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 Development and Nature of Evidence
o pre-1970 controlled by common law
o NOW statutory FRE
 Trial
o evidence – material (documents, physical objects, and testimony) that tends to prove or disprove the
existence of an alleged fact
 offered to persuade the trier of fact
 FRE govern which materials can be considered by the trier of fact in resolving fact questions
 types of evidence
 direct evidence – evidence that is based on personal knowledge or observation and that,
if true, proves a fact w/o inference or presumption.
 veracity problem
 NO relevancy problems
 circumstantial evidence – evidence based on inference and not on personal knowledge or
 NOT eyewitness
 relevancy and veracity problem
 Role of the Trial Judge
o Authority

FRE 104 – Preliminary Questions

(a) Questions of admissibility generally – TC determines preliminary questions re: qualification of

witnesses, existence of privilege, and admissibility of evidence
 TC has a lot of discretion except re: privilege

o Discretion
 after evidence admitted by TC hard to get reversal on appeal UNLESS plain error
 different standards by JD but all high
 U.S. v. Walton
 CoA gives great deference to TC b/c TC
 first-hand exposure to evidence
 familiarity with case
 ability to gauge impact of evidence in context of entire proceeding
 Bandera v. City of Quincy – NO plain error b/c no showing that it probably infected the
outcome or caused a miscarriage of justice
FRE 103 – Rulings on Evidence

(a) Effect of erroneous ruling – NO Error for ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
(1) Objection –ruling admits  timely objection or motion to strike on record, stating specific ground of
objection, if not apparent from context; or

(2) Offer of proof –ruling excludes  substance of the evidence was made known to the court by offer or
was apparent from context

CT: definitive ruling on the record admitting or excluding evidence  DON’T need to renew
objection/offer of proof to preserve a claim

(b) Record of offer and ruling –TC can add explanation re: evidence’s character/form, objection, and ruling

(c) Hearing of jury – proceedings shall be conducted, to the extent practicable, to prevent inadmissible
evidence from being suggested to the jury by any means.

(d) Plain error – rule doesn’t prevent noticing plain error affecting substantial rights even if not brought to
CT’s attention

Requirements for Reversal of Judgment When Evidence Erroneously Admitted

Specific objection?

Yes NO

Timely objection?

NO NO reversal

Valid grounds for


Prejudicial error?


 Definitions
o 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 [FRE 401]
 very low standard any tendency to claim slightly or less lightly to be true
 individual piece of evidence NOT required to be independently sufficient for jury verdict (“a
brick is not a wall”)
o irrelevant evidence – evidence without probative value that doesn't tend to prove or disprove a matter
in issue
 no exceptions
 Relevance and Irrelevance

FRE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

 RELEVENT evidence is admissible except as otherwise provide by Const., Congress, FRE, S.Ct.
ALL IRRELEVANT evidence is inadmissible.

o Knapp v. State (1907) – Evidence of Collateral Fact Admissible to Prove Challenged Fact if
Logical/Reasonable Inference of Existence of Challenged Fact Can be Drawn
 evidence of collateral fact is admissible to prove the challenged fact if a logical and reasonable
inference of the existence of the challenged fact can be drawn therefrom
  testifies that he heard rumor before murder that decedent killed old man, but didn’t
remember who told him,  could, for the purpose of making ’s claim less probable, admit Dr.
testimony that old man died of senility and alcoholism
o U.S. v. Dominguez (1990) – Less Probative/Weak Evidence Can Still be Relevant
  convicted of kidnapping, and robbery based on ’s evidence that  owned gun, tried to have
barrel replaced, DIY attempt to replace barrel
 relevant  owning makes guilt more probable than not; even though  had gun as part of job,
just made evidence less probative/weaker, NOT irrelevant
o State v. Larson (1992) – Evidence Assists Jury to Evaluate Fact and Apply Experience
 guy rides horse w/ kid even though warned horse was inexperienced  kid dies
 comparison of guy’s BAL v. DUI BAL was relevant in prosecution for negligent endangerment
of child
 showed alcohol had impaired reactions and judgment
 comparison helped jury evaluate level of intoxication and apply experience + logic to
determine whether intox. level impaired judgments and reactions
 Probative Value and Prejudice

FRE 105 – Limited Admissibility

When evidence is admissible for one purpose/party NOT inadmissible just b/c it is inadmissible for

TC, if requested, must instruct jury about limited admissibility.

FRE 403 – Exclusion of Relevant Evidence: Prejudice, Confusion, Waste of Time

Relevant evidence may be excluded if:

 probative value is substantially outweighed by the danger of unfair prejudice
 confusion of the issues
 misleading the jury
 undue delay
 waste of time
 needless presentation of cumulative evidence

o U.S. v. Noriega (1997) –  Probative Value v.  Potential to Confuse = Inadmissible

  convicted of drug charges  wanted to introduce evidence of how much he was paid for secret
operations in Panama in response to ’s evidence of how much money he has [from drug
 probative – could have helped jury decide which amount was more credible
 BUT probative value substantially outweighed by its potential to confuse  shift trial from drug
trafficking to geopolitical issues
o U.S. v. Flitcraft (1986) – Cumulative + Potential to Confuse = Inadmissible
 husband and wife convicted for not filing taxes and filing false exemptions  appeal contesting
the willfulness of their behavior; they read articles and cases and believed their wages weren't
 TC didn’t let  introduce documents themselves, but was allowed to testify about them
 NO abuse of discretion because documents were cumulative of ’s testimony ( probative
value) + danger of confusing jury by suggesting the law was unsettled ( prejudicial)
o Abernathy v. Superior Hardwoods Inc. (1983) – TC Doesn’t Have to Accept Evidence of Slight
Probative Value
 truck driver () injured when log rolled of his truck while being unloaded by sawmill ()
  made video of log-unloading process  TC allowed jury to watch with sound off
 video didn’t meet minimum standards of reliability: not where  was standing; amateur
recording; how sound would sound in courtroom?
 TC isn’t required to encumber a trial with evidence of slight probative value merely because
effective cross-x might expose weaknesses
 juries have hard enough time deciding w/o tangentially related evidence
 federal trials take up enough time w/o being required to include crappy evidence
o U.S. v. McRae (1979) – Unfair Prejudice NOT Intended to Mitigate a Crime
  shot wife claims accident
 introduce photos of body  argues should be excluded under FRE 403 for unfair prejudice
 admissible – main function of FRE 403 is to exclude evidence w/ scant or cumulative probative
value, dragged in by its heels for the sake of its prejudicial effect
 UNFAIR prejudice  NOT to “even out” the weight of the evidence, mitigate a crime, or
make a contest when there isn’t one
o Old Chief v. U.S. (1997) – If Offered Stipulation Satisfies Element of Offense and Introducing
More Details Would Unfairly Prejudice  Must Accept Stipulation
  convicted of being a felon in possession of a gun, using/carrying gun during commission of a
violent crime, and assault with dangerous weapon
  requested  not read anything about prior conviction other than he was convicted of crime
punishable by 1+ year (meets statute) b/c more would be too prejudicial
 TC refused  S. Ct.: abused discretion risk of prejudice outweighs probative value
 only need to show conviction for crime punishable by 1+ year ( w/i class of people statute
prohibits possessing gun)  name/nature of prior crime carries risk of unfair prejudice
 informing jury about exact nature of offense would do little more than the stipulation to
prove the element
 prejudice jury re: propensity/character of committing assault w/ deadly weapon
 although party typically gets to present evidence the way they want, FRE 403 must be
 dissent
 under FRE 105 – limiting instruction would have been sufficient to avoid prejudice
 Congress included prior conviction as an element  intended jury to know about it
 Conditional Relevance

FRE 104 – Preliminary Questions

(b) When the relevancy of evidence depends on the fulfillment of a factual condition, court should admit
it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the

o Admissibility of evidence may depend on an answer to a preliminary question of fact

 ex: speed of car in reckless driving prosecution, relevant only if  was actually driving
 TC allows speed evidence as long as TC decides there is sufficient evidence to permit a
reasonable jury to conclude that  was driving
o State v. McNeeley (2000) – Is Foundation Evidence Sufficient for Jury to Reasonably Find
Condition Fulfilled?
 convicted of aggravated murder fellow inmate testified re: statements that made it more likely that
 was guilty, but only relevant if  made the statements
 witness couldn’t ID  as man he talked to
 conditional relevancy question  TC: foundation evidence is sufficient for the jury to reasonably
find that the condition on which relevance depends has been fulfilled?
 yes  admissible
 no  inadmissible
 admissible  even though witness couldn’t ID  where witness testified he had spoken to
someone who represented himself as  and  gained 25# and shaved moustache since they
were in jail together
 witness’s inability to ID  influences WEIGHT jury should give evidence, not whether it is
 Summary
o relevance
o balancing test: FRE 403
o limited admissibility: 105, when admissible for one purpose but not for another, then give jury a limiting
o conditional relevance: judge decides whether reasonable jury would conclude the condition.

 Hearsay Rule and Rationale
o Introduction
 Terminology
 statement – an oral/written assertion OR nonverbal conduct intended by the person to be
an assertion
 NOT question or command
 declarant – person who makes a statement
 hearsay – a statement, other than one made by the declarant, while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted
 hearsay  prima facie inadmissible
 witness testifying that some declarant said something
 “out of court” = any statement other than one made under oath and in front of the
factfinder during the same proceeding in which it is being offered as evidence
 includes testimony at prior trial
 matter asserted – info declarant was trying to convey
 line of inference: declarant said it  he believed it  it is true
 believe that factual disputes should be based on live, sworn testimony, not only on
secondhand accounts of what other people said outside court
 Leake v. Hagert (1970) – Out of Court Statement + Offered to Prove Truth of Matter
Asserted  Hearsay
 negligence car accident car v. truck/plow
 accident investigator testifies about what ’s son told him re: rear light being broken
 hearsay  error to admit
 out of court statement
 offered for the truth of the matter asserted – light was out
 hearsay rule prohibits use of a person’s assertion as an equivalent of testimony
UNLESS declarant testifies in court and subject to cross-x
 BUT NOT prejudicial b/c adverse witnesses testified about light being broken
 Rationale
 concerns re: worth of evidence (trustworthiness, reliability) b/c
 evidence not under oath
 no opportunity for trier of fact to observe witness’s demeanor
 not subject to cross-x to test declarant’s
 memory – recollection of event
 perception – sensory problems, distance away from incident, obstructions
 sincerity – reason to lie?
 articulateness/narration – ability to communicate what witness perceived


Evidence will be considered hearsay if

 Evidence consists of an oral or written statement/assertion (or conduct intended to be an


 Assertion is made out of court

 Assertion is offered to prove the truth of the matter asserted (to which issue is the evidence
being directed?)











o Non-Hearsay Uses of Out-of-Court Statements
 Declarant’s State of Mind – Statements that circumstantially or indirectly reveal declarant’s state
of mind are NOT hearsay
 Mistake – Lyons Partnership v. Morris Costumes (2001)
  owner of IP rights to Barney sues  for infringing on copyright with its Duffy the
Dragon costume
 school principal testifies that kids screamed “Barney!” even though Duffy costume
 parents testified that kids thought Duffy = Barney
 NOT hearsay  not offered to prove the truth of the matter asserted (Duffy =
Barney), but to show kid’s state of mind (confused Duffy and Barney)
 Knowledge – U.S. v. Parry (1981)
  convicted of conspiring to distribute PCP  defense: I told Mom that I knew that I was
working with narcotics agents and they were calling me
 TC excluded convos w/ mom
 using out of court statement as circumstantial evidence of the declarant’s knowledge
of the existence of some fact, rather than as testimonial evidence of the truth of the
matter asserted does not violate the hearsay rule
 NOT hearsay  Mom’s testimony wasn’t to prove that caller was narcotics agent
or that  was working with agent, only to establish that  had knowledge of the
agent’s ID when they talked
 Effect on Listener/Reader
 Fear/Duress – Subramaniam v. Public Prosecutor (1956)
  found wounded by security forces w/ illegal ammo  convicted of weapons charges
 defense: captured by terrorists + acting under duress
 TC refused to admit testimony about what terrorists said
 NOT hearsay – statement is offered to prove the statement’s effect on  (state of
mind) NOT the truth of the matter asserted (whether statement was true)
 terrorists said they would kill if refused show that he reasonably believed terrorist
would kill him prove that he was reasonably under duress
 Warning or Notice – words offered to prove that notice or warning was given and received
NOT hearsay
 Southerland v. Sycamore Community School District (2004)
 bus driver sues school for not doing anything re: sexual harassment by another
 school challenges evidence re: rumors creeper spread about his sexual relationship
with driver
 NOT hearsay – rumor wasn’t offered to prove the truth of the matters asserted
(rumor and harassment occurred)  used to show that  had knowledge of the
problem, and, as a result, their liability
 U.S. v. Johnson (1995)
  convicted of distributing drugs and mail fraud  appeals TC’s admission of
assistant’s testimony that she overheard supervisor tell  to stop writing bad rx
 NOT hearsay  NOT offered to prove the truth of the matter asserted ( did write
bad rx), rather evidence of knowledge that he was rx w/o legit medical purpose
and outside professional practice
 U.S. v. Jefferson (1981)
 convicted of possession of heroin and bond jumping
 TC properly admitted into evidence letter and 2 mailgrams to show that had been
sent notice of hearing he didn’t show up to
 Verbal Acts (Operative Conduct)
 verbal act – statement that in and of itself has legal significance (creates legal relationship,
obligation, avoidance, or waiver of legal obligation)
 exempted from hearsay rule under classic definition of statement offered to prove the
truth of the matter asserted
 Fraud – U.S. v. Savvedra (1982)
 inmates call people to get CC# by representing as police
  = 3rd party who picks up money from CC fraud argues testimony of victims about what
inmate said over the phone is inadmissible hearsay
 NOT hearsay testimony wasn’t offered to show that victim’s statements were true
(callers were police) but to show how CC# were fraudulently obtained circumstantial
that later use of CC#s was intentional + others involved
 words offered to show conduct: inmates defrauding
 Transfer – Hanson v. Johnson (1924)
 conversion of corn –  claimed, as LL, share of corn against purchaser 
 “here is your corn for the year” + gesture to crib = verbal act  NOT hearsay 
 Cancellation – Creaghe v. Iowa Home Mutual Casualty Co. (1963)
 car accident injured person claims is driver’s insurance co.  defense: driver cancelled
policy: wants to intro evidence of convo between insured and employee that cancelled
policy + check returned
 admissible  hearsay rule doesn’t exclude relevant testimony as to what the
contracting parties said re: making or terms of oral agreement
 statement creating or destroying (K) legal relationship once made truth
 words NOT offered for the truth of any facts asserted, only to demonstrate what was
said or done  operative facts to which substantive K law attaches duties and
 question of whether statement ever made isn’t hearsay concern jury determines
credibility of insurance agent who will have to testify about statement
 Performative Utterance
 performative utterance – statement that performs an act or creates a state of affairs by the
fact of its being uttered under appropriate or conventional circumstances
 NOT hearsay not truth of the matter asserted no assertions
 no truth claims
 performances
 don’t make claims about the world
 DO something in the world
 ex: “I now pronounce you husband and wife”  people are married; “I promise” 
 Demand – U.S. v. Montana (1999)
  convicted of bank robbery as getaway car driver  accomplice testified that  didn’t
know robbery  @ trial accomplice’s note demands $$$ for favorable testimony 
U.S. marshal heard accomplice tell  testimony price
 marshal’s testimony NOT hearsay
 performative utterance – illustrated by a promise, offer, or demand which commits
the speaker to a course of action  NOT hearsay
 don’t make any truth claims
 out of court declarant’s demand is different from statement b/c once said its true –
only issue of credibility is whether marshal was reporting demand correctly (jury
o Implied Assertions
 implied assertion – nonverbal behavior intended to be a statement  considered a statement for
hearsay purposes  inadmissible unless hearsay exception applies
 Non-Verbal Signals (nodding, waving, pointing) = statement
 pointing out suspect in lineup is equivalent of words, assertive in nature, and to be regarded
as a statement
  likelihood of fabrication, defects in perception/memory/narration
 Verbal Expression  NOT statement
 generally treated as nonhearsay, either because they aren't offered to prove the truth of the
matter asserted OR on the ground that there is no matter asserted
 No Mater Asserted – U.S. v. Zenni (1980)
 police answer phone while executing valid warrant in ’s apt  multiple calls asking to
place bets on sporting events   wants to intro as implied assertion that callers
believed apt was used for betting
 inadmissible hearsay – nonassertive verbal conduct offered as relevant to support
inference that bets could be placed at apt = implied assertion
 language is not assertion on face + obvious that callers didn’t intend to make an
assertion about the fact sought to be proved (apt used for betting) or anything else
 “put a bet on X” – not an assertion, cannot be true or false  more like demand or
 Non-Verbal Conduct Not Intended to Communicate Anything  NOTstatement
 State v. Dullard (2003)
 police find hand-written note by unknown person warning about police presence in area
admitted into evidence   convicted of possession materials/equip to manufacture
 out of court statements offered to prove something the statement implies (note offered
to prove that  had materials/equipment for manufacturing meth) = hearsay
 using statements for implied meanings implicates the basic testimonial dangers
against which the hearsay prohibition is meant to protect
 prejudice implied b/c admission of note played important role in establishing
possession element +  unable to cross-x declarant to overcome prejudice
 not case w/ overwhelming guilt from other evidence
 distinction between intended and unintended conduct/speech only implicates the
danger of insincerity based on the assumption that a person who lacks an intent to
assert something also lacks an intent to misrepresent
 Multiple Hearsay

