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I. Introduction a. Sources and interpretation of the FRE i.

The Federal Rules of Evidence are the product of both the rulemaking process established by the Supreme Court and the legislative process of Congress. 1. The initial draft of Fed evidence rules was done by an appointed committee. There after it passed through the Supreme Court, mainly as a conduit, to Congress which revised it and continues to do so from time to time. a. Rules prescribed by the Supreme Court i. These rules constitute the framework and to a large extent also the particulars of the rules enacted by the Congress b. Advisory Committees Notes i. Should be taken as the equivalent of a congressional committee report as representing the thinking of the Congress. c. Congressional Materials i. The house took the lead in congressional consideration of the rules and accordingly any pertinent portion of the Report of the House Committee on the Judiciary is the first of the congressional materials under each rule. ii. A very large proportion of evidentiary uncertainties that may arise, and that solutions must be reached through application of accepted principles of statutory construction. 1. Language of the Rule a. Look at the plain text first b. Specific Terms override general terms c. Ejusdem generis i. Words grouped in a list should be given a related meaning d. No surplusage i. We give effect to every clause ii. Same phrasing interpretation used in one section is treated the same in other sections e. Harmonious whole i. Everything there is meant to be there 2. Legislative History

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3. Common Law iii. FRE 102: Sets high standards for what evidence can be used 1. Fairness, efficiency, truth and justice a. Relevance Rules i. Almost every issue in evidence law involves relevance. The idea that the party who seeks to have evidence admitted must specify what issue it relates to and show how it rationally advances the inquiry about the issue. ii. We do not want to unfairly affect a jury decision process iii. Dont want to allow jury to give certain aspects of evidence too much weight over others iv. Relevancy also saves time by narrowing the topics that parties have or want to develop. It increases the perceived legitimacy of trials. b. Reliability Rules i. Truth, fairness and justice II. Relevance FRE 402 III. Materiality and Probativeness a. [Rule 401 Definition] Relevant Evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. i. Evidence must be Material 1. Evidence is material if it bears on a fact that is of consequence to the determination of the action. 2. Problem 1.4 Knowledge a. The court should rule that her lack knowledge is in fact irrelevant. Lack of knowledge is not a proper defense to a crime and thus her lack of knowledge has no weight to the case and could only serve to negatively persuade a jury. i. Look at the statute itself Knowledge is not an element of the crime and thus immaterial to a defense 3. 1.5 Voluntary Intoxication a. The court should say that his drinking is irrelevant given that he purposely and knowingly got intoxicated. Voluntary intoxication is not a defense to purposeful

and knowing behavior and thus the fact that he was drunk would have no effect on the outcome of the case. i. Montana law does not allow for voluntary intoxication to be taken into account in determining the existence of a mental state which is an element of a criminal offense. ii. Take-away: Know the issues and laws of the case in order to determine materiality. ii. Evidence must be Probative 1. The evidence must have a tendency to make the existence of {that} fact more probable or less probable than it would be without the evidence. a. An offered item of evidence may be excluded because i. It is not probative of the proposition at which it is directed, or ii. Because that proposition is not provable in the case 2. Problem 1.1 Show me The Body a. Remember the standard is if the evidence makes it more probable (1%) in order to claim relevance. b. The fact that the wife had knowledge that there was no body could infer that she was aware that her husband had committed the murder and hid the body in some way This is not the expected reaction and thus the chain of inference is based on the societal expectation of what a wife would say if police had entered the home and told her that her husband had committed a crime i. As a defense attorney you should try to find an alternative theory, poke a hole in the inference by implying the wife could have learned of the missing body at some other point. 3. Problem 1.2 Brotherhood a. The information is relevant if they are part of a brotherhood that requires it members to lie for each other his testimony would be less believable b. The defense is trying to poke holes in the prosecutions case by disregarding a government witnesss testimony. 4. Problem 1.3 Polygraph Consent a. The fact that the defendant was willing to agree to a polygraph test does not mean that he actually passed


it is probative, though, in the sense that why would he agree if he believed that it would end up proving his guilt thus, it is relevant. b. United States v. James 1999 i. Material Facts: Defendant was charged for aiding and abetting a murder for handing a gun to her daughter, who then shot and killed a man. The defendant had heard from the victim that he had committed several violent crimes and was the victim of violent acts from him as well. At the time of the shooting the victim had just knocked another man unconscious, was still angry and had a knife on him. ii. Issue: Are documents, which the defendant did not read or know of, proving the validity of crimes that the defendant had been told by the victim relevant to a trial of self-defense? iii. Holding: Yes iv. Reasoning: The crux of the defendants defense rested on her credibility and because her credibility could be directly corroborated through the excluded documentary evidence, exclusion of the documents was prejudicial and more probably than not affected the verdict. 1. This goes directly to the defendants state of mind and is thus material. v. Notes: 1. The fact that the victim had in fact committed the crimes made it more likely [more probative] that the defendant was telling the truth when she said the victim had told her about the crime. vi. Problem 1.6 Violin Case 1. As a defense case, the theory would rest on his state of mind, not the actuality of what happened thus we would argue that it was irrelevant 2. As prosecution youre trying to show that there was in fact no danger since there was no gun furthermore, you would not expect a man with $40,000.00 in a case to react the way that he did its makes it less likely that it actually happened. 3. This goes to the defendants credibility and thus it is material 4. Take-away: Think about credibility think about how you can poke holes in the witnesses credibility Conditional Relevance i. Focus on FRE 104(b) 1. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon or subject to, the

introduction of evidence sufficient to support a finding of the fulfillment of the condition. a. The evidence by itself will have no relevance to any issue in a trial but would be relevant if the trier of fact also had some other information. ii. Problem 1.7 1. Defense a. He could have known years ago and didnt care b. Innocent slip of the tongue 2. Prosecutor a. Who makes that kind of slip up? i. Societal norms 3. This is likely to meet the relevant standard 4. Take-away: Make your opponent jump over hurdles b. Cox v. State 1998 i. Material Facts: Defendant was charged with the murder of another person by shooting him through a window screen. The motive was derived from testimony of a bond reduction hearing, of which defendant was not a part of, but the court found that his close friends were a part of and he would have probably found out about the details of it. The details were that his close friends bond was not reduced and he was still awaiting charges for allegedly molesting the victims young daughter. ii. Issue: Is the testimony of the bond hearing relevant evidence in this case? iii. Holding: Yes, the testimony is relevant iv. Reasoning: The issue is for the most part simple factual questions to be decided on the basis of common sense, and the FRE assume that the jury is as competent to decide them as the judge. The fact that the state introduced evidence that the defendant had spent almost everyday with his close friends mother at her home before and after the bond hearing and leading up the shooting supports the inference that Cox had knowledge of the events at the bond hearing. v. Notes: Evidence leading to an inference can make certain other pieces of evidence relevant or not. In this case, other pieces of evidence provided the inference which allowed the bond testimony to become relevant 1. This case and problem 1.7, present problems of conditional relevance. That is, evidence might be relevant only if some other condition is met.

2. Within any logical chain of inferences, a clever lawyer could spot a missing link, without which the chain breaks apart and forces a judge to analyze the problem under Rule 104(b). 3. Rule 104(b) requires that the proponent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence. See Huddleston v. United States, 485 U.S. 681 (1988). a. In contrast 401 bare relevance standard (evidence having any tendency to make the existence of [a] fact more probable or less probable) amounts to little in the rough and tumble of real world fact finding. b. Note: A judge may allow testimony subject to connection if the prosecution fails to make a relevancy connection then the judge will instruct the jury to disregard the testimony i. Further, the committees note to Rule 104(b) has a significant error the not before established is wrong makes it easier to understand the above subject to rule. 4. The bond hearing evidence is conditional on whether or not he was likely to have known about it. V. Probative Value and Unfair Prejudice a. Rule 403 i. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 1. May is a discretionary term The court will decide to exclude based on the following factors. 2. Probative Value a. Each piece of evidence tends to make a fact more or less probable i. This is a low threshold a liberal stance of allowing evidence 3. Unfair Prejudice a. Unfair We do not want juries to make decisions for emotional reasons or commonly held beliefs i. It is only when a fact finder might react to aspects of evidence in a way that is not supposed to be a

part of the evaluation process that the reaction is considered unfair prejudice. 4. The final terms all deal with efficiency a. Confusing the issues, misleading the jury, undue delay, waste of time and needlessly presenting cumulative evidence. ii. Rule = Test 1. Determine the probative value of the evidence 2. Determine risk of unfair prejudice or other enumerated dangers 3. Balance probative value against these dangers a. Dangers must substantially outweigh probative value b. May: exclusion is discretionary. b. State v. Bocharski, Supreme Court of Arizona (2001) i. Material Facts: Man that showed off his knife was suspected of mercy killing his old female neighbor. He had told his friend that someone should put her out of her misery. The body was found long after the murder and gruesome photos of her were shown to a jury. ii. Issue: Should the gruesome photos have been shown to the jury? iii. Holding: The photos should not have been shown iv. Reasoning: The photos were only introduced to inflame the jury. They had little tendency to establish any disputed issue in the case. While photographs of a homicide victims body are generally admissible because the fact and cause of death are always relevant in a murder case. However, if a defendant does not contest the fact that is of consequence (i.e. the murder and how it was done) then a relevant exhibits probative value may be minimal as it was in this case. v. Notes: Abusive discretion standard is very important in regards to appellate courts. 403 is a very liberal standard which means if it is relevant the evidence will most likely be admissible. 1. We can limit unfair prejudice by using cautionary instruction to the jury, making the photos less inflammatory by Photoshop, using alternative forms of proof (testimony, diagrams, etc.) and stipulation?. c. Commonwealth v. Serge, Supreme Court of PA (2006). i. Material Facts: A man was accused and convicted of killing his wife. He argued on appeal that a CGA video depicting the act which had accumulated all the evidence was not admissible evidence. ii. Issue: Should CGA video showing the evidence accumulated through discovery be admissible evidence to show to a jury? iii. Holding: Yes.

iv. Reasoning: The CGA video did not include sounds, facial expression, evocative or even life-like movements. The law does not and should not prohibit proficient professional employment of new technology in the courtroom unless its probative value is outweighed by unfair prejudice. Even the argument that the defense did not have the same amount of money to afford a similar video representation is flawed. The trial court used its discretion and found there not to be prejudice in the disparity of funds. Furthermore, the judge used cautionary instruction before playing the CGA. v. Notes: New technology may be used in courts as admissible evidence so long as it is not unfairly prejudicial (403) and it is a fair and accurate representation of the evidence it purports to portray, and is relevant pursuant to 401 and 402. d. United States v. James, 169 F.3d 1210 (9th Cir. 1999). i. Material Facts: Mother had given her daughter a gun, whom then shot a man. The mother claimed that the man had said that he killed others and she further claimed that she thought he would kill her and her daughter if she did not hand the gun to her daughter. ii. Issue: Do papers, which the defendant did not know about, collaborating the fact that the mothers claim that the victim killed and seriously injured another admissible evidence? iii. Holding: Yes. This is the dissenting opinion. iv. Reasoning: While the papers could not have any effect on the defendants state of mind, they did have relevant value in that it made it more probable that the victim had told the mother that he had done these things. However, here the evidence was used to persuade the jury to decide on an improper basis. Here, the improper basis was that the man probably deserved to be killed. v. Notes: See earlier opinion. VI. Character Evidence a. People v. Zackowitz, 254 N.Y. 192 (1930). i. Evidence showing several guns that the defendant owned were considered inadmissible since the only purpose of introducing the guns was to give the jury the idea that the defendant was a dangerous man. b. Propensity i. Character Evidence is evidence of a general human trait such as honesty, violence, etc. It is sometimes called propensity evidence. ii. FRE 404 Character Propensity Rule

1. A jury might take proof of [character] as justifying a condemnation irrespective of guilt of the present charge. People v. Zackowitz, 254 N.Y. 192 (1930). a. Evidence of a character trait is generally inadmissible to show action in conformity with that trait on a particular occasion, i.e., that the defendant is a bad person or that she had a propensity to commit the crime charged. Relevancy is outweighed by the risk of prejudice and confusion of issues. 2. Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened. (Advisory Committees Note to Rule 404). 3. Breakdown of the Rule a. (a)(1) See above. This is called circumstantial. b. (a)(2) Exceptions for a defendant or victim in a criminal case i. (A) A defendant may offer it ii. (B) Subject to Rule 412, a D may offer it if it of an alleged victims pertinent trait, however, 1. (i) prosecutor may offer evidence to rebut it; and 2. (ii) offer evidence of the defendants same trait; and iii. (C) in a homicide case, may offer evidence of the victims peaceful traits to rebut evidence that the victim was the first aggressor c. (a)(3) Evidence of a witnesss character may be admitted under 607, 608, and 609 d. (b)(1)Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character. e. (b)(2) May be admissible if offered to show something other than character, e.g. knowledge, intent, plan, preparation, opportunity, motive, identity, absence of mistake or accident (KIPPOMIA)

i. Note: While character evidence may be introduced for these purposes, the jury will probably consider it for any purpose it desires. ii. Note: This KIPPOMIA list is not exhaustive (such as) however the evidentiary value of the evidence must always outweigh the risk of prejudice. f. This rule is discretionary - may. c. Routes Around the Propensity Box: Knowledge i. 404(b) is not a true exception to the propensity issue but rather a way around the propensity box. 1. i.e., if Zackowitz had claimed he did not kill the man and that police found three pistols at the scene of the crime that belonged to him. The prosecutor could now present the evidence of the three guns that Zackowitz owned to prove it was more likely the person to drop Zackowtizs guns is Zackowitz himself. a. Note: Even so, the trial judge, at the defendants request, could deliver a limiting instruction to the jury under rule 105. This would allow a clear explanation that this evidence is being admitted for around the box purposes. If the judge believes the jury will not abide by the limiting instruction, she may choose to exclude the evidence under Rule 403. 2. True exceptions to Rule 404(a) do exist. a. 404(a)(1), 404(a)(2), 404(a)(3), as elaborated by 607, 608 & 609, 413, 414, and 415. ii. Problem 3.1 iii. Problem 3.2 iv. Problem 3.3 d. Routes Around the Propensity Box: Motive, Identity i. Motive 1. Problem 3.4 a. The best arguments for allowing evidence of Peltiers past crime is that it establishes motive for firing at the police. The fact that he was willing to escape once would indicate that he wanted to escape again, no matter what. b. In contrast, one could argue that the evidence could be damaging as to revealing his character since we can only assume that he would want to flee yet again certainly he


could have been the one person out of the three that wanted to come in without a fight. 2. Problem 3.5 a. The evidence here would tend to prove that the conductor was in a hurry. The jury could make the connection that since he was in such a hurry to miss the previous two stops that he would be equally in a hurry to stop and start without paying attention to his surroundings or the safety of other passengers. ii. Identity 1. Problem 3.6 a. Peltier is screwed here. However, many of the weapons probably could be held from the jury including the pieces of paper, the other illegal weapons. However, Peltiers gun is most likely admissible given an expert could testify that this was the type of gun that killed the agent this is has high probative value in that, with the addition of the other evidence, tends to prove that it was Peltier who killed the agent and not his partners. 2. Problem 3.7 a. While this does tend to prove that Jones was occupying the apartment, it does not prove that he was in fact the holder of the narcotics He could have been at the home with another person, or just visiting and left some of his things moreover, Jones cannot be the only person in the neighborhood who deals with illegal gambling a person involved in one form of crime, the narcotics, could also be involved in gambling. The evidence should not be admissible. 3. Problem 3.8 a. There is no risk of unjust prejudice i. Thus, not all character traits are negative and can be used to help probativeness in a case. e. Signature Crimes i. Proof of Modus Operandi: If we know the defendant committed a particular crime in the past, and the present offense matches that crime in idiosyncratic ways, we may infer the defendant committed the present offense as well. 1. The idea is that this could not be anyone elses crime.


