Relevance

Evidence Must Be Relevant to Be Admissible

A. Relevancy is a Threshold Requirement: Relevancy is the most
fundamental requirement of admissibilitystarting point of analysis

Definitions
RULE 401. TEST FOR RELEVANT EVIDENCE
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and
(b) the fact is of consequence in determining the action.

RULE 402. GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE

Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;

a federal statute;

these rules; or

other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

A. Relevant: FRE 401evidence is relevant if it has ANY tendency to

prove/disprove any legally significant fact (i.e. make a fact more/less
probable than it would be if that evidence was excluded)
1. Even slight probative value will sufficedoesnt mean more
probable than not

a. Metaphoricallybuilding a wall brick by brick; allowing base

hitters to testify
2. Only Logical Relevance Required: It is not required that the
evidence be legally relevant (Prof. Thayer)
3. Relational Significance: relevancy is judged in context of issues
raised, other evidence, and applicable law
4. Neednt Speak to Disputed Fact: Evidence can be relevant even
on points not contested to be allowed under FRE 401, but evidence on
non-disputed facts is susceptible to FRE 403 exclusion
B. Materiality: Legally significant (e.g. evidence of contributory negligence is
immaterial in a strict liability jurisdiction)
1. Merged with Relevance:
relevance

Materiality is part of the definition of

C. Direct Evidence: Direct evidence asserts the existence of the fact to

be proven, in the case of physical evidence: embodies or represents the
fact
1. E.g. eyewitness testimony of the committal of the crime
2. Always relevant if the fact it proves is of consequence to the action
D. Circumstantial Evidence: Proof that doesnt assert or represent the fact
to be proven; proof from which the factfinder can infer and increased
probability that the fact exists (e.g. Ds fingerprint on weapon)
1. Not considered inferior to direct evidence

Role of Judge and Jury

RULE 104. PRELIMINARY QUESTIONS
(a) In General. The court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the
court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist. The court may admit the proposed evidence on the condition that the
proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must
conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a

preliminary question, a defendant in a criminal case does not become subject to crossexamination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a partys
right to introduce before the jury evidence that is relevant to the weight or credibility of
other evidence.

A. FRE 104(a): Typically, the judge decides the relevancy of evidence at

the time it is offered. Jury decides what weight to give the evidence. Rules of
evidence generally dont apply to this step (except privilege)
B. Conditional Relevancy FRE 104(b): Sometimes relevance depends on
preliminary question of fact (whether a document is genuine, e.g.) this
involves conditional relevancy
1. Judges Role: Judge decides whether there is sufficient
foundation evidence to support a jury finding of genuineness; if so,
judge submits the document to jury to decide genuineness
2. Jurys Role: If jury decides document is forgery, it should
disregard as irrelevant; finding of genuineness jury can give
document whatever weight it decides
3. Connecting Up: Judge has discretion to submit the document to the
jury before the proponent makes a preliminary offer of proof, provided
the proponent agrees to connect up the evidence later by putting on
evidence of genuineness
a. Failure to connect up later allows opponent to move to strike

Relevant Evidence Admissible Unless Otherwise Provided

A. FRE 402 says that all relevant evidence is admissible except as otherwise
provided by Constitution, Federal Statute, FREs, or other SCt. Rules
(i.e. FRCP, FRCrimP, etc.)
1. Constitution: Constitutional exclusionevidence seized in violation
of Const. guarantees
2. Fed Statutes: e.g. unlawfully obtained wiretap evidence
3. Other Evidence Rules: hearsay, prejudice, etc.
4. FRCP
5. FRCrimP

Excluding Relevant Evidence FRE 403

RULE 403. EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE,
CONFUSION, WASTE OF TIME, OR OTHER REASONS
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.

Judicial Discretion to Exclude Relevant Evidence

A. Favors Admissibility: admissible UNLESS probative value is
substantially outweighed by competing considerations
B. Stipulations: Judge is allowed to exclude evidence if opponent is willing to
stipulate to a fact
1. Stipulating doesnt make evidence irrelevantevidence offers
descriptive richnesswe want the full force of evidence it make it to
the jury
C. Surprise: not usually grounds for exclusiontypically continuance
D. Credibility Determinations: Evidence may not be excluded just
because trial judge finds the evidence incredibleprobative value may be
considered but credibility is a jury determination
E. Relation to Other Rules: Judge can usually exclude evidence that is
expressly admissible under other rules
1. Prior Crime Impeachment: FRE 609(a)(1) authorizes
impeachment by evidence of prior convictions, but can be limited by
FRE 403
2. Prior Bad Acts:
FRE 404(b)

frequently used to limit proof of prior bad acts under

3. Cross of Character Witnesses: restraint on scope of crossexamination of character witnesses about specific instances of prior
conduct under FRE 405(a)

Grounds for Exclusion Under FRE 403

A. Unfair Prejudice: Courts must distinguish between prejudice and unfair
prejudice

1. Inflame the Passions of the Jury: excessive emotionalism,

arousing hostility (appealing to prejudice), passion, anger, or sympathy
excluded as inflammatory, shocking, or sensational
2. Jury Misuse:
instructions

Jury is likely to misuse or be unable to follow limiting

3. Undue Weight
4. Demonstrative Evidence: Court room demonstrations, wound
photos, etc.
B. Confusion of the Issues: Evidence that is likely to confuse the issues, as
by distracting the jury with collateral matters
1. e.g. evidence that cohorts were not also prosecuted
C. Misleading the Jury: e.g. demonstrative film that does not accurately
represent
D. Waste of Time or Undue Delay: Providing judge grounds to exclude on
such grounds is a concession to the shortness of life
E. Needless Presentation of Cumulative Evidence: Prevent unnecessary
repetition