FRE 805 – Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these rules.
o Reed v. McCord (1899) – Party’s Admissions of ANY Material Fact Always Admissible
  killed  official stenographer testifies that he heard  say all machines involved in accident
were alike, etc.   objected
 admissible  admissions by a party of any material fact are always admissible evidence
against him
 if had merely admitted that he heard accident happened under circumstances inadmissible
b/c admission what he had heard and repeated, not an admission of the facts
 BUT this statement was plain admission of facts and circumstances which caused the
o Foster v. Commissioner of IRS (1983)
 admission doesn’t constitute hearsay, but hearsay w/i admission is subject to an objection
 party’s out of court statement “A said that x is a fact” to prove x is a fact
 party’s out of court statement “x is a fact” admissible, even if not based on personal
knowledge; even if statement is based on A having told him so
 Completeness

FRE 106 – Remainder of or Related Writings/Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party
may require introduction at any time of any other part or any other writing/recorded statement,
which, in fairness, should be considered contemporaneously with it.

o Beech Aircraft Corp. v. Rainey

 plane crash  pilot’s surviving spouses sue plane manufacturer
  letter to commander/investigator who concluded pilot error   concluded plane defect
  called  as witness, asked about 2 statements in letter favorable to  and  admitted to
making them
  asked on cross-x about letter
 TC erred in preventing  from explaining why crash caused by plane defect  when one party
has used a portion of a document such that misunderstanding or distortion can only be avoided
by presenting another portion, material required for completeness is ipso facto relevant and
 Hearsay and Right to Confrontation

U.S. Const. 6th Amendment Confrontation Clause

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses
against him.

o Limitations
 applies only in criminal cases
 applies to evidence against 
 only affects some hearsay  civil cases, against prosecutor, hearsay declaration of
testifying witness
 satisfied by confrontation
Hearsay + Confrontation

Crawford – testimonial out of court statements by witnesses are INADMISSIBLE under CC unless
witnesses are
 unavailable and
  had prior opportunity to cross-x

Davis – Primary Purpose Test

 non-testimonial statements (NOT subject to CC) when made in the course of a police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency
 testimonial statements (subject to CC) when the circumstances objectively indicate that there is
no ongoing emergency and the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution

o Ohio v. Roberts (1980) OVERRULED [by Crawford]

 NO CC violation if the statement
 fell within a well recognized [historical] hearsay exception OR
 carried comparable “particularized guarantees of trustworthiness” or “sufficient indicia of
o Crawford v. Washington (2004) – Testimonial Statements Inadmissible UNLESS Unavailable and
Prior Opportunity to Cross-X
 husband and wife confront victim over rape allegation  husband stabs victim claiming self-
defense  during interrogation wife: victim didn’t have weapon
 TC admits wife’s statement to police b/c sufficient indicia of reliability  convicted
 criminal case + statement used against + witness not on stand/unavailable  CC issue
 testimonial out of court statements by witnesses are INADMISSIBLE under CC unless
witnesses are (1) unavailable and (2)  had prior opportunity to cross-x, regardless of whether
ct thinks they’re reliable
 historical – CC adopted to keep ex parte examinations out of evidence [Sir Walter Raleigh]
 Roberts is unpredictable and inconsistent
 wife’s statement violates CC  inadmissible  reversed
 “leave definition of testimonial for another day” but minimally includes
 preliminary hearing testimony
 grand jury testimony
 testimony at previous trial
 custodial police interrogations
 concurrence
 not convinced CC categorically requires exclusion of testimonial statements b/c law @
founding re: admissibility of out of court statements was still developing
 don’t want to give up S.Ct.’s power to decide that there are other things admissible besides
historical expectations
o Davis v. Washington (2006) – Primary Purpose Test
 2 DV s challenge testimony to police/911 as testimonial statements violating CC
 Washington – police testify about responding to 911 call for DV + admit 911 tape of victim
IDing  as attacker  convicted
 Hammon – police respond to DV + testify about what victim told them and her affidavit for
battery  convicted
 CC applies only to testimonial statements
 testimony – a solemn declaration or affirmation made for the purpose of establishing or
proving some fact
 primary purpose test
 non-testimonial statements (NOT subject to CC) when made in the course of a police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency
 911 call = non-testimonial  NO CC violation  admissible  affirmed
 describe events as occurring
 frantic, present tense, immediate emergency info elicited intended to help resolve
emergency, NOT to learn about what happened in the past
 testimonial statements (subject to CC) when the circumstances objectively indicate that
there is no ongoing emergency and the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution
 interrogation = testimonial  CC violation  inadmissible  remanded
 statements made during interrogation into criminal conduct to elicit what HAD
 no immediate emergency: no circumstantial evidence of current fight and victim
stated things were fine
 statements obtained under circumstances very similar to witness testifying on direct-
 concurrence/dissent [Thomas]
 neither 911 call nor police questioning were testimonial
 no formalized dialogue
 no circumstances making statement sufficiently formal (Miranda, custodial)
 no suggestion used hearsay evidence to evade confrontation
 Exceptions
o Rationale
 necessity for using hearsay evidence (death or unavailability of declarant)
 content or circumstances of utterance serves to guarantee trustworthiness
o Prior Statements by Witnesses

FRE 801 – Definitions

(d) Statements are not hearsay if –

(1) Prior statement by witness – the declarant testifies and is subject to cross-x and statement
(a) inconsistent with the declarant’s testimony and given under oath subject to penalty of
perjury OR
(b) consistent with the declarant’s testimony and is offered to rebut an express/implied
charge of recent fabrication or improper influence or motive OR
(c) ID of a person after perceiving the person

 Albert v. McKay & Co. (1917) – Inconsistent Statement Can’t Be Used as Substantive
 employees clothes get stuck in machinery dies   sues for negligence for turning on
machine while employee working near it
 almost all witnesses said machine was running before decedent went down to work 1
witness said shortly after accident (out of court) machine hadn’t been running @ time of
accident, but at trial testifies that machine had been running continuously
 a prior inconsistent statement by a witness can't be used to prove the truth of his prior
statement (that the machinery wasn't running then decedent employee began working by
it) only for assessing credibility
 Out of Court ID – U.S. v. Owens (1988)
 corrections officer attacked @ work  severe memory loss  FBI interview unable to
remember attacker’s name  later FBI interview able to describe attack, named attacker,
and ID attacker from photo  @ trial couldn’t ID
 FRE 801(d)(1)(c) – not hearsay a prior statement of ID of a person made after perceiving
the person, if declarant testifies @ trial and subject to cross-x
 testifies + subject to cross-x  prior ID not hearsay
 with adequate safeguards against suggestiveness, out of court IDs were generally
preferable to courtroom IDs
o Admissions by Party-Opponents
 admission – any extrajudicial statement or assertion made by a party to a case that is
inconsistent with a position that the party presently takes
 subject to relevance
 includes when it seems “right” to hold the party against whom the evidence is offered at
least partially responsible for the out of court statement
 adversarial fairness
 NOT hearsay

FRE 801 – Definitions

(d) Statements are not hearsay if –

(2) Admission by Party Opponent – statement is offered against a party and is
(a) party’s own statement, either an individual or representative capacity OR
(b) statement which the party has adopted a belief in its truth OR
(c) statement by person authorized by the party to make a statement re: subject OR
(d) statement by party’s agent or servant re: matter w/i scope of the agency or
employment made during the existence of the relationship OR
(e) statement by coconspirator of a party during course and in furtherance of conspiracy

**contents of statement should be considered but aren’t alone sufficient to establish the declarant’s
authority, agency or employment relationship and scope, or existence of

 Direct Admissions
 direct admission – a party’s own statement, either in an individual or representative capacity
 no guarantee of trustworthiness required
 protected by adversarial system
 Salvitti v. Throppe (1942) – Personal Knowledge Not Required
 husband and wife () crash avoiding negligently driven truck ( = driver’s employer)
  visits, admits fault challenges admission because employer didn’t have personal
knowledge b/c he wasn’t at the accident
 personal knowledge is NOT required in a party admission
 person can file pleadings etc. w/o personal knowledge why need personal
knowledge for making statements?
 U.S. v. McGee (1999) – Need Not Obviously Be Against Interest
  convicted of robbery challenges admission of 3 different versions of what happened
he made to police
 statements DON’T need to be inculpatory to be admissions by part-opponents
 ONLY relevant
 doesn’t have to be a confession or admission in traditional sense of word
 only need party’s own statement offered against party
 U.S. v. Phelps (1983) – Must Be Offered Against Party-Declarant
 drug prosecution   wants to introduce testimony that POs heard  say that the gym
bag was his, but T put it in the trunk  co- (T) objects
 statement inadmissible b/c although statement was MADE by , NOT offered against
 Adoptive Admissions
 FRE 801(d)(2)(B) – statement which the party has adopted a belief in its truth NOT hearsay
 Admission by Silence

Admission by Silence

Party heard and understood statement

Party was physically and mentally capable of denying accusations

Party had opportunity and motive to deny  a reasonable person would have denied the accusatory
statement under the circumstances

 COD HERD – Capable Of Denying; Heard the statement; Reasonable to Deny

 U.S. v. Fortes (1980) – Present, Heard, and Conscious When Statement Made =
Admission by Silence
  convicted of armed robbery based on statements made by co-: Q: “did you rob
bank?” A: Yes + description of ’s role
 admissible   was present and conscious during conversation and heard
statements describing involvement but did not object to them
 adoptive admissions includes admissions by silence or acquiescence
 expect a reasonable person to deny involvement if untrue
 Southern Stone Co. v. Singer (1982) – Failure to Respond NOT Adoption Unless
Reasonable for Proponent to Expect Other Party to Respond and Correct

stated events/comments
 mere failure to respond to a letter does NOT indicate an adoption unless it was
reasonable under the circumstances for the sender to expect the recipient to
respond and correct erroneous assertions
 letter inadmissible
 went to office to sign personal account letter, not to discuss anything included in
  stopped business 1y+ previously
  “didn’t care what was going on” and considered “corp. gone”
 Authorized Admissions
 (c) statement by a person authorized by the party to make a statement re: subject

Authorized Admissions

Statement by a person authorized to make a statement re: subject

 Hanson v. Waller (1989) – Atty’s Letter on Behalf of Client NOT Hearsay

the street if deceased directly in front of truck when traffic light changed
 admissible  factual admission re: management of litigation  w/i hearsay
 attorney’s letter on behalf of client is not hearsay and can be admitted
 Agent and Employee Admissions
 (d) statement by the party’s agent or servant re: matter w/i scope of the agency or
employment made during the existence of the relationship

Agent and Employee Admissions

Statement made by party’s agent or employee

About a matter within the scope of the agency or employment

Made during the existence of the agency/employment relationship

 Mahlandt v. Wild Canid Survival & Research Center Inc. (1978) – Employee
Statements Admissible
 kid ends up in wolf enclosure, employee keeping wolf @ home as part of
 statement #1: note to co. pres.: “wolf bit kid” admissible  statements:
 made while declarant agent/servant of corp.
 concerned matter w/i scope of agency/employment (custody of wolf)
 made during existence of relationship
 statement #2: BoD minutes re: wolf biting kid
 admissible against corp.  statement made by a person authorized to make a
statement re: subject
 inadmissible against guy who kept wolf @ home  NO servant/agency
relationship justifying admission
 Sea-Land Service Inc. v. Lozen International LLC (2002) – Employee Statements
  (carrier) sued  (shipper) for money owed under shipping K
  internal email written by 1 ’s employee and forwarded to  admissible
 original email ended with “signature” signaling from ’s employee
 re: matter w/i author’s scope of employment
 incorporated by 2nd employee manifest belief in truth of info in 1st message +
w/i scope of employment
 Co-Conspirator Admissions
 (e) statement by coconspirator of a party during the course and in furtherance of the
conspiracy is NOT hearsay
Co-Conspirator Admissions

Conspiracy established (co-conspirator’s statements considered, but not alone sufficient)

Statement made during conspiracy (before crime completed or before declarant withdrew from conspiracy

Statement made in furtherance of the conspiracy (re: effort to accomplish the illegal objective and isn’t
merely narrative in nature)

 S.Ct. excludes statements made after objectives of conspiracy have failed/been

 reason – necessity: conspiracy is hard to prove  co-conspirator admissions have
 probative value
 Bourjaily v. U.S. (1987) – Consider Co-Conspirator’s Statements But Alone NOT
Sufficient to Prove Conspiracy
 FBI informant arranges drug sale with L in phone call  L buyer () and L arrested
when put drugs in ’s trunk
 evidence: phone convo re: buyer’s participation as co-conspirator
 admissible  questions that rely on preliminary factual questions need proof by
preponderance of evidence
   established conspiracy and ’s participation
 court can consider hearsay statements while making preliminary factual finding,
but hearsay alone is not sufficient to establish existence of conspiracy and/or
agency relationship
 dissent:  needs independent evidence safeguard
 1997 Amendment to FRE 801(d)(2):
 court shall consider contents of co-conspirator’s statements in determining the
existence of conspiracy and participation
 contents of statement do not alone suffice to establish a conspiracy  court
must consider surrounding circumstances (ID of speaker, context,
corroborating evidence)
 Bourjaily applies to
 statement by person authorized by party to make a statement
 agency re: scope of employment during employment
 Admissions + Bruton Rule
 Bruton v. U.S.
 - + co- convicted based on co- confession
  denied CC rights when co-s confession admitted at joint trial and co- did not
 limiting instruction is not sufficient to erase seriously incriminating confession
from jury’s mind   shouldn’t benefit from windfall
Out-of-Court Statements Admissible Under FRE

Hearsay Exceptions FRE 803+804

Non-Hearsay FRE 801(D) Unavailability Required Availability Immaterial

1. Non-assertive conduct 1. Former testimony 1. Excited utterance

2. Statement not offered for 2. Declaration against interest 2. Present sense impression
it’s truth

3. Prior inconsistent 4. Dying declaration 3. Physical condition/state of

statement made under oath body/injury report

4. Prior consistent statement 5. Forfeiture by wrongdoing 4. State of mind

offered to rebut charge of
recent fabrication

5. Prior statement of ID 5. Past recollection recorded

6. Admission of Party- 6. Public Records


Present Sense Impression Statement made concurrently with perception of event described

Excited Utterance Statement made while under stress of excitement of startling event

State of Mind/Mental Condition Statement of then-existing state of mind, emotion, sensation, or

physical condition. (Usually introduced to establish intent; admissible
when state of mind is a material issue or to show subsequent acts of

Physical Condition/State of Statement made to medical personnel for the purpose of diagnosis or
Body/Injury Report treatment

Recorded Recollection Writing by witness who cannot now remember the facts, made while
the facts were still fresh in the witness’s mind

Business Records Writing made in the regular course of business, consisting of matters
within the personal knowledge of one with a duty to record. Lack of
such a writing may be used to show the non-occurrence of the event.

Public Record Prepared under duty to record and generally by an entrant with
personal knowledge

Former Testimony Statement made under oath in the same or at another proceeding at
which the party against whom it is offered had motive and opportunity
to develop testimony

Dying Declaration State made while declarant believed death was imminent, concerning
the cause or circumstances of the impending death

Statement Against Interest Statement against declarant’s pecuniary, propriety, or penal interest

Forfeiture by Wrongdoing Statement made by a witness who was unavailable because of a party’s
engagement or acquiescence in wrongdoing that intended to prevent

Residual Exception Necessary statement with circumstantial guarantees of trustworthiness

comparable to above exceptions
FRE 803: Hearsay Exceptions, Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a

(1) present sense impression

(2) excited utterance
(3) state of mind
(4) statements for medical diagnosis or treatment
(5) recorded recollection
(6) business records

o basis: under appropriate circumstances, a hearsay statement may have circumstantial guarantees of
trustworthiness sufficient to justify declarant not testifying, even though s/he is available
o Spontaneous and Contemporaneous Statements
 although emotions may overcome desire to lie, they also significantly impair declarant’s
observation skills
 require 1sthand knowledge
 Bemis v. Edwards (1995) – witness must have personal knowledge about matter testifying
about  witness must have personal knowledge of the event they are perceiving and
making a statement about
 witness who relays info to 911 operator based on descriptions of what is happening
from other people inadmissible as EU or PSI
 may be limited by CC
 (1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.
Present Sense Impression

Statement made by person while or immediately after perceiving an event or condition that describes the
event or condition.