a. Thus, in order for this evidence to be admissible, the similarities between the two crimes must be so distinctive that the inference that nobody else could have committed this crime overcomes the jurys temptation to engage in propensity reasoning pure and simple. ii. United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995). 1. Material Facts: Defendant was charged with creating a bomb for another person to kill their father with. The state wanted to introduce evidence of defendants previous bomb, the quincy bomb, which was very similar to the one in this case. The trial court allowed the evidence 2. Issue: Should evidence of the defendants previous bomb be admissible to prove an M.O. of bomb making skills in the current case? 3. Holding: Yes. 4. Reasoning: a. First, the district court must determine whether the evidence has some special relevance independent of its tendency simply to show criminal propensity. Second, if the evidence has special relevance on a material issue, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. i. The district court has considerable leeway in determining whether to admit or exclude 404(b) evidence. b. The proponent must demonstrate that the two acts exhibit a commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual. i. The reason is because we do not want to charge a criminal with an act based on the fact the same commonplace variety of criminal act has occurred in this case it must be sufficiently idiosyncratic to permit it. 1. Note: An exact match is not necessary. c. Here, a bombing in and of itself, is, arguably, a fairly distinctive method for intimidating or killing an individual the device used must be so unusual and distinctive as to be like a signature i. Given the likeness of the bombs, the way the parts were purchased and the geographical proximity of

the two events, the evidence was properly admissible. ii. Moreover, the evidence was not unduly inflammatory given the Quincy bomb did not kill or injure anyone and caused minimal property damage. 5. Notes: The dissenting opinion implies that the authorities tried to put together the two bombs instead of doing an actual search. Moreover, the central issue of the bomb is the bomb itself the fact that dynamite was used here and simply a firecracker likedevice in the other would seem to show that they were created by different bomb makers. iii. United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991). 1. Material Facts: Two Air Force police officers were robbed, and one sexually assaulted. They later picked the defendant out of a line-up. There was evidence tending to show that the man committing this crime had also committed a similar crime earlier. However, the earlier victim, when presented with the same line-up, did not pick out the defendant in the line-up as the man who robbed him. The defendant sought to use reverse 404(b) to show that the similarities of the crimes would tend to show a modus operendi of one person, and thus picking out two different men in a line-up would prove he did not commit the crimes. 2. Issue: Should reverse 404(b) be applicable to show this defendants innocence in the act? 3. Holding: Yes. 4. Reasoning: When the defendant is offering that kind of proof exculpatory, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility. a. The admissibility thus depends on a straightforward balancing of the evidences probative value against considerations such as undue waste of time and confusion of the issues. b. Thus, reverse 404(b) may be introduced so long as its probative value under 401 is not substantially outweighed by rule 403 considerations. i. It need not be presented under the signature crimes test if used in the defense the test is Rule 401 relevancy. Here, it was very relevant that both


crimes were very similar and that he was not picked up in the line-up by both sets of victims. 5. Notes: There is no danger to the government since the jury will not pose the risk of holding them guilty for other crimes. iv. Problem 3.9 1. This is not allowed since Stevens only allows evidence in which passes under one of 404(b)s exceptions i.e. to show identity. Here, he was only showing the evidence of his roommate possessing a prior gun to a propensity that he would do so again this is exactly what 404(a) and (b) do not allow. 2. Moreover, the prior crime is too generic to prove that he was at fault under a M.O. theory in this issue (no evidence that it was the same type of gun, etc.). f. Habit i. Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386 (1977) 1. Material Facts: Plaintiff, in a civil tort case, obtained a verdict in his favor for injuries he sustained while using a can of refrigerant. However, defendant offered a witness that would testify that not only had he seen the plaintiff incorrectly using the refrigerant on previous occasions and also that doing so would be dangerous. 2. Issue: Should the testimony evidence establishing this character habit been allowed? 3. Holding: Yes. 4. Reasoning: A party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion. Plaintiff had serviced hundreds of automotive vehicles and thus established a routine. Evidence of this routine, and his habits as such, should be admissible as tending to prove habit. Habit involves a repetitive pattern of conduct and therefore predictable and predictive conduct. 5. Notes: a. The touchstone of habitual behavior is regularity and hence predictability. b. The most invariable actions are those we do automatically and almost without volition. i.e., putting on a seatbelt when entering a car. c. The unfair prejudice risk that a jury will punish a person for a bad habit is difficult to imagine. Moreover, it is rare that someone invariably acts badly thus habit is usually

permitted since it does not have this issue of unjust prejudice i. It is hard to identify a person who (almost) always, in a frequently recurring set of circumstances, commits violent acts. ii. Note, the advisory comment suggests that regular drinking does not qualify as a habit under Rule 406. However, courts occasionally admit evidence of habitual drinking, especially when the drinking in question is precisely defined. However, regular drinking, unlike regular smoking, may spark contempt and moral condemnation which raises the issue of unjust prejudice. 1. Thus, there is no clear line between habit and propensity. When dealing with this grey area, a court should return to the 404 weighing test of probative value versus unfair prejudice. ii. FRE 406 Habit; Routine Practice 1. Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. g. Sexual Assault i. FRE 413, 414 and 415 were enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, permit prosecutors and civil plaintiffs to offer evidence of the defendants other acts of sexual assault or child molestation on any matter to which it is relevant. ii. Lannan v. State, 600 N.E.2d 1334 (Ind. 1992) 1. Material Facts: A jury convicted the defendant for molestation after hearing testimony of his previous acts from another minor and the victim of molestation that were not charged. 2. Issue: Can this testimony be admissible evidence? 3. Holding: No. 4. Reasoning: There is a desire to level the playing field by bolstering the testimony of a solitary child victim-witness is central. The justification is the protection of children, the most sexually vulnerable in society. There is also the assumption that sexual offenders repeat their crimes more often than other criminals

(recidivism). However, in Indiana the evidence will not be used to in this recidivism way. Use of 404(b) should be to show motive, a common plan or scheme. We are riding ourselves of the depraved sexual instinct rule since it unfairly prejudices the defendant 5. Notes: Dissent argues that this information should be allowed given the heinousness of the crime and the possible believability of the child. iii. State v. Kirsch, 139 N.H. 647 (1995) 1. Material Facts: Testimony from victims of sexual abuse from a church staff member during sleep overs, in which he was in charge of monitoring, were allowed under 404(b). The reason for allowing the evidence by the state was for motive, intent, and common plan or scheme. 2. Issue: Should this testimony evidence be admissible under 404(b) exceptions to character propensity? 3. Holding: No 4. Reasoning: The evidence cannot be used in this case for motive, intent or common plan or scheme since it does not satisfy each of these thresholds. It shows merely a propensity. Moreover, a pattern of systematic course of conduct is insufficient to establish a plan. 5. Notes: a. This is another example how courts, before the enactments of the rules 413, 414 and 415, struggled with allowing past sexual conduct as evidence outside of the propensity box b. The purpose of the new rules is to put on equal footing as other types of relevant evidence that re not subject to a special exclusionary rule sexual assault cases often turn on credibility issues of the victim and the assailant. c. However, in allowing these rules we run the risk of unfair prejudice convicting a defendant for past, as opposed to charged, behavior or for being a bad person. iv. Floor Statement to the Principal House Sponsor Concerning the Prior Crimes Evidence rules for Sexual Assault and Child Molestation Cases 1. In contrast to rule 404(b)s general prohibition of evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing on any matter to which it is relevant. a. The general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the courts authority under rule 403 to exclude evidence

whose probative value is substantially outweighed by its prejudicial effect. 2. In child molestation cases, a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant a sexual or sado-sexual interest in children that simply does not exist in ordinary people. a. Moreover, such cases require reliance on child victims whose credibility can readily be attacked in the absence of substantial corroboration. 3. In adult-victim sexual assault cases, credibility is often an issue. a. A defendant in a rape case often contends that the victim engaged in consensual sex and then falsely accused him. i. Knowledge that the accused has committed rapes on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become irresolvable swearing matches. 4. The presumption is in favor of assumption. 5. No time limit is imposed on the uncharged offenses for which evidence may be admitted. 6. Practical efficacy of these rules will depend on faithful execution by judges of the will of Congress in adopting this critical reform. v. Report on the Judicial Conference of the U.S. on the Admission of Character Evidence in Certain Sexual Misconduct Cases 1. The overwhelming majority of judges, lawyers, law professors, and legal organizations who responded to a notice soliciting the new rules opposed them. a. The issues were that it would allow the admission of unfairly prejudicial evidence and contained numerous drafting problems not intended by their authors. i. There is a real fear of convicting an individual for past, as opposed to charged, crimes. ii. Furthermore, since the rules allow non-convictions, it would result in mini-trials where a defendant would attempt to rebut that evidence. iii. The drafting issue is that the wording does not include is admissible if it is otherwise admissible under these rules. Thus, it seems that allowing the evidence is mandatory however, the advisory note says that it is still subject to hearsay and 403.

vi. Baggage check; How Far Should we go? 1. When Bill Clinton signed these rules into the Federal Evidence rules, he had no idea that he would later be the target of the rules 2. Judges often dont know how to break the deadlock between a case reduced to a swearing contest a. The logical approach is to look for patterns of behavior i. Now, the approach that used to apply to plaintiffs: was she the type of person to invite defendants actions? is turned on the defendant instead. The question is whether this is appropriate or not. vii. Once a Rapist? Motivational Evidence and Relevancy in Rape Law 1. The evidence of a rapist is more likely to rape is again is incorrect. a. Only 7.7% of rapists were rearrested for rape. In contrasts, 33.5% of larcenists were rearrested for larceny. i. The fact that rapists are more likely to rape again doesnt distinguish them from other criminals. b. However, the statistics may be skewed given that many women dont report rape or others dont consider the encounter illegal. i. Again, these limitations are not limited to rape 2. There is no evidence that someone who has raped is a chronic rapist 3. The prior actor is easier for police to find (because they know who he is), easier for the victim to indentify (because his picture is placed in front of her), and easier for the jury to convict (because the prior act evidence makes it more comfortable in finding him guilty). 4. If past acts become the norm, jurors who come to expect prior acts may not convict a true rapist where this evidence is not produced. 5. It also may perpetuate the stereotypes of the chronic rapist and lead police to more likely be aware of the histories of men who have already encountered the criminal justice system, even if they have not been convicted. viii. United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998) 1. Material Facts: Man was charged with medically inappropriate examination techniques during gynecology appointments with two women. Testimony from four other women who claim that he sexually abused them in a similar fashion as the victims was excluded due to the fact it would confuse the issues under 403. They were excluded even though rule 413 was in effect.

2. Issue: Should the womens testimony have been admitted under 413, over 403s refusal to do so due to the risk of jury confusion 3. Holding: No and yes 4. Reasoning: The defendants propensity to engage in conduct which closely matches the alleged in this case, the evidence is probative of his guilt and thus satisfies rule 413s three threshold questions. Also, the balancing test against 403 would seem to warrant that its inclusion would be fine. However, the appellate court gives great deference to the trial court on these issues and thus its exclusion is fine. 5. Notes: a. Trial courts have great power in these discretionary evidentiary processes. b. Many circuit courts have held that 413 evidence must be excluded if it is so prejudicial as to deprive the defendant of his right to a fair trial i.e. a 403/413 balancing test must be done ix. United States v. Mound, cert. denied 525 US 1089 (1999) 1. Dissenting: We should consider whether this rule violates due process under the constitution. h. Defendants and Victims Character i. Proof of the Defendants and the Victims Character 1. Michelson v. United States, 335 U.S. 469 a. Material Facts: Defendant called several witnesses to prove that he had a good reputation. On cross-examination, the government asked each witness if they knew of the defendants past criminal record. Defendant objected in that this was against evidence rules that disallow crossexamination to show defendants prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. b. Issue: Can the government, on cross-examination, ask character witnesses if they were aware of the defendants prior criminal acts? c. Holding: Yes. d. Reasoning: Once character witnesses are called to discuss the character of the defendant, the government may ask whether the character witness is aware of the defendants prior arrest/conviction. The reason is that the prosecution

has a right to test the qualifications of the witness to bespeak the community opinion. If the witness has never heard the speculations or rumors in which even ones friend indulge upon his arrest, the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation. e. Notes: This is an odd rule a strange way of getting around the propensity box. The defense must first allow evidence of the defendants character before cross may take steps to disprove this line of testimony. ii. Rule 404 1. Once character evidence is admitted in some form, reference must then be made to rule 405, which determines the appropriate method of proof. a. Character can be an element of the crime, claim, or defense. b. Character can be used as an inference that the person acted in accordance with that character in this particular instance. This circumstantial evidence is usually not allowed except: i. An accused may introduce pertinent evidence of good character, in which even the prosecution may rebut with evidence of bad character ii. An accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape (subject to rule 412 rape shield law), and the prosecution may introduce similar evidence in rebuttal iii. The character of a witness may be gone into as bearing on his credibility iii. Rule 405 Methods of Proving Character 1. (a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proved by testimony about the persons reputation or by testimony in the form of opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct. 2. (b) By Specific Instances of Conduct. When a persons character or character trait is an essential element of a charge, claim, or


defense, the character or trait may also be proved by relevant specific instances of the persons conduct. 3. Notes: a. This deals only with the methods of proving character what can be used is covered by rule 404. iv. Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence 1. (a) Control by the Court, Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: a. (1) make those procedures effective for determining the truth; b. (2) avoid wasting time; and c. (3) protect witnesses from harassment or undue embarrassment 2. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witnesss credibility. The court may allow inquiry into additional matters as if on direct examination. 3. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witnesss testimony. Ordinarily, the court should allow leading questions: a. (1) on cross-examination; and b. (2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Impeachment a. Mode of Impeachment; Opinion, Reputation, and Past Lies i. Modes of Impeachment 1. A lawyer impeaches a witness by casting doubt on the witnesss accuracy or trustworthiness a. Allegations of Mistake v. Mendacity i. Mistake occurs when a lawyer casts doubt on the witnesss powers of perception, memory, or narrative accuracy. 1. There are no constraints on these modes of calling a witness mistaken. 2. A lawyer can typically ask a witness about her perception, memory or narrative skills and offer evidence besides her testimony on


these issues so long as it is relevant under 401 and can survive a 403 balancing test. 3. These are not issues of character and are thus not subject to the character evidence rules b. Non-Character Impeachment i. Contradiction by conflicting Evidence: A lawyer can impeach witness As claim that the light was red by calling witness B to say it was green. 1. This may not only expose lies but also mistakes of perception, memory, or narration. ii. Contradiction by Past Inconsistent Statement: Evidence that Witness A once before said the light was green tends to impeach her trial testimony that it was red. 1. Because the witness was inconsistent in her own speech she shouldnt be believed on this point. 2. Again, this could trace not only to lying but to mistake iii. Evidence of Bias: Bias describes the relationship between a party and a witness which might lead the witness to slant his testimony in favor of or against a party. 1. This highlights the witnesss preference in the outcome of the lawsuit in one way or the other a. We could call corruption lying for fee or other gain a form of bias. iv. None of these impeachment modes requires that the witness is generally a liar, contradiction merely exposes one lie, or mistake, at a time c. Character-Based Impeachment i. Sometimes a lawyer wishes to cast the witnesss trait for being a liar and her conformity with that trait. While rule 404 would seem to bar such propensity-based reasoning, 404(a)(3) specifically permits propensity evidence concerning the


character of a witness, as provided in Rules 607, 608 and 609. ii. 607: Either party may attack a witnesss credibility. Litigants sometimes need to call an unfriendly witness because only that person can give certain essential testimony. iii. 608(a): Either party may offer evidence of a witnesss character or untruthfulness. The opponent may then rebut with evidence of the witnesss character for truthfulness. 1. In either event, the evidence must take the form of opinion or reputation. iv. 608(b): On cross-examination a party may ask a witness about specific instances of the conduct of a witness to attack or support the witness character for truthfulness. 1. The inference is that the witnesss past lies or similar conduct are evidence of her general bad character for truthfulness and that, acting in conformity with that character trait, is lying now. v. 609: Either party may seek to impeach a witness by showing her past conviction of a sufficiently serious or deceptive crime 1. This is less natural of an inference in that we are seeking to prove evidence of a past crime, immorality or lawlessness is evidence that the witness is lying now. ii. Impeachment by Opinion, Reputation, and Cross-Examination about Past Lies 1. United States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004) a. Material Facts: Two police officers gave chase to a man who, they claimed, had thrown a loaded weapon away during the chase. The defendant sought to prove that one of the police officers had planted the gun (and perhaps the drugs) by offering testimony that would establish that the officer was a liar. The testimony included the fact that the officer had a suspended license due to failure to pay child support and that he had not notified his supervisor of this


fact, as he was required to do. The evidence was denied by the trial court. b. Issue: Should the cross-examination testimony been allowed to offer proof of the officers inclination to dissemble and evade the law under 608(a) and (b)? c. Holding: Yes to 608(b), no to 608(a). d. Reasoning: i. In order to offer reputation evidence under 608(a) a party must establish that the character witness is qualified by having an acquaintance with the witness, his community, and the circles in which he has moved, as to speak with authority of the terms in which generally the witness is regarded. 1. He relied on articles in which the witness had written they did not have direct contact with the officer both opinions lacked sufficient supportive factual information to be credible and would thus be unfairly prejudicial under 403. ii. 608(b): Requires that cross-examination only have reasonable basis which tend to incriminate or degrade the witness and the general rule in such situations is that the questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or the degrading act to which the question relates 1. Thus, the copy of the officers driving record provided such basis for cross and since the officer was the only witness against the defendant, it was not harmless error that the cross was denied by the trial court. e. Notes: i. The evidence rule has abandoned the remote time requirement as it was found to be too confusing this may have made a difference on the 608(a) testimony being excluded. 2. Credence, Character, and the Rules of Evidence: Seeing through the Liars Tale, 42 Duke L.J. 776, 789-93 (1993).