Recurring Issues in Relevance

A. Evidence of Guilty Mind: Evidence indicating consciousness of guilt is
generally relevant to prove that the actor was involved in wrongful conduct
1. Flight: Judges must assess other possibilities explaining what might
be flight; whether it is relevant; whether there is unfair prejudice
2. Other Examples: Resisting arrest, escape, use of alias, wearing a
disguise, fabricating/destroying evidence, bribery, threatening, etc.
3. Entitled to Little Weight: Typically insufficient standing alone to
support a conviction, typically accompanied by jury instructions.
B. Prior Accidents: evidence of prior accidents is not admissible to prove
negligence or contributory negligence in action creating CoA
1. Narrowly Admissible:
negligence claim

Can be admitted to prove an element of a

C. Other Contracts or Business Transactions: Evidence of other contracts

or biz transactions is sometimes admitted to prove the existence of a
contract in litigation, its terms, or their intended meaning

Hearsay
Definition
RULE 801. DEFINITIONS THAT APPLY TO THIS ARTICLE; EXCLUSIONS
FROM HEARSAY
The following definitions apply under this article:
(a) Statement. Statement means a persons oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. Declarant means the person who made the statement.
(c) Hearsay. Hearsay means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
(1) A Declarant-Witnesss Prior Statement. The declarant testifies and is
subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarants testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarants testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Partys Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on
the subject;
(D) was made by the partys agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the partys coconspirator during and in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarants
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).

A. Federal Definition: FRE 801(a), (c) hearsay is out of court assertion,

verbal or non, offered to prove the truth of the matter asserted
B. Narrower Definition: Some J/Ds only classify statements as hearsay if
made by out-of-court declarant; admissible so long as the declarant is
available for cross
C. Broader Definition: Words or conduct, whether assertive or not, are
hearsay if out of court; e.g. putting up umbrella as proof that it was raining
D. Exam Anlaysis
1. Whether it is hearsay turns on both whether it is assertion, AND
whether it is offered to prove ToMA
a. Even if it isnt for ToMA, it may be excluded because its
prejudicial
2. Hearsay whether offered to prove ToMA or implied assertion
intended by declarant
3. Nonassertive conduct is generally NOT hearsay, even if offered in
support of two-step inference that leads to conclusion about acts,
events or conditions in the worldputting up umbrella to prove its
raining

Rationale
A. Policy JustificationsTrial Safeguards
1. Cross-Examination: Protects the rights of parties to cross examine
witnessescritical component of the search for truth
2. Oath: Oath at least dispels casual impulses to lieoath alone is not
enough, e.g. sworn affidavits
3. Demeanor Evidence:
credibility

Factfinder can watch the witness to assess

B. Constitutional Underpinnings: 6th right of criminal Ds right to confront

Testimonial Dangers
A. Types of Potential Error: Four hearsay riskstypes of potential error
that arise from statements not being cross-examinable
1. Misperception: Witness or declarant may have misperceived
sensory inputwe cannot analyze perceptive capabilities without cross

2. Failed Memory: Witness or declarant may not remember very well

we cannot test the memory of surrounding events without cross
3. Ambiguity: Misstatement or ambiguity in narration that cannot be
cleared up without cross
4. Veracity: Speaker may lie or distort in reportingwe cannot try to
flush out the lies without effective cross
B. Cross Examination as a Check on Hearsay Risks: Trial safeguards
reduce these risks greatly

Declaran
t
Percepti
on
Memory
Event

Witness

Narratio
n
Veracity

Percepti
on
Memory

OOC
Statement

Narratio
n
Veracity
Testimony
Relating to
Statement

C. Impeachment of Hearsay Declarants: A hearsay declarant may be

impeached by same methods allowed if declarant had been present and
testified:
1. Bad character for truth and veracity
2. Prior Inconsistent Statements
3. Defect in sensory ability
4. Bias

Definition of a Hearsay Statement

A. Assertive Intent: Nothing is an assertion unless intended to be one
intent is crucial
1. Form of Expression

a. Declarative sentencesJohn is pointing a gun at me

b. Requests or commandsJohn, dont shoot me
c. QuestionsYoure not going to shoot me, are you, John?
2. Multiple Assertions: expression containing many factual assertions
is hearsay if offered to prove ANY of the assertions contained within
3. Indirect Assertions: Even facts asserted collaterally in a statement
cannot be offered to prove ToMA and therefore be hearsay
a. e.g. At least Ive never stolen from the church.
B. Nonverbal Assertions: Intent is the question
C. Non-Assertive Non-Verbal Conduct:

Rarely raises hearsay concerns

1. Common Law: (Wright v. Doe d. Tatham) whenever human

conduct supports a two-step inference, it is hearsay
a. Two-Step Inference: Hearsay issue is likely to arise with
nonassertive conduct if it is offered to support a two-step
inference about some act, event, or condition
1. The act suggests what the person is thinking (he put
up an umbrella, so he thinks it is raining)
2. Since the actor thinks it is so, it probably is so (he
thinks its raining, so it probably is)
a. E.G. Experienced captain inspected a ship before
he took it to sea(1) The captain believed the ship
to be seaworthy, (2) the ship was seaworthy
2. Federal Rules View: Non-verbal conduct is hearsay only if
intended to assertnon-assertive conduct is NEVER hearsay FRE
801(a)
D. Assertive v. Non: Not relevant at CL, determination of intent
1. Intent of Actor: Preliminary decision
2. Burden of Proof: Party asserting intention existed has the BoP
ambiguous/doubtful cases decided in favor of admissibility
E. Silence, Noncomplaint as Hearsay
1. Proving Absence of Occurrence or Condition: Silence is offered
to support a two-step inference
1. Conduct of the other customers indicates they did not
think anything was wrong with the food
2. The fact that they didnt think anything was wrong with
the food indicates that in fact there was nothing wrong
10

2. Hearsay if Intended as Assertion: e.g. Dr. tells patient to speak up

if procedure hurts, patient agrees to cooperatesilence is assertion
that procedure doesnt hurt
F. Negative Results of Inquiry: Evidence limited to describing an inquiry
made (has anyone at CU seen Mueller, no one had) will likely be admitted so
long as it doesnt quote (Mueller moved to Chicago)
1. Lack of knowledge allows two-step inference
1. No one at CU has seen Mueller for weeks
2. Mueller is no longer at CU
G. Hidden Hearsay: Witness will testify to what declarant must have said
without quoting himOBJECT; this shouldnt be allowed
H. Machine/Animal Hearsay: declarant only encompasses person[s]
1. Machine output is hearsay if it is a recapitulation of human
statementsBAC reading is not hearsay; business records are