**No requirement of declarant unavailability**

  accurate – substantial contemporaneity of event and statement negate likelihood of

deliberate or conscious misrepresentation
 perfect contemporaneity impossible  slight time lapse appropriate
 limited to description of event
 U.S. v. Obayagbona (1985)
 undercover FBI agent bought heroin from  (black and white dress) and other lady
(colored dress)
 evidence: tape recording that  gave drugs to agent out of her purse
 admissible
 present sense impression – statement describing or explaining event or
condition (drug deal) made either while perceiving the event or immediately
thereafter (agent spoke as soon as able – couldn’t make statement in front of
drug sellers)
 (2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
Excited Utterance

Startling event that produced shock and excitement in the observer

 Statement was made while observer was under the stress of the excitement (soon after event)

Statement was related to event

**NO requirement re: observer’s competency, unavailability, or ID**

  risk of fabrication – circumstances may produce a state of excitement which temporarily

stills capacity to reflect and produces statements free of conscious fabrication
 declarant must be in a state of excitement
 U.S. v. Elem (1988)
  convicted of felon possessing gun  wants to admit exculpatory statements he
made to police while in custody:
 Q: is that your gun?
 A: no
 inadmissible  excitement and spontaneity supply indicia of trustworthiness and
reliability to support admission
 nothing in record supports argument that he was excited enough to alter his
conscious reflections
 statement must relate to the startling event (broader scope)
 U.S. v. Obayagbona (1985)
 undercover FBI agent bought heroin from  (black and white dress) and other lady (colored
 evidence: tape recording that  gave drugs to agent out of her purse
 admissible
 excited utterance – statement about drug deal (exciting event) made while in state
of excitement (“exultant” about the arrest)
o State of Mind
 Generally
 (3) A statement of the declarant’s then existing is admissible, even if declarant is available
to testify
 state of mind
 emotion
 sensation
 physical condition (intent, plan, motive, design, mental feeling, pain, bodily health)
 BUT NOT a statement of memory or belief (except in will challenges)
State Of Mind Exception

Statement contemporaneous with mental state sought to be proven

No suspicious circumstances suggesting motive to fabricate or misrepresent

State of mind relevant to issue in case

 specialized application of present sense impression exception

 U.S. v. Harris (1984)
 drug prosecution based on info from former drug dealer/now informant in tape recorded
phone convos
  theory – knew set up and cooperated b/c he was scared of what would happen if he
 evidence: PO officer testimony re: convos with in which  stated he believed
government was persecuting him and trying to set him up
  admissible  depending on phraseology, either not hearsay or circumstantial
evidence showing state of mind
 IF  had stated he believed he was set up hearsay b/c evidentiary significance
depended on truth of the matter asserted – ’s belief
 The Hillmon Doctrine
 Mutual Life Insurance Co. v. Hillmon (1892) –  Statements Admissible to Show
Declarant Acted in Accordance w/ State of Mind
 “widow” sues life insurance policy company for not paying her policy after husband dies
 disagreement over ID of dead body: H or W?
 evidence: out of court letters written by W (person  says is dead body) before he
disappeared saying that he was going with H
 admissible state of mind – W thought he was going with H, whether he did is a
material fact
 shows intention of going away  likelihood that he did go  jury can infer he did go
 “ a man’s state of mind or feeling can only be manifested to others by countenance,
attitude, or gesture, or sound”  regarded as verbal acts  equally competent to
other forms of testimony
 Shepard v. U.S. (1933) – State of Mind Exception n/a Past
 husband convicted murdering wife   claims wife suicide
 evidence: wife to nurse: “go to my room and get whisky, I drank it right before I
collapsed, husband poisoned me”
 inadmissible – state of mind exception n/a to past events
 statements of memory and belief cannot be used to show past conduct
 even though wife said husband poisoned her  increased likelihood that husband
did poison her  past
 too confusing for jury: even w/ limiting instruction, jury would use it as evidence of
poisoning rather than rebuttal for suicide argument
 U.S. v. Houlihan (1994) – State of Mind DOESN’T Apply to Future Conduct of Non-
 B told sister: “I’m going to meet H” – then found dead
 could be admissible against H in murder trial to show meeting
 FRE 803(3): statements of intent are admissible, not limited to a class of persons
against whom statements can be admitted R codifies Hillmon (out-of-court
statements of declarant are admissible to prove subsequent conduct of others)
 had Congress intended to limit to specific s it would have
 JDs split on whether independent evidence required
o Physical Condition/State of Body/Injury Reports
 (4) Statements for purposes of medical diagnosis or treatment, describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment
 must be made by patient for purposes of treatment or diagnosis
 federal rule expands to cover statements made to Dr. hired solely for diagnosis
 rationale: self-interest keeps patients honest
 cause but not fault
Physical Condition/State of Body/Injury Report

Statement made to medical personnel for the purpose of diagnosis or treatment

NOT Statements specifying causation or fault

 Rock v. Huffco Gas & Oil Co. (1991) – Medical Exception NOT Re: Specific Cause or Fault
 ship employee ankle injury  dies from vascular complications and infection
 statements re: causation of injury NOT admissible – Drs. only need to know basic info
about type of injury, not the specific cause or ID of fault
 State v. Moses (2005) – Statements of ID in DV Case Admissible
 DV: wife + kids statements to social worker and ER Dr. (wife)
 husband challenges admissibility b/c he was IDed as abuser
 statements to Dr. admissible – attributing fault in DV case exception b/c ID of abuser is
pertinent and necessary to victim’s treatment
 statements to social worker
 kids statements NOT testimonial – not offered to prove truth of the matter asserted
introduced to show why SW called CPS not to show husband was abuser
 wife’s statements inadmissible after wife knew SW called CPS b/c should have
realized implications of making statements
 BUT admissions were harmless error b/c overwhelming untainted evidence of guilt
o Recorded Recollection
 (5) A memo or record re: a matter about which a witness once had knowledge but now has
insufficient recollection to testify fully and accurately shown to have been made or adopted by
with witness when s/he still remember the event
 can be read into evidence, but not received unless offered by an adverse party
 rationale
 g guarantee of trustworthiness b/c record made when witness clearly remembered
event  better than inaccurate recollection
 necessity – either admit hearsay written statement or have nothing
 controversy – is memory impairment required?
 witness can’t remember  2 options
 past recollection recorded – document re: events witness once knew about but can’t
 evidence and read into record when prepared or adopted by witness when info was
Past Recollection Recorded

Document prepared or adopted by witness

Prepped/adopted when matter described was fresh in witness’s memory

Document correctly reflects what was remembered when it was made

Witness has insufficient recollection to testify fully and accurately about the matter

Document is authentic memo which has not been tampered with

 present recollection revived – a witness’s memory that has been enhanced by showing
witness a document that describes the relevant events
 memory stimulus  NOT admitted into evidence
 can use anything – picture, reference to other witness’s testimony, leading question
 writing doesn’t need to be authentic, made by the witness, or have any independent

Past Recollection Recorded Present Recollection Revived

Item Preservation of info obtained in the past Anything that can be used to refresh
ex: diary, list, tape, transcript recollection; can be written but doesn’t
have to be (police report, picture,
leading question)

Marked as Exhibit YES YES

Given to Jury NO NO

Primary Evidence Item relayed verbatim through oral Reference to item (jogging of memory)
testimony of past knowledge but primary evidence is oral testimony of
past recollection
read into evidence
CAN’T read from document

Hearsay Problem? Hearsay but w/i specific exception NO, not offered into evidence

 Fisher v. Swartz (1955)

  objected to admission of itemized statement of what was owed
 admissible  recorded recollection of testimony
 made by witness when event fresh in witness’s mind
 TC, in discretion, may allow witness to incorporate record into testimony and may even
read it
 U.S. v. Riccardi (1949)
 mover steals stuff  owner has 2 lists of property moved – could only produce handwritten
 evidence: owner refreshes her memory w/ lists she had made and appraiser used list to
testify re: value of property
 admissible  present recollection
 so many items reasonable for owner to use list to remember what was packed and
testifies that she remembers packing them
 didn’t have present recollection but uses list to jog memory
o Business Records
 Generally
 (6) Any form of a memo, report, record, or data compilation of acts, events, conditions,
opinions, or diagnoses, made at or near the time by or from info transmitted by a person
with knowledge if kept in the course of a regularly conducted business activity, and if it
was the regular practice of the business activity to make the memo etc, as shown by the
custodian or other qualified witness
 "business" = business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit
 rationale – should be admissible when sources of info and method/time of prep indicate
trustworthiness, unusual reliability b/c systematic checking, regularity, continuity,
precision, actual experience in business, duty to make accurate record as part of job

Business Records – Elements

For a Business Record to be Admissible Check for:

Entrant under duty to record

 Entry made in regular
course of business

Records relate to primary business of organization

 Form of record Any form is acceptable

May contain: acts, events, conditions, opinions, or

 Content of Entry

MUST consist of matters w/i personal knowledge

of the entrant OR be transmitted to entrant by a
person who has personal knowledge and a duty
to report to entrant

 Time of Entry At or near time of transaction

Custodian’s testimony or other qualified witness

 Time of Entry

Custodian’s certification or other qualified

**unavailability of entrant NOT required**

 State v. Acquisito (1983) – Sufficient to Have Custodian Testify Re: BR

 2 alibi witnesses: didn’t go to work so they know was @ home   admits payroll
record showing that they were working that day via payroll administrator
 : common law rule should apply and all people involved in creating/managing record
must testify
 CL out  FRE in: CL rule doesn’t increase reliability + sufficient foundation w/
custodian testifying
 Qualifying “Businesses”
 Keogh v. Commissioner of IR (1983) – Sometimes Individual Personal Records
 deficient income tax re: tips
 individual’s personal records aren’t necessarily automatically NOT business records
when they show kept in the course of business activity, calling, or occupation
 personal records systematically checked and regularly/continually maintained
 co-worker who made same amount of tips recorded in diary admissible
 regularly maintained (updated usually nightly, at most every 3-4d)
 promptly made
 based on knowledge
 NO untrustworthiness – no motivation to fabricate, corroborated by payroll
records, no reason to doubt personal reliance
 U.S. v. Gibson (1982) – “Business” Can Include Illegal Activities
 convicted of heroin trafficking
 evidence: ledger w/ records of drug transactions
 admissible business record
 record keeper testified that it was her regular practice to enter into ledger how many
balloons went out/day and how much money came in
 recorded contemporaneously
 record keeper relied on them
 admissible even though incomplete and out of order
 Qualifying Records
 some incompleteness doesn’t disqualify record – Gibson
 to ensure trustworthiness must appear that records were prepped in the regular course of
business activity involved AND regular practice to make record/entry in question
 entrant under duty to record – must appear to be made by someone making records as
part of job NOT hobby or “unofficial” records
 related to primary business – must appear records are a type customarily maintained by
the org. as part of its primary activities
 records of acts, events, conditions, opinions, or diagnoses made in regular course of
business admissible
 Palmer v. Hoffman (1943) – Accident Reports Prepped Primarily for Litigation
 train accident engineer made statement and died before trial
 accident report inadmissible NOT a business record
 fact that a company has a policy of recording its employee’s versions of their
accidents  business record
 primary purpose of litigating, not railroading
 motivation to fabricate to avoid liability
 Lewis v. Baker (1975)
  injured on the job  wanted to introduce personal injury report and inspection report
 admissible  employees prepping report had no motivation to fabricate
 prepping employees weren’t involved in accident and weren’t subject to liability from
 ICC required reporting of accidents
 reports had other purposes  totality of circs. provide sufficient indicia of
 prevent future accidents
 investigate possibility of defective equipment
 Sources of Information
 entry must consist of matters either
 w/i personal knowledge of entrant
 transmitted to entrant by someone who was under business duty to report such matters
to entrant and who had 1sthand knowledge of facts
 Wilson v. Zapata Off-Shore Co. (1991) – CAN’T Be Statement by Person Outside of
Business Incorporated into Inside-Business Person’s Statement
 employee vs. employer sexual discrimination and emotional distress
 evidence: social worker’s report including statement from sister: is habitual liar
 NOT business record – can’t be from a person external to the business making the
statement and then incorporated into statement of person within business
 Absence of Record
 can use the absence of an entry in records of regularly conducted activity to prove the
“non-occurrence or nonexistence” of a matter that would have been reported there in the
ordinary course of business if it had occurred or existed
 UNLESS sources of info or other circs. indicate lack of trustworthiness
 U.S. v. Gentry (1991)
 confessed to faking food tampering
  challenged testimony of candy company employee that no other complaints of metal
in candy
 admissible  absence of a record of any complaints of pins in candy to prove non-
occurrence of an event
 normally kept records of reports of metal in candy
o Public Records
 (8) Records, reports, statements, or data compilations, in any form, of public offices or agencies
setting forth
 activities of the office or agency
 matters observed pursuant to duty imposed by law
 EXCEPT law enforcement observations in criminal cases [CC concerns]
 civil actions and proceedings against the Government in criminal cases factual findings
resulting from an investigation made pursuant to legal authority, UNLESS indicia of
 rationale – assumption that public officer will perform duty properly and unlikely to remember
details independently of the record
 factors to consider in admissibility
 timeliness of investigation
 special skill/expertise of official
 whether a hearing was held and the level at which it was conducted
 possible motivation problems
 others
Public Records

Record must be prepared by public employee acting w/i scope of official duties  duty to record

Personal knowledge of entrant generally required

 Exceptions to Personal Knowledge Requirement

 vital statistics – birth/death/marriage licenses  recorded as they happen  ensure
 agency operations – records re: activities/functions of governmental agency (records of
receipts and disbursements of government money)
 matters required to be reported – info that government agency legally required to report
 CAN’T use matters “observed” by police officers or other law enforcement
 U.S. v. Oates (1977) – Evaluative Law Enforcement Reports Inadmissible in
Criminal Cases
 drug possession
 evidence: lab reports of a chemist who analyzed substance seized from co-,
chemist couldn’t testify @ trial
 inadmissible hearsay in criminal case matters observed by law
enforcement OR factual findings resulting from authorized investigation
 chemist are law enforcement personnel
 substance was heroin law enforcement observations or fact finding
resulting from legal authority
 clear legislative intent to make evaluative law inforcement reports
absolutely inadmissible against 
 prosecutorial use of any hearsay exception to admit evaluative law
enforcement evidence would violate ’s CC
 non-adversarial reports – some JDs allow admission of reports re: law
enforcement observations against criminal that are “routine, nonadversarial
 U.S. v. Brown (1993) – Non-Adversarial Police Records Admissible
  runs away from police and throws gun on ground  gun entered into
police property records  later arrested never  reclassified gun as
evidence  gun destroyed pursuant to policy
 receipt admissible  non-adversarial
 many JDs distinguish between police records prepped in routine,
non-adversarial setting vs. records made during subjective
investigation and evaluation of crime
 no incentive to do anything other than mechanically record relevant
evidence on property receipt  inherently reliable
 State v. Forte (2006)
 ’s DNA recorded while in prison  later matched to 3 SA-murder crime
 NOT testimonial  objective analysis and routine chain of custody info
don’t bear witness against ; neutral, not prepped specifically for ct,
agent had no interest in trial outcome
 admissible business records  created contemporaneously with work
as regular practice w/i ordinary course of business
 admissible public records  routine, non-adversarial matters, potential
use in court was only one purpose, also facilitated further investigation
 Hinojos-Mendoza v. People (2007)
 drug possession
 evidence: lab report that IDs substance seized as cocaine, lists  as
suspect, describes evidence  tech didn’t testify
 testimonial  prepped at police direction, sole purpose to analyze
material in anticipation of prosecution, introduced @ trial to establish
elements of the charged offense
 U.S. v. Orozco (1979)
 drug conviction  police found drugs in car : we just got back from
double date
 evidence: computer data cards indicating car (license plate # recorded)
had crossed U.S.-Mex. border
 record of license plate # admissible  routine non-adversarial records
not intended to be excluded
 check for reliability (computers)
 no motive to fabricate
 factual findings made pursuant to an investigation – admissible record containing factual
findings from an investigation made pursuant to legal authority
 Beech Aircraft Corp. v. Rainey (1988)
 fatal plane crash  pilots’ surviving spouses sue plane manufacturer
 evidence: investigative report of military commander: most probable cause
was pilot error
 admissible  parts of investigatory reports aren’t inadmissible just b/c they
state a fact or conclusion as long as
 factual investigation
 trustworthiness
 hard to differentiate between fact and opinion  all factual statements
are in some way affected by inference, reflection, memory,
FRE 804 – Hearsay Exceptions; Declarant Unavailable

(a) Unavailability – situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the
subject matter of the declarant's statement; OR

(2) persists in refusing to testify concerning the subject matter of the declarant's statement
despite an order of the court to do so; OR

(3) testifies to a lack of memory of the subject matter of the declarant's statement; OR

(4) is unable to be present or to testify at the hearing b/c of death or then existing physical or
mental illness or infirmity; OR

(5) is absent from the hearing and the proponent of a statement has been unable to procure
the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3),
or (4), the declarant's attendance or testimony) by process or other reasonable means.