a. In allowing character evidence on the issue of credence, the law postulates several factual axioms: i. Dishonest people are more likely to lie in any given situation than honest people ii. The character trait of veracity/mendacity is detectable by casual observers in the community, and the community consensus is accurately transmitted among acquaintances iii. Ordinary people, properly instructed as jurors, will appreciate the distinction between an inference from dishonest character to untruthful testimony and an inference from dishonest character to criminal conduct b. However, we all know that the inclination toward mendacity is complex and subtle process i. Most people generally tell the truth to most people most of the time, and make more or less critical adjustments to a number of others some of the time, depending on the subject, the circumstances, and the stakes. 3. Note that 405(a) permits inquiry into specific instances of conduct only during cross-examination of the character witness, but not during cross-examination of any other person, including the person about whom the character witness is testifying. a. Exceptions: i. The prosecutor could argue that she is offering the evidence for a non-propensity purpose under 404(b). ii. If the defendant has vouched for his own character, then the defendant arguably made himself his own character witness, and the question therefore may be proper under Rule 405(a). 4. Limitations of 608(b)(1) a. The specific instances must be probative of truthfulness or untruthfulness b. It may not be proved by extrinsic evidence i. This means the lawyer must accept the witnesss answer to the question. So if the lawyer asks the witness about a past lie that the witness allegedly


told another, and the witness denies it, that is the end of the matter. 1. The lawyer may not call a second witness to hold that the first witness indeed told the lie in question. c. It must survive a 403 weighing test. d. The lawyer must have in his possession information that reasonably leads him to believe that the acts of conduct have in fact been committed. Whitemore e. Many courts will not permit a lawyer to use rule 608(b) to offer evidence that is of a type covered by rule 609, but is also excluded by rule 609. i. Thus, 608 evidence is not a back door in which to offer 609 evidence. b. Past Convictions i. Impeachment with Past Convictions 1. The Theory and History of Rule 609 a. H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liars Tale, 42 Duke L.J. 776 (1993) i. The Disposition to Lie Under Oath 1. No inference to the alleged wrongdoing at issues in the case may be based on the predisposition of character, but disposition to lie under oath may be inferred from a variety of prior convictions. 2. It is extremely unlikely, given that testifying as a witness is such rare behavior, that any person testifies dishonestly because of a trait of dishonesty manifested by dishonest behavior in other, very different circumstances. 3. The line of reasoning is that testifying criminal defendants with records, especially for the same sort of crime, are more likely to be lying on the stand than those without records, because they are more likely to be guilty a. This line of reasoning is repugnant to the basic premises of the trial

process: adamantly excluding evidence of propensity while allowing indirect evidence of propensity by an inference to selfprotective perjury is wrong. ii. Rule 609 and Defendant Testimony: Historical Prelude 1. Rule 609 permits opposing counsel to impeach witnesses with evidence of their past crimes. a. This theory comes from the common law belief that a man convicted of falsehood and other crimes against the common principles of honest and humanity; his oath has no weight. b. Evidence of a prior crime may not be used to show a penchant for that same crime, but that same evidence may be used to show a penchant to lie. This is true even when the witness being impeached is the defendant charged with the crime. i. The judge must instruct the jury the narrow purpose of the evidence and assume the jury will do so this is counterintuitive to common sense. c. At common law, criminals could not testify under oath and thus this issue never arose. d. Perceptive observers soon found that allowing testimony from past convicts, an attempt to help them, instead exposed them to damaging cross-examination of their past wrongdoings. 2. Today, 609(a)(1) gives criminal defendants stronger protections against impeachment by past crimes than are accorded most witnesses. a. Note the extra-protective weighing test of Rule 609(a)(1) iii. Testing the Impact of Evidence of Past Convictions 1. Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes (2007) a. Prosecutors may argue that the defendant failed to rebut particular evidence when the only reasonable way to do so was through defendant testimony a principal reason not to testify is because the existence of a prior criminal record.


b. The survey conducted showed that those without a prior record were 17% more likely to testify than those with prior convictions i. When the defendant with a past criminal record did testify, the jury learned of that record over 50% of the time when they did not testify they jury learned of it less than 9% of the time c. The jury learning about prior criminal history is significantly associated with convictions in otherwise weak cases the magnitude of the effect of knowledge of a criminal record can be strikingly large. i. The presence of a criminal record increases the probability of conviction from less than 1 in 5 to about fifty percent or greater d. Thus, this could result in erroneous convictions especially if the prior crime is similar, or identical, to the one being tried currently iv. United States v. Brewer, 451 F. Supp. 50 (1978) 1. Material Facts: Defendant wants to preclude his past convictions, 4 of them, from being used if he is to take the stand to defend a kidnapping charge (and a lesser transporting of a stolen vehicle). 2. Issue: Are the criminal records of this defendant admissible evidence for impeachment if he takes the stand? 3. Holding: 4. Reasoning: a. The convictions to not apply to the time limit set by 609(b) more than ten years has elapsed from the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date. i. Reconfinement pursuant to parole violation is confinement imposed for the original conviction and therefore the release date from that second confinement is the one used in computing time under Rule 609(b). b. The probative value must outweigh its prejudicial effect i. [This test is for the defendant] The five factors are: 1. The nature of the crime a. Since these are of the same type, this is against letting them in

2. The time of conviction and the witness subsequent history a. The defendant has continued to violate the law in the same way, even while on parole thus this supports allowing it 3. Similarity between the past crime and the charged crime a. Should keep the prior kidnapping charge from the jury, since that is what he is on stand for now 4. Importance of defendants testimony; and a. This and the following balance each other out while his testimony may be important, his credibility is equally important 5. The centrality of the credibility issue c. The holding is that the prior kidnapping charge is not admissible, due to unjust prejudice, but the other three charges are. 5. Notes: a. Some judges permit the witness to explain the circumstances of the crime or the conviction i. Wouldnt this turn into a mini-trial b. Judges will rigorously enforce the very specific time standards of Rule 609(a)(1) and Rule 609(b) c. The fourth factor spelled out i. In this case, it is especially important that the defendant feel free to testify and this also weighs heavily against allowing the impeachment use of the prior similar conviction. ii. His defense will be prejudiced severely if he is deterred from testifying from fear that he will be convicted on the basis of a prior crime. United States v. Paige, 464 F.Supp. 99 (1978) d. Under 403, a judge may allow evidence of a prior crime without allowing the jury to know the specific crime i. In general, however, trial courts permit jurors to learn the nature of the past crime. v. FRE 609 Impeachment by Evidence of a Criminal Conviction

1. (a)(1) Dealing with available penalty the penalty must be more than a year which means in most jurisdictions it is a felony, not a misdemeanor. a. The language makes it clear that it is the potential penalty for the crime not the actual one imposed controls (nor are terms of felony or misdemeanor important. i. Note: it is admissible against a witness other than the defendant in a criminal case only if it passes a rule 403 test. ii. Evidence offered against the accused has a stricter weighing test: it is admitted only if its probative value outweighs its potential to cause unfair prejudice to the defendant. 2. (a)(2) carves out a class of convictions as particularly probative of untruthful character and declares that they shall be admitted regardless of punishment a. Thus, admission of prior convictions involving dishonesty and false statements is not within the discretion of the trial court to allow. Such convictions are always to be admitted. i. This escapes balancing under 403 or any other test No 403 analysis b. These crimes include; perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the witness propensity to testify truthfully. Advisory Committees Note to the 2006 Amendment i. This would exclude bank robbery and most simple thefts the rule uses dishonestly in the narrow sense, even though it could mean broadly a breach of trust or the like. ii. Moreover, the amended rule applies only if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness 1. Look to (1) statutory elements of the charged crime, (2) the fact of the trial courts judgment, (3) the indictment, (4) a

statement of admitted facts (if any); or (5) jury instructions (if any). a. This is not exhaustive, just a few ways to assess the past crimes nature as crimen falsi vi. (b) conviction is more than ten years old it will be admitted 1. Unless the court determines its probative value substantially outweighs its prejudicial effect. a. This reverse 403 weighing test is stricter since there is a presumption that the evidence of prior crimes exceeding 10 years is unfairly prejudicial to begin with 2. Violation of parole for a crime would extend this time table to the release date of the parole conviction. See Brewer Supra p. 23. vii. (c) Effect of Pardon, Annulment, or Certificate of rehabilitation 1. Discretion of the court no 403 analysis most likely not admitted viii. (d) juvenile adjudications are never admissible in civil cases or to impeach the testimony of criminal defendants. c. The Various Standards of Admission (from most permissive to most restrictive) i. 609(a)(2) 1. Crimes involving deceit are especially probative ii. 609(a)(1)(a) 1. Civil case subject to rule 403 a. More serious crimes suggest greater readiness to lie under oath iii. 609(a)(1)(b) 1. Higher test than 403 The probative value must be substantially outweighed by unfair prejudice a. Unfair prejudice that just outweighs the probative value doesnt matter iv. 609(b) 1. More recent crimes are more probative of ones present character 2. Reverse 403 analyses its probative value must substantially outweigh its unfair prejudicial effect to the defendant. v. 609(c) 1. A persons successful rehabilitation diminishes the probativeness of past crimes a. Again, discretion of the court and no 403 analysis i. This will most likely not be admitted vi. 609(d)



1. If the witness was a juvenile at the time of the past crime, there is a greater chance that their character has substantially altered (and improved) since then a. Admit only evidence necessary for fair determination of guilt or innocence rarely admitted The Rape Shield Law a. Historical Backdrop i. People v. Abbot, 19 Wend. (N.Y.) 192 (1838) 1. Material Facts: Woman who accused another man of rape denied the defendant from asking if she was a prostitute at the trial level. There were facts to prove that she was in fact a prostitute 2. Issue: Was the question properly excluded? 3. Holding: No. 4. Reasoning: A woman who is a prostitute is more likely to assent than a virtuous woman 5. Notes: This is a really old case that highlights the unfair judgment and thinking of the time. ii. State v. Sibley, 131 Mo. 519 & 132 Mo. 102 (1895) 1. Material Facts: Man was accused of raping his step-daughter several times, inducing her to take medicine to produce an abortion. The plaintiff called witnesses that testified that the mans reputation for virtue and chastity were bad. The man received two years and he appeals. 2. Issue: Was the witness testimony properly included? 3. Holding: No. 4. Reasoning: A mans truth is not the same as a womans truth in regards to chastity. Many noble men have had an infirmity for sexual pleasure that held great offices. Women, it ruins their entire life. 5. Notes: Again, this is an example of how terrible the point of view was many years ago in regards to women. iii. John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 1. Sec. 924a. Woman Complainants Chastity in a Charge of Sexual Crime a. The unchaste mentality finds incidental but direct expression in the narration of imaginary sex-incidents of which the narrator is the heroine or the victim b. No judge should ever let a sex-offence charge go to the jury unless the female complainants social history and mental

makeup have been examined and testified to by a qualified physician. b. The Shield Law i. Susan Estrich, Real Rape (1987) 1. She was raped they never found the man, but it didnt seem as though they really tried 2. The crime has been defined so as to require proof of actual physical resistance by the victim, as well as substantial force by the man. Evidentiary rules have been defined to require corroboration of the victims account, to penalize women who do not complain promptly, and to ensure the relevance of a womans prior history of unchastity. a. The justification for such a terrible rule was that women lie 3. If a defendant knew of a womans sexual history, an argument might be made that such knowledge is relevant to determining what he thought at the time of the intercourse, whether he believed that she was consenting to his advances. ii. Sherry F. Colb, Whodunit Versus What was done: When to Admit Character Evidence in Criminal Cases, 79 N.C. L. Rev. 939 (2001) 1. If sexual predisposition is a meaningful construct, then why not admit it against the victim in consent-defense rape cases? a. The answer is that once there is a rape prosecution, we have a piece of information whose significance overwhelms any relevance that the sexual propensity data would have the victim swears that, on the occasion in question, she did not consent. 2. It is no more likely that a sexually active woman would carry out such a scurrilous act of false rape accusation than that of a woman less sexually experienced would do so. a. The informative value of an inclination to consent to sexual activity thus vanishes once a woman has leveled an accusation of rape against a man. i. Thus, any evidence suggesting a predisposition to engage in sexual activity would accordingly be irrelevant. iii. Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. (1986) 1. Before the enactment of rape-shield laws, evidence of the complaining witnesss sexual conduct was treated as a species of character proof.

a. Evidence that a complainant had engaged in sexual relations outside of marriage was admissible to establish unchaste character, from which the inference of consent on a particular occasion could be drawn. i. The purpose of the rape shield law was to highlight the sexist assumptions behind this evidentiary doctrine. 2. Other uses of past sexual conduct that could have, and perhaps should have remained are a. Evidence of prior sexual conduct between the complainant and the accused to prove consent, and evidence of prior sexual conduct between the complainant and others to provide an alternative explanation for the physical consequences of the alleged rape. 3. We could have just expanded 404(b) to include an exclusion for a propensity to be sexually active while still allowing that evidence for other propensity purposes. 4. The basic problem with existing rape-shield legislation is its failure to distinguish between benign and invidious uses of sexual conduct evidence. a. The law is unnecessarily broad. c. Proof of Bias i. Olden v. Kentucky, 488 U.S. 227 (1988) 1. Material Facts: Woman was dropped off at her lovers home and said that the two men had raped her. At trial, the prosecutor attempted to bring evidence on cross-examination that the woman had a propensity to lie since she was having an extramarital affair and also lied during cross examination that she was living with her mother, and not another man. 2. Issue: Was the evidence of her extramarital affair properly excluded evidence? 3. Holding: No. 4. Reasoning: The exposure of a witnesss motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. In this case, the testimony of the complainant and the only corroborating witness were largely derivative and the evidence of their affair should have been allowed to show bias. 5. Notes:


a. This case shows a sixth amendment right to cross-examine an accuser to show a prototypical form of bias on the part of the witness. b. Bias-based impeachment suggests that the witness has a motive to lie in this case, not that he has a bad character for truthfulness. c. FRE 412 does not bar inquiry into a victims past allegedly false complaints of sexual assault. i. Some states, however, do bar this line of examination ii. Federal courts of appeals have reached no consensus on this issue either d. Whether a defendant has a Sixth Amendment right to crossexamine his accusers about their past lies depends on where he is. e. This is a classic example of 404(b) and 609 rules of evidence; while it would certainly be allowed under these rules, Rule 412 usually bars it when it has to do with the broad definition of sexual activities. i. However, the exception, as noted later, is that there was a constitutional right to present significant evidence that is crucial to your case. 6. Problem: The Kobe Bryant Case d. Defendants State of Mind i. United States v. Knox, 41 M.J. 28 (Ct. Mil. App. 1994) 1. Material Facts: Appellant was accused of raping a woman. Apparently she had had six or so beers fell asleep and when she awoke her boyfriend was not having sex with her but his friend. The boyfriend consented to the affair. The woman claims that she told him to stop and that was the end of it while the appellant argues that when he returned she was having sex with her boyfriend and allowed him to join. 2. Issue: Credibility is the largest issue as to whether the woman was asleep during these events or not. Should cross examination of the womans past acts be allowed into evidence? 3. Holding: No. 4. Reasoning: The rape-shield law is intended specifically to prevent the portrayal of an alleged rape victim as a bad person who got no more than what she deserved. 5. Notes:

a. Sometimes, a defendants right to put on evidence may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. b. The evidence that he wanted to include were her past sexual acts of going topless at a bar, others saying that she was easy, and in one case, having sex in front of several other people. e. Rule 412 Sex-Offense Cases: The Victims Sexual Behavior or Predisposition i. (a) Prohibited Uses 1. (1) other sexual behavior 2. (2) victims sexual predisposition a. Notes: i. Evidence, which might otherwise be admissible under rules 402, 404(b), 405, 607, 608, 609 or some other evidence rule, must be excluded if rule 412 so requires. ii. The word other is used to suggest some flexibility in admitting evidence intrinsic to the alleged sexual misconduct. Advisory Committees Note to 1994 amendment of rule 412. iii. Past sexual behavior connotes all activities that involve actual physical conduct or that imply sexual intercourse or sexual conduct. 1. This is a broad interpretation. iv. Rule 412 is also broad enough to exclude behavior or the mind, i.e., fantasies or dreams. v. The amendment is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the factfinder. vi. The inclusion of all criminal cases is clear in that we have a policy of protecting a victims privacy and encouraging victims to come forward to report criminal acts not confined to cases that involve a charge of sexual assault. This is the same with civil cases. ii. (b) Exceptions 1. (1) Criminal Case a. Specific instances of victims sexual behavior to prove someone other than the defendant was responsible

b. Specific instances to prove consent or if offered by the prosecutor c. Evidence whose exclusion would violate the defendants constitutional rights i. Reputation or opinion is not likely to violate a defendants rights the evidence must be pretty overwhelming in order to be allowed under this exception. 1. See Olden, Supra p. 28. 2. (2) Civil Cases: Only if it is probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victims reputation only if the victim has placed it in controversy. a. Notes: i. Admissibility must also survive a rule 403 analysis, as well as any other evidence rules ii. The defendant must be afforded the opportunity to prove that another person was responsible iii. Statements and prior instances of sexual activities between the alleged victim and the accused are admitted, including one in which the victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving that specific accused 1. Evidence of uncharged sexual abuse may be offered by the prosecution under 404(b) to show a pattern of behavior but not a sexual predisposition. iv. (b)(1)(C) is for constitutional concerns; i.e. Olden allowed to show bias v. (b)(2) employs a balancing test in civil cases in recognition of the difficulty of foreseeing future developments in the law greater flexibility is needed to accommodate evolving causes of action such as claims for sexual harassment. iii. (c) Procedure to Determine Admissibility 1. (1) Motion a. (A) must file a motion that specifically describes the evidence and states the purpose for which it is to be offered


b. (B) at least 14 days before trial unless the court, for good cause, sets a different time c. (C) serve the motion on all parties d. (D) notify the victim or, when appropriate, the victims guardian or representative 2. (2) Hearing: Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. 3. (3) Definition of Victim. In this rule, victim includes an alleged victim. a. Notes: i. The court can take into account the tardiness of the evidence good cause shown such as newly discovered evidence and could not have been obtained earlier through the existence of due diligence and whether the issue to which such evidence relates has newly arisen in the case. ii. The reason for an in camera hearing is a proceeding takes place in the judges chambers is because it gives the defendant an opportunity to demonstrate to the court why certain evidence is admissible and ought to be presented to the jury while at the same time, it protects the privacy of the rape victim in those instances when the court finds that evidence is inadmissible. f. Advisory Committees Note to 1994 Amendment of Rule 412 i. [Goals of FRE 412] The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment, and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. 1. 412 seeks to achieve these objectives by barring evidence relating to the alleged victims sexual behavior or alleged sexual predisposition except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim. ii. We want to encourage victims to come forward without fear of these types of issues coming to light during a trial. IX. Hearsay

a. Defining Hearsay i. Historical Prelude 1. The Trial of Sir Walter Raleigh, Knt. At Winchester, For High Treason (1603) a. Issue of a man accused of high treason an attempt to supplant him the evidence was only a person who had heard from another person that he intended to do this (i.e. hearsay) the result was guilty verdict and the man was sentenced to death ii. The Basic Rule 1. The hearsay rule is about the reliability of the evidence the jury hears. When a witness testifies we worry about the following four testimonial capacities a. Perception b. Memory c. Narration d. Sincerity 2. The witness sees an event, forms a belief about it, and relates that belief to the jury. a. Her belief accurately reflects the event only if she perceived and remembers the event accurately. i. The information the jury hears about the event is accurate only if all four of the witnesss testimonial capacities are sound. 3. The accuracy of these types of testimony is tested by three courtroom tools a. The Oath i. You swear under penalty of perjury if you are caught lying, you can be prosecuted for that law. b. Demeanor Evidence i. Jurors scrutinize faces and mannerisms, watch for signs of stress, and judge intellect, precision, and trustworthiness c. Cross-Examination i. The opposing lawyer probes for deficiencies in the four testimonial capacities 1. Wigmore believes this is the most important aspect of finding truth whether you believe this or not, it is inarguable that cross-