Offered to Prove the Truth of the Matter Asserted

A. Hearsay analysis is always a two-step analysis:
1. Is there an OOC statement
2. Is the statement offered to prove the truth of the matter asserted?
B. Common Nonhearsay Uses
1. Impeachment
2. Verbal Acts
3. Effect on Listener
4. Verbal Objects
5. Circumstantial Evidence State of Mind
6. Circumstantial Evidence Memory, Knowledge, Belief
C. Nonhearsay Impeachment: Where witness vacillates, blows hot and
cold, OOC statements may be admitted to impeach
D. Nonhearsay Verbal Acts: Typically a verbal act has operative effect
under substantive legal principles e.g. give me your wallet is part of
a robbery; words of offer & acceptance, etc.
1. Words as Part of an Act: Words are offered for operative effect,
NOT assertions lending your car, dont drive more than 20 miles =
conditional transfer/bailment; threatening during commission of
assault
2. Usually, these words have independent legal significance
11

E. Nonhearsay Effect on Listener (or Reader): Sometimes statements

notify, warn, or threaten a listener. When statements are offered to show
they had a particular effect on listener, nonhearsay. Often shows notice
or reasonable belief of listener.
1. E.g. E slips on ice, Ts defense turns on fact that maintenance man told
E not to go down icy stairs nonhearsay because offered to prove that
E was on notice were not trying to prove that the stairs were icy
F. Nonhearsay Verbal Markers/objects: Words of identification, E.g. license
plate number, vehicle brand, color, physical characteristics, etc. offered to
differentiate not to show e.g. that Muellers license plate number actually is
OLG 109
1. Verbal Markers with Assertive Aspects: assertive aspect of ,e.g.,
Ford logo doesnt undercut this concept were not proving the truck
is a Ford, just trying to match descriptions; also self-authenticating
under 902(7)
2. Verbal Markers as Hearsay: Introducing a Coke label to prove
the bottle contains coke is arguably hearsay;
a. Countering Hearsay Objections to Ford logo
1. Trucks bearing Ford labels are the sorts of trucks one
would expect Ford Motor Compnay to make, so the word
Ford is circumstantial evidence that the truck is a Ford
2. FRE 902(7) states that trade inscriptions purporting
to have been affixed in the course of business can
be accepted as proof of the nature of an object when such
inscriptions indicate ownership, control, or origin.
G. Nonhearsay Circumstantial Evidence of State of Mind

1. E.g. Martha is denied promotion; introduces Managers statement that

women dont make good managers. were not trying to prove
women dont make good managers; were proving that Managers
state of mind, indicating his beliefs about women. Allowable when
indirect evidence
2. Direct Assertions of State of Mind: Evidence isnt
circumstantial if it speaks directly to state of mind, e.g. OOC
statement I think, I feel; it is direct evidence
a. EXAM ARGUMENT:

Indirect evidence revealing state of mind

1. This statement qualifies under SoM category of

nonhearsay

12

2. Even if this statement is so direct that it doesnt qualify

as circumstantial, it is still likely admissible under SoM
hearsay exception in FRE 803(3)
H. Nonhearsay Circumstantial Evidence of Knowledge, Memory, Belief:
Express statements to KMB are hearsay and not admissible under SoM
hearsay exception 803(3) if the purpose is to prove the act, event, or
condition that is rememberedas opposed to just the existence of the
memory
1. Statement only fit this nonhearsay if it displays knowledge
sufficiently unique so that relevant inferences can be drawn
without relying on the truth of the statement
a. E.g. Statements of victim describing the interior of Ds
apartmentwere not trying to prove that he actually has purple
drapes and red carpet, but rather unique knowledge tends to
prove that V had been there

13

The Borderland of Hearsay

A. Speech or Nonassertive Conduct?: Assertive and non assertive are not
mutually exclusive analyze the performative aspect: the more
performative = the less assertive
1. E.g. Dick tries to take Marks keys from him because he has been
drinking
a. How important is the performative aspect?
b. How important is the assertive nature?
2. OOC Lies can be offered statement not being offered to prove its
truth
B. Proving Facts Assumed or Apparently Believed by Declarant: When a
statement reveals facts assumed or believed by declarant without directly
stating them, it is an implied assertion
1. Two Meanings of Implied Assertion:

Question of intent

a. Indirect but Intended Assertions: message differs from

literal meaning of words but delcarant purposefully expressed it
1. E.g. We better take the rap for this, Kay cant get another
felony conviction. This statement plainly and
intentionally implies Kays guilt
b. Statements Containing Unintended Messages:
Statements support inferences about acts, events, or conditions
in the world but were not intended to assert
1. E.g. police answer drug dealers phone during a raid
where 6 people call and ask to buy drugs. The callers
OOC statements allow for the inference that the callers
believed drugs were sold at that phone number, but
callers did not intend to assert that drugs are sold there

Prior Statements by Testifying Witnesses

A. General Rule: OOC statements are not admissible even if the declarant is
present in court to be cross-examined about the statements FRE 801(c)
B. FRE 801(c): adopts the general rule but is further qualified by 801(d)(1),
which makes some statements not hearsay provided the witness is crossexaminable concerning those statements
C. Not Hearsay Prior Statements of Testifying Witness: Declarant must
testify at trial and is subject to cross concerning the statement and the
statement is

