexual abuse.
o Alberico and Chavin say the exact opposite about whether PTSD
testimony is admissible to prove that rape/abuse occurred (b/c of
symptoms victim has demonstrated)
State v. Chavin: PTSD evidence is admissible to show that certain behaviors are not
inconsistent with being raped/abused BUT PTSD evidence is NOT admissible to
substantially prove that sexual abuse actually occurred.
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
PTSD has not been proven as a reliable indication that sexual abuse is the trauma
underlying the symptoms.
Authentication of Evidence: is the evidence what the proponent says it is?
901(a): Standard of Proof for Authentication: authentication requirement is satisfied by
evidence sufficient to support a finding by the jury (by preponderance of the evidence) that the
matter in question is what its proponent claims.
901(b): Non-exhaustive list of proper methods of authentication:
 (1) Testimony of Witness with a knowledge that matter is what it claims to be
 (2) Lay opinion on handwriting (based on familiarity with handwriting NOT
acquired for purpose of litigation
 (3) Comparison by trier of fact or expert (compare evidence in question with
specimens that has already been authenticated
 (4) Distinctive Characteristics taken in conjunction with the circumstances
(circumstantial evidence)
 (5) Voice Identification based on hearing the voices under circumstances
connecting it with the speaker
 (6) Telephone conversations
 (7)Public records/reports
 (8) Ancient documents
 (9) Process or system (present evidence describing the process used to produce
the evidence and show that process produces accurate results)
902: “Self Authenticating evidence”: if evidence fits into the core of the 902 categories,
extrinsic evidence is not required to authenticate it
 Reasoning for 902: if a document fits into one of the 902 categories, practical
considerations reduce the possibility of unauthenticity to a very small dimension.
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o
Example of self-authenticating evidence: a newspaperit is really hard to mimic
newspapers and early to detect forgeries so the risk that newspaper is NOT
authentic is really small.
Chain of Custody:
 A method of authentication of objects/documents
 Chain of custody: testimony by each person who had custody of the item until it was
delivered inot court to show that it hadn’t been altered
o Under 901(a) chain of custody does NOT have to be perfect, only has to be good
enough to support a finding by jury that matter is what it purports to be.
 Chain of custody must support finding that the item is:
 The same item
 Is in substantially the same condition
Ancient document authentication method
U.S. v. Stelmokas
ancient document authentication; D is accused of being part of Soviet police force,
persecuting Jews. Prosecution based on documents form WWII. Most of the documents
were found in Soviet archive in the Lithuanian capital. Prosecutor called two experts that
testified to the authenticity of documents but D argued the documents weren’t authentic.
 Holding: prosecution provided sufficient authentication
 In cases where Ds allege suspicion regarding authenticity, implying that he was
framed judge should ask 2 questions:
o (1) why would anyone seek to frame this D?
o (2) If anyone was framing D, is that the way they would go about doing
it?
 EX: in Stelmokas, the D was just a mid-level police officer, who
would frame him? Why would they plant the documents in an
area that was inaccessible; Soviet archives were docs were found
was shut off for years.

901(b)(8): authentication of ancient documents may be proven by
demonstration that:
1. Document is in such condition as to create no suspicion
concerning its authenticity
2. Was found in a place where, if authentic, it would likely be,
AND
3. Has been in existence for 20 yrs or more at the time it was
offered
Distinctive Characterstics (circumstantial evidence) and Phone Call ID
State v. Small
Witness heard victim make a call from his phone about not having money to pay the
other guy his debt. (Victim was killed). Witness later called that number back. Someone
who spoke with a Jamaican accent answered and called himself Dominique and they
talked about the victim’s debt.
 To authenticate with circumstantial evidence under 901(b)(4) distinctive
characteristics - offer circumstantial evidence that supports conclusion that only
the D could have been the person on the other end of that call.
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
Fact that caller identified himself as Dominique was not enough
Rule: to authenticate a phone call under 901(b)(4) distinctive characteristics, the
contents of the conversation, characteristics of the speech, circumstances of
the call must render it improbable that the caller is anyone but who the
proponent claims it is.
o Holding: properly authenticated call with circumstantial evidence.