**NOT if no testify b/c wrongdoing of the proponent of a statement for the purpose of
preventing witness from attending or testifying

(b) Hearsay Exceptions

(1) Former Testimony

(2) Dying Declaration
(3) Statement Against Interest
(4) Forfeiture by Wrongdoing

o Former Testimony
 (1) Testimony given as a witness at another hearing of the same or a different proceeding, or in a
depo taken in compliance w/ law in the course of the same or another proceeding, if the party
against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in
interest had an opportunity and similar motive to develop testimony by direct, cross-x, or
 rationale
 although hearsay b/c not live evidence in front of jury
 former testimony given under oath, is usually in writing, giving under circumstances
suggesting the need for care and accuracy, and was subject to an adequate
opportunity for cross-x
 only lacks opportunity for trier to observe demeanor
Elements of Former Testimony
 Identity of Parties
 witness’s recorded testimony from an earlier trial, depo, or proceeding ONLY admissible if
party against whom it is being offered
 was a party to the earlier proceeding, had opportunity to cross-x, and similar motive to
develop witness’ testimony
 predecessor in interest (civil)
 def of predecessor unclear: JD split
o Lily – privity: predecessor from whom present party received title, right,
interest of obligation that is @ issue in current case
o Llyod – like motive to cross-examine about the same matters as the present
party would have
 Clay v. Johns-Manville Sales Corp. (1984)
 products liability for asbestos cancers
 evidence: depo of Dr. who worked for  from previous trial, died
before present trial
 predecessor in interest
 opportunity to cross-x (trial)
 similar motive (death from asbestos exposure)
 prior opportunity to cross-x in prior proceedings (criminal)
 U.S. v. Solerno (1992)
o crime family construction co. rigging
o evidence: GJ witness testify that they weren’t involved   presents
evidence they were   @ trial invoke 5th Amendment b/c perjury  
want to introduce GJ testimony
o inadmissible – didn’t show similar motive
 plain meaning of FRE requires
 proceedings with different functions (GJ and trial) w/ same parties and
case can have different motive
 remanded to consider similarity of motive
o dissent (Stevens)
  had adequate opportunity + similar motive to cross-x @ GJ  chose
not to rigorously cross-x  should be held accountable
 Identity of Issues
 issues don’t have to be identical, but must be substantially the same re: same subject
 now not really considered separate element b/c inherent in opportunity to cross-x by party
w/ same motive and interest
 Unavailability of Witness Who Testified at First Trial
 death
 incapacity
 physical and mental incapacity – too ill or disabled to testify (some JDs require
permanent [otherwise just postpone])
 absence
 Kirk v. Raymark Industries Inc. (1995) – Proponent has Burden to Prove
Unavailability; Failure to Contact is Not “Reasonable Means”
 estate administratix products liability for asbestos products decedent encountered
@ work
 evidence: expert testimony in different trial that ’s product caused mesothelioma
 NOT admission by party opponent  hearsay
 expert who isn’t agent of party can’t be authorized to make admissions
 expert NOT unavailable when no evidence proponent used reasonable – or any
– means to procure expert’s testimony
 proponent of statement has burden of proving unavailability
 mere absence of declarant doesn’t establish unavailability
 didn’t offer to pay fee
 didn’t even contact expert
 refusal
 Lack of Memory
 Refusal
 Privilege – U.S. v. Bollin (2001) – 5th Amendment  Unavailable
 convicted investment fraud
 evidence: TC excludes redacted portions of GJ testimony
 NOT unavailable –  CAN’T rely on “unavailability” exception b/c invoke 5th
o Dying Declarations
 FRE 804(B)(2) – In a prosecution for homicide or in a civil action or proceeding, a statement
made by a declarant while believing that the declarant's death was imminent, concerning the
cause or circumstances of what the declarant believed to be impending death
 rationale – necessity (justice – don’t want killer to be able to avoid conviction b/c victim is
dead) and reliability (fear of death)
 ONLY available in civil matters or homicide prosecutions (for either side)
 traditionally – only homicide
 some state JDs – admissible for all actions
 must concern death – causes or circumstances
 don’t actually have to die – just need belief that it was imminent

Dying Declaration Requirements

Victim’s declaration – can’t be a third party’s deathbed confession that they killed victim (possibly
statement against interest)

Sense of Impending Death – made while victim believes death imminent (abandoned all hope of
recovery, conscious, and belief that death is immediately imminent) – BUT death doesn’t need to occur
immediately after declaration

Percipient Witness – victim must have usual capacities required of witness (perceive, relate facts,
recognize obligation to tell truth)

Facts Re: Cause of Death – must be re: cause or circumstances of what victim believed impending
death (CAN’T be just opinion, but self-serving ok)

Death – FRE: as long as statement made when declarant believed death was imminent don’t actually need
to die  just be unavailable
Did the victim make a declaration
believing death was imminent?


Was victim a percipient witness (able

to perceive, communicate facts,
understand obligation for truth)?


Did declaration contain facts re: cause

or circumstances of what victim
believed to be impending death? NO


Is victim unavailable? NO


Admissible as DD in civil cases

and homicide cases

 Shepard v. U.S. (1933) – DD Requires NO Hope of Recovery

 husband convicted poisoning wife
 evidence: wife says husband poisoned her, asked nurse to have whiskey tested, not going
to get well, going to die
 statements inadmissible  NOT DD
 dying declaration requires declarant to have spoken
 in shadow of impending death AND
 without hope of recovery
 can be gathered from circumstances
 even if period of recovery exceeds expectation
 must be exhibited in evidence NOT conjecture
 wife’s statements, made several weeks before death NOT dying declarations when
her condition @ time of declaration was apparently improved, and there was no
showing she had abandoned hope of recovery
 U.S. v. Sacasas (1967) – Criminal Case Must be Homicide
 bank robbery
 new evidence: co-’s statement that  didn’t have anything to do for robbery they were both
indicted for
 made ~10 min before declarant lost consciousness  died
 statement inadmissible  NO DD
 not dying from being murdered
 no one prosecuted for homicide
 State v. Lewis (2007) – Testimonial DD Admissible
 convicted of criminally negligent homicide and facilitation of attempted aggravated robbery
 shop owner fatally shot during robbery before death told officer ’s info was on the counter
and said she was connected to the robbery
 testimonial statement  NO ongoing emergency
 when statement made assailant had left
 911 call made
 statement in response to inquiries by investigating officers
 BUT Crawford footnote: testimonial DD not excluded  admissible
 admissible evidence in DD is limited to that which the victim could have testified if present
 lay opinion should only be admitted when it has reasonable basis
 admissible  record suggested that victim’s ID was rationally based on victim’s
o Declarations Against Interest
 (3) Statement that both:
 (a) reasonable person in declarant’s position would have made only if the person believed it
to be true, b/c when made, is so contrary to
 declarant’s proprietary or pecuniary interest or
  tendency to invalidate declarant’s claim against someone else or
 expose declarant to civil/criminal liability
 (b) is supported by corroborating circumstances that clearly indicate it’s trustworthiness,
and tends to expose declarant to criminal liability (criminal)

Declarations Against Interest

Statement by non-party to action AND unavailable (necessity)

Statement sufficiently against important interests of declarant when made so that a reasonable person
in same position wouldn’t make statement unless believed it was true (trustworthiness)

 U.S. v. Duran Samaniego (2003) – Declarant Must be Unavailable

  claims boxing champion belts stolen  end up being sold to undercover officer, seller
claims not stolen
 BIL’s apologies for stealing admissible  statement against interest
 NOT admissible under state of mind exception – not admissible as a basis for an
inference of the happening of the event which produced the state of mind
 statement against interest
 subject to criminal liability
 declarant unavailable – Panamanian citizen/resident tried to use declarant’s
immediate family to try to locate him
 Against Interest –facts, to declarant’s knowledge, must be to declarant’s immediate substantial
prejudice @ TOD(eclaration)
 against pecuniary ($$$) or proprietary (property) interest
 civil liability
 criminal liability
 U.S. v. Jackson (2003) – NOT “Against Interest”
 drug importation conspiracy
 evidence: statements by co-conspirator that he didn’t supervise  or ask him to smuggle
 inadmissible  weren’t self-inculpatory for co-conspirator/declarant and lacked
corroborating circumstances indicating trustworthiness
 didn’t inculpate declarant or expose him to criminal liability
 declarant made inconsistent statements about ’s role

Declarations Against Interest v. Admissions

Declaration Against Interest Admission

Statement by Party NO YES (and offered by opposing


Declarant Unavailable YES NO

Declarant Personal YES NO

Knowledge of Facts

Statement Against YES NO

Interest When Made

o Forfeiture by Wrongdoing
 A statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness.
 if you are bad and try to subvert justice by hiding, threatening/intimidating, killing, bribing
witnesses witnesses unavailable and statements admissible
 exception to CC
 Giles v. CA (2008)
 killed ex-gf
 evidence: gf’s statements to police after DV call ~3k earlier
 testimonial
 FBW only applies when ’s conduct intended/designed to prevent witness from testifying
(@ CL)
 DV often intended to dissuade victim from getting outside help (testimony to police
officers or helping prosecute)  when fatal evidence could show that crime intended
to prevent testimony  admissible
 previous abuse, threats intended to prevent testimony, ongoing prosecutions in
which victim expected to testify highly relevant
 remanded to consider intent
 concurrence
 Souter – intent can be inferred from abuser’s behavior in classic abusive relationship 
 could use expert testimony re: whether relationship is classic abusive relationship
 Thomas – previously found that testimonial statements require more than police asking
 dissent
 intent to kill = intent to prevent testimony/silence witness
 majority gives abusers windfall  kill or threaten victim to avoid conviction by taking
advantage of earlier crimes
 Basic Rule and Exceptions

FRE 404 – Character Evidence

Evidence of a person’s character NOT admissible to show action in conformity therewith on a

particular occasion except:

(1) character of accused – evidence of a pertinent trait of character offered by , or by  to rebut

the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an
accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the
accused offered by the prosecution.

 : opinion or reputation;  cross-x: specific instances of conduct

(2) character of victim – evidence of character trait of alleged victim offered by  or by  to rebut
the same, or evidence of a character of peacefulness of alleged victim offered by  in a homicide
case to rebut evidence that alleged victim is 1st aggressor

 : reputation and opinion evidence of victim’s character, where, if victim acted in

conformity w/ character  conduct tend to prove ’s innocence

 if  says victim is first aggressor  : can intro homicide victim’s peaceful

character  ONLY time gets to initiate introduction of circumstantial character

(3) character of witness – Evidence of the character of a witness as provided in rules 607, 608, and

 rationale – unduly prejudicial

 character – general description of disposition or disposition re: general trait
Is character evidence Admissible if offered
offered to show action N to show KIPPOMIA
in conformity with O (knowledge, intent, plan,
character? preparation, opportunity
motive, ID, or absence
YES of mistake or accident)
or if character or
reputation is in issue
Is evidence offered:

 by criminal  to show
his good character
(or by  to rebut the
 by criminal  to show YES Admissible
victim’s bad
character (or by 
to rebut the same)?
 by  to show criminal
’s bad character
after  attacked
same character
trait of victim?
 to reflect credibility of
a witness?


o People v. Zackowitz (1930) – No Character Evidence in Criminal Trial Unless  Opens It
 victim insults ’s wife   comes back with gun
 evidence – 2 pistols and teargas guns in ’s apt.  used to make inference of evil character
 character evidence is never an issue in a criminal cause unless  chooses to make it one
(consciously or implicitly opened character evidence door)
  can’t intro character evidence
  can’t introduce the fact that  owned other weapons that he didn’t use or bring to the
crime to show his evil character
o character evidence is “in issue”

o Cleghorn v. NY Central RR Co. (1874)

 train accident caused by switchman’s negligence
 evidence: switchman was drunk
 admissible  NOT offered to show that switchman acted in conformity w/ prior behavior of
being drunk at work  offered to prove employer knew but didn’t fire him
o Character Evidence Admissible When Character = Element of Crime/Claim/Defense
 Berryhill v. Berryhill (1982) – Custody
 custody case
 evidence: wife asks husband if ever killed anyone
 character is in issue in custody case  evidence re: character, conduct, reputation, and
fitness to be custodial parent  admissible
 asking if husband killed someone would be relevant to show a specific act of bad
character reflecting on fitness
 Larson v. Klapprodt (1975) – Slander
 slander: boss told people employee was alcoholic and promiscuous
 character evidence re: past conduct or reputation
 relevant
 admissible to show truth in statements or mitigate damages (ex: character wasn’t that
great to begin with and wasn’t really hurt by statements)
o 3 Exceptions
 criminal  may introduce evidence of good character
  can rebut with evidence of bad character
  can use negative character evidence – “I haven’t heard anything bad about reputation”
 criminal  can present evidence of victim’s bad character (violent temperament, 1st aggressor)
  can rebut with evidence of good character, or evidence of a peaceful character in a
homicide case to rebut evidence that alleged victim was first aggressor
 character of witness to determine credibility
 Methods of Proving Character

FRE 405 – Methods of Proving Character

(a) character evidence admissible  testimony re: reputation or opinion

cross-x testimony re: specific conduct

(b) character is essential element of charge, claim, or defense  testimony re: specific
instances of conduct

o Government of the Virgin Islands v. Roldan (1979) – Evidence of Social Habits = Open for
Character Evidence
  character witness: unsociable introverted   “did you know convicted of murder?”
 by asking about social habits  opened door character evidence  prior conduct admissible
o Michelson v. U.S. (1948) – Direct: Only Opinion or Reputation [hearsay]; Cross: Conduct
  convicted of bribing federal agent  defense: only bribed b/c agent entrapped me!
 evidence:  produced good character evidence  : “did you know was arrested for receiving
stolen goods?”
 on direct witnesses can only testify about hearsay: CAN’T testify about specific acts or
misconduct – JUST opinion or reputation
 on cross-x can testify about past acts
o U.S. v. Krapp (1987) – Can’t Ask “Did You Know”-Type Impeachment ?s
  didn’t report stamp shortage  convicted of making false records w/ intent to defraud US
 evidence:  character evidence of honesty : did you know ’s husband, w/ ’s knowledge, filed
false income tax returns?
 inadmissible  can’t ask “did you know”-type impeachment questions
  prejudice if no basis in facts
o U.S. v. Setien (1991) – Testimony of Prior Good Acts NOT Admissible
 airline baggage employee acquiesces/conspires to cocaine trafficking
 evidence: co-conspirator testifies that didn’t get involved and told them conduct was bad
 testimony of good conduct NOT admissible (specific conduct) to negate criminal intent
 Other Uses of Specific Conduct
o Permissible Purposes

FRE 404 – Character Evidence: Other Crimes

Evidence of other crimes, wrongs, or acts NOT inadmissible to prove character in order to
show action in conformity therewith

However, may be admissible for other purposes:

 motive
 opportunity
 intent
 preparation/plan
 knowledge
 ID
 absence of mistake or accident

**advance notice requirement unless during trial  has good cause**

 intent
 U.S. v. Beechum (1978)
  knowingly had coin stolen from mail
 evidence:  had 2 CC in wallet that were supposed to be mailed to people on his
mail route admissible to show intent
 evidence of extrinsic offenses should NOT be admitted just to show ’s bad
 2 step test
 relevant – possession of stole CC shows intent less likely to return coin
when possessing other stolen goods
 probative value substantially outweighed by potential prejudice
 won’t confuse, mislead, waste time
  probative  weak case w/o intent evidence  not cumulative
 extensive jury instructions reduce prejudice
 motive
 U.S. v. Boyd (1995)
 convicted of drug trafficking
 evidence of personal drug use admissible to show motive
 relevant – evidence used to prove motive to traffic drugs (needs more $$$)
 not overly prejudicial – no more sensational/disturbing than crimes charged
 opportunity
 U.S. v. DeJohn
 convicted of stealing checks
 evidence:  seen behind reception desk where mailbox w/ checks  admissible
to show opportunity
 relevant
   probative
 preparation/plan
 Lewis v. U.S. (1985)
 convicted of post office burglary
 evidence of uncharged burglary of garage on same night   admissible to show
 relevant
  probative – stuff taken from garage used in post office burglary
 knowledge
 U.S. v. Crocker (1986)
 conviction conspiracy to commit bank theft (helped get, prepare checks and  drove
co- to different banks to cash checks)
 evidence of prior involvement in a similar conspiracy admissible to show
knowledge that driving his friend and his checks was for illegal purpose
 identity
 U.S. v. Dossey (1977)
 armed bank robbery  can’t ID robber
 evidence of participation in bank robberies close in time and w/ same distinctive
modus operandi and disguise  admissible to establish ID
 U.S. v. Wright (1990)
 sold drugs in school zone to 3 Pos
 evidence of wire tapped phone convo in which  bragged about being a drug dealer
 inadmissible  evidence of other crimes to establish propensity to commit
type of crime charged
 NO probative value – didn’t ID seller for school-zone sale
 jury may be satisfied of guilt w/  standard of proof
 absence of mistake or accident
o Requisite Proof
 Huddleston v. U.S. (1988) – NO Preliminary Finding of Prior Act Required
 selling/possessing stolen property (tapes)
 evidence: sold stolen TVs, appliances  admissible w/o preliminary PoE proof
 ONLY inadmissible when NO jury could reasonably conclude prior act occurred
 jury could have reasonably concluded that TVs were stolen  properly admitted
 Character and Habit

FRE 406 – Habit

Evidence of person’s habit or the routine practice of an organization – corroborated or not, and
regardless of eye-witness presence – is relevant to prove conduct of person/org on a particular
occasion was in conformity w/ habit or routine practice

knowledgeable witness testimony OR specific conduct

Character Evidence v. Habit Evidence

Character Evidence Habit Evidence

“Sally is always in a hurry.” “Sally always takes the stairs two at a time.”