14

1. Inconsistent with declarants testimony and was given under oath

at a trial, hearing, or other proceeding or deposition FRE 801(d)
(1)(A)
a. other proceeding does not reach police affidavit in deciding
whether it is a proceeding see what characteristics in common it
has with traditionally accepted proceedings
b. Not required that statement was cross examinable @ prior
proceeding; only matters that witness can be crossed now
c. Degree of Inconsistency: polarity not required, only enough
inconsistency so that the earlier statement could reasonably
raise doubt as to witness credibility
2. Consistent with the declarants testimony and is offered to rebut an
express or implied charge against the declarant of recent
fabrication or improper influence or motive (Tome v. USlittle girl is
accused of fabricating sex assault by dad to go live with mom; 6
witnesses allowed to speak to her prior consistent statements)
a. Rehab/Repair: Common law requires limiting instruction to
avoid use for ToMA, FREs dont
b. ToMA: FRE 801(d)(1)(B) allows use of certain prior consistent
statements for rehab and ToMA No limiting instruction
c. No Oath Required
d. Prior consistent statements only qualify as not hearsay when
offered to rebut an express or implied charge of recent
fabrication or improper motive or influence FRE 801(d)(1)
(B) doesnt apply to repairing other types of impeachment
3. One of identification of a person made after perceiving the person
a. No Oath required
b. Statements of identification qualify as not hearsay whether
witness repeats identification at trial or cannot FRE 801(d)(1)
(C)
c. EXAM ANALYSIS: Statements of prior identification often
qualify for one of the above categories as well, overlapping

15

Hearsay Exceptions
Intoduction
A. Rationale: Most exceptions are justified by appeals to trustworthiness
and necessity
1. Trustworthiness: Many factors speak to trustworthiness
spontaneity, organizational routine, and need for accuracy (medical)
these factors reduce the hearsay risks and justify the admission
despite lack of oath, demeanor evidence, and inability to cross
B. Not Hearsay:

Prior statements by a testifying witness AND admissions

1. Prior Statements of Testifying Witness: FRE 801(d)(1) some

statements by testifying witnesses are not hearsay because the
witness is cross-examinable about them, even though they are offered
to prove ToMA, it is justified by interests other thatn
trustworthiness/necessity
2. Admissions: FRE 801(d)(2), statements made by party and offered
against that party are not hearsayoffered to prove what they assert
but justified b/c everyone is responsible to make or break his own
case and not by trustworthiness/necessity
C. Exceptions ONLY Overcome Hearsay Objection: Fitting within an
exception does not mean a statement must be admittedevidence must
still be relevant and not violate some other exclusionary rule

1. Evidence fitting an exception still subject to rules like Miranda

exclusion, rule against proof of prior crimes (FRE 404), subsequent
remedial measures (FRE 407), offers to plead guilty (FRE 410), etc.
D. Multiple Hearsay:

Each statement must fit an exception to be admitted

1. E.g. Witness testifies that Abe reported what Bob said and the purpose
is to prove ToMA of Bobs statement. Abes statement is hearsay when
offered to prove that Bob made the statement, and Bobs is hearsay
when offered to prove what it asserts. Both Abes and Bobs statement
must fit an exception for the Witnesss testimony to be admitted
2. Written Statements: Be careful where a written statement reports
the substance of a second oral statement. If a party offers writing by
Ann reporting Bettys statement, both are OOC statements.

Admissions by Party Opponent

16

A. Broad Admissibility: no limitations on admissions doctrine other than

identity (must be or affiliated with adverse party), nor is there personal
knowledge requirement, AND conclusions come in even if theyre
conclusory need not be against interest
1. No Personal Knowledge Required E.G.: Note on the door saying
the wolf bit the kid, even though the writer didnt know that and was
only repeating what hed heard. Mahlandt contrast the wolf bit him
with I was told the wolf bit him
2. NOTE: conclusory nature, lack of personal knowledge can affect the
weight given to evidence admitted under the admissions doctrine
3. NOTE:

Admissions can be excluded for reasons other than hearsay

B. Individual Admissions: In suits by or against an individual, whatever he

says that is relevant is generally admissible FRE 801(d)(2)(A)
1. Bruton Doctrine: Admissions doctrine is limited by Bruton; In a trial
of more than one D, a statement by D1 that implicates D2 by name may
not be admitted, even if the judge gibes limiting instuction telling jury
that the statement is evidence only against A.
a. And admission by D1 is admitted under admissions doctrine
against D1, but if admitted as hearsay exception against D 2 it is
testimony against D2 without providing D2 the opportunity to
confront/cross the witness against him (D1)
b. A statement by D1 implicating D2 violates the confrontation
clause and a limiting instruction is not good enough to satisfy
the Confrontation Clause
c. Sever Trials: To get D1s statement into trial against D1, youd
either need to have two separate trials or two juries at one tril;
excusing jury2 while D1s admission is offered
d. Partially Redact D1s Admission: delete references to D2
hard to do effectively and encroaches on telling the whole truth
e. Allow For Cross of D1: Have D1 testify and allow D2 to cross
gets the same evidence in, BUT D1s OOC statements are still
inadmissible
f. Limits
1. Only applies in criminal cases

17

2. Doesnt apply to statements by D1 that do not refer

expressly or by implication to D2 e.g. D1 admits that
the getaway car was a blue sedan, this evidence is
relvant to D2 but still inadmissible without limiting
instruction
C. Adoptive Admissions: FRE 801(d)(2)(B) if X signs or expressly agrees with
the oral statement of another, X has adopted that statement X made
the statement his own
1. Admissions by Acquiescence: If Y makes a statement in Xs
presence and X is silent or makes a responsive comment, this silence
or comment may or may not be taken to show that X agrees totality
test (US v. Hoosierthere are sacks of money in the hotel room)
(Limited by Doyle v. Ohiopost Miranda silence cannot be used to
prove you would have spoke up sooner had X been the case.)
2. Roles of Judge and Jury: Most courts say that adopt is 104(b)
question of conditional relevancy rather than 104(a) question of
admissibility judge only screens to see if a reasonable person could
find agreement
D. Authorized Admissions: When A authorizes B to speak, statements by B
that are within the scope of his speaking authority are admissible
against K.
1. Pleadings are binding on those who file them
2. Evidence of Authority to Speak: Bourjaily tells us that you can use
a statement to prove that the speaker had authority to make that
statement, so long as there is additional independent evidence
showing authority
3. Judge and Jury: Both Judge and jury address the question of
authority . . . Judge decides the authority question solely to apply the
admissions doctrine and the jury then decides the same question
solely to decide the merits
E. Admissions by Agents and Employees: speaking authority is
unnecessary for admission, so long as the employee o agent speaks on a
matter that is within the scope of his duties
1. Bootstrapping allowed: contents of statement can be evidence of
duties, but is not sufficient alone
2. Judge and Jury: Both Judge and jury address the question of
authority . . . Judge decides the authority question solely to apply the
admissions doctrine and the jury then decides the same question
solely to decide the merits

18

F. Coconspirator Statements: FRE 801(d)(2)(E)

1. Predicate Facts: Prosecutor must show (a) declarant and defendant
conspired, (b) the statement was made during the pendency of the
venture, and (c) the statement furthered the conspiracy

Were the two conspirators?