Handwriting identification
Rule about handwriting identification: sufficient familiarity with handwriting for
purposes of 901(b)(2) may be acquired by:
 Seeing individual write
 Exchanging correspondence with person
 Other means
But remember, the familiarity must NOT have been acquired for purposes of
litigation
Photo/Video Authentication
Simms v. Dixon
car accident case. P wants to offer photo of car after accident to prove the car was hit in
the right rear of the vehicle not the middle panel. Judge wouldn’t admit photo because P
didn’t call the photographer to testify to authenticate the photo/lay foundation of
admissibility.
 Photographer’s testimony is not necessary to authenticate photographic
evidence.
o Test of whether photo is authentic: whether it accurately represents the
facts allegedly portrayed in the photo. Anyone with knowledge of these
facts could testify to this.
Wagner v. State
(like in the Thelma and Louis video, someone form the video camera company could
testify as to the accuracy/reliability of equipment to authenticate the video)
 Silent witness rule: photographic/video evidence may be admitted upon proof of
reliability of the process/equipment which produced the photo/video.
o Factors for whether video is reliable:
 Evidence of time/date of photo/video
 Evidence of editing/tampering
 Operating condition and capability of equipment that produced it
 Procedures used for preparation, testing, operation, and security of
the equipment.
 Testimony identifying the relevant participants depicted in the
photo/video.
The Best Evidence Rule
Rule 1002: requires the original to prove the contents of a writing, recording or photo.
Original: (as defined in 1001) the writing or recording itself or any counterpart intended
to have the same effect by a person executing or issuing it.
 Original of a photo: the negative or any print made from that
negative
 Original or computer data: if data is stored on computer or similar
device, any printout or other output reachable by sight and shown to
reflect the data accurately is an original
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Duplicate Rule (1003): a duplicated is admissible to the same extent as an original unless:
1. A genuine issue is raised as to the authenticity of the original or
2. Under the circumstances it would be unfair to admit the duplicate instead of the original
i. Duplicate: a counterpart produced by the same impression or same
matrix as the original-by photography, re-recording, chemical
reproduction or other equivalient technique which accurately reproduces
the original.
Rule 1004: original is NOT required and other evidence to prove contents of a
writing/recording/photo is admissible when:
1. Originals have been lost or destroyed (unless proponent lost or destroyed them in bad
faith)
2. Original can’t be obtained by any available judicial process.
3. The original is in possession of the opposing party and they don’t produce the original at
a hearing
4. The writing/recording/photo is only relevant to a collateral matter (is not probative of an
ultimate issue)
PRIVILEGES
A. Proposed Rules
 Proposed Rules 501-513 would have established specific privilegesspousal,
attorney/client, and psychoanalyst/patient
 Congress rejected the proposed specific privileges and established only ONE rule dealing
with privileges, FRE rule 501.
o Proposed rules 501-513 are used as a guide by federal courts and states in
developing privilege rules.
o Problems with proposed rules:
 There are some privileges you would have expected to be included that
were not. 501-513 did NOT include a general physician/patient privilege
or a true marital privilege.
 Supreme Court recognizes a true common law privilege for marital confidence (spousal
privilege) but does NOT recognize a general physician/ patient privilege
SUPREME COURT HAS NOT RECOGNIZED A GENERAL PHYSICIAN/PATIENT
PRIVILEGE
Purpose of privileges: we want to encourage open/frank communications between certain
parties, so they are established to protect their communicators from scrutiny at trial.
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RULE 501: states that privileges will be governed by common law as interpreted by federal
courts with reason and experience BUT where state law controls in federal court (diversity
cases) the state law as to privileges will also be applied.
Psychoanalyst Privilege
Jaffe v. Redmond
psychoanalyst privilege. Police officer was getting counseling about a man she shot and
killed from a licensed social worker. The victim’s estate is suing police officer and wants
access to the social worker’s notes from counseling sessions.
 The Supreme Court recognized an unlimited psychoanalyst/patient privilege (not
the limited, qualified psychoanalyst privilege adopted by the 7th circuit).
 Reasoning behind psychoanalyst privilege: privilege is deeply rooted in
imperative need for trust and confidence in one’s occupation.
o ***Privileges MUST be justified by a public good
transcending the normal principle that all rational means of
ascertaining the truth should be used.