“Bart is a drunk.” “Bart stops at Charlie’s tavern every night after work
and has exactly four beers.”

“Jeff is a careless driver.” “Jeff never slows down for the YIELD sign at the end
of the street.”

“Lara is very conscientious about taking care of her “Lara checks the break on her car every Sunday
possessions.” before church.”

o habit – regular response to repeated specific situation

  probative than character evidence b/c individual’s habitual behavior is more consistent than
behavior based on character
 routine practice of organization reliable b/c act w/ greater regularity
 must show
 degree of uniform response showing more than a mere tendency to act in a given manner
 conduct was semi-automatic  determined on case-by-case basis
o Loughan v. Firestone Tire & Rubber Co. (1985)
 mechanic hurt by exploding tire piece
 evidence: mechanic’s drinking habit
 admissible  evidence of drinking (admitted, fired from old job b/c drinking, supervisor: drank
on job) + habit of bringing cooler of beer to work from 3 sources
o Burchett v. Commonwealth (2003)
 fatal car accident
 KY doesn’t admit habit evidence
 evidence that smoked pot every day  prejudicial assume b/c regularly performs particular
act also did so on particular occasion
 habit evidence overvalued, confusing, delay, distracting, and could be WRONG

 Order of Proof

FRE 611 – Mode and Order of Witness Interrogation and Evidence Presentation

(a) Control by Court – Ct. shall exercise reasonable control over mode/order or interrogating witnesses
and presentation of evidence so as to
 make it effective for ascertaining truth
 avoid needless consumption of time
 protect witnesses from harassment or undue embarrassment
(b) Scope of Cross-x – Cross-x should be limited to SM of direct-x and matters affecting witness’s
 Ct. may discretionarily allow inquiry into additional matters as if on direct-x (to avoid confusion,
complication, or protraction)
o TC has ultimate responsibility, authority, and discretion
o Stone v. Peacock (1992) – Must Show Harm from Ct.’s Control Over Evidence
 : wrongfully terminated b/c narked re: misuse of public property and $$$
 TC requiring  testify 1st NOT reversible error b/c no harm showed
o Elgabri v. Lekas (1992) – TC Decisions NOT Overturned Unless Prejudicial Abuse of Discretion
 TC’s limit on ’s calling ’s witnesses during case-in-chief NOT reversible error
 mode/order of questioning of witnesses in TC discretion
 CoA doesn’t disturb courtroom management decisions unless abuse of discretion that
prejudices appellant’s case
 Ct. limited ’s examination of s to SM that couldn’t be obtained any other way and allowed
unlimited cross-x of s
o U.S. v. Wilford (1983) – TC Has Discretion to End Trial
 NO abuse of discretion when TC denied ’s request for surrebuttal to counter ’s witness
testimony because
 witness wasn’t key witness
 testimony was cumulative
o U.S. v. Carter (1990) – TC Can Admit Evidence Not Presented in Case in Chief
 TC’s admission of testimony allowed  to present evidence NOT offered in case-in-chief and
wouldn’t have been available on rebuttal, BUT NO abuse of discretion
  probative value challenged alibis
 Mode of Questioning

FRE 611 – Mode and Order of Witness Interrogation and Presentation of Evidence

(c) Leading Questions – should NOT be used on direct except when necessary (hostile witness,
adverse party, witness IDed w/ adverse party, child witness, witness can’t remember); permissible on

o U.S. v. Nabors (1985) – TC Ruling Re: Leading Questions Deserves Deference

 armed bank robbery + conspiracy
 key witness = 12yo nephew saw s laughing about  money they had  direct: kept asking
“what exactly did  say?” and kid needed prompting that it was ok to say “Oh shit, Tray’s here.”
 NO improper leading  encouraging witness to repeat what witness had previously said to
, which included swear word
 didn’t explicitly suggest language that witness was supposed to say
 witness’s initial version omitted “shit” because he was reluctant to swear in court
 TC’s ruling re: use of leading questions on direct of kid witness deserved deference b/c TC
in best position to evaluate emotional condition of child witness and hesitancy to testify
o Ellis v. City of Chicago (1981) – TC Decisions Re: Leading Questions for Own Witness NOT
Overturned Unless Clear Prejudice to Complaining Party
 police officer shoots ’s dog responding to call after dog lunged at him
 decisions re: circumstances justify leading questions on party’s own witness will not be reversed
unless clear showing of prejudice to complaining party
 fellow policemen who were present for part of the incident and had worked closely with
officer = witnesses IDed w/ an adverse party
 BUT refusal to allow leading questions NOT reversible error b/c only speculative harm
 Sequestering Witnesses

FRE 615 – Exclusion of Witnesses

At party’s request (or on its own motion), Ct. shall exclude witnesses so they can’t hear testimony of other
witnesses  except can’t exclude:
1. party (natural person)
2. officer/employee of (non-natural person) party designated as its representative by its attorney
3. person whose presence is shown by a party to be essential to the presentation of party’s cause
4. person statutorily authorized to be present

o U.S. v. Machor (1989)

 federal agent who posed as prospective buyer during drug transaction exception to
sequestration rule as designated representative of 
  FRE has significantly restricted TC’s desertion to sequester ’s case agent

FRE 614 – Calling and Interrogation of Witnesses by Court

 Calling by Court: Ct. may, on own motion or on suggestion of party, call witness and all parties
 Questioning bycross-x
are entitled to Judge

(b) Interrogation by Court: Ct. may interrogate witnesses, whether called by itself or a party

(c) Objections: Objections to ct. calling witnesses or interrogation should be made at the time or at the
next available opportunity when jury not present

o U.S. v. Tilghman (1998) – TC’s Questioning CAN’T Reveal Judge’s Assessment of Evidence,
Especially Witness Credibility
 SSDI fraud  testified that he didn’t know he was required to report income and was
questioned by TC  objection
 judge’s questioning improper  deprived  of fair trial  reversed for new trial
 juries decide whether witnesses are truthful + judges have enormous influence over jury 
judges can’t ask questions that signal their belief or disbelief of witnesses
 questioning may have given jury impression that TC doubted ’s credibility
 intrusive questioning of  witnesses and badgering  didn’t negate prejudice to  by
showing judge was evenhanded
 while CoA gives deference, b/c it must protect ’s right to fair trial  TC will be reversed
when witness management decisions affect substantial rights
 Questioning by Jurors
o slow  of judges allowing jury to ask witnesses questions

Questioning by Jurors

Questioning by jurors should be allowed with appropriate screening:

 require written questions
 prevent sharing or discussion questions w/ other jurors unless and until asked to witness
 give opportunity to object outside jury’s presence
 instruct shouldn’t draw adverse inferences based on ct’s refusal to ask certain questions
 allow atty’s follow up questions

Appellate standard: abuse of discretion

o U.S. v. Hernandez (1999) – Jury Questioning Allowed w/ Appropriate Screening

 TC allows jury to submit written questions for Ct. and atty review before being asked
 NO abuse of discretion  1 fact question submitted but wasn’t even asked
 jury questioning of witnesses during criminal trial is allowed as long as it is done in a
manner that ensures
 fairness
 primacy of court’s stewardship
 ’s rights
 TC should screen questions, and only read to the witness after atty’s have had opportunity
to object outside jury’s presence
 dangers of allowing oral questions outweighs any perceived benefit
o State v. Fisher (2003) – Appellate Standard = Abuse of Discretion
 TC allowed jurors to ask questions via writing, after they were screened by ct. and attys
 allowing jurors to question witnesses DOESN’T violate ’s right to impartial jury  NOT error
 TC has discretion to allow jurors to question witnesses and decision won’t be reversed w/o abuse
of discretion
 those that do should
 require questions submitted in writing
 ensure jurors don’t display or discuss a question w/ others until read to witness
 give attys opportunity to object to each question @ sidebar or otherwise outside jury’s
 instruct jurors that they shouldn’t draw adverse inferences from ct’s refusal to allow
certain questions to be asked
 allow attys to ask follow-up questions of witnesses


 Introduction
o impeachment – evidence used to undermine witness’s credibility  testimony isn’t reliable
 impeachment  cross-x
 two stages
 own testimony through cross-x must have good faith basis for inquiry
 facts prove by extrinsic evidence
FRE 607 – Who May Impeach

Witness’s credibility may be attacked by any party, including the party calling the witness.

FRE 806 – Attacking and Supporting Declarant’s Credibility

Hearsay statement or authorized/employee/agent/co-conspirator admission admitted  can attack

declarant’s credibility  credibility can be supported by any evidence which would have been
admissible for those purposes as if declarant had testified as a witness

Evidence of statement/conduct inconsistent w/ declarant’s hearsay statement NOT subject to

requirement that declarant had opportunity to explain or deny

If party against whom a hearsay statement has been admitted calls the declarant as a witness 
entitled to examine declarant re: statement as if cross-x.
Methods of Impeachment

Impeachment Method Means of Proof Foundation

Contrary Evidence Cross-x None required

Extrinsic evidence
Sensory Deficiencies Cross-x None required
Extrinsic Evidence
Conviction of Crimes (FELONY Cross-x None required
OR DISHONESTY) Record of judgment
Specific Instances of Conduct Cross-x ONLY N/A
(Bad Acts)
Opinion or Reputation for Calling other witnesses None required
Bias, Hostility, or Adverse Cross-x Witness must be asked on cross-x re: facts
Interest Extrinsic Evidence showing bias or interest before extrinsic
evidence allowed
If facts admitted on cross-x extrinsic
evidence admissible w/i TC discretion
Prior Inconsistent Statements Cross-x Witness must be given opportunity to
Extrinsic Evidence explain or deny inconsistent statement AND
other party must have opportunity to
rehabilitate (Exception for hearsay
declarants and where interests of justice

Intrinsic Evidence NO foundation required

 Character for Untruthfulness

o In General
 similar to character evidence  proving witness lied b/c has lying nature

FRE 608 – Evidence of Witness’s Character/Conduct

(a) Opinion and Reputation Evidence – witness’s credibility can be attacked or supported by
opinion/reputation evidence as long as:
1. evidence re: ONLY character for (un)truthfulness AND
2. evidence of truthfulness ONLY after character for truthfulness has been attacked
(b) Specific Instances of Conduct – specific instances of conduct – except conviction under FRE
609 – CAN’T be proved by extrinsic evidence
1. Ct. has discretion to allow cross-x of witness re:
i. witness’s character for (un)truthfulness OR
ii. re: character for (un)truthfulness of another witness as to which character witness is
being cross-x has testified

**Testimony by  or any other witness  waiver of 5th Amendment privilege when examined ONLY re:
character for truthfulness)**
FRE 610 – Religious Beliefs or Opinions

Evidence of religious beliefs/opinions is NOT admissible to show witness’s credibility is impaired

or enhanced.

BUT can ask about religion to show interest or bias.

 U.S. v. Lollar (1979) –  Who Chooses to Testify Character an Issue  Evidence re:
Believability as Witness [Opinion] Admissible
  testify   recalled witness to ask if they would believe that  would be truthful under
oath  “no”
 once  chooses to testify  puts credibility at issue:
 can’t attack character in general
 can intro evidence re: believability as witness  witness can be asked whether
would believe  under oath
 U.S. v. Rosa (1989) – Witness Can Be Cross-x Re: Prior Criminal Conduct When
Indicative of Truthfulness/Credibility
 drug trafficking ring
 TC prohibited s from cross-x co- about prior criminal conduct that witness hadn’t been
convicted of
 TC has discretion only  overturned for abuse of discretion  NO abuse of discretion
 prohibited questions re: bribery  NOT indicative of truthfulness
 allowed questions re: fraudulent insurance claim  indicative of credibility
 allowed questions re: conspiracy/loyalty to crime family to extent indicative of
 Prior Bad Acts
 prior bad acts not amounting to a criminal conviction may be introduced if:
 act/conduct is probative of witness’s truthfulness NOT just general good character
 evidence must be brought out solely in cross-x of witness + questioner must take
answer of the witness  NO extrinsic evidence
 questioner has reasonable good faith basis to believe witness engaged in conduct
 U.S. v. Ling (1978) –  Must Accept ’s Answer re: Specific Acts of Past
[Unconvicted] Misconduct
o  charged with drug conspiracy  cross-x: testified that he owned guns but never
shot/threatened to shoot anyone  PO testify  fired gun in public place
o when  cross-x:  must accept ’s answer re: specific acts of past misconduct not
subject to conviction  CAN’T produce independent proof to show falsity of answer
 can keep pressing  to get to give answer, but can’t ask anyone else to prove
misconduct after denial
 U.S. v. White (1992) – Can’t Use Extrinsic Evidence to Prove Specific Instances of
o  want to intro evidence that ’s star witness had previously offered to fabricate
testimony for leniency
o can ONLY get info through cross-x  CAN’T prove specific instances of misconduct
by extrinsic evidence
 only wanted extrinsic evidence to show proclivity for lying  probably lying now
(INadmissible under 404b)
 U.S. v. Aponte (1994) – CAN’T Intro  Witness Written Statement to Show Lies
o convicted of robbing mail truck
o ’s witness’s sworn statement containing lies and other documents where witness gave
false descriptions of “robbers” [extrinsic evidence] offered to show witness’s capacity
for deception  INADMISSIBLE as specific instances of conduct
o Prior Criminal Convictions

FRE 609 – Impeachment by Criminal Conviction Evidence

(a) General Rule: For the purposes of attacking a witness’s character for truthfulness:
(1) evidence that witness – NOT  – has been convicted of a felony (CP, 1+y prison)
admissible, subject to limitations for prejudice, confusion, waste of time (FRE 403) evidence
that  has been convicted of a crime admissible if probative value outweighs prejudice
(2) evidence that witness has been convicted of a crime involving dishonesty or false
statements is admissible regardless of punishment IF elements of crime required
proof/admission of dishonesty or false statements by witness

(b) Time Limit: Evidence of a conviction is NOT admissible 10y+ since date of conviction or release
from prison (whichever is later) UNLESS Ct. determines in interest of justice that probative value
outweighs (w/ specific facts and circumstances) prejudicial effect AND proponent must give
adverse party notice and fair opportunity to contest

Admissibility of Convictions

Conviction is Admissible for Impeachment Purposes IF:

Conviction involves a crime of dishonesty or false statement (NO balancing test) OR

Conviction is a felony (CP or 1+y prison) and

 witness =   more probative than prejudicial or

 other witness  probative value is NOT substantially outweighed by prejudicial effect

 Witness NOT pardoned for crime (if based on witness’s innocence or rehabilitation) AND

 Conviction is not too remote – 10+y elapsed since date of conviction or release from prison

 Admissible and Inadmissible Convictions

 U.S. v. Wong (1983) – NO Balancing Test for Admitting Crimen Falsi Convictions 
TC Has NO Authority to Exclude a Criminal Conviction of Dishonesty or False
Statements B/C Too Prejudicial
 convicted of mail fraud and RICO
 when  testifiedTC intro convictions for mail and Medicare fraud
 TC CAN’T exclude evidence that witness had been previously convicted for a crime
involving dishonesty or false statement b/c general balancing test for admission N/A
to impeachment by crimen falsi convictions
 legislative history
 final rule: conviction involving dishonesty/false statement always admissible to
 U.S. v. Amaechi (1993) – Crime of Dishonesty Must Contain “Tinge” of Falsification 
NOT Simple Shoplifting
 drug trafficking
  witness “convicted” of misd shoplifting  sentence: supervision  conviction
 NO conviction NOT admissible to attack credibility
 shoplifting itself NOT crime of dishonesty
 drafters excluded crimes that don’t contain “tinge” of falsification
 including shoplifting would swallow the rule and admit any conviction
 U.S. v. Sanders (1992) – Admission of ’s Prior Convictions Subject to Probative
Value v. Prejudice Balancing Test
 convicted of assault w/ dangerous weapon w/ intent to do bodily harm + possession of
contraband (shank) for assault on fellow inmate
  testified  cross-x re: prior convictions for assault and contraband
 prior convictions inadmissible
 although they had some probative value for lack of credibility  highly
prejudicial b/c involved exact same conduct
 admission of a similar prior conviction does little to impeach but really suggests
propensity for assault and violence  high probability committed current
 limiting instruction not sufficient
 U.S. v. Oaxaca – Prior Conviction NOT Automatically Excluded Just b/c Same as
Current Crime  Must Weigh w/ Balancing Test
 bank robbery   testified TC allowed impeachment by 2 prior convictions for burglary
and bank robbery
 admissible  NO abuse of discretion
 convictions reflected on honesty/credibility, especially important to ’s alibi
 prior conviction not automatically excluded just b/c same as current crime 
must weigh w/ balancing test
 U.S. v. Hernandez (1997) – TC Can Admit Similar Offenses When Credibility is an
Important Issue
 convicted of kidnapping
 TC admits prior conviction for drug possession
 admissible  NO abuse of discretion
 kidnapping was related to drugs b/c ransom $$$ intended to pay back drug deal
 TC determined that despite similarity in offenses, prior conviction was
admissible given importance of credibility
 TC was aware of danger of prejudice and gave limiting instruction
 Preserving Claims of Error
 Luce v. U.S. (1984) –  Must Testify to Raise and Preserve a Claim of Improper
 drug charges   moved to exclude impeachment by prior conviction *IF* he testified
no commitment to testify or what testimony would be about
 to raise and preserve for appeal claim of improper impeachment w/ prior conviction 
must testify
 don’t know that didn’t testify b/c of threatened impeachment
 don’t know if TC would have allowed impeachment
 don’t know if  would have tried to impeach
 not requiring testimony  automatic windfall reversal for 
 Ohler v. U.S. (2000) –  CAN’T Testify About Priors on Direct AND Preserve Improper
Impeachment Claim for Appeal
  motioned to admit evidence of prior felony as impeachment   testified re: prior
before could cross-x
  who pre-emotively intros evidence of a prior conviction on direct CAN’T on appeal
claim the admission of the evidence was erroneous
 CAN’T take away ’s choice to use evidence by testifying about it first and
then preserve issue on appeal
 Prior Inconsistent Statements