examination is very important to determining the validity of the witness. 4. The problem of hearsay is that we call witnesses to testify on the reliability of another persons testimonial capacities a. Thus, a persons testimony about anothers statement, if offered by the litigant to prove an event occurred, is hearsay by the terms of Rule 801(c) and is excluded by Rule 802, unless spared by one of the many exceptions to the hearsay rule. 5. Rule 801 Definition of Hearsay a. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence by a litigant to prove the truth of the matter asserted by the declarant. i. Hearsay is an out-of-court statement offered in evidence by a litigant to prove the truth of the matter asserted by the declarant. 1. Under 801(c), we must ask two questions to decide whether any particular out-of-court statement is hearsay: a. Is the litigant offering the statement to prove (the truth of) what it says or was meant to say b. Did the declarant assert that is, did she mean to communicate that fact? - Unless the answer to both these questions is yes, the statement is not hearsay. 6. Nonhearsay Uses of Out-of-Court Statements a. To prove the impact of the statement on someone who heard it i. i.e., Defendant testifying that he heard from another person that the person he killed in self-defense was looking for him and trying to kill him 1. The truth of whether the victim was actually trying to kill him isnt important, only that the defendant heard those words and it affected him thus, this is not hearsay


b. To prove a legal right or duty was triggered by-or an offense that was caused by-uttering the statement; and i. The soundness of testimonial capacities dont matter when verbal acts (such as I accept, I do, etc.) because they have legal force independent of the speakers intended meaning. c. To impeach the declarants later, in-court, testimony i. The theory is that the out-of-court statement proves that the witness has said different things at different times about a certain fact, not that the out-of-court statement is true d. Note i. In all of these above circumstances, the only thing that matters from the proponents perspective is that the words were spoken, not that they have any truth 1. See Flow Chart on page 369. iii. Defining Assertions 1. Judson F. Falknor, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mt. L. Rev. 133 (1961) a. Where evidence of non-verbal conduct is relevant only as supporting inferences from the conduct to the belief of the actor and thence to the truth of his belief, prevailing doctrine stigmatizes the evidence as hearsay, inadmissible unless accommodated within one of the exceptions to the rule. i. Note: This is no longer the law FRE 801(a), (c) only conduct intended as an assertion and offered to prove the matter asserted is hearsay. b. The hearsay objection is likely to be overlooked in silent, non-verbal issues. i. The implied assertion is, from the hearsay standpoint, not nearly as vulnerable as an express assertion of the fact which the evidence is offered to establish ii. This is on the assumption that the conduct was non-assertive and thus freed from the danger of mendacity (a man does not lie to himself). c. This is not to say that the implied assertion is completely free of hearsay infirmities or that cross-examination of the


individual would not be helpful (since the other three prongs of testimonial are still there to be tested). d. The better rules is to eliminate completely the hearsay stigma from evidence of non-assertive conduct i. Such conduct is evidently more dependable than assertion; there is a rational basis for the differentiation. 2. The Nature of Assertions a. Hearsay is an out-of-court assertion offered to prove that it asserts i. But what is assertion? 1. The distinction between assertions and nonassertions is the same, whether the evidence in question is verbal or nonverbal b. Conduct i. Some conduct is clearly assertive (rubbing your fingers together to represent money) ii. Other conduct is more difficult. Is a experience seacaptain inspecting a boat before sailing an assertion that it is seaworthy? 1. No, he wanted to make sure that the vessel of safe, his intended actions were not meant to communicate something a. That commutative intent is the essence of an assertion. - Advisory Committee says in Note to Rule 801(a), nothing is an assertion unless intended to be one. 2. Thus, evidence of the sea captains actions, if offered to prove that the vessel was seaworthy, would not be hearsay because the sea captain had no audience and did not intend to assert anything a. Nonassertive conduct is not hearsay b. Since his actions had no audience since he did not intend to assert anything he could not have been lying.


c. Testimonial sincerity is what concerns us the most in regards to hearsay. - While his capacities of perception, memory and narration all go untested, we really only care on his capacity to lie which has been tested by his actions. c. A Focus on context i. In short, when trying to determine whether certain conduct is an assertion, ask yourself, could this conduct be a lie? 1. If they acted without an audience, the answer is no, since people usually dont lie to themselves. 2. This is not mathematically precise a judge must determine in light of all of the facts whether the conduct was intended as an assertion. 3. Advisory Committee Note to Rule 801(a) close cases should be resolved in favor of admissibility. (RB 214) ii. Words 1. Most oral and written expressions are manifestly assertive. 2. Questions can also be hearsay a. By asking a question, the person is asserting that they do not know something. d. Implied Assertions i. Commands and questions are examples of implied assertions. 1. The speaker does not expressly, assert what they mean to yet the speaker intends to communicate those facts by implication. ii. Declarative sentences likewise can carry implied assertions 1. i.e., Laura ought to give that dog a bath, is asserting, indirectly, that the dog is dirty

the intent is to communicate that the dog is dirty iii. Express and Implied Assertions are both covered by 801(c)s definition of hearsay 1. The takeaway is that implied assertions are intentionally communicative and therefore hearsay. a. Note, however, some judges and commentators mistakenly use the phrase implied assertions even when the declarant had no intent to communicate the fact proved. e. Indirect Assertions i. Litigants often try to package hearsay as indirect evidence of the speakers state of mind 1. Be wary of such arguments because these statements are still being offered to prove something other than what it asserts since we must assume the truth of these assertions, they are hearsay f. Nonhearsay Uses of Out-of Court Statements i. Nonassertive words 1. Involuntary statements are perhaps the only clear example a. I.e., Ouch! when you bang your knee is not hearsay to prove you were in pain ii. Words Offered to Prove something Other than What they assert 1. Sometimes a lawyer offers the declarants words to prove something other than what the declarant intended to communicate a. Here, the lawyers claim does not depend on the truth of the declarants assertion. b. I.e., letters that had no assertion that a person was competent were used to prove, collectively, that the tone and subject matter of the letters showed


that their authors thought the testator was of sound mind. - The letter only proved that their authors believed the testator was competent, a belief they felt no need to communicate. iii. Assertions offered as circumstantial proof of knowledge. 1. A statement offered to prove that the person had been in a specific place doesnt worry us about her testimonial capacities. a. She could not have possibly been lying about the appearance of a place, unless she was a clairvoyant liar, because she knew exactly right about things that are hard to guess exactly. - The tight correlation of the room and her memory also doesnt make us worry about misperceived or misremembered or misstated statements it proves she was there before. b. Under 801(c), the prosecutor does not offer the girls statement to prove the accuracy of her description of the defendants room but as proof that she was actually there. iv. Practical Approach/Class Notes 1. The first question is Is this hearsay? a. If you determine that it is indeed hearsay, you can then determine whether or not it falls under an exception. i. Test: 1. Was it made out of Court? 2. Who was the declarant? 3. What is the partys purpose in offering the statement?

2. We dont allow hearsay because we want to test the testimonial capacity of the witness. 3. A witnesss statement about her own statement can be hearsay a. We treat their own past statement as such for hearsay purposes (There is an exception to this discussed in the rules). v. Rule 801(a)-(c) vi. Rule 802 b. Exceptions to the Hearsay Rule i. Exceptions to the hearsay rule fall into five broad categories 1. Rule 801(d)(1): Prior Statements by Witnesses a. (A) Prior Inconsistent Statements b. (B) Prior Consistent Statements c. (C) Statements of Identification i. Note that 801(d) does not call these exceptions but rather not hearsay. Under the literal definition, these would fall under hearsay but are purposely excluded. 2. Rule 801(d)(2): Admission by Party-Opponents a. (A) The partys own statement b. (B) Adoptive Statements c. (C) Statements by Spokespersons d. (D) Statements by Agents e. (E) Coconspirators Statements 3. Rule 803: Exceptions in which the availability of the Declarant is Immaterial a. (1) Present Sense Impressions b. (2) Excited Utterances c. (3) Then-Existing Mental, Emotional, or Physical Condition d. (4) Statements for Medical Diagnosis or Treatment e. (5) Recorded Recollections f. (6 & 7) Business Records g. (8 & 10) Public Records and Reports 4. Rule 804: Exceptions Applicable Only When the Declarant is Unavailable a. (b)(1) Former Testimony b. (b)(2) Dying Declarations c. (b)(3) Statements Against Interest d. (b)(6) Forfeiture by Wrongdoing

5. Rule 807: Residual Exception ii. Rationale 1. Most of the exceptions to the hearsay rule are traditionally justified by reference to two values: a. Necessity i. This is clearest when the declarant is unavailable. 1. This is not the same unavailability as physical absence of the witness. The witness may take the stand and yet be unavailable since they refuse to testify or testifies to a loss of memory. ii. Other hearsay exceptions, such as 801(d)(1) and 803(5), apply only if the declarant is present and testifying. 1. Note that this rule requires only that the declarant testify as a witness, not that the declarant be available, as discussed above. A Memory loss may render the witness unavailable, though present. b. Trustworthiness (or reliability) iii. Statements of Party-Opponents/ Opposing Partys Statement. 801(d)(2) 1. Though the Constitution protects against coerced confessions, the hearsay rule poses no obstacle to confessions made freely a. Rule 801(d)(2)(A) says that a partys own words are not hearsay when offered against her at trial. 1. Note: Must be the opposing party doesnt have to be a witness but must be a party to the action. ii. One possible rationale is that most statements offered by a litigant against an opponent were against the opponents interests when she made them. 1. People rarely lie in ways that hurt themselves. [Truthfulness Policy] 2. However, the rule allows all statements: It only requires that there be a statement and that it be offered against its maker. iii. A second rationale is the inability to cross-examine a hearsay declarant, and thus allow this line of hearsay to be made for them to be cross-examined

a. No need for cross-examination 2. It seems strange though, that a party would complain that she cant cross-examine the declarant when she is the declarant. a. This can be incredibly troubling in a criminal case where past acts may be used to impeach the defendantwitness (Rule 609) but, moreover, the exception for party-opponent hearsay extents to past the defendants own statements but also statements made by her spokespersons, agents, or conspirators. iv. Finally, the advisory committee tell us that [a]dmissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system 1. In other words, this is war. They are admissible since she said it and cannot complain that her own statements are unreliable. b. Two Rules are relaxed under this rule i. Firsthand knowledge requirement (602) and limit on opinion testimony by lay witnesses (701). 2. The Partys Own Words: Focus on 801(d)(2)(A) a. When we bring in statements offered to prove a matter, it is excluded by hearsay rule and is admissible if the party said it themselves. b. Problem 7.11 and 7.12 (Page 396) 3. Adoptive Admissions: Focus 801(d)(2)(B) a. Adoptive admission through silence: i. Person understood and heard the statement ii. She was at liberty to respond iii. Circumstances naturally called for a response iv. She failed to respond (deny) b. Problem 7.13 and 7.14 (Page 397) 4. Statements of Agents: Focus on 801(d)(2)(C) & (D)


a. Pet wolf Bites Boy in U. City, St. Louis Post-Dispatch, March 23, 1973, at 14A i. Story about whether or not a specific wolf, Sophie, did or did not bite the boy. b. Mahlandt v. Wild Candid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978) i. Material facts: A pet wolf, owned and controlled by the defendant, was accused of biting a child. The defense argued that a note, written by the care-giver of the wolf, and statements made to his supervisor along the lines of Sophie [the wolf] bit a child, were impermissible hearsay. A third issue involved minutes in a meeting of the defendants which had a great deal to do with the legal implications of Sophie biting the boy. ii. Issue: Are these three statements inadmissible hearsay? iii. Holding: The note and statement made to his supervisor are admissible against Poos himself and the employer. The minutes are admissible, but not against Mr. Poos. iv. Reasoning: 1. Rule 801(d)(2)(C) does not allow in house admissions, only those to third parties. However, 801(d)(2)(D), as Sohies caregiver, Mr. Poos was an agent and thus his conclusions and opinions were accepted as a basis for action by his principal. This rule allows this kind of statement from being allowed. a. This rule adopts the approach which, as a general proposition, makes statements made by agents within the scope of their employment admissible.Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it


relates to a matter within the scope of the agency. b. The Advisory committee also calls for generous treatment of this avenue of admissibility. 2. The minutes of the meeting would fall under 801(d)(2)(C) and thus be admissible. a. Board members are authorized under this rule. 3. Rule 801(d)(2)(A) allows the partys own statements to be included this would be the note. v. Notes: 5. Coconspirators Statements: Focus on 801(d)(2)(E) & 104(a) a. You must satisfy these preconditions i. That a conspiracy existed at the time the out-ofcourt statement was made; ii. That the conspiracy included both the declarant and the party against whom the statement is offered; and iii. That the declarant spoke during the course of and in furtherance of the conspiracy 1. The Supreme Court declared that a trial judge should decide these preliminary questions under Rule 104(a). The proper standard of proof is the preponderance of the evidence. 2. Moreover, a contested hearsay statement itself could be evidence of the existence of the conspiracy and other preliminary facts. 3. They did not decide whether the contested hearsay statement could serve as the only evidence of these preliminary facts a. 801(d)(2) seems to have answered that question The contents of the statement shall be considered but are not alone sufficient to establishthe existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.

b. Notes: i. Establishing Authority, Employment, Agency, Conspiracy 1. 801(d)(2)(c)-(e) ii. Content of declarants statement: Necessary but not sufficient 1. Must examine other evidence a. Circumstances and context, for example. iv. Rule 801(d)(2) v. Rule 805 c. Past Statements of Witnesses and Past Testimony i. Introduction 1. Past inconsistent statements, when offered to impeach, are not offered for the truth of what they assert, buy merely to show that the witness says different things at different times and therefore should not be believed. Rule 613. a. The party against whom they are being asserted may ask the judge for a limiting instruction to that effect. i. However, a jury may not follow this instruction. 2. See Chart on Page 417 3. Rule 612 also does not concern hearsay a. This rule deal with the mechanics of refreshing a witnesss memory. (We will tackle this rule later in conjunction with Rule 803(5) this rule is more restrictive). 4. Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 192-96 (1948). a. This should not be considered hearsay i. Adversary has all the protection which oath and cross-examination can give him. Trier is in a position to consider the evidence impartially and to give it no more than its reasonable persuasive effect. Consequently there is no real reason for classifying the evidence as hearsay b. Notes: i. This was not taken into consideration. The advisory committee even noted that the rule is one of experience rather than logic. (CAN to FRE 801(d)(1), RB 216).


1. It is unwise to pull out this particular misshapen stone. ii. 801(d)(1) They have to testify 1. Subject to cross-examination a. Gives opportunity to deny, explain, and view witness demeanor b. There is not a requirement that they be subject to cross at the time the statements are made. ii. Inconsistent Statements Offered to Impeach. Focus on FRE 613 1. U.S. v. Barrett, 539 F.2d 244 (1st Cir. 1976). a. Material Facts: A man was arrested and convicted of a complicated stamp robbery. At trial they were not allowed testimony a witness who said that they overheard another man involved that Bucky was not involved. This same man had said during court that he had heard from Bucky himself that he had done the act. b. Issue: Should this be admissible to impeach the witness on his credibility under 613 for past inconsistent statements or is it inadmissible hearsay under 801(d)(1)? c. Holding: It is admissible for past inconsistent statement. d. Reasoning: i. To be received as a prior inconsistent statement, the contradiction need not be in plain terms. It is enough if the proffered testimony, taken as a whole, with by what is says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. 1. The fact that Adams testimony was opinion is immaterial. What matters is that it proves incompatibility between his direct testimony and the alleged statement. ii. Further, Delaneys memory of the timing of the statement is immaterial it is the jury to decide what to do with the facts of what would otherwise be competent testimony. iii. FRE 613(b) has also relaxed any absolute requirement that this practice be observed, only requiring in stead that the witness be afforded at

some time an opportunity to explain or deny, and for further interrogation. e. Notes: i. Problem 7.17 Page 424 1. The statement is hearsay a. The purpose is to show that he fired the shot - This is substantive b. Can this be used for impeachment? - Under 613, yes it can be used, if there is a jury instruction but you cannot use it as the substantive argument of your case you cannot just rest after using the information. However, you could attempt to use 801(d)(1)(A), but it would not follow since the statements were not made in court or other proceeding. ii. 613(a) 1. Dont need to show it to a witness a. This is because it is too cumbersome 2. Witness must testify iii. 613(b) 1. We need fairness a. Thats what these restrictions are for iv. Remember, there is a difference between substantive and impeachment you cannot use evidence that was used to impeach as the center of your substantive argument in closing. v. 613 requires only some indication that prior statement was different from testimony 2. U.S. v. Ince, 21 F.3d 576 (4th Cir. 1994) a. Material Facts: Defendant was convicted for assault with a deadly weapon. The government offered testimony from a witness to impeach their own witness who said she couldnt

remember what she had said in her own sworn statement. The testimony brought to impeach included a conversation that she had with the defendant where he said he shot the gun. b. Issue: Is this testimony admissible under 613 for impeachment purposes or hearsay under 801(d)(1). c. Holding: The testimony is inadmissible hearsay. d. Reasoning: i. Rule 607 allows the credibility of a witness to be attacked by any party. While 613 allows an exception for hearsay to impeach for prior inconsistent statement there are limitations to impeaching the governments own witness at a criminal trial. ii. Here, the government employed the impeachment of their witness as a mere subterfuge to get before the jury evidence not otherwise admissible. 1. Courts should not permit the government, in the name of impeachment, to present testimony to the jury by indirection which would not otherwise be admissible. 2. Despite proper instructions to the jury, it is often difficult for jurors to distinguish between impeachment and substantive evidence. iii. In order to make this determination, the court must apply Rule 403 and weigh the testimonys impeachment value against its tendency to prejudice the defendant unfairly or to confuse the jury. 1. When this impeachment testimony is brought in, there is likely a prejudicial impact that will often outweigh the substantial probative value for impeachment purposes because the jury may ignore the judges limiting instructions and use the impeachment testimony as substantive. 2. This risk is multiplied when that testimony asserts the defendants alleged admission of guilt.