 There must be a public/societal good that justifies
barring some relevant evidence that could potentially
shed some truth on the case
 In adopting the psychoanalyst privilege the court considered:
1. Fact that likely benefit that would result form denial of this privilege
is outweighed by the chilling effect the denial of the privilege would
have on what people say to their therapist.
2. The fact that all 50 states had enacted some form of psychoanalyst
privilege
3. The proposed rules written by advisory committee contained a
psychotherapist privilege (proposed rule 504)
 Court applied the psychotherapist privilege to a licensed social worker acting as a
counselor because today social workers provide a significant amount of mental health
treatment
o Scalia’s dissent in Jaffe: said denial of privilege would not have a chilling
effect on what is said in therapy because patient is not thinking about fact
that what they say to their therapist could later be repeated in court
 BUTproposed rule of evidence 504 privilege only applies to
confidential communications, a communication is confidential only
if NOT intended to be disclosed to third persons other than those
present.
 (so if you go around town blabbing to everyone what you
said to your therapist, then you didn’t intend it not to be
disclosed. This is not covered under psychoanalyst
privilege.)
o Dangerous Patient Exception to Psychoanalyst Privilege In Jaffe, court
noted this possible exception to the therapist privilege: privilege won’t apply
where a serious threat of harm to the patient or to others can be averted only
by means of a disclosure by the therapist.
 The 9th and 6th circuits rejected this exception in U.S. v. Chase and
U.S. v. Itayer because court wanted an unlimited privilege.
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Purpose of Attorney/Client privilegeencourage full and frank communication
between attorneys and their clients, promoting broader public interests of
observance of the law and administration of justice.
Purpose of spousal privilege: to further the important public interest in marital
harmony
Purpose of psychoanalyst privilege: facilitates the provision of appropriate
treatment for individuals suffering the effects of a mental or emotional problem.
Journalist Privilege (if there is one)
In re Grand Jury Subpoena, Judith Miller
journalist privilege (not to reveal confidential sources). Leak of identity of CIA agents,
reporters and journalists, including Judith Miller, who broke the story refused to reveal
their sources.
 There is NO first amendment privilege that protects reporters who are called
to testify about their confidential sources (Brantzburg v. Hayer)
 In the Judith Miller cases the judges disagree about whether or not there is a
common law privilege that protects a newsman’s confidential sources, but if
there is a journalist’s privilege it has been overcome by the evidentiary need for
disclosure in the interest of justice.
o Judge Sentell’s opinion: no common law journalist privilege because:
 Experience courts consistently refuse to recognize existence of
any privilege authorizing newsmen to refuse to reveal
confidential information.
 It would be better for Congress, not the courts, to create a
newsman privilege because it would be complicated.
 Says Branzburg decision (that no first amendment privilege for
reporter’s sources exists) applies to common law newsman
privilege as well.
o Judge Tatel recognized a qualified common law newsman privilege.
 Limitationhave to balance the public interest in free
dissemtination of ideas and info against public interest in law
enforcement and justice.
 Judge Tatel’s limited privilege does not apply to this case
because where leak causes harm to natural security but provides
only minimal benefit to news/public debate, it is not protected by
privilege.
o Judge Henderson’s privilegeit wasn’t necessary to reach a decision
about whether or not there’s a newsman’s privilege because all the
justices are in agreement that such a privilege would not apply to Judith
Miller because of the serious harm caused by the leak.
A defendant’s right to compulsory process probably trumps all privileges EXCEPT the First
Amendment (and probably not the privilege against self incrimination )
Religious Confession Privilege and Compulsory Process
Morales v. Portuondo
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Forner (who is now dead) told a priest, not in official confession, who was a good family
friend, that he killed the girl and the three men in jail were innocent of the crime. The
priest felt like this information was privileged information and kept it secret for 12 years.
Now Forner is dead and the priest wants to come forward and petition for habeas corpus
relief for the 3 men.