Did the statement occur during the conspiracy?

Was the statement made in furtherance of the conspiracy?

a. Conspiracy; status of formal conspiracy charges is irrelevant,

just a showing of conspiracy preponderance standard
b. Pendency: statements made before conspiracy existed are
not admissible, but statements made by conspirators before
D joined the conspiracy are admissible
c. Furtherance: drum up business, encourage continued
adherence to the venture, or keep conspirators abreast of
developments. Purpose of the statement is what matters not
effect statements knowingly made to police dont count
2. Mere Narrative: statements that are not purported to further the
conspiracy
3. Circularity Problem: Admission depends on whether there was a
conspiracy; admission is a 104(a) question but ultimate determination
of existence of conspiracy is 104(b) question
4. Bourjaily standard applies (bootstrapping is ok as long as
accompanied by additional independent evidence)

Unrestricted Exceptions Exceptions invokable regardless

whether declarant testifies or is available as a witness
A. Present Sense Impressions Admissible Hearsay: FRE 803(1) reliable
because of the immediacy
1. Immediacy: statement must describe an act, event, or condition that
happens or exists at the moment of speaking or follows fleeting
event by seconds
2. Perceiving: Speaker must perceive what is described
3. Descriptive: Statement must describe an act, event, condition
B. Excited Utterance Admissible Hearsay: rests on spontaneity, FRE
803(2) Ultimate Questionwas the statement a product of reflective
thought or spontaneous reaction to excitement

19

1. 3 Part Test
a. Event causing nervous excitement; no independent proof
necessary
b. Statement made before time to contrive
c. Utterance made while still excited; inside traumatic range
1. If unclear, court should ask if declarant has regained
reflective abilities
2. External Stimulus: must be a startling or exciting event
catches attention of speaker assuring personal knowledge and full
perception
3. Actual Excitement: speaker must be subjectively excitedstress
eliminates candor riskbecomes a mixed analaysis: would someone
like the speaker, in the speakers situation become excited?
can be minutes or hours later
4. Related Event: the utterance must relate to the exciting
eventloose standard
5. Proving Agency: An EU can be used to prove speaker was agent of
another and was acting within scope of agencyBourjaily standard
6. Procedural Issues: Bourjaily standard on using the utterance to
determine excitement
C. State-of-Mind Statements Admissible Hearsay: also rests on
spontaneity, statements describing existing physical condition, mental state
as an end in itself, mental state as basis for drawing inferences about later
behavior, speakers will FRE 803(3)
1. Rationale: Little risk of misperception on personal feelings,
spontaneity insures candor
2. Present, NOT Past: except for wills, statements must show
existing mental or physical states, NOT to prove previous acts,
events, or conditions (facts remembered or believed)
3. Existing Physical Condition
a. Allowed for Reasonable Past Inferences: My arm broke in
the crash, and I cant move it made at noon can be admitted to
make the reasonable inference that I wasnt playing guitar at 11
A.M. but is not admissible to prove I was in a crash
b. Future Inferences: If statement proves present condition,
drawing future inferences is usually allowed; e.g. I didnt play
guitar later that afternoon/the next day

20

4. Mental State: Issues of Form: Statements without expressly

stating I think, I intend, I believe. Courts disagree whether to admit
factual assertions without this qualifying languagemight still be
admissible as nonhearsay circumstantial evidence of state of mind,
subject to 403 prejudice objections
5. Mental State: Facts Remembered: exception cannot be used to
prove facts, acts, events, or conditions
6. Mental State: Later Conduct: proving someone did something by
showing he intended to do it. Hillmon Doctrine usually permits this.
Ys statement Monday that he planned on going to Chicago on Tuesday
can be used to prove he did in fact go to Chicago Tuesday.
a. Hillmon: Hillmon and a companion were suspected of killing a
rambler and pretended the body was Hillmons to collect the life
insurance. Insurance company offered letters from Rambler to
his fiance saying he was going West with a man named
Hillmon. The letters were admitted as evidence that Rambler
intended to travel with Hillmon, supporting the inference that he
did.
b. Modern Use:
1. Narrow Construction: Statements of intent can be
offered to prove later conduct by the speakerwhen
an issue in the case is whether the speaker performed a
particular act, his intention (state of mind) to perform that
act may be shown to support the inference that he carried
out his intention and performed the act. (US v. Pheaster
Im going to meet Angelo in the parking lot)
2. Might be admitted to show actions of someone other than
the speaker if there is additional independent evidence of
the fact being proven
7. Statements of Fear by Murder/Extortion Victims: easier to get
in direct reports of feelings (Im afraid X will kill me) than fact-laden
statements (X keeps threatening to kill me)
a. Often excluded under 403
b. Relevant whether fear is an element of the charge (e.g.
murderno, extortionyes)
c. Wills: wills are expressly exempted from the rule that prohibits
using SoM statements to prove facts remembered or believed.
D. Medical Statements: Statements made for treatment or diagnosis FRE
803(4) and reasonably relied upon for that purpose