FRE 613 – Prior Inconsistent Statements

(a) Examining Witness re: Prior Statement: When questioning witness re: prior statement (written or oral)
DON’T need to show statement to witness, but upon request should be shown/disclosed to opposing

(b) Extrinsic Evidence of Witness’s Prior Inconsistent Statement: Extrinsic evidence of prior inconsistent
statement NOT admissible unless witness given opportunity to explain/deny AND opposite party
given opportunity to cross-x on explanation

**N/A to admissions by party-opponent**

o NO foundation requirement for prior inconsistent statement on cross-x

o U.S. v. Lebel (1979) – NO Timing/Sequence Requirement for Confrontation and Opportunity to
 drug trafficking
 TC excluded evidence from prior trial that witness didn’t ID  then later did
 harmless error
 ID or non-ID of persons in courtroom = statement for purpose of prior inconsistent
 error to require immediate confrontation with inconsistent statement since FRE doesn’t
specify any particular order
 BUT harmless b/c impeaching collateral matter and  had opportunity (2 ½ d) of calling and
confronting witness w/ ID and non-ID
o U.S. v. Dennis (1980) – Inconsistent Includes Evasive Answers, Inability to Recall, Silence, or
Changes in Position
 TC admitted prior inconsistent statements made in GJ: witness testifies @ GJ re: crimes and that
threatened him, @ trial denies or doesn’t remember making statements
 statement NOT hearsay  TC determined testimony inconsistent  read inconsistent
statements to impeach
 inconsistency not limited to diametrically opposed answers, but may be found in evasive
answers, inability to recall, silence, or changes in position
 TC limited use to minimize evidentiary costs
o Morlag Rule – CAN’T impeach own witness to sneak in prior statements for truth of the matter
asserted that would otherwise be inadmissible
 key is knowledge of witness’s answer  good faith or bad faith?
o U.S. v. Ince (1994) – CAN’T Try to Avoid Hearsay Rule w/ “Impeachment” of Otherwise
Inadmissible Evidence
 convicted for assault w/ dangerous weapon
 evidence original witness statement “ admitted crime” both trials couldn’t remember statements
even though shown statements
 INADMISSIBLE [Morlag rule]  can’t try to get around hearsay rule w/ “impeachment” of
otherwise inadmissible evidence
 b/c witness testified in earlier trial that she couldn’t remember   knew she would
testify that she couldn’t remember
 ONLY impeaching witness to get evidence of original statement ( admitted crime)
admitted as substantive evidence
o U.S. v. Webster (1984) – Party DOESN’T Violate Morlag Rule When Request Time to Determine
What Witness Will Testify About Outside Jury’s Presence
 convicted aiding and abetting federal bank receiving stolen $$$
 evidence: co- exculpatory testimony @ trial   admit evidence of prior inconsistent
inculpatory statement to FBI agent
  can’t call witness knowing wouldn’t give useful evidence just to introduce hearsay evidence
against hoping jury wouldn’t be able to distinguish impeachment v. substantive evidence
 BUT when , before calling witness asked to examine witness w/o jury present b/c she
didn’t know what witness would say but ’s objection to it was granted CAN’T say 
violated Morlag rule
 wouldn’t have requested time to figure out witness’s testimony
 Bias and Incapacity
o NO specific FRE re: impeachment for bias and incapacity
o bias – witness has motive to lie
 U.S. v. Abel (1984) – Bias Testimony is Relevant to Impeach
 @ trial co- implicated  in bank robbery  ’s witness: co- told me he planned to falsely
implicate   co- recalled to testify that himself, , and ’s witness were members of
secret prison gang requiring members to deny existence and lie, steal, cheat, and kill to
protect each other
 admissible  evidence re: gang membership probative enough of possible bias
 bias testimony is relevant  tenancy to make facts to which witness testified less
probable than w/o bias testimony
 testimony re: prison gang relevant
 NO abuse of discretion – considered counter arguments, prohibited use of name of
gang, offered limiting instruction, sustained some  objections
o incapacity – witness’s memory or perception is unreliable (mental or physical)
 U.S. v. Sasso (1995) – Evidence of Psych. Problems + Meds That Didn’t Effect Ability to
Perceive and Weren’t Taken During Time About Which Witness Testifies NOT
 illegal gun trafficking witness testifies about incriminating statements between s
 TC did NOT abuse discretion in excluding evidence that witness took Prozac + therapy
after accidently killed co-worker
 NO indication of probative value: timing – not on meds @ time of observations – and
didn’t effect ability to perceive
 Henderson v. Detella (1996) – Evidence of Drug Use Inadmissible w/o Showing Impact on
Perception or Memory
 convicted murder and attempted murder (of witness)
 TC properly excluded evidence from acquaintance that witness used drugs
 w/o connection to cognitive abilities drug use only used to impeach character
 Specific Contradiction
o no specific governing rule  judge-made restriction
 part of witness’s testimony is false  jury should decide to disregard rest of testimony
 NO extrinsic evidence allowed
 test for collateral matter – would the party seeking to introduce it for purposes of contradiction be
entitled to prove it as part of it’s case?
 NO  can’t impeach
 YES  impeach
 if there is some relevance to matter at issue  NOT collateral matter  admissible to

Collateral Matter  Inadmissible NOT Collateral Matter  Admissible

Extrinsic evidence/2nd Witness Testimony CAN’T be Extrinsic evidence/2nd witness testimony

used to discredit by: CAN be used to discredit by:

Unconvicted bad acts Prior conviction for felony or crimen falsi

Witness’s testimony was incorrect re: some point that Witness has bad character for
is not independently relevant to the case truthfulness

 bad reputation

 opinion

 NOT specific instances of past


Prior statement inconsistent w/ trial testimony re: Bias

immaterial issue

Sensory or mental defect

o Simmons Inc. v. Pinkerton’s (1985) –

 security guard K  security guard (’s employee) arson
 TC admits arsonist’s testimony that he told  he had passed polygraph  admits on cross-x 1st
test inconclusive never scheduled second one
 TC could decide that a relevant fact (specific incident of conduct) to witness’s credibility – lied –
is sufficiently important and probative to be elicited on cross-x
 NO extrinsic evidence confusion, prejudice, waste of time
 arsonist’s lie probative of his character for truthfulness  proper to allow ? on cross-x 
BUT can’t use extrinsic evidence  TC properly used discretion
o U.S. v. Copelin (1993)
 convicted drug dealing  : mistaken ID
 evidence: prior positive drug tests to contradict statement that  had never seen drugs except on
 attempt to impeach through contradiction = legit reason to intro evidence of other crimes 
admissible if probative outweighs prejudice
 relevant (tending to prove or disprove) to ID (wasn’t someone else
 impeached by intrinsic evidence (own statement)  no collateral evidence rule problem
 Rehabilitation
o In General
 rehabilitation – introducing evidence that suggests witness is credible
 response to impeachment  CAN’T rehabilitate before impeachment (bolster)
 support must meet attack  if doesn’t meet attack evidence should be excluded based on
probative value insufficient to justify resulting confusion and waste of time
 U.S. v. Lindemann (1996) – Bolstering Prohibition N/A to Bias, Incapacity, Inconsistencies
 ONLY Subject to Relevance Standard
 conspiracy to kill horses to get insurance $$ FBI informant implicates 
 cross-x: attack informant’s credibility by suggesting he only implicated  to get plea deal 
 wanted to intro informant testimony that he narked on many people so didn’t need to
implicate  to get plea deal
 bolstering evidence inadmissible b/c
 longer trial
 asks jury to take witness’s testimony on faith
 jury doesn’t listen as carefully for inconsistencies etc. in testimony
 bolstering n/a in bias, incapacity, inconsistencies  admissible if meet FRE 403
relevance standard
  attacked testimony as biased  only needs to be relevant to be admissible
 relevant –  probable that witness was biased based on self interest b/c had
multiple bargaining chips  admissible
  attacked credibility first by alleging bias   gets to respond
o Character for Truthfulness

FRE 608 – Evidence of Witness’s Character and Conduct

(a) Opinion and Reputation Evidence of Character – Witness’s credibility can be attacked or supported
by opinion or reputation evidence, but:
1. ONLY character for (un)truthfulness
2. ONLY admissible after witness’s character for untruthfulness has been attacked by opinion or
reputation evidence or otherwise
 evidence of bias or interest  attack
 misconduct – incl. criminal conviction – + opinion/reputation = attack
 contradiction depends
(b) Specific Instances of Conduct – Witness’s specific conduct to show or attack witness’s character for
truthfulness – except criminal conviction FRE 609 – CAN’T be proved by extrinsic evidence BUT if
probative can be asked cross-x re:
1. witness’s character for (un)truthfulness
2. another witness’s character for (un)truthfulness as to which character the witness being
cross-x has testified

**Giving testimony by  or another witness NOT waiver of 5th Am. when questioned re: character for

 Beard v. Mitchell (1979) – Prior Inconsistent Statement = Attack

 sister of murder victim sues FBI agent for screwing up and not preventing death
 TC allows evidence of agent’s truthfulness
 admissible   attacked credibility w/ inconsistent statements
 CoA can’t say that TC erred b/c inconsistent statements may be considered attacks
 U.S. v. Danehy (1982) – Prior Inconsistent Statement  Attack
 tried to ram Coast Guard boat and resisted arrest when CG came on his boat
 ’s evidence re: credibility and truthfulness  NOT admissible
  offering evidence to bolster self as witness, not to show character trait relevant to
crime charged  FRE 608 applies
 mere fact that a witness is contradicted by other evidence  an attack upon his
reputation for truth and veracity so as to allow him to introduce evidence of his
reputation for truthfulness.
  pointing out inconsistencies in testimony + arguing that ’s testimony wasn’t
credible  attack  TC properly excluded evidence re: reputation for
 U.S. v. Drury (2005) – Leading and Accusatory ?s on Cross-x NOT Attack
  hired undercover agent to kill wife and provided gun
 leading and accusatory questions on cross-x NOT attack on character  just pointing out
inconsistencies  NO rehabilitation allowed
 U.S. v. Murray (1997) – CAN’T Use Specific Conduct or Extrinsic Evidence Even After
Witness’s Credibility Attacked  Can Use Opinion or Reputation
  drug informant cross-x re: drug use, connection to dealers, drug and theft convictions,
unlawful carrying unlicensed firearm, concealing drug use, $$ for informant work, prior
inconsistent statements
 call police officer testify about informant
 being reliable  admissible (truthfulness)
 the number of cases he “made”  inadmissible b/c extrinsic evidence of specific
instances of conduct to support credibility
o Prior Consistent Statements
 NO specific rule governing FRE 801(d)(1)(B) – excludes prior consistent statements from
 consistent statement must be made EARLIER in time than inconsistent statement to be
admissible to impeach
 use of nature of prior inconsistent statement must rise to level of implied charge of fabrication
 Tome v. U.S. (1995) – FRE 901(d)(1)(B) Permits Use of Declarant’s Out of Corut Statement
to Rebut Charge of Recent Fabrication, Improper Influence or Motive ONLY When Those
Statements Made BEFORE Charged Recent Fabrication/Improper Influence/Motive
 child abuse
  implied kid had motive to lie b/c wanted to live w/ mom instead of dad  TC allows 
to intro testimony from other witnesses that kid told them about abuse before motive
 prior consistent statements are only admissible to rebut charge of recent fabrication or
improper influence when consistent statements were made before the charged recent
 must show fabrication occurred between prior consistent statement and testimony
 U.S. v. Simonelli (2003) – When Prior Consistent Statements NOT Offered for Truth – Just
Rehabilitation – FRE 801(d)(1)(B) N/A  TC has Discretion
 convicted false income tax returns and conspiracy
  intro inconsistent GJ statements  introduce consistent GJ statements
 not offered for their truth – just rehabilitation – FRE 801 n/a  TC has discretion
 harmless error of cumulative evidence
 In General
o competence – a witness is competent when s/he is allowed to testify
 then – children, felons, atheists, mentally ill, parties to suit can’t testify
 now – pretty much anyone should be allowed to testify and jury sort out credibility
 signals willingness to trust jury to judge good vs. bad witnesses, but not good v. bad

FRE 601 – General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules.

However, in civil actions and proceedings, re: element of a claim or defense as to which State law supplies
the rule of decision, the competency of a witness shall be determined in accordance with State law (pretty
much only diversity suits)

o FRE eliminates ALL grounds for incompetency not specifically recognized in FRE
o Rosen v. U.S. (1918) – Pretty Much Everyone Should Be Able to Testify  Fact-Finder
Determines Weight  Criminal Competent
  likelihood of truth if everyone of competent understanding who seems to have knowledge of
facts testifies leave credibility and weight to be determined by jury or judge (bench trial)
rather than rejecting witnesses as incompetent
o U.S. v. Lightly (1982)
 inmate assault  2 inmates charged  : defense “I saw them fighting and I broke it up, co
cut me” + corroborated by 3 other inmates
 evidence: tried to call co, would have testified that only he not  assaulted  but TC ruled
incompetent b/c he was criminally insane and unable to stand trial
 TC erred inexcluding co testimony on grounds that co insane
 Dr. testified that co had memory and personal knowledge, understood oath, and could
communicate what he wanted to say
  valuable testimony
 new trial
 Personal Knowledge

FRE 602 – Lack of Personal Knowledge

Witness CAN’T testify to something unless there is evidence to show that witness had personal
 evidence doesn’t have to be witness’s own testimony
 n/a opinion testimony of expert witness

o witness must have personal knowledge

o problem: often have to determine witness’s credibility to establish personal knowledge
o U.S. v. Hickey (1990) – Personal Knowledge Unless NO Reasonable Juror Could Conclude
Witness Had Ability and Opportunity to Perceive Events Testifying About
 drug conspiracy  pursuant to plea agreement co testified against   but witness cocaine
addict, lack of memory about details, and inconsistencies
 testimony shouldn’t be excluded for lack of personal knowledge unless no reasonable juror
could believe that witness had ability and opportunity to perceive event he testifies about
 even though most testimony was unbelievable and witness’s ability to perceive was
impaired sometimes  reasonable juror could believe witness’s testimony  NO
abuse of discretion  admissible
 Oath or Affirmation

FRE 603 – Oath or Affirmation

Before testifying every witness required to declare that witness will testify truthfully by oath or
affirmation administered in a form calculated to awaken witness’s conscience and impress witness’s
mind w/ duty to testify truthfully

o U.S. v. Ward (1993)

  filed motion to challenge oath and proposed new oath replacing “truth” w/ “fully integrated
honesty” in addition to regular oath
 TC denied motion b/c historical oath shouldn’t’ be changed just b/c  wants to   didn’t
testify or present any witnesses
 TC’s refusal violates 1st Amendment  ’s revised oath didn’t content or substance of oath
 point is to tell truth under penalty of perjury
 believed his oath imposed a higher duty to tell truth
 new trial
o U.S. v. Allen J. (1997) – Juvenile Competent Unless Compelling Reason to Question
 juvenile victim possible MR competent to testify
 juveniles presumed competent unless compelling reason to question competence
 knew difference between truth and lie
 knew must tell truth in ct
 knew punishment for lying
 inconsistencies in testimony went to credibility, not competence
 Competence and Constitution
o Rock v. AR (1987)
 wife charged w/ manslaughter death of husband during fight  couldn’t remember exact
details  hypnosis: remembered she didn’t have finger on trigger and gun went off when
husband hit her  expert testimony gun was defective
 TC excluded hypnosis testimony
 per se rule excluding all post-hypnosis testimony infringes on right to testify w/o clear
evidence repudiating all validity of it
 not always so untrustworthy and so immune to traditional means of evaluating credibility
that it should prevent from  presenting version of events
 safeguards inaccuracies
 independent specially-trained psych
 tape recording everything before during and after
 cross-x
 expert testimony
 limiting instructions
 should have considered: expert’s corroboration of hypnotically enhanced memories +
TC conclusion that recordings of hypnosis sessions no suggestion/leading questions


 Lay Opinions
FRE 701 – Lay Witness Opinion Testimony

If witness is not testifying as an expert, witness’s opinion or inference testimony limited to opinions or
inferences which are:

(a) rationally based on witness’s perception AND

(b) helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue
(c) NOT based on scientific, technical, or other specialized knowledge [FRE 702]

o examples of permissible lay witness opinions

 physical appearance
 recognition
 emotional state of another
 speed (approximate NOT definite measurements of excessive MPH), distance, temperature
 value of one’s own goods or services
 visible signs of irrational behavior
 odors