iv. Here, the evidence presented was an admission to the guilt the presentation of additional unsworn testimony going directly to the issue of Inces guilt was extremely prejudicial. 1. Moreover, unlike the classic turn cloak witness, the government knew where she would stand on the second trial and did not need to impeach her, or bring her forward, for that purpose. Her testimony didnt affirmatively damage the Governments case; she didnt give evidence that they hoped she would give and thus had no reason to attack her credibility. a. If testimony does not damage, impeachment is not probative. b. Evidence attacking her credibility had no purpose for impeachment purposes. e. Notes: i. There is concern about the jurys ability to distinguish between impeachment and substantive evidence. 3. Inconsistent Statements Offered Substantively: Focus on FRE 801(d)(1)(A) a. Problem 7.19 and 7.20 (Page 438). i. 7.19 could argue either way ii. 7.20 Authorities are mixed to this situation. iii. Rule 613 iv. Rule 801(d)(1)(A) v. Past consistent Statements: Focus on 801(d)(1)(B) 1. Tome v. United States, 513 U.S. 150 (1995) a. Material Facts: Man was convicted of sexual assault of his daughter. Evidence was offered of her statements she had made to several individuals (her babysitter, mother, therapist, etc.) that she was scared of her father, that he touched her inappropriately, etc. The court of appeals ruled that all of these statements were admissible under FRE 801(d)(1)(B). b. Issue: Are these out of court statements made by the alleged victim admissible under 801(d)(1)(B)?

c. Holding: No. d. Reasoning: i. A consistent statement, at a time prior to the existence of a fact said to indicate bias, will effectively explain away the force of the impeaching evidence. ii. A consistent statement meeting the requirements of the Rule is thus placed in the same category as a declarants inconsistent statement made under oath in another proceeding, or prior identification testimony, or admissions by a party opponent. (See 801) iii. In the current case, the question is whether A.T.s out of court statements rebutted the alleged link between her desire to be with her mother and her testimony, not whether they suggested that A.T.s in-court testimony was true. 1. The rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told. iv. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. v. The Committee made note that rule 801(d)(1)(B) abandoned the premotive requirement. 1. The entire discussion of Rule 801(d)(1)(B) is limited to the following: a. Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given its admission in evidence, no sound reason is apparent why should not be received generally.


2. There is no reason why if they wanted to change the premotive requirement, they would remain silent. vi. In this case, the evidence to rebut a weak argument of motive allowed sympathetic and credible witnesses who just recounted A.T.s prior statements. 1. While they are probative of whether the alleged conduct occurred, they shed but minimal light on whether A.T. had the charged motive to fabricate. (The government itself used the evidence as substantive in closing, not as rebuttal to any argument of motive.) e. Notes: i. Dissent: 1. A postmotive statement is relevant to rebut, for example, a charge or recent fabrication based on improper motive, say, when the speaker made the prior statement while affected by a far more powerful motive to tell the truth. 2. The lower court, applying a flexible approach to the rule, decided that A.T.s prior consistent statements were probative on the question of whether her story as a witness reflected a motive to lie. There is no reason to reevaluate this fact-bound conclusion vi. 801(d)(1)(B) vii. Statements of Identification: Focus on 801(d)(1)(C) 1. Commonwealth v. Weichell, 390 Mass. 62 (1983) a. Material Facts: Defendant appeals his conviction of murder. A witness helped but together a composite photograph of the man and testified at court that the defendant was in fact the man he saw running from the crime scene. b. Issue: Was the composite picture admissible? [Note, the government placed great emphasis on the picture in closing arguments]

c. Holding: Yes. d. Reasoning: i. Under the FRE, a statement of prior identification is not hearsay if made by a witness who testifies at trial and is subject to cross examination concerning it. 801(d)(1)(C) ii. Since the statements of the witness that led to the creation of the composite are admissible, the composite which is prepared from the statements similarly ought to be admissible either because the composite retains the character of the statements that led to its creation or because the composite is not a statement within the meaning of the hearsay rule. 1. Thus it is admissible under 801(a) too. iii. There is no logical reason to permit the introduction of a witnesss out-of-court identification and to exclude statements identifying the various physical characteristics of a person perceived by the witness, or the composite of all those physical characteristics, which is no more than the sum of the parts perceived. e. Notes: i. Dissent: Composites have not shown to possess a fair degree of reliability, let alone greater reliability than in-court identification. In the absence of such reliability we should hold composite drawings inadmissible as probative evidence of guilt. ii. Is a composite sketch a statement as defined by rule 801(a)? Something to ponder. 2. United States v. Owens, 484 U.S. 554 (1988) a. Material Facts: A correctional officer was severely beaten and as a result suffered traumatic memory loss. He was however, on one occasion, able to identify his attacker. He later forgot that he had done so. The alleged attacker was convicted on the victims out-of-court identification of him. b. Issue: i. Does rule 802 bar testimony concerning a prior, out-of-court identification when the identifying


witness is unable, because of memory loss, to explain the basis for the identification? c. Holding: No. d. Reasoning: i. The Confrontation Clause (Sixth Amendment) includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony. ii. It only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. iii. Rule 801(d)(1)(C) defines as not hearsay a prior statement of identification of a person made after perceiving the person, if the declarant testifies at the trail or hearing and is subject to cross-examination concerning the statement. 1. Thus, cross-examination of a witness memory loss is often the very result sought in cross. 2. The rule specifies that the cross-examination need only concern the statement does not on its face require more. iv. As time goes by, a witness memory will fade and his identification will become less reliable thus we allow these prior identifications to prevent a case falling through the cracks because the witness can no longer recall the identity of the person he saw commit the crime. [House Report to the Rule] v. There is no substantive inconsistency between 801(d)(1)(C) who has a forgetful witness subject to cross is also unavailable under 804(a).


1. They are made for two entirely different purposes and there is no requirement or expectation that they should coincide. e. Notes: i. Dissent: Had the victim died after making the identification, the Rules would not doubt prevent that evidence from being brought to court. The victims memory is what died, and the majority claims a difference. 1. The defense had no ability to impugn the victims prior statements, since he had no memory of it. 2. The Confrontation Clause is based on effectiveness the cross could not be effective if it did not afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. 3. Problem 7.21 page 456. viii. 801(d)(1)(C) d. Declarant Unavailable i. Past Testimony: Focus on 804(a) & 804(b)(1) 1. Problems 7.22 and 7.23 page 457 2. United States v. DiNapoli, 8 F.3d 908 (2d Cir. 1993) a. Material Facts: The prosecution produced evidence at a grand jury by two witnesses. He later wanted to use that same testimony in a criminal charge against others, but the witnesses were unavailable. The defense stated that these witnesses out-of-court statements made at the grand jury were inadmissible hearsay. The prosecution held that they were not hearsay under 804(b)(1) requirement for similar motive to develop the testimony in the out-of-court statements with the criminal proceeding. b. Issue: Was the witnesses grand jury testimony properly excluded as hearsay? Was the similar motive requirement met? c. Holding: Yes d. Reasoning: i. The test must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the

questioner had a substantially similar interest in asserting that side of the issue. 1. Whether the degree of interest in prevailing on an issue is substantially similar at two proceedings will sometimes be affected by the nature of the proceedings, as it is here. a. The two proceedings had different purposes and burdens of proof. b. When a prosecutor is using the grand jury to investigate possible crimes and identify possible criminals, it may be quite unrealistic to characterize the prosecutor as the opponent of a witness version. ii. Our point is simply that the inquiry as to similar motive must be fact specific, and the grand jury context will sometimes, but not invariably, present circumstances that demonstrated the prosecutors lack of similar motive iii. The proper approach in assessing similarity of motive under Rule 804(b)(1) is whether the party resisting the offered testimony at a pending proceeding had a t a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. 1. The nature of the proceedings both what is at stake and the applicable burden of proofand, to a lesser extent, the cross-examination at the prior proceeding-both what was undertaken and what was available but forgone-will be relevant though not conclusive on the ultimate issue of similarity of motive. iv. Here, the prosecutor had no interest in proving a falsity that the grand jury already disbelieves. Moreover, the prosecutor failed to continue questioning knowing that he had evidence that would show the testimony to be invalid in the earlier hearing.


1. Since the grand jury as fact-finder had already resolved the issue of the Clubs existence in the prosecutors favor and had announced disbelief of the witnesses contrary statements, dissimilarity of motive is beyond dispute. e. Notes: i. In an unassigned case that follows, Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (1978), the court found: 1. That what is described as the practical and expedient view expresses the congressional intention: if it appears that in the former suit a party having a like motive to crossexamine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. a. The previous party having like motive to develop the testimony about the same material fact is, in the final analysis, a predecessor in interest to the present party ii. 804(a) iii. 804(b)(1) iv. Statements Against Interest: Focus on 804(b)(3) 1. Williamson v. United States, 512 U.S. 594 (1994) a. Material Facts: The defendant was pulled over holding several kilograms of cocaine. While being interviewed by the DEA, the defendant offered two different confessions which included self-inculpatory remarks and noninculpatory remarks. The defendant later refused to testify or sign off on the statements. The DEA used the remarks, in whole, to help implicate another man. That man says that this was impermissible hearsay. b. Issue: Are the statements made by the unavailable witness inadmissible hearsay or allowable under 804(b)(3)?


c. Holding: Collateral statements, even ones what are neutral as to interest, should be treated the same as other hearsay statements. i. Thus, the self-inculpatory remarks are allowable, but these non-inculpatory remarks should be excluded d. Reasoning: i. Admitting the disserving parts of the declaration, and excluding the self-serving parts seems the most realistic method adjusting admissibility to trustworthiness, where the serving and disserving parts can be served. ii. This is a fact intensive analysis: The case is remanded to determine what statements were or were not self-inculpatory and only allow those that were. e. Notes: i. The advisory committee is considering whether to change the rule to demand that the government supply additional corroboration of third-party statements against penal interest when offered against the accused. 1. This is specifically the statement at issue in this case. v. Problem 7.25 7.27 page 475. vi. 804(b)(3) vii. Dying Declarations: Focus on 804(b)(2) 1. Problems 7.28 page 478 2. Shepard v. United States, 290 U.S. 96 (1933) CARDOZO!!! a. Material Facts: The victim, while ill at home in her bed, stated that her husband had poisoned her, to her ultimate death. The defendant stated that this evidence was inadmissible but was allowed as a dying declaration over his objection. b. Issue: Should the statement be admitted? c. Holding: No. The statement should not have been admitted. d. Reasoning: i. In order for it to be a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death.

1. The record furnishes no proof of that indispensable condition. At the time of the statement there was no thought by any of her physicians that she was dangerously ill. 2. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. a. There must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in the hush of its impending presence. b. This is a state of mind that must not be left to conjecture. The patient must speak with a swift and certain doom. ii. What was said by this patient was not spoken in that mood. viii. 804(b)(2) a. Notes: Focus on 806 i. Testifying witnesses of course must be competent. The most basic competency is that non-expert witnesses must have personal knowledge of the facts they relate. (602). ii. Hearsay declarants must abide but the opinion evidence rules that govern lay witnesses. FRE 701. iii. Justice Cardozo most likely believed the declarant in this case violated both these principles. 1. Note: in Mahlandt, Sophie bit a child was arguably no better informed than the wife in this case, yet the court allowed it on the theory of this-is-war. a. 801(d)(2) relies on this notion, and we must all live with our words, establishing that it is outside the general rules of opinion and requiring first hand knowledge. 2. They are alike in the sense that rule 806 opens credibility of each of them to attack (or support).

a. The rule permits litigants to attack a hearsay declarants credibility by most of the techniques available against live witnesses. - Proof of bias - Contradiction by inconsistent statements - Contradiction by other evidence - Evidence of untruthful character, whether in the form of opinion or reputation under 608(a) or past convictions under 609. b. However, impeachment by evidence of specific acts suggesting untruthful character is unavailable because those hearsay declarants who do not testify cannot be cross-examined, and rule 608(b) specifically bars extrinsic evidence of specific acts showing untruthful character. iv. By its terms, Rule 806 extends to statements of spokespersons, agents, and coconspirators under Rule 801(d)(2)(C), (D), or (E). and it applies to hearsay admitted under Rule 803 or 804. v. Only when a partys own statement or adoption comes in against her under Rule 801(d)(2)(A) or (B) and when a live witnesss past words are admitted under Rule 801(d)(1) is there no provisions for an attack on the declarants credibility. vi. With regard to Rules 801(d)(2)(A) and (B), Rule 806 apparently contemplates that parties can attack their own credibility by taking the witness stand. vii. And with regard to Rule 801(d)(1), parties can attack the credibility of testifying witnesses in the normal fashion. 2. Bryan A. Liang, Shortcuts to Truth: The legal Mythology of Dying Declarations, 35 Am. Crim. L. Rev. 229, 237-43 (1998)


a. Science has shown that the primary cause of death in penetrating trauma victims is uncontrolled hemorrhage. This leads to hypoxia which negatively affects cognition. i. Mental functions degraded, particularly global functions [such as] intelligence, reasoning, and short-term memory. They can also result in delirium which can include delusions, usually persecutory, are often, but not invariably present. ii. Memory is impaired in all its key aspects, including mistaken identity can occur ix. 806 x. Forfeiture by Wrongdoing: Focus on 804(b)(6) 1. United States v. Gray, 405 F.3d 227 (4th Cir. 2005) a. Material Facts: Woman was indicted on mail fraud and wire fraud in connection with the deaths of her second husband and former paramour. There was evidence that had killed her first husband, second husband and paramour. She moved to remove several out of court statements made by her second husband during the three months preceding his murder as hearsay. b. Issue: Should these statements be admitted? c. Holding: Hell Yes. This woman is fucking crazy. d. Reasoning: i. The doctrine of forfeiture by wrongdoing allows such statements to be admitted where the defendants own misconduct rendered the declarant unavailable as a witness at trial. Rule 804(b)(6) codifies this common law doctrine of forfeiture by wrongdoing as an exception to the general rule barring admission of hearsay evidence. 1. In order to apply this doctrine the court must find, by the preponderance of the evidence, that a. (1) the defendant engaged or acquiesced in wrongdoing b. (2) that was intended to render the declarant unavailable as a witness and c. (3) that did, in fact, render the declarant unavailable as a witness.

ii. The test of Rule 804(b)(6) requires only that the defendant intend to render the declarant unavailable as a witness, not a witness at a particular trial, nor does it limit the subject matter of admissible statements to events distinct from the events at issue in the trial in which statements are offered. 1. Thus, rule 804(b)(6) applies whenever the defendants wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarants statements are offered. iii. The Advisory Committee noted its specific goal to implement a prophylactic rule to deal with abhorrent behavior which strikes at the very heart of the system of justice itself. 1. Federal courts, more generally, have recognized that the forfeiture-bywrongdoing exception is necessary to prevent wrongdoers from profiting by their misconduct. 2. It also applies to those who were potential witnesses, against a person involved in a conspiracy to silence a witness, any significant interference with declarants appearance as a witness, including the exercise of persuasion or control e. Notes: i. Some argued that the standard should be higher (at least clear and convincing) xi. 804(b)(6) e. Availability of Declarant Immaterial i. The committee suggests that hearsay admitted under rule 803 proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declaranteven though he may be available. 1. In other words, the hearsay is so good it makes live testimony superfluous.