21

1. 1st Requirement: Condition or Symptoms: present condition or

symptoms and their history/ cause
2. 2nd Requirement: Medical Purpose: made for purpose of
treatment or diagnosis
3. 3rd Requirement: Pertinent: statement must be pertinent to the
treatment or diagnosis, no statements ascribing fault or blame
4. By, to Whom: e.g. parents statements about childs symptoms, good
samaritans statements when he drops victim at hospital, statements
to emergency room personnel, doctor-to-doctor statements
5. Child Abuse: Split Cts on whether can be used to identify abuser
treatment includes separating victim from abuser
E. Past Recollection Recorded: 4 requirements
1. Insufficient Memory: exception applies only when the witness
cannot remember, examining lawyer must first try and fail to refresh
the recollection of the witness total memory loss not necessary,
forgetting one point is usually sufficient
2. Correctly Reflect Memory: the trial testimony must correctly reflect
memory that the witness once had
3. Made or Adopted: the witness must have made the statement
herself or adopted the statement prepared by another
4. Made While Memory Fresh: no bright line time limit, factored
analysis including extreme care in crafting a statement, importance of
the event in the life of the witness
F. Business Records Admissible Hearsay: FRE 803(6) Four requirements
to insure trustworthiness
1. 4 Requirements

a. Regular Business, Regularly Kept Record: no personal

records, but even includes illegal activitiesgambling, drug
ledger; can be regular based on time or events
1. Accident reports generally dont qualify; maybe if created
by outside 3d party.
b. Source With Knowledge: The source of what is recorded
must have personal knowledge AND acting in course of
employment. Multiple hearsay can fit exception so long as the
source of information is a person who saw or observed what was
recorded

22

1. E.g. (Petrocelli v. Garrison- botched hernia surgery,

second round Dr. put in record pain due to severed nerve.
It seems that info was just provided by victim, who did not
have PK; record excluded)
c. Contemporaneity: when record reflects an event, the record
must be made close to the time of that eventdoesnt bar
computer output generated long after so long as input was
contemporaneous, nor does it block investigative findings
examining e.g. the cause of an accident
d. Foundation Testimony or Certificate: Invoking this
exception requires testimony or certificate (affidavit) by
someone who knows how the record was or usually is
prepared (certifier may rely on circumstantial knowledge)
2. Multiple Hearsay: When business records present information
provided by an outsider, a second exception to cover the outsiders
statements is needed.
a. E.g. police report detailing a witness statement would need e.g.
EU to cover the witnesses words for the statements to be
admissible as business records
b. 3 Common Situations Where Piggybacking Occurs
1. Hospital and Doctor Records: records prepared at
hospitals often contain info provided by outsider;
statements made to Dr. might fit medical records
exception 803(4) where it is germane to
diagnosis/treatment. If the record is offered against
patient, it falls under admissions doctrine 801(d)(2)
(A)
2. Entries Based on Records of Other Businesses:
Apply the business records exception twice. E.g.
information contained on an invoice from Company A
becomes part of Bs records(should) need foundational
testimony for both levels, though
3. Hotel Registration: If sign in records are used to prove
X stayed at the hotel, the guests statement (signing in)
that he is X is hearsay.
3. Trustworthiness Factor: Even if records satisfy the objective test,
they may still be excluded for untrustworthiness.

23

a. Factors to Consider: records prepared in anticipation of

litigation, mistake laden records, importance of the record apart
from litigation, other uses to which it is put, presence of motives
to fabricate, complexity,
b. Burdens: Proponent must show that the objective
requirements are met; opponent must raise issues of
trustworthiness.
c. Accident Reports: often excluded, especially when they are
offered to show no negligence on the part of the offering party.
d. Internal Investigations: will often contain multiple hearsay
where employees are speaking on the record, but often these
are authorized admissions made by agents authorized by the
company to cooperate in the investigation
4. Absence of Records: where an act, event, or condition would
normally generate a record, lack of a record can be proof that no such
thing occurred. FRE 803(7)
G. Public Records: FRE 803(8) public records are admissible to prove
activities of a public office or agency, matters observed, or investigative
findingsArgue that a record is both public and business on exam
1. Civil Cases: No use restrictions on use of public recordssubject to
trustworthiness challenges though
2. Criminal Cases
a. Police Reports: Clause B bars reports of matters observed by
police officers and other law enforcement personnel

1. US v. Oates: Court considered whether lab report,

excluded by B and C, could be admitted under business
record or catchall exceptions. Ct. decided use
restrictions are exclusionary, when they apply, the
govt cannot resort to other exceptions
a. Most states have statutes allowing lab reports but
the prosecutor must bring preparer to testify if
requested by D
b. Investigative Findings: Clause iii allows use of factual
findings resulting from an investigation

24

c. Crawford Doctrine: Testimonial hearsay cannot be offered

against a D. Testimonial hearsay includes statements by
eyewitnesses to investigating officers describing crimes, and
almost certainly the category also reaches police reports. The
Crawford Doctrine would not stand in the way if the declarant
was subject to cross about his statement in prior proceedings.
Objections based on Confrontation Clause would disappear if
e.g. a police officer who prepared a report also testifies.
d. Routing Nonadversarial Reports: When police reports
reflect routine and Nonadversarial observations, the concerns
underlying use restriction recede. No motive to build case
present.
3. Can be excluded if untrustworthy

Admissible Hearsay: Declarant Unavailable

FRE 804: Declarant must be unavailable AND testimony fits an
exception within 804
A. Unavailability Defined: what matters is the unavailability of testimony
on the subject matter to which prior statements relate
1. Exempt From Testifying by Privilege: declarant takes the stand
and successfully claims privilege blocking questions on the subject
matter of prior statement, she is unavailable
2. Refusal to Testify: Declarant is usually expected to still go through
the motions: appear, refuse, contempt warning given
3. Lack of Memory: Witness must be unable to recall subject matter to
be unavailable, remembering making the statement is insufficient
4. Death, Physical or Mental Illness
5. Unavoidable Absence: unable to serve declarant or beyond reach
of subpoena
6. Procurement or Wrongdoing: Declarant unavailable because of
conduct by one of the parties
B. Exceptions from Hearsay Doctrine
1. Former Testimony: Admissible hearsay, testimony given at prior
trial, hearing, or deposition, in which the declarant was sworn and
examined. 3 Requirements