 Privilege rule in NYminister or priest may not disclose, at trial, a confession or
confidence made to him in his professional character as a spiritual advisor
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Normal Compulsory Process Rule: that D’s evidentiary need and persuasive
assurances of trustworthiness/reliability will trump a rule of evidence-does NOT
apply to privileges because a privilege keeps out perfectly reliable testimony
because of other social goals.
o Weighing test for whether privilege or compulsory process should
prevail: must weigh the interests protected by privilege (the
public/societal goals that privileges serve) against the defendant’s need
for that evidence (and his right to a full and complete defense)
 ask “is this privilege essential to the full and satisfactory
maintenance of a relationship which in the opinion of the
community ought to be fostered
In this case, the defendant (who is in jail for a crime he didn’t commit) has a right
to compulsory process in the interest of justice prevails over any benefit to
society that would result by protecting this information because the confessor
(Forner) is dead, he wasn’t careful with his disclosure in the first place and it
wasn’t even a formal confession.
Rule: Compulsory process will certainly yield to the privilege against selfincrimination but that’s probably about it
Attorney/Client Privilege
Four elements of Professional Privileges
1. The privilege is the client’s and so only the client can assert the privilege or
waive it.
2. Privilege protects only those confidential communications made to facilitate
professional services (friendly chats don’t count, or communications made to
the lawyer while the lawyer is acting as a lobbyist)
3. Privilege protects only confidential communications (only confidential if client
intended it to be confidential and stay confidential)
4. Privilege protects only the communication not the facts communicatedif
you tell your lawyer a fact, you can still be asked about it at trial
Defining whether attorney/client privilege has been waived:
Howell v. Joffee
Accidental attorney/client privilege disclosure on a voicemail recording. The
party asserting attorney/client privilege has the burden to show that:
1. The communication originated in a confidence that it would not be
disclosed
2. Was made to an attorney in his legal capacity for the purpose of securing
legal advice/services, and
3. Remained confidential
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Primary purpose: communication will be considered “for purpose of securing
legal advice/services” if primary purpose of conversation was to share protected
information.
 Balancing test for whether inadvertent disclosure was a waiver of the
privilege:
o (factors from Daalen v. Ozite Corp.)
 Should analyze:
1. The reasonableness of precautions taken to prevent
the disclosure
2. The time taken to rectify the error
3. Scope of the discovery
4. The extent of the disclosure
5. Overriding issue of fairness
 Court in this case applied the balancing test and found that, because they
immediately asserted the privilege when they realized the disclosure
occurred-they had not waived the privilege.
Koch Foods v. General Electric Capital Corp.
Email exchange between CFO of Koch Foods and their counsel was accidentally
disclosed in discovered documents (even though it was on the privileged
information list.
o 3 different tests for whether an inadvertent waiver occurred:
1. Traditional strict-liability approach: a party should pay
the price of a waiver even if it accidentally disclosed
information.
2. Intent-based approach (most lenient): a waiver could not
possibly be inadvertent
3. Balancing Test approach: (the 5 factors from Daalen) that
considers totality of the circumstances surrounding the
disclosure
o Holding: applied balancing testsaid did not waive privilege
because it was clear Koch intended to assert privilege
D. Sources of Fees and Client’s Identity
Generally Lawyer/Client privilege does not protect against disclosure of fee payments or
client’s identity.
 Names/identity aren’t considered confidential, because
1. People generally don’t regard their names as secrets
2. Disclosing identity is a step in forming a lawyer/client relationship,
not in the course of the relationship
a. But in the Baird case, disclosure of client’s identity would
allow authorities to connect certain privileged information
with that client, so was covered by the privilege
Does Attorney/Client Privilege Survive Death
Swidler & Berlin v. United States
 Facts – Foster (deputy white house counsel for president Clinton during
the Travelgate scandal) went to see a private lawyer for advice. During
their two-hour meeting the lawyer took a few pages of hand-written
notes. Foster killed himself nine days later.
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Now, in case arising from investigation by Independent Counsel into
whether various individuals made false statements, obstructed justice or
committed other crimes during the scandal involving dismissal of
employees from the White House Travel Office, the petitioner attorney
wants to assert client privilege to set aside the subpoena requiring him to
present to the grand jury these notes he took during his meeting with
Foster.
the district court said attorney-client privilege applies after death
the DC circuit court did a balancing test and ruled that the need to
present this evidence outweighs the value of applying the attorney-client
privilege once the client has died, and so reversed the district court’s
ruling.