a. Some are manifestly sensible: 803(6) and 803(8), where it is impractical to assemble every employee who participated in a routine transaction and the unlikelihood that such employees would falsify their records- often amply justify admission of properly kept business or public records in place of live testimony. i. Likewise, in the case of recorded recollections admissible under rule 803(5), it is easy to see how forgetful witnesss memorandum of something she once knew could be superior to her present hazy memory. ii. Present Sense Impressions and Excited Utterances: Focus on 803(1) & (2). 1. Problems 7.29-7.32 page 492. 2. 803(1) 3. 803(2) iii. Statements of Then-Existing Condition: Focus on 803(3) 1. Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892). a. Material facts: A woman brought suit against three life insurance companies on their refusal to pay out. The defendants argued that the man was not really dead. The alleged widow produced letters that showed her husbands intent to go to the place where he allegedly was buried. The defense sought to exclude the letters on the basis of hearsay. b. Issue: Should the letter have been admissible? c. Holding: Yes. d. Reasoning: The statements are admissible to show the state of mind and to show he was going to do certain acts with the husband. They were not provable by any other testimony, as the actual person who wrote the letters was unavailable to testify. e. Notes: i. Problems 7.33 page 498 2. 803(3) iv. Statements for Medical Diagnosis 1. Problem 7.34 page 510 2. United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) a. Material Facts: b. Issue: c. Holding:

d. Reasoning: e. Notes: 3. 803(4) 4. 803(5) 5. 612 v. Business Records 1. Palmer v. Hoffman, 318 U.S. 109 (1943) a. Material Facts: A railroad accident raised a case of negligence. After the accident, the engineer of the train, who died before trial, made a statement to his superiors. The defendants sought to introduce these statements because they were in the act of the business. The trial court denied the use of the statement since it was hearsay. b. Issue: Should the statement have been allowed into evidence? c. Holding: No. d. Reasoning: i. The fact that the company makes it a business to record its employees versions of their accidents does not put those statements in the class of records made in the regular course of business within the meaning of the act. ii. These reports are calculated for use essentially in the court, not in the business their primary utility is in litigating, not in railroading. e. Notes: i. See problem 7.39 on page 535. ii. We look to the sincerity of the evidence we dont want things prepared for litigation to circumvent the hearsay rules. 2. United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999) a. Material Facts: Defendant used Money Orders to pay his partner in another state, for his help in a marijuana and steroid ring. At trial, the money orders were allowed for all purposes, including for their truth. Defendant appealed their use as inadmissible hearsay. b. Issue: Are these money orders hearsay? c. Holding: Yes. d. Reasoning:


i. Under 803(6), despite its language, the business records exception does not embrace statements contained within a business record that were may by one who is not a part of the business if the embraced statements are offered for their truth. ii. Even the two slips of paper that were found in the senders van, which could have enough circumstantial evidence to prove it was an admission, it did not have an opportunity to be argued. e. Notes: i. The court notes that some cases have allowed these types of business transaction receipts to be used where the business used a procedure to identify to person using the business. 1. This takes some legal argument work toward circumstantial evidence of identity that goes beyond just using a name to establish identity. ii. The person who gave the evidence didnt have the safeguards as someone who worked for the business the defendant did not work for them. iii. The idea is that we relax 602 to make it easier to get this information in it isnt practical to have every business person writing down everything, all the time. 3. 803(6) a. Made at/near the time of activity [recollection] b. By someone with knowledge c. In the course of regularly conducted activity i. Making report was regular practice d. Custodian/qualified witness testifies or certifies i. Only need knowledge about the record keeping practice e. Non indication of lack of trustworthiness in source or preparation. f. There is a motivation to be accurate given if you mess up you can be fired [sincerity] 4. 803(7) vi. Public Records and Reports

1. Beech Aircraf t Corp. v. Rainey, 488 U.S. 153 (1988) a. Material Facts: Two pilots performing a touch and go maneuver crashed and burned. The spouses filed suit against the plane manufacturer for a defect of some kind. The defendant introduced evidence of an expert, a JAG report, which stated in his opinion the crash was due to the pilots own error. The plaintiffs ought to exclude this evidence as inadmissible hearsay. b. Issue: Does FRE 803(8)(c), which provides an exception to the hearsay rule for public investigatory reports containing factual finding, extends to conclusions and opinions contained in such reports. c. Holding: Yes. d. Reasoning: i. It is not apparent that the term factual findings should be read to mean simply facts as opposed to opinions or conclusions. 1. The definition of finding of fact is [a] conclusion by way of reasonable inference form the evidence. ii. The language of the rule does not state that factual findings are admissible, but that reportssetting forthfactual findings are admissible. 1. The language does not create a distinction between fact and opinion contained in such reports. iii. The house and senate committee disagreed to this use, but the senates committee report is more accord with the writing of the rule iv. The provision for escape is contained in the final clause of the Rule: evaluative reports are admissible unless the sources of information or other circumstances indicate lack of trustworthiness. 1. This safeguard applies to all elements of a report, and thus, the trial judge in his discretion to disallow such evidence based on its trustworthiness 2. Rather than requiring that we draw some arbitrary line between the various shades of fact/opinion that invariably will be present

in investigatory reports, we believe the Rule instructs us as its plan language states to admit reportssetting forthfactual finding. a. The rules limitations and safeguards lie elsewhere: - First, the requirement that reports contain factual findings bars the admission of statements not based on factual investigation - Second, the trustworthiness provision requires the court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted. v. This broad interpretation is accord with the FREs general approach of relaxing the traditional barriers to opinion testimony. See FRE 702-705. vi. As long as the conclusion is based on a factual investigation and satisfies the Rules trustworthiness requirement, it should be admissible along with other portions of the report. e. Notes: i. Factors: 1. Timeliness of investigation 2. Special skill or experience of official 3. Whether a hearing was held and the level at which conducted 4. Motive/bias of investigator 2. 803(8) a. No knowledge or temporal requirements. b. Legal authority requirement c. Public offices d. Lack of trustworthiness safeguard e. Assumption that public official will do their job properly [sincerity] f. Presumed contemporaneity [recollection]

g. Exception for criminal cases i. Worry of bias, confrontation rights we want cross examination. 3. 803(10) vii. 803(21) f. Residual Exception i. Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961) 1. Material Facts: A clock tower for a courthouse broke and fell through the building causing $100,000.00 in damage. Many people had seen it struck by a bolt of lightning which they believed caused the accident. The insurers disagreed, stating that it was due to a fire many, many years ago which damaged the integrity of the building. The insurers brought proof through a newspaper article which the plaintiffs argued was inadmissible hearsay. 2. Issue: Is evidence in a newspaper admissible to show that the Courthouse was damaged by fire in 1901? 3. Holding: Yes. 4. Reasoning: a. Of course, a newspaper article is hearsay, and in almost all circumstances is inadmissible. Howeverall too often, primary evidence is not available and courts and lawyers must rely on secondary evidence. b. Exceptions to hearsay come because of necessity and trustworthiness. i. Necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof. 1. Since the fire took place more than 50 years before this case, anyone still alive to have seen it would have a great deal of trouble properly remembering the facts thus necessity is satisfied. ii. There are three sets of circumstances where hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross examination. 1. Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed;

2. Where, even though a desire to falsify might present itself, other considerations would counteract its force; 3. Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected. c. There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence. i. The usual dangers inherent in hearsay are not present here. d. We hold, that in matters of local interest, when the fact in question is of such a public nature it would be generally known throughout the community, and when the questioned fact occurred so long ago that the testimony of an eye-witness would probably be less trustworthy than a contemporary newspaper account, a federal courtmay relax the exclusionary rules to the extent of admitting the newspaper article in evidence. i. It is admissible because it is necessary and trustworthy, relevant and material, and its admission is within the trial judges exercise of discretion in holding the hearing within reasonable bounds. 5. Notes: a. Ancient Documents Exception: After a long period of time, ordinary evidence regarding signatures or handwriting is virtually unavailable, and it is therefore permissible to resort to circumstantial evidence. b. Very rarely used exception, or should be rarely used. ii. United States v. Laster, 258 F.3d 525 (6th Cir. 2001) 1. Material Facts: Defendant was caught with meth. He had purchased a component of meth using his employers business name. The plaintiff sought to bring in evidence of these transactions. The defendants objected. 2. Issue: Are these invoices admissible hearsay 3. Holding: Yes. 4. Reasoning: a. FRE 807 finds an equally trustworthy statement not specifically covered by rule 803 or 804 admissible if it is

material, more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and its admission best serves the interests of justice. i. If hearsay is allowed under one exception, it should be relied on instead of the residual exception. 1. Thus a hearsay statement analysis should not end when a statement fails to qualify under a traditional hearsay exception, but should be evaluated under the residual hearsay exception. b. Even though the witness was not familiar with the recordkeeping system of the business, rendering the evidence inadmissible under 803(6), it is still admissible under 807. c. The evidence is reliable. We should give judges discretion as justice needs. 5. Notes: a. Dissent: i. This rule is meant for evidence not considered by the rules. iii. 807 1. Not specifically covered by 803 or 804 2. Equivalent circumstantial guarantees of trustworthiness 3. Evidence of material fact 4. More probative than reasonably obtainable evidence 5. Admission serves rules purposes and justice 6. Rationale a. If it is trustworthy and necessary i. It is probative and material, we dont want to lose evidence of this kind it must at least minimize one of the hearsay reliability rules. X. The Confrontation Clause a. Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been to be confronted with the witnesses against him; b. The constitution is a higher law than the FRE, but not necessarily a stricter law. The stricter law trumps. i. Evidence permitted by the rules of evidence but forbidden by the confrontation clause must stay out.


ii. Evidence permitted by the confrontation clause by excluded by the FRE also must stay out. 1. Note: FRE has no force in state law unless adopted by the state law, while the confrontation clause applies in both state and federal courts. c. California v. Green, 399 U.S. 149 (1970) i. If the declarant is present, testifies at trial, and responds to questions about the previous hearsay statement, the out-of-court statement for all practical purposes regains most of the lost protections of in-court testimony. The Confrontation Clause therefore does not bar admission of the out-of-court if the statement was made under oath and subject to cross-examination ii. If the prosecutor has made every effort to produce the declarant, but the declarant proves unavailable, and if the out-of-court statement was made under oath and subject to cross-examination, the Confrontation Clause does not bar its admission. d. Crawford v. Washington, 541 U.S. 36 (2004) i. Material Facts: Defendant sought to exclude his wifes interrogation statements made to police officers after he was arrested for attempted murder with a deadly weapon. The wife was unavailable due to maritalprivilege. Defendant argues that the statements cannot be allowed since it violates the sixth amendment constitutional right to be confronted with the witnesses against him. ii. Issue: Is allowing this out-of-court statement of his wife, an unavailable witness, against the constitutions confrontation clause? iii. Holding: Yes. iv. Reasoning: 1. Interrogations by law enforcement officers fall squarely within the protected class of evidence protected by the confrontation clause 2. Testimonial statements of a witness are not admitted by those who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. v. Notes: 1. Left many questions open: a. What is testimony? b. What is interrogation? c. Etc. e. Post-Crawford Confrontation Case law i. In the eight years since this decision, the S.C. has decided eight cases addressing questions that it left open. 1. Davis v. Washington/Hammon v. Indiana, 547 U.S. 813 (2006)

a. To assess whether statements made during police interrogation are testimonial, trial courts should apply a primary-purpose test distinguishing between statements aimed primarily to assist a criminal investigation and those aimed primarily to resolve an ongoing emergency. 2. Whorton v. Bockting, 549 U.S. 406 (2007) a. The Confrontation Clause offers no protection against admission of nontestimonial statements, even if unreliable. 3. Giles v. California, 554 U.S. 353 (2008) a. A defendants wrongful conduct forfeits his confrontation right only if that conduct made a witness unavailable and the accused intended to prevent the witnesss trial testimony. 4. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) a. A state lab technicians sworn statement declaring a substance the defendant possessed to be cocaine is testimonial and therefore inadmissible absent testimony by the certifying chemist. 5. Michigan v. Bryant, 131 S. Ct. 1143 (2011) a. A dying gunshot victims answers to police questions about who shot him were not testimonial because the gunmans unknown motives, intentions, and location created an ongoing emergency. 6. Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) a. An analysis of the defendants blood alcohol content certified by an absent state lab technician is testimonial and inadmissible even though another technician testified about the procedures followed and equipment used in such analysis. 7. Williams v. Illinois, 132 S. Ct. 2221 (June 18, 2012) a. Testimony by an expert witness that relies heavily on the laboratory report of an absent technician does not violate the Confrontation Clause at least when the author of the underlying report did not know if the reported results would aid the prosecution. f. Giles v. California: Case Note i. A defendants wrongful forfeits his confrontation right only if that conduct made a witness unavailable and the accused intended to prevent the witnesss trial testimony.


1. Like 804(b)(6), this requires a showing that the defendant acted with the purpose of preventing the declarant from testifying. 2. In this case, they interpreted the narrow rule very broadly g. See problem 8.1 on Supp. Page 512 h. Michigan v. Bryant, 131 S. Ct. 1143 (2011) i. Material Facts: A man was shot through the abdomen. Upon finding him, the police asked him who shot him and the victim responded that it was the defendant. The victim later died at a hospital. The prosecutor sought to include this information at trial since the questioning was part of an ongoing emergency. The defense appealed. ii. Issue: Are the victims statements admissible under an ongoing emergency exception or barred by the confrontation clause? iii. Holding: The statements are admissible under the ongoing emergency exception. iv. Reasoning: 1. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the investigation is to enable police assistance to meet an ongoing emergency. a. Primary purpose is determined objectively by the circumstances in which the encounter occurs and the statements and actions of the parties. i. Objective in where the encounter occurs ii. The statements and actions are also objectively evaluated 1. The purpose that reasonable participants would have had, as ascertained from the individuals statements and actions and the circumstances in which the encounter occurred. iii. Ongoing Emergency, not unlike FRE 803(2), is considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. 1. This is highly context-dependent inquiry and does not stop when the continuing threat is stopped as to the victims the threat to the first responders and public may continue. a. We must consider the type of weapon used, the medical condition of the victim is also important in that

it sheds light on the victims purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. b. This is not to say that that all statements made while the perpetrator is on the loose is part of an ongoing emergency conversations that begin as an interrogation can evolve into testimonial statements. - i.e., the perpetrator is disarmed, surrenders, is apprehended, or flees with little prospect of posing a threat to the public. Testimonial statements must be excluded. b. The primary purpose will also be, and is most likely, ascertained from looking to the contents of both the questions and the answers. i. A combined approach will help with the fact that police officers often have dual motives as first responders and investigators. ii. The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim circumstances that prominently include the victims physical state. 2. Because the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, Covingtons identification and description of the shooter and the location of the shooting was not testimonial hearsay. The confrontation clause did not bar their admission at Bryants trial. v. Notes:


1. Statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. 2. Ongoing emergency test v. testimonial statement to establish past events a. How do we determine what an ongoing investigation is? i. We look at context: 1. Duration and scope of emergency 2. Victims medical state b. Primary Purpose Test i. Assess objectively 1. Circumstances of encounter 2. Statements and actions of declarant and interrogator a. This is a reasonable person standard ii. Note: The interrogator and declarant may have mixed motives 3. Was there an ongoing emergency in occurrence here? a. Yes. 4. What about Hammon? a. This is a domestic violence line drawn b. In Bryant we did not know what the danger is to other people i. Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) i. Material Facts: Defendant was arrested for a DWI and later subject to a blood-alcohol test which showed he was well above the legal threshold. At court the prosecution presented an analyst, who did not personally perform the test or sign the certification of the test, but another analyst familiar with the labs testing procedures. The prosecutor sought to include the evidence as business record. The actual analyst was put on unpaid leave for an unknown reason. ii. Issue: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification made for the purpose of proving a particular fact through the in court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. iii. Holding: The Confrontation Clause does not allow the testimony of the an analyst who did not make the certification. 1. The accused right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the

accused had an opportunity, pretrial, to cross-examine that particular scientist. iv. Reasoning: 1. The analysts certification is more than a reported machinegenerated number he certified that he received the blood sample intact, to make sure the numbers corresponded to the right sample, and adhered to other precise protocols. These representations, relating to past events and human actions are not revealed in raw, machine-produced data, are meet for cross examination. a. Razatos was not equipped to give testimony that could convey what Caylor knew or observed about the events his certification concerned. i. i.e. the particular test and testing process he employed. 2. A document created solely for an evidentiary purpose, made in aid of a police investigation, ranks as testimonial. 3. The constitutional requirement may not be disregarded based on the argument that it would impose an undue burden on the prosecution. a. DWI cases are a very small fraction of cases that go to trial, so undue burden is a ridiculous argument. v. Notes: j. Williams v. Illinois: Case Note i. Material Facts: The victim was abducted, robbed and raped. A doctor took a vaginal swab sample, found semen and ran a test matching the DNA to Sandy Williams on a database. At trial, an expert testified based her opinion in part on the missing technicians report, only to assist the jury in assessing the reliability of the experts methods and opinions, not for the truth of those reports. ii. Issue: If the prosecutors expert witness relied on out-of-court statements by an absent technician not offered (in theory) for their truth, did admission of the experts opinion against the defendant violate his right to confront his accusers? iii. Holding: The evidence is admissible. iv. Reasoning: 1. The statements in the report were not offered for their truth a. Expert testimony about evidence, ordinarily not admissible, is admissible where the experts in the same field reasonably rely on such evidence.


i. The underlying evidence may not be revealed to the jury, which hears only the experts conclusions reached on the evidence. ii. If the evidence is revealed, the judge should give a limiting instruction where the jury should only consider the experts methods and conclusions. 2. The statements in the report were not testimonial a. They were part of an ongoing emergency b. They had no inculpatory, prosecutorial purpose i. There is nothing inherently inculpatory about the results of a DNA analysis of a rapists semen when no suspect is in view. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world. ii. The analysts apparently had no idea what result prosecutors hoped to see. The analyst can operate behind a veal of ignorance. v. Notes: 1. The plurality emphasized that the trial judge sat alone, and a jury might fail to limit the experts testimony to methods and conclusions. 2. The dissent strongly disagreed, stating that it was impossible to remove the truth of the underlying evidence in assessing the validity of the experts conclusions. a. The result should be the same as Bullcoming: Neither expert took part in the tests and neither authored the contested scientific reports. b. Moreover, devastating evidence of a on-in-billions match may trace to a human error renders it worthless. We should allow cross-examination of the tester to determine if such human error occurred. k. Class Notes: i. When are testimonial statements admissible against criminal defendants? 1. Declarant appears for cross-examination at trial 2. Declarant is unavailable and defendant had prior opportunity to cross-examine 3. Purpose other than establishing truth of matter asserted ii. What is a testimonial statement?