25

a. Unavailability: Exception only applies if declarant is

unavailable at trial.

b. Hearing or Proceeding: trials, prelim hearings, grand juries,

admin hearings, etc.
c. Opportunity and Motive for Prior Cross: Key requirement;
party against whom testimony is offered had opportunity
and similar motive in the prior proceeding to cross-examine
no actual cross required.
1. Modern Functional Approach: adding or subtracting
issues between 1st and 2nd trial should not require
exclusion of testimony where change in issues doesnt
change motives for cross.

a. Motives = motives to attack/discredit certain parts

of testimony
b. Use Against New Parties: on rare occasions, it
is allowed. A predecessor in interest can
sometimes suffice for a new party not having been
party to prior trial.
i. Predecessor In Interest: Narrowly read to
require privity; broadly read to require
community of interest (minority)
2. Dying Declarations: statements by a person who knows he is
dying AND describes the cause or circumstances of his death
FRE 804(b)(2); homicide prosecutions and civil cases
3. Against-Interest Statements: Statements against pecuniary,
proprietary, or penal interest FRE 804(b)(3)
a. Interaction With Admissions Doctrine: usually admissions
doctrine only reaches parties; this reaches nonparties and has
an unavailability element that AD doesnt
b. Requirements
1. Unavailability
2. Against declarants interest, AND declarant
understands its against his interest
3. For statements against penal interest offered by D in
criminal case, there must be corroborating
circumstances
c. Meaning of Against Interest: There are 4 reasons defining
against interest is problematic

26

1. Context: Facial meaning is usually not enough without

context; context defines what interest is important
2. Conflicting Interests: Interests need to be weighed
against one anotherdoes the statement give up more
than it gains?
3. Collateral Points: What parts of the statement are
integral to the admission and what parts are insufficiently
related?
a. Williamson v. United States: The court held
that non-self-inculpatory statements within a
broader narrative that is generally self-inculpatory
are not covered i.e. should be excluded
4. Fact Versus Statement of the Fact
d. Penal Interest
1. Curry Favor: Statement that is obviously made trying
to get leniency is often recognized by the court as such
and discounted
2. Blame Shifting: I was involved, but he was more
culpable obviously does more to protect than harm, and
may be excluded like trying to curry favor
4. Statements of personal or family history
5. Forfeiture Exception: FRE 804(b)(6) paves way to admit
statements by declarant that has been made unavailable by
wrongdoing committed by party whom statements are offered against.
Whether D is responsible for the witnesss unavailability is a question
for the judge FRE 104(a).
6. Required that D intended to make witness unavailablei

Catchall Exception for Admitting Hearsay FRE 807

A. Generally: Broad exception for trustworthy hearsay, available in
exceptional casesburden on proponent to show trustworthiness
B. Requirements: 5 requirements
1. Trustworthiness: circumstantial guarantees of trustworthiness
equivalent to those of the categorical exceptions. Courts appraise
(4) hearsay risks (perception, candor, narration, memory) look at
similar factors contained in categorical exceptions:

27

a. E.g. spontaneity, careful routine, reliance, against interest,

propensity to tell truth, presence of oath, personal knowledge,
time lapse between event and statement, motivations for
fabrication
2. More Probative: Hearsay admitted under this exception must be
more probative than anything else available.
3. Material Fact:

Hearsay must be relevant under 401-402

4. Interests of Justice:
reliable

must serve the interests of justicei.e. seems

5. Notice: Proponent must give notice to adversary of the particulars of

a statement offered under catch all, including name and address of
speaker
C. Common UseChild Victim Statements
1. Favorable Factors
a. Spontaneity
b. Age-appropriate language
c. Precocious knowledge
d. Repetition
e. Absence of motive to lie
f. Training/experience of the interviewer
2. Unfavorable Factors
a. Motivational factors
3. Impact of Crawford: Statements by children to doctors, family,
caretakers, or friends are not testimonial; statements to police or social
services are

Protected Witness Testimony

A. Child Victim Statements (Tender Years Exception): special exceptions
for child victimsusually require unavailability and trustworthiness
1. Trustworhty:

Typical factors

2. Unavailability: Psychologically unavailable Completely unable to

or likely to be damaged by testifying Maryland v. Craig
a. Crawford: Testimonial statements cannot come into criminal
trial w/o cross
B. Child Victim Depos: Defense counsel can be present for cross, but not D
28

C. Remote Testimony: Lawyers and parents in room with child

Impact of the Confrontation Clause

A. Opportunity for cross must be effectivewitness not answering questions
will result in his direct testimony being stricken
1. Meaningful cross (i.e. constitutional cross doesnt require testimony
totally consistent with prior statements nor does it require memory of
events being asked about) Court will look at practical effects of the
actual cross v. what effects might come if statements were consistent
with earlier ones.
a. E.g. prison guard beaten, IDs perp @ time, forgets before
trialmeaningful cross of guard when prior statements of
identification 801(d)(1)(C) if he doesnt remember the assailant?
Yes, D was not denied right of confrontation because W
testified, was willing to answer questions to the best of his
ability, and was impeached by showing his lack of memory and
by suggesting that his earlier statement and recollection may
have been implanted by police questioning.
2. Right to cross includes right to impeach
B. Testimonial Hearsay: Testimonial hearsay may not be admitted (under
confrontation clause) unless the declarant testifies at trial and is subject to
cross (prior OOC statements by testifying witness can still be excluded as
inadmissible hearsay). Only testimonial statements are governed by
the 6th amendment; only those giving testimonial statements are
witnesses.
1. General Rule: Crawford v. Washington, the SCt. moved away
from indicia of reliability directed courts to determine whether an
OOC statement is testimonial in nature, and exclude testimonial
hearsay unless D can cross declarant at trial or had previous
chance to cross in some other proceeding.
a. The only true indicia of reliability is confrontation