General rule about privilege surviving death (other than in the circuit
court stage of this case and a Pennsylvania state court case – Cohen v.
Jenkintown Cab Co.) is that most courts presume the privilege
survives death
 Testamentary exception to attorney client privilege surviving
after death – in proposed rule 503(d)(2) – when a
communication between attorney and deceased client is relevant
to an issue between parties who claim through the same
deceased client (like if there is a will contest and a statement
that the deceased client made to his attorney while they were
drafting his will midght shed some light on the issue) – attorney
privilege won’t apply in this situation
Supreme Court disagrees with the DC circuit – says the attorney-client
privilege still applies after client dies and they refuse to adopt any
balancing test or exception because they don’t want to water down the
privilege
 Why privilege should still apply – some of the reasons for
privlege of attorney client info still apply after client dies
o “clients may be concerned about reputation, civil
liability, possible harm to friends or family (like in this
case, Foster’s family had already hired their own private
attorney to deal with all this). Posthumous disclosure of
such communications may be as feared as disclosure
during the client’s lifetime”
supreme court rejects the balancing test (balancing the importance of the
information against client interests) because it introduces substantial
uncertainty into the privilege’s application
 this is like in the Jaffee case where they rejected a balancing test
with the psychoanalyst privilege because that uncertainty created
by such a blancing test or exception might chill what people feel
comfortable disclosing to their therapist
O’Connor’s Dissent in Swidler & Berline
 She thinks the value in protecting an innocent defendant should
outweigh a deceased client’s interest in preserving confidences
o Like in the Morales (preist/penitent privlege) case where
the court relied on Chambers v. Ms right to cumpolsary
process and basically said that a constitutional right will
almost always certainly prevail against a privilege
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o
BUT, in this case, the PROSECUTION want to present
the privileged information, NOT a DEFENDANT (so
this really isn’t like the Morales case)
Crime Fraud Exception to Attorney/Client Privilege
United States v. Zolin
whether court can review the privileged information in order to determine
whether it should be privileged or some exception should apply)
 Investigation into church of Scientology, looking for evidence of fraud
 Supreme Court granted cert to consider whether the attorney-client
privilege exception that applies to communication in furtherance of
future illegal conduct (the crime-fraud exception) applied in this case.
 The real issue in this case is whether “in camera review” (actually
looking at the privileged info itself) to determine whether information
actually is privileged or some exception applies is proper?
 Under rule 104(a) – preliminary questions concerning the qualification
of a person to be a witness, the existence of a privilege or the
admissibility of evidence shall be determined by the court. In making its
determination, the court is not bound by the rules of evidence except
those with respect to privilege
 The Circuit Court here interpreted 104(a) to mean that the court
has to decide if the communication is privileged without looking
at/listening to the potentially privileged info. So the party
claiming that such communication is not privileged because
some exception applies, would have to present independent
evidence to prove this (because the courts not going to look at
the communication itself)
 Supreme Court disagrees with the circuit court’s DRACONIAN
interpretation of 104(a) because it is inconsistent with the rule’s plain
language (the rule does NOT provide that all materials as to which there
is a claim of privilege must be excluded from consideration)
 Court refused to adopt a reading of 104(a) that would treat the contested
communications as privileged for purposes of the Rule.