1. Primary purpose is to establish/prove past events potentially relevant to later criminal prosecution not to meet an ongoing emergency XI. Opinion Testimony a. Lay Opinions i. Rule 701 is broad enough to allow for lay witnesses two categories of traditional lay opinions, and in some respects, a great deal more 1. Inferences that resist reduction to fundamental facts a. These are those that cannot be stated in the form of sensory perceptions alone. i. In its note to the 200 amendment to Rule 701, the advisory committee lists prototypical examples[s] of this sort of opinion evidence: the appearance of persons ot things, the manner of conduct, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. ii. Courts generally leave lay witnesses free to speak in ordinary language unbewildered by admonition from the judge to testify to the facts 1. i.e., he looked furious, spoke loudly, or that a package weighed about 40 pounds. 2. Opinions that can be reduced to more fundamental facts but still gain from inference a. Most judges allow lay witnesses to opine on drunkenness, since we all know what that looks like. However, many lawyers and judges will demand that they lay a foundation for this assertion(i.e., they had bloodshot eyes, staggered, and smelled of alcohol) i. These foundational facts may be especially important if the drunkenness goes to the heart of the offense charged. b. This also includes identifying strangers by height, weight, color, etc. These foundations are usually followed up by the familiar question do you see the man in the court room today? 3. Rule 701 a. The rule imposes only three constraints


i. 701(a) demands, first, that a lay witnesss opinions be rationally based on her perception hence simply reaffirming the first-hand knowledge requirement of rule 602. ii. 701(b) requires lay opinions be helpful to the jurys fact finding 1. Most opinions that convey reliable and material information (beyond what the jurors already know) clear this second hurdle. iii. 701(c) commands that a lay witness not invade the experts realm this line remains blurry. ii. United States v. Gainer, 468 F.3d 920 (6th Cir. 2006) 1. Material Facts: Defendant was accused of interfering with an ongoing investigation by having his own, and his staffs, computer files deleted within a specific time period. The prosecutor attempted to have a witness testify that the deletions occurred with the intent of having specific files in connection with the investigation deleted. The defendant argued that this was expert testimony which required a FRCP 16(a)(1)(G) written summary before having such witness testify. 2. Issue: Is this computer analyst giving expert testimony? 3. Holding: Yes. 4. Reasoning: a. The forensic tests used were more akin to specialized medical tests, the interpretation similar to that police officers use to explain slang and code words. b. The testimony is only admissible as lay opinion when the person is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred. c. Thus, the testimony as to what was deleted, why and how is expert testimony if offered by someone who did not have direct knowledge of what was going on. 5. Notes: a. The advisory committee note to the 200 amendment suggested that while lay witness may not offer an opinion base on specialized knowledge, the witness occasionally may do so based on the witnesss particularized knowledge, gained by virtue of his or her position in a business. (i.e.,

most courts have permitted the owner of officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. b. Many courts have struggled with this distinction, some giving more or less leeway. This includes concentrating on the fact that the owner of his business knows about his business and an owner of his home knows the value of his home this is not specialized knowledge in the scope of FRE 702. c. Thus, this particularized knowledge may be exclusive to that witness and yet not be the sort of specialized knowledge that falls under 702 Thus, the expert in this last case is more like an expert home appraiser. iii. FRE 701: Opinion Testimony by Lay Witnesses b. Expert Opinions i. Five Demands the law places on expert opinion testimony: 1. Proper Qualifications (Rule 702) 2. Proper Topic (702 and 704) a. The experts opinion must concern a topic that is beyond the ken of jurors and must assist the jurors by supplying information or insights they otherwise would lack. 3. Sufficient Basis (Rule 702 and 703) a. Must have an adequate factual basis for her opinions 4. Relevant and Reliable Methods (702) a. The experts testimony must be the product of reliable principles and methods reliably applied ot the facts of the case 5. Rule 403 Challenge a. It must survive a 403 weighing test if challenged. ii. Who Qualifies as an Expert 1. The advisory Committees Note to the 2000 amendment to rule 701 suggest a lay witness may testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. 2. United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978) a. Material Facts: An witness was called to determine if a certain amount of marijuana was actually from one country or the other. The defense objected in that he was not an


expert. The lower court allowed the testimony based on his related experience with marijuana, which was extensive. b. Issue: Is this expert testimony? c. Holding: Yes. d. Reasoning: i. Rule 702 states that expertise can be gathered from experience as well as from formal training or education. ii. The defendant is free to bring his own expert to rebut another experts testimony iii. For expert testimony, two elements must be satisfied 1. The subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the knowledge of the average laymen, and 2. The witness must have such knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth. a. This witness satisfies both requirements. His experience actually dealt with identifying different countries marijuana. e. Notes: 3. Jinro American, Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001) a. Material Facts: Defense brought a witness to testify to the general propensity of Korean companies to engage in fraudulent activities. Although he had lived in Korea for twelve years, was married to a Korean, had heard about many businesses taking part in these fraudulent activities through newspapers and his staff, he did not have any direct knowledge of the company in question in trial. b. Issue: Is this expert testimony? c. Holding: No. d. Reasoning:


i. He cit no research or study, nor any empirical data, and had made only generalized, anecdotal references to his personal experience ii. He came before the jury cloaked with the mantel of an expert which allowed him to 1. Testify based on hearsay information, and couch his observations as generalized opinions rather than as first-hand knowledge of the company in question and its activities in particular and 2. The opinion of a purported expert on Korean business practices and culture, his statements were likely to carry special weight with the jury. a. For these reasons, a proffered witness truly qualifies as an expert if he meets the requirements under 702 this witnesss qualifications were glaringly inadequate, amounting to little more than the limited perspective of a professional investigator whose work experience had exposed him to instances of corrupt business behavior he did not have any expertise to determine if the company at issue had any fraud to their transaction, no education or training as a cultural expert, sociologist. - He offered his generalizations about Korean businesses based on his personal investigative experience, his hobby of studying Korean business practices, unspecified input from his staff and his marriage to a Korean woman hardly an foundation for expertise.

- Moreover, he only gave a few specific examples, which were clearly hearsay (the newspaper and from his employees). e. Notes: i. Concurring Opinion: He should be considered an expert, given his extensive experience living and dealing with Korean culture. However, his testimony was irrelevant and prejudicial since it was guilty by association. c. Improper Topics of Expert Testimony i. Matters of Common Knowledge 1. Problems page 700 703 ii. Opinions on Law and Opinions on Ultimate Issues 1. Problems703 704 2. Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992) a. Material Facts: A police officer hit a man during his arrest causing serious injury. An expert professor on law enforcement. He testified that the injury sustained would constitute deadly force which was unjustified during the circumstances. The police officer appealed, on the grounds that this testimony was the very issue in which the jury was to decide, not the expert. b. Issue: Is the expert testimony excluded under Rule 704? c. Holding: Yes, but it was harmless in this case d. Reasoning: i. 704(a) allows testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. ii. The advisory committees note states that it has not lowered the bars so as to admit all opinions. 1. Under rules 701 and 702, opinions must be helpful to the trier of fact, and rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would

merely tell the jury what result to reach, somewhat in manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. iii. Even if a jury were not misled into adopting outright a legal conclusion proffered by an expert witness, the testimony would remain objectionable by communicating a legal standard explicit or implicit- to the jury. 1. Wigmore: We do not want the jury to think that the expert knows more about the law than the judge. iv. Here, the experts testimony merely told the jury what result to reach by saying that the actions were improper. e. Notes: iii. Opinions on Credibility 1. Problem 9.11 page 707 - 709 2. State v. Batangan, 71 Haw. 552 (1990) a. Material Facts: Expert provided testimony that stated he found the complainants (a child) accusation that her father sexually abused her. The defendant sought to have this testimony inadmissible. b. Issue: Is the testimony admissible as expert testimony? c. Holding: No. d. Reasoning: i. Conclusory opinions that abuse did occur and that the child victims report of abuse is truthful and believable is of no assistance to the jury and should not be admitted. ii. 704 allows testimony in the form of opinion or inference even though it embraces an ultimate issue to be decided by the trier of fact but rule 704 does not allow the admission of opinions which would merely tell the jury what result to reach. iii. Expert testimony in a case like this on who to believe is nothing more than advice to jurors on how to decide the case. Where the effect of the

experts opinion is the same as directly opining on the truthfulness of the complaining witness, such testimony invades the province of the jury. e. Notes: i. Our confidence in jurors to be able to tell who is lying and who is not is probably wrong. Most evidence suggests that jurors have no particular talent for spotting lies. However, how do we know that a particular expert is any better than the average juror at assessing the credibility of strangers. iv. Opinions on Eyewitnesses Identification 1. United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) a. Material Facts: A robbery took place and an eye witness was asked to pick a man out of a set of photos. She picked the darkest man after much deliberation. At trial an expert was called who specialized in crossracial identification, stating that it was incredibly difficult for any witness to do. The prosecution sought to dismiss his testimony. b. Issue: Should this expert testimony be allowed? c. Holding: Yes. d. Reasoning: i. The testimony only helped the jurors. He gave them information in which to make a decision on their own and this information simply helped them understand that even their own confidence in identifying a person may be misplaced ii. Moreover, the science does not predict whether this particular witness is accurate or mistaken. e. Notes: v. FRE 702: Testimony by Expert Witnesses vi. FRE 704: Opinion on an Ultimate Issue d. Proper Bases of Opinion Testimony i. Introduction 1. Two things distinguish expert opinions from lay opinions a. The back ground knowledge that informs them b. The specific facts on they rest 2. Only expert opinions may draw upon the witnesss scientific, technical, or other specialized knowledge. Rule 701(c) bars

lay witnesses from straying into these higher realms of testimony a. Lay opinions must be based on [facts within] the perception of the witness. Rule 701(a) b. Rule 602 (personal knowledge) explicitly states that this rule is subject to rule 703 provisions relating to expert testimony. 3. An expert, like a lay witness, may testify based on facts she personally observed 4. The expert may rely on facts or data in the case that the expert has been made aware a. Only if the expert would reasonably rely on those kinds of facts or data in forming an opinion on the subject. i. Lawyers will often resort to hypothetical questions in order to get the experts opinion on those facts 1. Note: The lawyer cannot just make up the facts; there must be enough to support a finding that the necessary facts exist this standard is similar to conditional relevance Rule 104(b) an experts opinion, based on certain assumptions, has no relevance if those assumptions are false. a. 104(b) has a low standard allowing lawyers to pose competing hypotheses. 5. Experts may rely on otherwise inadmissible statements (i.e. hearsay) so long as that expert reasonably would rely on these statements to form their opinion. a. The expert may not act as a conduit, transmitting otherwise inadmissible statements to the jury b. A lawyer, on cross, may seek to undermine the experts opinion by asking her about the underlying facts (See Rule 705). c. The expert witness may not disclose the otherwise inadmissible facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. (Rule 703)

i. This is a reverse 403 weighing test that creates a presumption against disclosure to the jury of the underlying hearsay by the proponent of the expert ii. Even if this hearsay is allowed to go to the jury, the judge should give limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. 1. Rule 703 thus completely disengages the admissibility of the experts opinion from the admissibility of the facts supporting it as long as the expert follows the rules. ii. Learned Treatises and Medical Statements 1. Under Rule 803(18), an experts reliance on a learned treatise during direct examination or her acknowledgment of it on cross-examination dissolves any hearsay objection to pertinent parts of the book. a. The rule extends broadly to published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art. i. The proponent must establish the authority of the treatise either through the expert herself or by other expert testimony or by judicial notice. 2. Rule 803(4) renders statements made for purposes of medical diagnosis or treatment substantively admissible. a. This rule applies even if the patient speaks with her doctor not to obtain medical treatment, but only to enable the doctor to form a diagnosis and testify about that diagnosis at an upcoming trial (See ACN to FRE 803(4)) i. The expert does not have to rely upon the outof-court statements 1. The experts reliance on the hearsay supplies one rationale for the rule: Life and death decisions are made by physicians in reliance on [their patients statements] and as such [those statements] should have sufficient

trustworthiness to be admissible in a court of law. See United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980). iii. Problem 9.12 & 9.13 pages 721 722 iv. FRE 703: Basis of an Experts Opinion Testimony v. FRE 705: Disclosing the Facts or Data Underlying an Experts Opinion vi. Daubert & Expert Scientific Testimony 1. Assessing the Reliability of Expert Scientific Testimony a. The Doctrine i. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) 1. While courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, 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. 2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) a. Material Facts: Experts were provided by both parties to determine whether a drug used during pregnancy could lead to defects. The court of appeals dismissed expert testimony of petitioners relying solely on the Frye standard. Petitioners appealed to the Supreme Court on the basis that the Frye standard had been overruled by Rule 702. b. Issue: What is the standard for admitting expert scientific testimony in a federal trial? c. Holding: Rule 702 overrules the general acceptance standard of Frye. d. Reasoning: i. Rule 702 overrules Frye. The drafting history makes no mention of Frye, and a rigid general acceptance requirement would be at odds with the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony. ii. However, a judge in screening expert testimony must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

iii. In order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation i.e., good grounds, based on what is known 1. The requirement that an experts testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. iv. Rule 702 also deals with relevance: Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful. 1. Rule 702s helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. v. The trial judge must determine at the outset, pursuant to rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. 1. A key question to be answered is if the theory or technique has been tested. 2. Has it been subjected to peer review and publication 3. Consider the rate of error 4. The existence and maintenance of standards controlling the techniques operation 5. A reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community. a. Note: This inquiry is a flexible one. b. Note: The trial judge should be mindful of other rules 703, 706, and 403 for example. e. Notes: i. Majority rebuts the argument that this will create a free-for-all. This only shows a overly pessimistic



opinion of the capabilities of the judge, jurors and the adversary system generally. ii. Difference between legal truth and scientific search for truth. iii. Dissent: 1. This causes even more confusion the court did not go far enough in defining what is and what isnt technical or specialized knowledge? Do these requirements extend to these fields as well? iv. To be admissible, expert scientific testimony must be both reliable and relevant as the Daubert Court defines those terms. 3. The Daubert Trilogy a. Part II: General Electric Company v. Joiner 552 U.S. 136 (1997), held that appellate courts are to review lower-court ruling on the admissibility of expert testimony under Daubert only for abuse of discretion. b. Part III: Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999), extended Dauberts holding to all expert testimony, not merely scientific expertise. 4. Dauberts Aftermath a. While Daubert was intended to be more liberal, it has resulted in a gatekeeper effect of trial judges to dismiss junk science the effect has been that the bar for allowing scientific testimony is now higher. i. Challenges against scientific knowledge have prevailed more often than before this case. b. Daubert, F.3d 1311 (9th Cir.) (1995) i. Applying the Daubert analysis on remand, the court sarcastically reached the same conclusion. They noted over and again how they were not in the best position to properly determine what proper science is and what is not. Authentication and Best Evidence a. Authentication and Identification i. The problem of authentication is a simple question of is the exhibit what its proponent says it is?


ii. Rule 901(a) declares that the requirement of authenticationis satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 1. The rule embraces rule 104(b) authentication is in fact a matter of conditional relevance 2. Hence, authentication demands that the proponent produce sufficient evidence that the jury could reasonably fineby a preponderance of the evidence that the exhibit is what its proponent claims. a. Using examples listed or any other method, the question will be whether she offered sufficient [evidence] to support a finding that the evidence is what she says it is. i. Note: Even if this is proven, the evidence may still be rebutted by the opponent claiming it contains hearsay or improper opinion evidence or that it risks unfair prejudice. And even after the court admits the evidence, the opponent is still free to contest authenticity before the jury, and the jury remains free to reject the exhibit as a fraud. iii. Rule 902 designates several categories of documents as selfauthenticating. The rule rests on the theory that when a document meets the conditions of one of these categories, practical considerations reduce the possibility of unauthenticity to a very small dimension. a. These are admissible as prima facie genuine. (CAN to FRE 901). Still, in no instance is the opposite party foreclosed from disputing authenticity. (CAN to FRE 902). iv. Proof of Chain of Custody 1. By far the most common authentication technique for drugs or other fungible evidence is proof of chain of custody. a. Proof of a perfect chain of custody requires testimony by each person who had custody of the item from the moment it was seized from the defendant until its delivery to the courtroom. b. Note: Chain of custody need not be perfect, only good enough to support a finding that the matter in question is what its proponent claims. i. The absence of one or more of the exhibits custodians will not always- or even usually keep out the evidence.

ii. The usual slogan is that as long as the chain is strong enough to satisfy Rule 901(a), any defect goes to weigh, not admissibility. c. Normally, a chain of custody is good enough if it supports a finding that the item in question is the same item and is in substantially the same condition. i. In the end, the judge must decide case by case whether the chain of custody is sufficiently complete to satisfy Rule 901(a)s standard in context at hand. v. Documents 1. Problem 10.1 and 10.2 pages 808 810 2. United States v. Stelmokas, 100 F.3d 302 (3d Cir. 1996) a. Material Facts: A naturalized citizen is on trial to have his citizenship revoked due to several atrocities he committed during the holocaust. The defendant sought to exclude certain documents since the government could not establish the chain of custody and authenticity of the documents. b. Issue: Are these documents admissible based on the standard set forth in FRE 901? c. Holding: Yes. d. Reasoning: i. Ancient documents are admissible into evidence as an exception (FRE 803(16)) ii. Rule 901(b)(8) provides that authentication of an ancient document may be supplied by a demonstration that a document is in such condition as to create no suspicion concerning its authenticity, was in a place where, if authentic, it likely would be, and has been in existence 20 years or more at the time it is offered. iii. Here, there is no suspicion since the defendant was not a prominent figure and there is absolutely no evidence of anyone hatching such an incredible plan to forge these documents. Also, an expert testified to their authenticity. e. Notes: i. Problem 10.3 on page 814. vi. Phone Calls 1. Problem 10.4 on page 815