FRE 704 – Opinion on Ultimate Issue

(a) Except as provided in (b) opinion or inference testimony otherwise admissible is NOT
objectionable b/c it embraces an ultimate issue to be decided by trier of fact

(b) Expert witness testifying re: ’s mental state/condition in a criminal case CAN’T state opinion
or inference re: whether  did or did not have mental state/condition constituting an element of
the charged crime  ultimate issue  ONLY for trier of fact to decide

o U.S. v. Meling (1995) – Lay Opinion Testimony Admissible When Helpful and Rationally Based
on Wittiness’s Perceptions
 tried to kill wife w/ Sudafed laced w/ cyanide covered tracks by putting some tampered meds in
stores  2 more people died
 evidence: EMTS and 911 operator testify  faking grief
 admissible
 rationally based on their perceptions
 helpful to jury in determining whether  was faking
 911 operator could compare calls to judge whether faking better than jury
o Government of Virgin Islands v. Knight (1993) Lay Opinion Testimony Admissible When Helpful
and Rationally Based on Wittiness’s Perceptions
  hitting guy in head w/ gun  gun went off  guy dies
 evidence: eyewitness and PO testimony accident
 PO officer testimony inadmissible  no personal knowledge
 eyewitness admissible: based on perception and helpful to jury in determining facts
 BUT harmless error b/c even  conceded accident
 Robinson v. Bump (1990) – Lay Opinion Testimony Admissible When Helpful and
Rationally Based on Wittiness’s Perceptions
 fatal car accident ’s estate v. truck driver
 evidence: other driver testified that  was in control of truck until hit by other truck
 admissible
 rationally based on witness’s perception of truck
 helped jury assess negligence
 U.S. v. Peoples (2001) – When PO Isn’t Testifying as Expert Testimony ONLY Admissible w/
Personal Knowledge
 FBI agent testifies re: her translation/interpretation of recorded (wiretapped) convo betw.
 when PO isn’t qualified as an expert lay opinion testimony only admissible when PO has
personal knowledge of the facts relayed in the convo, participating, or observed convo
 testimony inadmissible  NO firsthand knowledge based on investigation after the
 NOT harmless error testimony seriously influenced jury so that can’t confidently say
that no significant possibility that it had a substantial effect on jury’s decision to
 U.S v. Ayala-Pizarro (2005)
 drug charges
 evidence: PO testimony about whether location of arrest is drug point and packaging
 NOT expert testimony
 based on personal experience and experience
 helpful to jury
 didn’t take special knowledge to conclude that people @ drug point often have weapons
or figure out where drugs are being sold
 jury could make own decisions aided by other independent evidence
 Expert Testimony

FRE 702 – Expert Testimony

Expert testimony is admissible if:

(1) If scientific, technical, or other specialized knowledge will help trier of fact to understand the
evidence or determine a fact in issue

(2) a witness qualified as an expert by knowledge, skill, experience, training, or education

(3) the testimony is based upon sufficient facts or data

(4) the testimony is the product of reliable principles and methods AND

(5) the witness has applied the principles and methods reliably to the facts of the case

o Permissible Subjects and Scope

 Hatch v. State Farm Fire & Casualty Co. (1997) – Expert Testimony on Good Faith and
Fair Dealing And the Effect of Insurance Co.’s Ad. NOT Specialized Knowledge,
NOT Helpful
  wouldn’t pay for house fire b/c believed husband started it  husband acquitted of
 in trial for breeching duty of good faith and fair dealing expert testimony on insurance
industry standards of good faith and fair dealing
 expert’s testimony re: whether  was living up to its advertising slogan “Like a good
neighbor” properly excluded
 NOT specialized knowledge
 extraneous and non-legal standard
 required no specialized knowledge
 couldn’t help jury in understanding evidence or determining any fact at

FRE 703 – Bases of Expert Opinion Testimony

Facts/data on which expert basis an opinion or inference can be perceived by or made known to the
expert at or before the hearing.

If the facts are of a type reasonably relied on by experts in the particular field in forming opinions or
inferences on the subject don’t need to be admissible in evidence in order for the opinion or
inference to be admissible.

Facts or data that are otherwise inadmissible shall NOT be disclosed to the jury by the proponent of
the expert testimony unless Ct. determines that their probative value in assisting jury evaluate the
expert’s opinion substantially outweighs the prejudicial effect.

3 Sources for Expert Opinion – 1sthand knowledge, presentation @ trial, expert info outside trial.

 State v. Lewis (2007)

 negligent homicide facilitation of attempted aggravated robbery
 shop owner fatally shot during robbery before death told PO robber left hat  DNA
 expert testimony: can exclude 99.9% of population but can’t ID  for sure
 cross-x: co-worker actually performed analysis
 testimony admissible
  didn’t argue it was untrustworthy or otherwise not type generally elided upon
by DNA experts
 NO CC violation co-worker’s actual report not admitted into evidence and
expert didn’t communicate any out of court statements made by co-worker
 OVERRULED by Melendez – in criminal case must be able to confront actual lab
person who did analysis

FRE 705 – Disclosure of Facts or Data Underlying Expert Opinion

Expert can testify in opinions and inferences and give reasons for them w/o first testifying to the
underlying facts or data unless Ct. requires otherwise.

Expert may be required to disclose underlying facts or data on cross-x.

FRE 705 – Disclosure of Facts or Data Underlying Expert Opinion

Expert can testify in opinions and inferences and give reasons for them w/o first testifying to the
underlying facts or data unless Ct. requires otherwise.

Expert may be required to disclose underlying facts or data on cross-x.

FRE 706 – Court Appointed Experts

(a) Appointment: The Ct. may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses shouldn’t be appointed, and may request the parties to submit
nominations. The Ct. can appoint any expert witnesses agreed upon by the parties, and may
appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court
unless the witness consents to act. A witness so appointed shall be informed of the witness' duties
by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the
parties shall have opportunity to participate. A witness so appointed shall advise the parties of the
witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be
called to testify by the court or any party. The witness shall be subject to cross-examination by
each party, including a party calling the witness.

(b) Compensation – Appointed expert witnesses are entitled to reasonable compensation, paid by
funds provided by law in criminal cases and civil actions involving just compensation under 5th Am, and
in other civil cases in ct.-ordered proportions

(c) Disclosure of Appointment – In exercise of discretion Ct. may authorize disclosure to the jury of the
fact that the court appointed expert witness.

(d) Parties’ Experts of Own Selection – Nothing in this rule limits parties’ use of expert witnesses of
their own selection.

o Reliability
 Court-Appointed Experts
 courts can appoint experts, but both parties and experts want to avoid
 LeBlanc v. PNS Stores, Inc. (1996) – FRE 706 Rarely Used w/o NEED
 slip and fall accident   wants Ct. appointed Dr.
 court appointed experts only in really special circumstances
 TC properly denied request to appoint expert   didn’t show requisite
necessity b/c has access to ’s medical records
 FRE 706 NOT an alternative to communication betw. parties
 Judicial Screening of Party-Approved Experts
 Frye v. U.S. – general acceptance test  cts will go a long way in admitting expert
testimony deduced from well-recognized scientific principle or discovery BUT the
thing from which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs
 Daubert v. Merrell Dow Pharm. Inc. (1993) – NO General Acceptance Test 
Expert Testimony Requires Scientific Knowledge that will Assist FF Understand
or Determine Fact in Issue
 kids have birth defects caused by ’s drugs given to moms while preg.
 TC + CoA: SJ for  b/c expert testimony based on methodology that significantly
diverges from recognized authority’s procedures
 Frye has been overruled by FRE
 FRE 701 – no general acceptance required and no evidence it was
 TC must determine whether expert is proposing to testify to (1) scientific
knowledge (2) that will assist fact-finder understand or determine a fact
at issue
 scientifically valid reasoning
 applicable to facts
 factors to consider
o tested
o peer reviewed/published
o rate of error
o consistent experimental controls
o generally accepted
Daubert Factors for Consideration in Admitting Scientific Evidence

A judge should consider the following factors before admitting scientific evidence

 Whether the theory or technique is testable (and if it has been tested)

Whether the theory or technique has been subject to peer review

What is the error rate of the technique/test

Whether standards exist to control a technique test

Whether the theory or technique has gained general acceptance in its field (Frye)

Any other relevant factor

 General Electric Co. v. Joiner (1997) – Appellate Review Standard Abuse of

  electrician exposed to ’s chemical
 appropriate standard for TC’s evidentiary rulings is abuse of discretion
 rarely reversed
 this case NO abuse huge analytical gap between data nad opinion (don’t
have to rely on only individual expert’s opinion that their opinion is
 studies very different from this exposure
 studies showed no causal link
 cited studies
o unwilling to say that exposure  cancer
o although  cancer, not statistically significant
o test subjects exposed to multiple carcinogens
 Kumho Tire v. Carmichael (1999) – Daubert Applies to ALL Expert Testimony
 ’s expert: defective tire caused accident NOT abuse/misuse
 Daubert applies to ALL expert testimony
 judges can’t distinguish between scientific v. technical v. specialized
 flexible don’t have to show all can establish 1 factor convincingly enough to
get evidence admitted (but want more if possible)
 which criteria satisfied and to what extent is very fact dependent leave to
TC to determine which facts are relevant in which factual situations
Expert witness’s opinion?


Does opinion assist jury in Is the opinion rationally

understanding evidence or based on the witness’s
determining an issue? perception? NO

lay opinion
expert opinion

Does the witness have Is opinion helpful
specialized to jury?
knowledge, skill, etc.
in the subject to which
his testimony relates?


Is the opinion based on

matters reasonably relied Is the opinion based on
on by experts in the field in scientific, technical, or
forming opinions about other specialized
subject at issue? knowledge?


Admissible expert Admissible lay opinion

opinion testimony testimony
 In General
o privilege different from regular evidentiary rule
 privilege rules govern
 whether particular evidence can be introduced @ trial
 whether certain evidence can be compelled before trial
 parallel confidentiality and professional responsibility
 purpose  protect relationships that deserve confidentiality
 NOT codified  FRE 501 – fed. cts. develop federal CL privilege

FRE 501 – General Rule

Except as otherwise required by the Constitution or provided by Act of Congress or in rules prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common law as they may be
interpreted by the federal courts in the light of reason and experience.

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which
State law supplies the rule of decision, the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.

 Attorney-Client Privilege
o Introduction
 oldest and most heavily litigated privilege
 criticisms – helps/protects bad people; too close to bar interests
 Swindler & Berlin v. U.S. (1998) – A&C Privilege Survives Client’s Death
 client commits suicide  interview notes subpoenaed  atty refuses
 A&C privilege survives client’s death encourages client to communicate fully and frankly w/
 loss of evidence as a result of A&C privilege doesn’t preclude posthumous
application of privilege w/o assurance of privilege’s post-humorous application,
client might not have made disclosures at all
 UNLESS disclosure would further client’s intention (will contests)
Attorney Client Privilege

 Communication

In Confidence

Between Attorney and Client

To Facilitate Legal Service

o Elements
 Communication
 U.S. v. Kendrick (1964) – Characteristics Observable by Anyone ≠ Privileged
 convicted of theft  appealing TC admitting atty testify re: client’s demeanor during
trial (cooperative and aware)
 admissible  NOT re: substance of communication + physical characteristic
observable by anyone  no intent for confidentiality
 Tornay v. U.S. (1988) – Privilege Protects Communication Necessary to Gather Info
for Effective Legal Advice/Representation  NOT Fee Info
 IRS investigation trying to figure out net worth/expenditure  summons atty re: fees
paid  respond fired  summons new atty
 fee info NOT privileged
 privilege purpose to protect communication to gather info for legal advice
 clients wouldn’t withhold necessary info for effective representation if they
knew info re: fee payments could be testified to
 privilege isn’t to immunize client from liability re: legal fees  encourage open
 may influence decision to seek counsel but that’s client’s choice
 In Confidence
 U.S. v. Gann (1984) – NO Confidentiality When Reasonably Aware of 3rd Party
  connected to bank robbery  search warrant  found illegal gun  police went
  inside talking on phone (maybe to atty): “guess I have to go downtown … ex
con in possession I guess.”
 NO confidentiality when reasonably aware 3rd party present (n/a agent)
 client must know no reasonable expectation of confidentiality
 didn’t show PO intended to eavesdrop
 U.S. v. Evans (1997) – When 3rd Part Presence NOT Necessary to Achieve Goal of
A&C Meeting  NO Privilege
 friend/former atty sets  up w/ 3 attys   and friend talk to attys together
 NO A&C Privilege betw.  and friend  friend can testify about convos
 didn’t show friend/atty presence was necessary to achieve goal of meeting
 friend’s testimony eliminates possibility of privilege: “I was friend and possible
character witness, NOT counsel”
 U.S. v. Lawless (1983) – NO Privilege When Info Transferred to Atty w/ Intent that It
Will Be Transferred to 3rd Party
  (atty) prep estate tax returns refused to disclose info used to prep tax return to
 NO privilege when info transferred to atty w/ intent that it will be transferred to 3 rd
 info transferred so atty could prep taxes w/ intent to transmit evidence to IRS
 SmithKline Beecham Corp. v. Apotex Corp. (2000) – Patent Application Info Privileged
  sues  for patent infringement
 documents evaluating/apply for patents privileged
 competent patent application and advice requires knowledge of technical
details of thing to be patented
 public policy favors confidentiality for patents
 tax = fulfilling obligation
 patent = privilege/service
 Between Attorney and Client
 U.S. v. Kovel (1961) – Privilege If 3rd Party Necessary for Effective Consultation to
Provide Legal Services
 accountant (employed @ law firm) subpoenaed re: tax violation  refused to testify
b/c privilege
 accountant was translator for atty if presence of 3rd party is needed for effective
consultation  privilege
 privilege if communication is made in confidence to obtain legal advice
 NOT privileged if primarily seeking accountant services/advice
 U.S. v. McPartlin (1979) – Joint Defense Privilege: Waiver NOT Inferred from
Disclsoure in Confidence to Co-Party’s Counsel for Common Purpose
 cos work together to attack credibility of prosecution’s witness (unindicted co-
 privileged – statements made to by co to an investigator acting for ’s counsel,
during course of interview for the common purpose of attacking adverse witness’s
credibility privileged
 communications by client to own atty are privileged when atty subsequently
shares them w/ cos for purposes of a common defense
 uninhibited communication between joint parties and counsel is important for
protection of interests + in criminal cases can be necessary for fair
opportunity to defend waiver NOT inferred from disclosure in confidence to
co-party’s counsel for a common purpose
 cos defenses don’t need to be completely compatible for joint defense
privilege to be applicable
 Pasteris v. Robillard (1988) – NO Privilege When Statement Isn’t Made to Atty’s
Subordinate or Someone Acting as Atty
  fall accident  want ’s transcribed statement to insurance company
 NOT privileged
 statement made prior to start of legal representation
 even though insurance co. had obligation to provide legal defense and insured
had duty to cooperate NO evidence that the person to whom
communication was made was subordinate to atty or that the person was
taking the statement on behalf of insurance co. was acting as atty
 Upjohn Co. v. U.S. (1981) – Employee Communications w/ Corp. Counsel Privileged
 internal investigation of foreign subsidiary bribes via questionnaires  IRS
summons questionnaires and interview notes
 privileged
 made by employees to corp. counsel, at direction of corp. superiors for
purposes of obtaining legal advice re: matters w/i employee’s duties, and
employers knew purpose
 if protect only execs, corps wouldn’t do internal investigation or seek legal
 safeguarded by cross-x and can get testimony from other employees (GJ or
 To Facilitate Legal Service
 Hughes v. Meade (1970) – Privilege = Performance of Legal Services w/i Scope of
Professional Employment (re: law)
 atty refuses to disclose ID of client who asked him to drop off stolen property @
police  contempt
 NOT privileged
 privilege requires: performance of legal service + w/i scope of professional
 communication of prior criminal acts
 legal consequences of behavior
 future criminal acts
 dropping off stolen property isn’t w/i A-C relationship or facilitating legal
 acting as an agent anyone else could have done it, not related to law
 U.S. v. Davis (1981) – MUST Be Legal Services If Can Hire Someone Else To Do It 
NO Privilege Just B/C Atty Doing It
 atty has to turn over papers used to prep tax return and actual tax return
 primarily accounting service, NOT legal  NOT privileged
 no privilege if accountant
 if you’re able to hire non-atty to do something can’t use privilege just b/c
hire atty
 U.S. v. Rowe (1996) – Fact-Finding Services = Legal Services
 atty may be misusing client funds senior partner gets associates to investigate later
hire outside counsel
 associates can’t be compelled to testify  fact-finding services were legal
services as in-house counsel  privileged
 fact-finding is part of legal services
 senior partner trying to avoid litigation  investigation = legal services
 regardless of inside v. outside counsel
o Waiver
 ONLY client can waive privilege
 U.S. v. Bernard (1989) – Any Voluntary Disclosure By Client Inconsistent with A&C
Relationship to Someone Who Isn’t Atty  Waiver
 convicted of making illegal nominiee loans  witness:  told me his atty said loans were
legal so I agreed  TC allowed atty to testify
 any voluntary disclosure by client that is inconsistent w/ A&C relationship waives privilege
 any voluntary disclosure by client to someone who isn’t agent of atty about convo 
NO privilege
 Tasby v. U.S. (1974) – Client Initiates Law Suit Against Person w/ Whom Has Privilege =
 convicted making material false statement @ kidnapping trial   testified  after trial was
over tried to claim incompetent assistance of counsel  atty testified that  was warned
about testifying etc.
 atty testimony DIDN’T violate privilege
 client waived privilege by attacking atty competence in public hearing and making
communications, or lack thereof, an issue in litigation
 atty can only defend claim by violating privilege
 client initiates action against person w/ whom has privilege = waiver
 Hollins v. Powell (1985) – Testimony Re: Substance of A&C Convo Must be Voluntary to
Waive Privilege
 mayor didn’t like housing commissioners picked new ones old ones arrested when they
showed up to meeting
  objected during city atty depo whenever question was covered by A&C privilege but
answered anyway reserved privilege re: those questions
 waiver when mayor testified re: substance of convos w/ city atty + convos w/ own atty
 In Re Von Bulow (1987) – Client Has Responsibility to Ensure Continued Confidentiality 
 MUST Take Affirmative Action to Preserve Confidentiality When Client is Aware of
Atty’s Intended Disclosure
 convicted 2x assault w/ intent to murder  reversed on appeal  acquitted
 evidence: discovery order granting access to convos betw.  and atty b/c waived when 
wrote book w/ atty about trials and acquittal
 client who acquiesced in attorney's publication of book re: prior representation, and who
subsequently joined with attorney in actively promoting sales of book, was deemed to
have waived attorney-client privilege as to any confidential communications disclosed
in book.
 fairness doctrine – prevents client from waiving A&C privilege only re: certain
communications to prevent prejudice and distortion of judicial process that would
otherwise result from client’s selective disclosure of otherwise privileged info
 extrajudicial disclosure of A&C communication which isn’t subsequently used by
client in trial to adversary’s prejudice NO waive A&C privilege re: undisclosed
portions on communication
 client has responsibility to ensure continued confidentiality of A&C comm.  when client is
aware of atty’s intended disclosure  must take affirmative action to preserve
o Crime-Fraud Exception
 NO privilege when legal services obtained to further a future crime/fraud, regardless of atty’s
awareness of purpose
 U.S. v. Zolin (1989) – Ct Can In Camera Review Alleged Privilege Communications to
Determine if C-F Applies AFTER Party Seeking Review Has Made Threshold Showing of
a Factual Basis for Good Faith Belief by Reasonable Person that Review Would Reveal
Evidence to Establish Exception Applies
 client (Church of Scientology) tax fraud  separate suit church v. member for illegally
documenting activities w/ 2 tapes in evidence  IRS wants tapes
 TC can in camera review alleged privileged comm. to determine whether C-F exception
 party seeking review must make threshold showing that there is factual basis for
good faith belief by a reasonable person that in camera review would reveal
evidence to establish claim that C-F exception applies
 balance between absolute ban and avoiding fishing expositions for potential
evidence w/o clear idea of what evidence is