 SO, a party opposing the privilege on crime-fraud exception
grounds in NOT automatically prohibited from relying on
the results of a review of the potentially privileged
communications
 BUT before a district court can engage in an “in camera review”
at the request of the party opposing the privilege, that party
must present evidence sufficient to support a reasonable
belief that “in camera review” may yield evidence that
establishes the exception’s applicability
o
CRIME FRAUD EXCEPTION to attorney/client privilege = proposed rule
503(d)(1) – “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”
privilege doesn’t apply to that communication
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Government Lawyers and Attorney Client Privilege
In re Grand Jury Investigations [Rowland]
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The other cases that have looked at whether or not traditional attorneyclient privilege applies to government lawyers [In re Grand Jury
Subpoena Duces Tecum, In re Lindsey, and “Ryan”] have all ruled that
statements made to government attorney aren’t privileged like traditional
attorney/client communications
The District court in this case said that attorney/client privilege doesn’t
apply to government lawyers because “the people” are their clients, not
presidents, other government officials
The 2nd circuit disagrees – because it is also in the public interest for high
government officials to receive and act upon the best possible legal
advice
 Looked to the fact that the Connnecticut state legislature had
enacted a statute for privilege of all confidential communications
to government attorney
 Court said the relationship between a government attorney and a
government official or employee is not the same as that between
a private attorney and his client BUT that’s insufficient to
distinguish a principle “so entrenched in our legal tradition as
that underlying the attorney/client privilege”
So the 2nd circuit ruled that attorney client privilege applies to
government attorneys and refused to adopt any balancing test or
exception
 Recognized that their decision created a jurisdictional split over
the issue because the 7th and 8th and the DC circuit say the exact
Marital Privileges = 1) spousal testimonial privilege and 2) marital confidences privilege
1. Spousal Testimonial Privilege:
Tilton v. Beecher
 Plaintiffs counsel argues that the common law spousal testimonial privilege should
apply because it is based on the common law idea that man and wife are one – “2
souls in 1 person”. Plaintiff said the courts should not allow justice to “pull and tear
asunder the conjugal relation” by forcing one to betray another
 The defense argued that one spouse should be able to testify on behalf of another.
Should not be totally barred from testifying in spouse’s case because man and
woman are no longer legally one person – married woman are now able to “barter
and trade” and speak for themselves
Trammel v. United States
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Issue – can a criminal defendant invoke the spousal testimonial privilege to bar his
wife from voluntarily testifying against him (she wants to testify against him)?
D is accused of importing heroin to the US from Thailand. The wife was involved as
well and, after she was arrested, has agreed to cooperate in D’s prosecution. The D
asserted his spousal privilege to keep her from testifying
The district court ruled that Mrs. Trammel could testify against D based on any
observations from the marriage or any communication made in front of a third person
(did NOT apply the spousal privilege) but could NOT testify as to the confidential
communications between D and wife (applying the marital confidences privilege)
Spousal testimonial privilege is based on medieval jurisprudence that spouses were
incompetent to testify on behalf or against eachother (based on two things):
 Rule that an accused was not permitted to testify on his own behalf
 Woman and man are one (woman has no separate legal identity from her
husband)
Evolved so that spouses could testify on eachother’s behalf. And evolved farther so
that if the criminal D spouse wished to raise the privilege, could bar his spouse from
testifying AGAINST HIM
 In Hawkins v. US, court chose NOT to abandon the adverse spousal
testimony in federal courts and rejected to vest the privilege only in the
witness spouse (witness spouse could decide whether or not she wanted to
testify against her spouse, but the criminal D spouse could NOT bar spouse
from testifying against him)
Ruling in Trammel – existing spousal testimony should be modified so that the
witness spouse alone has privilege to refuse to testify adversely. Witness spouse
cannot be forced to testify against spouse but also the criminal D spouse could
NOT bar her from testifying against him (if witness wants to testify, she can)
 (holding – upheld lower court’s decision)
 why modify the traditional rule?
o The anceient foundations for a sweeping spousal testimonial
privilege has disappeared (woman is no longer chaettel without a
separate legal identity)
o The contemporary justification (that its necessary to protect marital
harmony) is not persuasive – because if spouse WANTS to testify
against husband/wife then the marriage is probably already falling
apart
o The court left the door open to limit/modify the privilege later in
Hawkins (if need for privilege were to change because of “reason
and experience”
o The number of states recognizing the spousal testimonial privilege
has dropped from 31 to 24 since Hawkins was decided
o In rejecting the proposed Rules and instead acting 501 that leaves
privilege up to the courts according to reason and experience,
congress demonstrative an intention NOT TO FREEZE THE LAW
OF PRIVILEGE
 So it is within the federal courts to consider the continued
validity of the Hawkins rule of sweeping testimonial
privilege
EXCEPTION TO SPOUSAL TESTIMONIAL PRIVILEGE when crime committed
by one spouse against the other:
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Will be no privilege under the spousal testimonial privilege in the case of
domestic abuse crimes where one spouse is accused of abusing another (the
case involving NFL quarterback Warren Moon)
In the proposed rule 505 (c) it states the spousal privilege does NOT apply
when one spouse is charged with a crime against the person or property of
the other spouse or against a child of either of the spouses (or if he’s
charged with a crime against the person/property of a third person committed
while committing a crime against the other spouse
Comparing the 2 marital privileges:
1. spousal testimonial privilege:
 applies in criminal cases only
 in most states (and in federal court after Trammel case) only the witness
spouse can assert the privilege (so the criminal D spouse cannot!)