2. State v. Small, 2007 Ohio 6771 (2007) a. Material Facts: Defendant on trial for murder appeals that a telephone conversation he had was inadmissible hearsay. The appeals court noted that it would be admissible as a party opponent admission under FRE 801(d)(2)(A) as long as it passed the threshold rule of 901. b. Issue: Is the telephone conversation admissible under the exception for hearsay under 801 because it passes the standard posed by Rule 901? c. Holding: Yes. d. Reasoning: i. Several methods exist for authenticating a telephone conversation 1. Evidence that a call was made to the number the telephone company assigned at that time to a particular person can satisfy the authentication requirement. FRE 901(b)(6) 2. Voice identification under FRE 901(b)(5) 3. 901(b)(4) relies upon distinctive characteristics and contemplates that a caller may be identified because only he could utter the speech under the circumstances a. Even so, the party seeking admission must produce direct and circumstantial evidence which reasonably identifies the defendant as a party to a telephone conversation. - The contents of the conversation, the characteristics of the speech itself, or the circumstances of the call, must render it improbable that the caller could be anyone other than the person the proponent claims him to be. 4. Here, the name, the accent, the contents of the speech all render that it was improbable


that it was anyone else on the phone call besides the defendant. 5. Thus, the states evidence authenticates defendant as the person on the phone and the contents of that phone call as party opponent admissions are admissible. e. Notes: vii. Photographs 1. Simms v. Dixon, 291 A.2d 184 (D.C. App. 1972) a. Material Facts: A car collision resulted in irreconcilable differences as to how it happened between opposing parties. The appellant sought to introduce six photographs of her automobile after the accident at trial. The trial court denied this request on the basis that the photographer could not be cross examined. b. Issue: Should the photos have been admissible at trial? c. Holding: Yes. d. Reasoning: i. The prime condition on admissibility is that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by such a witness on personal knowledge as a correct representation of these facts. The witness who thus lays the foundation need not be the photographer no need the witness know anything of the time or conditions of the taking. It is the facts represented, the scene or the object, that he must know about, and when this knowledge is shown, he can say whether the photograph correctly portrays these facts. ii. The trial court examined the photographs but made no finding that they did not accurately represent the relevant facts or that he had some question as to their accuracy. e. Notes: i. Problems 10.5 and 10.6 pages 820 821 2. Wagner v. State, 707 So.2d 827 (Fla. Ct. App. 1998) a. The silent witness theory, photographic evidence may be admitted upon proof of the reliability of the process which produced the photograph or videotape even if no human

is capable of swearing that he personally perceived what a photograph purports to portray (so it is impossible to satisfy the pictorial testimony rationale) there may nevertheless be good warrant for receiving the photograph in evidence. b. Relevant photographic evidence may be admitted into evidence on the silent witness theory when the trial judge determines it to be reliable, after having considered the following: i. The evidence establishing the time and date of the photographic evidence ii. Any evidence of editing or tampering iii. The operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product iv. The procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and v. Testimony identifying the relevant participants depicted in the photographic evidence viii. FRE 901: Authentication or Identifying Evidence ix. FRE 902: Evidence that is Self-Authenticating b. The Best Evidence Rule i. Introduction 1. The system presumes that most litigants will want to produce the most compelling evidence they can 2. As embodied in Rule 1002, the best evidence rule applies only to writings, recordings, or photographs all as defined by rule 1001. a. The belief behind the rule is that when a litigant provides the previous forms of evidence, they will do so in the most precise form possible. 3. The Requirement of Original a. Rule 1002, states that to prove the content of a writing, recording, or photograph, the original is required, except as otherwise provided. i. The word original, defined by rule 1001(3), includes many things we think of as copies.

1. The advisory committee note tells us that even a carbon copy is an original and the carbonless copy of a credit card receipt qualifies as well. ii. Rule 1003 states that in most circumstances a duplicate is admissible to the same extent as an original. 1. Rule 1001(4) defines duplicate broadly including a photograph of a photograph, as is a re-recording of an old tape or a photographic print made from another print.. a. In fact, just about any mechanical reproduction of a writing, recording, or photograph fits within rule 1001(4)s definition of duplicate, as long as the reproduction process excludes the possibility of human transcription error. b. Copies subsequently produced manually, whether handwritten or typed, are not within the definition. (ACN to 1001(4)). b. The best evidence rule thus aims to bar litigants from presenting human recollections of the content of writings, recordings, or photographs in place of the physical item itself. 4. Proof of Content a. The advisory committee tells us the rule (1002 to prove the content of these items) applies in two contexts i. The first is where the item is itself at issue in the litigation. ii. The second is when the attorney uses the item to prove an event by proving the content of the item the item has attained independent probative value. 1. i.e., offering a document that a particular shipment was made on a certain day. She could offer the document, assuming it passes 803(6) and is properly authenticated under Rule 901 or 902(11), the attorney will be



ii. iii. iv. v. vi. vii. Privileges a. General Principles i. Some specific privileges, such as the lawyer-client, psychotherapistpatient, and clergy-penitent privileges, survive today at federal common law. 1. Others, such as the privilege for marital testimony, survive only in a greatly altered form none of the proposed privilege rules is law. ii. Privileges serve entirely different social goals an implicate more complex political interests. iii. The fate of State Privilege Law

proving the content of the documents and be bound to rule 1002. a. These documents have independent probative value that the items were shipped. b. Under either of these circumstances, the best evidence rule demands that the proponent produce the original or a duplicate instead of a human reconstruction in the form of testimony or otherwise. i. These types are called secondary evidence of content and generally are banned. 5. At bottom, the best evidence rules rests on four propositions a. These items are far more detailed and nuances than many other forms of evidence b. Differences in fine details often sway the outcome of a case c. Proving such details with the needed precision is particularly hard because these items are susceptible to forgery d. Even when forgery and fraud are not issues, the human memory simply fails in the task of reproducing these items with precision of the thing itself. 6. Problems 10.7 and 10.8 pages 828 829 7. Problem 10.9 on page 836 837 FRE 1001: Definitions that Apply to this Article FRE 1002: Requirement of the Original FRE 1003: Admissibility of Duplicates FRE 1004: Admissibility of Other Evidence of Content FRE 1005: Copies of Public Records to Prove Content FRE 1006: Summaries to Prove Content


1. The controversy generated by the proposed privilege rules gelled largely around two issues a. The first concerned the force of state privilege law and federal law i. Under rule 501 as enacted, federal privilege law controls in all federal criminal actions and in civil actions in federal court insofar as federal law supplies the rule of decision. When state law supplies the rule of decision, as in diversity actions, state privilege law controls. 1. Note: This has resulted in litigious mischief to gain a benefit of a certain courts privilege laws. b. The second perceived flaw of the proposed rules was their failure to protect communications between wife and husband, doctor and patient, and reporter and source. 2. Rule 501, the sole privilege rule enacted by Congress, left the law of privileges where it was and directed federal courts to enforce and develop privileges according to the principles of the common law as they may be interpreted by the courts in the light of reason and experience. a. Even so, both state and federal courts look to the proposed rules for guidance. b. The Supreme Court has continued to recognize the common law privilege of marital confidences, but has never created a physician-patient privilege, nor have lower courts generally recognized one. iv. FRE 501 v. Jaffee v. Redmond, 518 U.S. 1 (1996). 1. Material Facts: A police officer shot and killed a man and saw counseling afterwards. At trial the proponent sought to compel the information shared during these counseling meetings in court. The defense claimed privilege. 2. Issue: Is there a psychotherapist-client privilege at federal common law under FRE 501? 3. Holding: Yes. 4. Reasoning: a. The privilege is rooted in the imperative need for confidence and trust. the mere possibility of disclosure



c. d.




may impede development of the confidential relationship necessary for successful treatment. An asserted privilege must also serve public ends i. This privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance. All 50 states have enacted some form of this privilege This was also one of the nine specific privileges recommended by the advisory committee in its proposed privilege rules. Because we agree with the judgment of the state legislatures and the Advisory committee that this privilege will serve a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth, we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501. This case also extends to confidential communications made to licensed social workers in the course of psychotherapy. i. Social workers often work with the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist Footnote: There are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.

5. Notes: a. Dissent (Scalia): This rule gets in the way of justice. People should have to live with their words. Social workers do not have a high enough skill to be given this privilege. vi. Problem 11.1 on page 854 1. Proposed FRE 504: vii. Witnesses Privileges vs. Defendants Need for Evidence 1. Problem 11.2 on page 870 2. Morales v. Portunondo, 154 F. Supp. 2d 706 (S.D.N.Y 2001)

a. Material Facts: Two teenagers were sent to jail for a crime they did not commit. The real murderer confessed to a priest who did not come forward until many years later, and when the real killer died in an unrelated incident. b. Issue: Should the priests testimony be allowed now to overturn the conviction of the two innocent teenagers (now men)? c. Holding: Yes. d. Reasoning: i. Habeas courts confronting a Due Process claim must examine state evidentiary rulings to determine whether those rulings deprived petitioner of a fundamentally fair trial. ii. A petitioner must demonstrate first that the trial courts evidentiary ruling was erroneous and, second, that the erroneous ruling so infected the proceedings as to have rendered the trial fundamentally unfair. iii. Further, since this is hearsay, the testimony could be admitted if it met certain standards of admissibility 1. the testimony was vital to the defense 2. the witness who gave the testimony was unavailable 3. the testimony bore sufficient indicia of reliability iv. Here, Fornes statements are vital to the defense, he was unavailable then (he pleaded the 5th) and is now because he is dead and the statements bear sufficient indicia of reliability 1. Reliability a. He told these statements to at least four different persons, made these statements to people who he thought could not tell anyone else (no motive to lie), he genuinely felt remorse and guilt, and it was corroborated by others. 2. Priest-Penitent Privilege


a. This was not a formal confession and thus the priest is not barred from testifying b. Fornes also waived the privilege when he discussed the issue with others 3. Attorney-Client Privilege a. While the privilege would stand, they are allowed since their exclusion would render the trial fundamentally unfair. Under the remarkable circumstances of the case, the privilege should not stand in the way of the truth. (Due Process trumps privilege). e. Notes: viii. Proposed FRE 506: Communications to Clergymen ix. Proposed FRE 511: Waiver of Privilege by Voluntary Disclosure x. Proposed FRE 505: Husband-Wife Privilege 1. Find the PowerPoint slide on blackboard for this. b. Attorney-Client Privilege i. Scope of the Lawyer-Client Privilege 1. The privilege is the clients a. Only the client or the professional on her behalf may assert the privilege. The professionals authority to claim the privilege for the client is presumed in absence of contrary evidence. i. It is assumed that the ethics of the profession will require him to do so except under most unusual circumstances (CAN to proposed rule 503(c)) b. Only the client may waive the privilege though the professional may do so on the clients authority and in certain other customary situations (See proposed Rules 503(b), (c); 504(b), (c); 506(b), (c)) i. Note: Despite these generalities, many states permit clergy members to assert the privilege on their own behalf. c. The privilege protects only those confidential communications made to facilitate professional services


i. Friendly chats do not qualify or statements made to an attorney not in his capacity as an advisor. (See 503(b), 504(b), 506(b)) d. The privilege protects only confidential communications i. The client waives its protections if she voluntarily discloses or consents to disclosure of any significant part of the communication to a person outside a privileged relationship. 1. Note: In many jurisdictions a lawyers carelessness in mistakenly disclosing a privileged communication to an adversary can, together with other circumstances, waive the clients privilege. e. The privilege protects only confidential communications i. The communication, not the facts communicated, is privileged. 1. i.e., if you tell your lawyer a fact and are later asked about that fact in court, it is not privilege. However, if you are asked what did you tell your lawyer, that is privilege. 2. The Nature of Legal Services a. People v. Gionis, 9 Cal. 4th 1196 (1995) i. Material Facts: Divorced husband revealed, in a very angry state, to an attorney (who specifically said he would not represent him), that he would do something terrible to his soon to be ex-wife for holding taking their child from him. Some time later, his ex-wife and her boyfriend were attacked and the husband was held guilty of conspiracy. The appellate court reversed on the grounds that the conversation between himself and the attorney should not have been admissible evidence under attorney-client privilege. ii. Issue: Should these conversations be admissible? iii. Holding: No. iv. Reasoning: 1. Client includes a person who consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, while

confidential communications include information transmitted between a client and his or her lawyer in the course of that relationship. a. The attorney need not be retained 2. The reason is that no person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it. 3. Attorney-client privilege does not apply whenever issues touching upon legal matters are discussed with an attorney a. A communication is not privileged, even though it may involve a legal matter, if has no relation to any professional relationship of the attorney with the client. b. The client seeking the advice must be sought from the attorney in his professional capacity. 4. Here, the defendant was told in advance that he would not be retaining this lawyer disclosures after the attorney has already refused to take representation are not covered v. Notes: 1. Concurring and Dissenting: Professional Capacity should be considered through the local habits of life, and the circumstances of the case the mere circumstance that the advice is given gratuitously does not nullify the privilege 2. The questions and answers regarding change of venue fall under this attorney-client privilege of securing advice in the attorneys professional capacity.


a. However, the inculpatory statements to the attorney had no bearing on defendants inquiry of legal advice and are thus not privileged. 3. Dissenting: a. Privilege hinges upon the clients belief that he is consulting a lawyer in that capacity and his manifested intention to seek legal advice. b. Here, their relationship was more of a business type than a friendship. They had traded work for each other on many occasions and the defendant believed that this would an instance where he would get gratuitous legal advice since their relationship was the kind where favors are frequently traded. - This is further strengthened by the attorneys agreement to take part in an ex parte court appearance four months later. c. The defendant looked for emergency legal advice, and he received it clearly he turned to this attorney in a time of crisis for legal service and advice and this should be covered by privilege. d. The majority cites cases where the representation was turned down due to conflict of interest, which is not analogous to this situation. e. I also do not agree with the separation of privilege statements and the others there is no precedent or basis for making such a separation it is often the case where the legal and the personal intertwine and it is unclear where to determine the what

is and isnt legal advice. However, an attorney acting as a soundboard for his client and general counsel is part of his professional capacity as attorney and is also privilege. 3. Defining Confidentiality a. Howell v. Joffe, 483 F. Supp. 2d 659 (N.D. III 2007) i. Material Facts: Attorney for Diocese phoned a claimant of sexual abuse and left a message but failed to hang up. Immediately afterwards she began speaking with her client about the claimants case and other similar cases and the tape recorded that conversation. The claimant used the tape to bring a case against the attorney and diocese for negligent infliction of emotional distress. ii. Issue: Should this tape recording be protected by attorney-client privilege? iii. Holding: iv. Reasoning: 1. At minimum, to show the privilege, the party asserting the privilege must show that the communication originated in a confidence that it would not be disclosed, was made to an attorney in his legal capacity for the purpose of securing legal advice or services, and remained confidential a. The privilege applies equally to statements made by the clients attorney to the client where the other required factors are present 2. Parsing different elements of the conversation might undermine a clients ability to speak with his attorney without carefully considering each sentence or word that he speaks to the attorney a. The entire conversation is for the purpose of seeking legal advice 3. The parties intended this to be confidential there is no proof that they purposely left the


phone off the receiver in order to cause emotional distress 4. Two tests: The subjective analysis test for waiver under which inadvertent disclosure can never result in a waiver of the privilege because the client had no intention of waiving the privilege (which we will not use) or the balancing test where a court should determine whether an inadvertent disclosure waived the privilege by analyzing a. The reasonableness of precautions taken to prevent the disclosure; b. The time taken to rectify the error c. The cope of the discovery d. The extent of the disclosure e. The overriding issue of fairness - Note: The court used this test because to do otherwise would be to make decisions based on mere mechanical application rather than a judicial reason and fairness. - Here, the privilege is not waived since it was a common mistake, which the attorney sought to fix immediately after learning about it and discovery and fairness support the privilege in this case. v. Notes: 1. Problems 12.1 and 12.2 on pages 900 901 4. Duration of the Privilege a. Swidler & Berlin v. United States, 524 U.S. 399 (1998) i. Material Facts: Vincent W. Foster, Jr. (Foster) was a Deputy White House Counsel who, in 1993, met with an attorney, James Hamilton (Hamilton) of the law firm Swidler & Berlin (Petitioner) to seek legal advice concerning possible violations of law in connection with the firing of various White House


iii. iv.


employees in 1993; Hamilton took three pages of notes at the meeting, all handwritten. Foster then committed suicide and the government, through an Independent Counsel, issued a subpoena seeking the notes taken at the meeting. A U.S. District Court granted a motion to quash the subpoena, holding that the communications were protected by the attorney-client privilege, and a Court of Appeals reversed that decision; Petitioner sought a writ of certiorari, which was considered here. Issue: Does the attorney-client privilege apply to the communications made by Foster to Hamilton, even though Foster was deceased at the time the subpoena was issued? Holding: The privilege applies. Reasoning: 1. The great body of case law supports the position that the privilege does survive in case such as this. Rule 501 requires the proponent to show that reason and experience require a departure from this rule. They have not. a. These arguments for changing the common law are based on speculation that posthumous termination of the clients privilege would diminish the clients willingness to confide in an attorney. - Empirical information is scant and inconclusive 2. We recognize the exceptions a. Allowing disclosure for disputes among the clients heirs b. Exception to the privilege for communications whose relative importance to particular criminal litigation is substantial while the privileged information itself is not. Notes: 1. Dissent:

a. We have long recognized that the fundamental basis upon which all rules of evidence must rest if they are to rest upon reason is their adaptation to the successful development of the truth. b. Some commenters believe that terminating privilege after death, for the purpose of a criminal proceeding, could not to any substantial degree lessen encouragement for free disclosure which is its purpose. c. If we allow such a absolute posthumous privilege, extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased clients confession to the offense. - Our criminal justice system should place its importance with protecting an innocent defendant rather than with a deceased clients interest in preserving confidences. d. An exception could likewise be had for compelling law enforcement need. 2. When a client makes certain communications that are protected by the attorney-client privilege and then subsequent to making the statements dies, the privilege survives the death of the client and, except for in litigation between the declarants heirs, the communications are not admissible as evidence. ii. FRE 502: Attorney-Client Privilege and Work Product; Limitations on Waiver iii. Proposed FRE 503: Lawyer-Client Privilege