 physical evidence subject to same rules as testimonial evidence PLUS 2 rules
o authenticated – offering party must provide enough evidence so that the fact-finder could conclude that
it is genuine.
o best evidence rule – DON’T have to introduce best evidence on any given point  ONLY party
seeking to prove content of a document introduce original
 Authentication

FRE 901 – Requirement of Authentication or ID

(a) General Provision – requirement of authentication or ID as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.

(b) Examples – meet authentication requirements

1. Testimony of Witness w/ Knowledge – testimony that a matter is what it is claimed to be
2. Non-Expert Opinion on Handwriting – based on familiarity NOT acquired for litigation purposes
 exception to rule prohibiting non-expert opinion testimony
3. Comparison by Trier or Expert Witness – w/ authenticated specimens
4. Distinctive Characteristics – appearance, contents, substance, internal patters, or other
distinctive characteristics, taken in conjunction w/ circumstances
5. Voice ID – ID of a voice, whether heard firsthand or through transmission/recording by opinion
based on hearing voice at any time under circumstances connecting it w/ alleged speaker
6. Phone Convo – by evidence that call was made to specific number assigned to particular
person/business if
 person  caller’s self-ID insufficient BUT person can be IDed by any distinctive
characteristic that provide a clue to ID OR testimony that: call made to number assigned
to particular person + recipient IDed self as being that person
 business  call made + convo re: business reasonably transacted by phone
7. Public Records or Reports – evidence that writing was legally required to be – and was –
recorded or filed w/ public office, OR a public record, report, statement, data compilation is from
public office where items of this nature are kept
8. Ancient Documents or Data Compilation – Document or data compilation
 is kept in such a condition to create NO suspicion re: authenticity
 located where, if authentic, would likely be AND
 20+yo @ time offered
9. Process of System – show process/system is used – and did – produce a result
10. Methods Provided by Statute or Rule
FRE 902 – Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required for the

(1) Domestic public records under seal

(2) Domestic public records not under seal
(3) Foreign Public Documents
(4) Certified copies of public records
(5) Official Publications
(6) Newspapers and Periodicals
(7) Trade Inscriptions
(8) Acknowledged Documents
(9) Commercial Paper and Related Documents
(10) Presumptions Under Acts of Congress
(11) Certified Domestic Records of Regularly Conducted Activity
(12) Certified Foreign Records of Regularly Conducted Activity
FRE 903 – Subscribing Witness’s Testimony Unnecessary

Testimony of a subscribing NOT necessary to authenticate a writing unless required by laws of JD that
governs validity of writing.

o U.S. v. Long (1988) – Doc. Authenticated When Proponent Proves Rational Basis for Claim
that the Doc. is What Proponent Asserts It to Be
 convicted for check forging and bank fraud
 gf ’s witness testifies re: K believing entering into legit business relationship
 direct signed K for legit business  cross-x describe K  redirect IDed K
 to authenticate document, proponent need only prove rational basis for claim that the document
is what proponent asserts it to be.
 gf’s ID of K sufficient for authentication
 offered to show ’s state of mind, not to show K created legit business relationship
 reasonable jury could conclude K could be doc. witness saw/read
o Bruther v. General Electric Co. (1993) – Physical Evidence Authenticated When Jury Can
Reasonably Conclude It is the Item in Question
  electrocuted by light bulb
 evidence: light bulb that caused injury problem: break in chain of custody and no IDing marks
 admissible  jury could reasonably conclude bulb was the one that caused the injury (jury
decides how much weight to give it and decide whether it was the injury-causing bulb)
 limited access to area
 don’t keep broken bulbs
 installed same brand before accident
 same brand in socket now
o U.S. v. Casto (1989) – DON’T Need Perfect Chain of Custody to Authenticate Physical
 chain of evidence in drug case: seized  sealed  sent to lab  2m later tested positive for
drugs  sent back to PO
 tech who put drugs in vault @ lab didn’t testify
 DON’T have to absolutely prove chain of custody over physical evidence to authenticate
 but helpful and want to establish in order to avoid  argument of doubt b/c broken chain of
o U.S. v. Grant (1992) –
 chain of custody in drug case missing for ~10d between seizure and lab
 DON’T need to authenticate testimony of live witness
 didn’t offer drugs themselves, offered testimony of person who tested it
 live testimony only subject to relevancy authentication wrong objection should have
objected to relevance (gap in chain of custody raises doubt of substance seized was
substance tested)
 The Best Evidence Rule
o Scope and Purpose

FRE 1001 – Definitions

(1) Writings and recordings – letters, words, numbers or their equivalent, in writing, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical/electrical recording or other form of data

(2) Photographs – still photos, x-rays, video tapes, motion pictures

(3) Original – writing or recording itself or any counterpart intended to have the same effect by a person
executing or issuing it; photograph includes negative or any print there from; if electronically stored,
printout or other output readable by sight, showing accurately to reflect data accurately is original

(4) Duplicate – counterpart produced by the same impression as the original, or from the same matrix, or by
means of photography, including enlargements and miniatures, or by mechanical or electronic re-
recording, or by means of chemical reproduction, or by any other equivalent techniques which accurately
reproduce the original

FRE 1002 – Requirement of Original

To prove content of a writing, recording, or photograph, the original is required, except as otherwise
provided by FRE or Congress.

 Meyers v. U.S. (1949) – DON’T Need to Use Transcript to Prove Testimony; Can Use
Witness Instead
 convicted inducing perjury founded and co pres. co. subpoenaed to testify about ’a
involvement w/ co.
 chief counsel of Senate committee testifies + transcript admissible
 testimony admissible  not testifying about content of the transcript (writing/recording)
just what he heard at hearing  BER n/a
 U.S. v. Gonzales-Benitez (1976) – DON’T Have to Use Tape to Prove Conversation; Can
Use Witness Instead
 intro evidence of testimony of drug informants v. recording on tapes b/c tapes best
 content of tapes not factual issue  inquiry re: content of convo

FRE 1003 – Admissibility of Duplicates

Mechanically created duplicate is admissible to the same extent as an original unless:

(1) a genuine question is raised re: authenticity of original OR

(2) in the circumstances unfair to admit the duplicate in lieu of the original

o Exceptions
 U.S. v. Stockton – When No Contest of Authenticity of Duplicate  Duplicate Admissible
 conspiracy to manufacture meth  search co house photos of “miscellaneous papers”
 BER applies  contents of photos (agent testifies re: content of photos) BUT exception
applies  b/c no contest authenticity of duplicate  duplicate admissible

FRE 1004 – Admissibility of Other Evidence of Contents

The original is NOT required and other evidence of the contents of a writing, recording, or photograph is
admissible if:

(1). Originals lost or destroyed. ALL originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith; OR

(2) Original not obtainable. No original can be obtained by any available judicial process or
procedure; OR

(3) Original In Possession of Opponent. At a time when an original was under the control of the party
against whom offered, that party was put on notice, that the contents would be a subject of proof at
the hearing, and that party does not produce the original at the hearing; OR

(4) Collateral matters. The writing, recording, or photograph is NOT closely related to a controlling

 U.S. v. Standing Soldier

 assault w/ intent to kill   signed confession   signed note to jailer:  wanted to talk 
@ trial jailer testify using copy of note b/c original lost
  copy admissible  NO evidence of bad faith on the part of  + original lost
 FRE has no “degrees” of secondary evidence no requirement that the copy be
introduced instead of oral testimony
 Seiler v. Lucasfilm, LTD. (1987)
 copyright infringement   attempt to produce reproductions of originals  obtains
copyright for drawings after ’s Star Wars movie released
 drawings = writings: lettesr, numbers, words, or equivalents
 b/c contents are material and must be proved  must either produce original or show it is
unavailable through no fault of his own
 CAN’T show he didn’t destroy or intentionally lose originals  copies

FRE 1005 – Public Records

Contents of an official record or document required and actually recorded or filed, if otherwise
admissible, can be proved by copy, certified as correct in accordance w/ FRE 902 OR testified to be
correct by a witness who has compared it w/ original. If a copy complies w/ foregoing can’t be obtained by
exercise of reasonable diligence, other evidence of contents can be given.

FRE 1006 – Summaries

Contents of voluminous writings, recordings, or photographs which can’t be conveniently examined in

court can be presented in form of a chart, summary, or calculation. Originals, or duplicates, shall be
made available for examination or copy by other parties at reasonable time and place. Ct. may order that
they be produced in Ct.
FRE 1007 – Testimony or Written Admission of Party

Contents of writings, recordings, or photographs can be proved by the testimony or depo of the party
against whom offered or by that party’s written admission, w/o accounting for the nonproduction of the

FRE 1008 – Functions of Court and Jury

When admissibility of other evidence of contents of writings, recordings, or photographs under these
rules depends on the fulfillment of a condition of fact, the question whether the condition has been
fulfilled is ordinarily for Ct. to determine in advance following FRE 104

However, when issue is raised:

(a) whether the asserted writing ever existed OR
(b) whether another writing, recording, or photograph produced @ trial is the original OR
(c) whether other evidence of contents correctly reflects the contents

the issue is for the trier of fact to determine as is the case of other issues of fact.

 Demonstrative Evidence
o 2 types
 real/original – objects having played direct role in facts
 found through discovery search
 marked and received
 demonstrative – no role in facts, offered for illustrative purposes to explain and assist
 created by or at request of counsel
 marked and taken into custody but NOT received into evidence jury can’t look at it in
 custody so CoA can see if necessary
 theory – jury would confuse demonstrative evidence w/ real evidence and give it too
much weight
 admissibility (permission to use) typically granted b/c evidence is helpful in some way
 can give limiting instruction
 excluded when not helpful
o U.S. v. Weeks (1990) – Gun NOT Used in Crime Admissible Demonstrable Evidence
 TC did NOT abuse discretion in allowing  to show gun to jury that wasn’t used in crime
 admissible demonstrable evidence  wasn’t given to jury for deliberation + limiting
o U.S. v. Humphrey (2002) – Is Evidence Useful or Relevant? Yes  Admissible
 bank employee convicted of embezzlement and making false entries in bank record
 evidence: 107 coin bags filled w/ coins or Styrofoam + video of vault @ time record made to
show no way record could match # of bags in vault
 expert testimony coin bags and Styrofoam pretty much same size
 standard: is it useful or relevant? does it have a tendency to assist jury in determining fact at
 yes  admissible
o Roland v. Langlois (1991) – Demonstrative Model Evidence DOESN’T Need to be Perfect to be
Admissible  Just Instruct Jury
  hit in head w/ carnival ride
 evidence: life-sized model of fence around yard  admissible  model doesn’t have to be
perfectly accurate as long as jury instructed it’s not perfect
 alternative of going out to see it
 more probative than prejudicial
o U.S. v. Wood (1991) – Must Have Proof Demonstrative Evidence is Supported by Facts
 conviction tax evasion
 tax expert’s charts admissible; tax expert chart’s excluded b/c not enough support for means of
calculating exception
 must have proof demonstrative evidence is supported by facts (more probative than
o Bannister v. Town of Noble, OK (1987)
 negligence action against town
 admissible w/ jury instructions  evidence: “Day in the Life” film + video illustrative of car
accident (NOT demo/recreation)
 can use demonstrative evidence in closing (must have had witness use evidence already)
 can use jury instructions and use demonstrative evidence to explain (posters etc.) as long as
not contrary to judge’s instructions
 Judicial notice: acceptance of facts that need not be proved and not disputed
o some facts that shouldn’t have to be proved – this date is a Sunday
o FRE recognizes
 adjudicative facts – a controlling or operative fact, rather than a background fact; a fact that
concerns the parties to a judicial or administrative proceeding and that helps the court or
agency determine how the law applies to those parties.
 who did what, where, when, how, and with what motive or intent.
FRE 201 – Judicial Notice of Adjudicative Facts

(a) Scope of rule – ONLY judicial notice of adjudicative facts

(b) Kinds of facts – judicially noticed fact must be one not subject to reasonable dispute in that it is

1) generally known w/i territorial JD of the trial court OR

2) capable of accurate and ready determination by resort to sources whose accuracy cannot
be reasonable questioned

(c) When discretionary – CT can take judicial notice, whether requested or not

(d) When mandatory – CT must take judicial notice if requested by a party and supplied w/ necessary

(e) Opportunity to be heard – a party is entitled, upon timely request, to an opportunity to be heard re:
propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notice,
request may be made after judicial notice has been taken

(f) Time of Taking Notice – Judicial notice may be taken at any stage of the proceeding

(g) Instructing Jury – civil: CT shall instruct jury to accept as conclusive any fact judicially noticed;
criminal: CT shall instruct jury that it may, but is not required to, accept as conclusive any fact
judicially noticed.

 U.S. v. Lewis – NO Judicial Notice When Judge Relying on Personal Knowledge
 : confession not voluntary and knowing b/c heroin withdrawal and just woke up from
 NO judicial notice  judge can’t rely on personal knowledge (say weird things while
coming out of anesthesia) for judicial notice  b/c accuracy not reasonably certainly
 judge is also testifying
 legislative facts – fact that explains a particular law's rationality and that helps a court or agency
determine the law's content and application
 U.S. v. Gould (1976) – Legislative Fact  Judicial Notice  FRE 201 n/a
 import cocaine disputes judicial notice that cocaine is schedule II drug
 legislative fact judicial notice
 common knowledge or capable of indisputable verification
 universally determinable
 not specific to party
 based on statutory definition
 FRE 201 only applies to adjudicative facts
 Carley v. Wheeled Coach (1993) – NO Judicial Notice When Facts Could Reasonably
be Disputed and Not Readily Ascertainable
 injured in ambulance roll-over not our falt b/c manufactured via K w/ government
 TC judicial notice – government conducts crash tests and was at least as aware of
risk for accident
 NO judicial notice – facts weren’t beyond reasonable dispute, not readily
ascertainable (NOT common knowledge)
 U.S. v. Bowers + U.S. v. Bello – Geographic Locations Judicial Notice
 geographic locations subject to legislative judicial notice
 geographic location indisputable (no reasonable juror would dispute) and not related
to parties’ actions