 does NOT survive death
 bars ANY testimony of spouse against spouse if asserted (so if the
privilege applies, will apply to all communications even if they weren’t
made in expectation that they were made in confidence)
 rational for the testimonial privilege – to protect marital harmony (that’s
why it wont bar a witness spouse who wants to testify from testifying – if
spouse already wants to testify against husband/wife then there’s
probably not much “marital harmony” to salvage
2. marital confidences privilege
 applies in both criminal and civil cases
 privilege will survive death of a spouse
 can be asserted by either spouse (the defendant or the witness)
 but to be covered under the privilege, the communication must have been
made with some expectation of privacy/confidence
 for example, in the bonfire of the vanities clip, tom hanks
probably couldn’t raise the marital confidences privilege to bar
his wife from testifying about their phone conversation because
he didn’t know he was talking to his wife (thought he was calling
maria) and so had no expectation of marital confidentiality) but
his wife (played by Samantha jones) could assert the marital
confidences privilege because she knew she was having a private
convo with her husband
 applies even if the marriage ends (if communication was made during
marriage, will apply even if they get divorced)
 will apply even if neither spouse is a party to the litigation
 BUT probably doesn’t apply to commuications involving ONGOING or
FUTURE crimes
 Rationale for this privilege – to encourage open communication between
husband and wife
 in federal court, same sex couples do NOT enjoy a martial confidences
privilege (but do in some states)(this applies to both marital
privileges!!!!)
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If confidential communication was made via work computer/email
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4 factors court should look at in cases like this where a privileged is claimed as to
email on computer at workplace where computer is supposed to be used only for
work related things, and there is some warning that the email/computer might be
subject to monitoring
1. does the corporation maintain a policy that computer/email shouldn’t be
used for personal communications, that the email will be searched
2. does monitor employee’s use of email?
3. Do third parties have right of access to email/computer
4. Did corp notify employee (was employee aware) of the use/monitoring
policies?
Crime Exception to Marital Confidence Privilege
US v. Rakes
The husband and wife were victims of extortion. Husband was called o testify at grand jury.
Later, he was charged with perjury based on the testimony given to the grand jury. He moved
to suppress evidence of conversations between him and his ex-wife that occurred while they
were still married, asserting the marital confidences privilege
 the district court granted the request except with respect to one communication
because it was made in front third party
 different arguments made by the prosecution for why privilege shouldn’t apply:
1. the communication was made in front of the couples’ infant children
 court said it was still confidential (the infant children didn’t
qualify as third parties)
2. that it shouldn’t apply because now they’re divorced
 privilege will still apply to communications made during the
marriage even after the marriage ends
3. that the privilege doesn’t apply to financial matters
 court said no, the topic of the communication is irrelevant
unless it sheds light on whether the communication was
intended to be confidential
4. that the privilege doesn’t apply because the communication occurred in
the middle of an ongoing extortion scheme
 court said crime/fraud exception does NOT apply here
because the communication was NOT made in furtherance of
an ongoing/future crime – because the husband/wife are not
committing crime, they are the VICTIMS of the crime
 if the crime/fraud exception barred privilege from
applying to any communication made between husband
and wife in the context of a crime, then it would force
them to testify about things like intimate convo between
husband and wife about their child that has been
kidnapped
 court upheld the privilege
Crime/Fraud exception to marital privilege
o (from US v. Rakes) privilege for marital communications is lost (doesn’t
apply) when the communication was made by one spouse to another for
the purpose of carrying out a crime
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