29

2. Testimonial: Statements are nontestimonial when made in the

course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are
testimonial when the circumstances indicate that there is no
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. Typically primary purpose
analysis
a. Factors for Determination
1. Whether statement describes past events or events in
occurrence
2. Whether the purpose of the statement is to assist
investigation of a crime or provide information relevant to
some other purpose
3. The level of formality of the exchange in which the
statement is made
b. Test: Would an objectively reasonable person, listening to the
statements, expect them to be use in an investigation or
prosecution?
1. e.g. Davis v. Washington Michelle called 911 on Davis,
told the operator that he had beat her with his fists and
left. 911 call was offered as an OOC statement, Michelle
was not available for cross. Although Michelle identified
attacker to 911, she did so to aid in an ongoing
emergency. She was not acting as a witness. Court
also noted that her statements were not intended to be
used in future prosecution as would be statements made
to police after they arrived describing the fight.
3. Deferred Cross: Cross examination concerning a prior OOC
statement is deferred because it doesnt happen at the time the
original statement occurred. Deferred cross usually cannot by itself
get in an OOC statement, without acting in conjunction with a hearsay
exception

4. Prior Cross: Testimony given in prelim hearing where D and his

lawyer can be present and defense may cross witnesses likely satisfies
the Confrontation Clause requirements, but admission would still
require a hearsay exceptionusually 804 unavailability
5. Other Circumstances where Crawford doesnt apply

30

a. Co-Conspirator Statements: Not testimonial, they are

presumably not made in contemplation of future use in trial or
investigation
b. Dying Declarations: often testimonial, but should still be
allowed on historical grounds
c. Business Records: nontestimonial; to qualify for the business
record exception the records cannot be made in anticipation or
contemplation of trial
6. Non-Hearsay Uses of OOC Statements under Crawford: The
Confrontation Clause does not get in the way of testimonial statements
offered for nonhearsay use, i.e. something other than proving ToMA.
7. Forfeiture Doctrine Applies to Confrontation
8.

Character and Habit Evidence

A. Character and habit evidence present challenging issues of relevancy
because the probative value of such evidence must be balanced against the
significant dangers of unfair prejudice and misleading juries
B. Character: a persons tendency (disposition or propensity) to engage or
not engage in certain types of behavior, or traits of character. A person
may have a character for truthfulness or untruthfulness; being peaceable or
violent; reckless or careful; lawfulness or not.
C. Uses of Character Evidence: 3 different useseach with its own rules of
admissibility
1. Conduct on a Specific Occasion: he has a tendency to act in a
certain way, so he probably acted that way on this occasion; this is
circumstantial or substantive use of character evidence
generally prohibited subject to exceptions.
a. E.g. Exceptions
1. allowing the D in crim case to prove a trait of character
that suggests he didnt commit the charged crime
2. D in crim case prove that the alleged victim of the crim
was behaving in a crim manner himselfe.g. showing
that victim of assault is actually a violent person

31

2. Element of Charge, Claim, Defense: if Ds character is at issue,

i.e. an element of crim charge, civil claim, or defense
3. Prove Motive, Intent, or Similar Specific Points: e.g. habitual
burglar is caught unlawfully entering a home, we can infer from prior
burglary convictions what his intent was
D. Methods of Proving Character: 3 methods for proving character
1. Reputation: Accounts offered by character witnesses; admissible
hearsay under 803(21)
2. Opinion: FRE 405(a) allows opinion evidence, provided the
proponent shows that witness has adequate basis in experience to
support an opinion
3. Specific Instances of Conduct:
always the case

Generally not allowed, but not

a. Generally cannot pursue on direct, but cross examiner can raise

points of specific conduct; the questions raise should be relevant
to the character trait in question, though. e.g. character witness
on direct says D is a peaceable person, cross examiner can ask if
D started fight on Wed, but not if D stole money from his
grandmother. allows crosser to test credibility/knowledge of
the witness
1. No extrinsic evidence: If witness denies that D started
fight on Wed (or knowledge of) crosser cannot intro
evidence to prove he did, crosser must accept Ws answer
were only testing credibility here
E. Character Evidence Offered to Prove Conduct on Specific Occasion:
Generally prohibited, subject to 4 exceptions
1. Criminal Defendants Defense: FRE 404(a)(1) allows the D to
offer evidence of a pertinent trait to help prove he didnt commit
charged crimeif D offers +character evidence, prosecutor can rebut
with negative
a. Pertinent:

Trait must relate to type of crime charged.

b. Form of Proof: Character witness can testify on direct only as

to reputation or opinion, NOT specific instances, except on
cross FRE 405(a)
c. When Accused Attacks Victims Character: FRE 404(a)
(1) allows the prosecutor to prove the same trait of (bad)
character that the D (tries to) prove(s) in a witness.

32

2. Crime Victims: In a crim trial, evidence of pertinent trait of alleged

victim is admissible in three situations under FRE 404(a)(2):
a. Exceptions:
1. Admissible when offered by accused to prove his
innocence
2. Admissible when offered by prosecutor to rebut
character evidence offered by the accused
3. Admissible in homicide case when prosecutor offers
character evidence pertaining to the peacefulness of
victim to rebut defense evidence that victim was first
aggressor
b. Form of Proof: Character witness can testify only to
reputation or opinion, not specific instances; except on cross
FRE 405(a)
c. Rape Shield Statutes: FRE 412 limits admissibility evidence
of a sex crime victims character that might otherwise fit 404(a)
(2) exception
3. Witnesses: Civil and Crimevidence of the character of a witness is
admissible to the extent allowing for impeachment of witnesses
4. Sex Assault Cases: FRE 413-415 expand the permissible use of
character evidence in sex assault and child molestation cases
a. Sex Assault Cases: 413 allows evidence that D has
committed other sexual assaults, no prior conviction required
subject to 403 prejudice objections
b. Child Molestation Cases: FRE 414 allows evidence that D
has committed other child molestations, no prior conviction and
subject to 403
c. Civil Cases Involving SA or CM: FRE 415 extends 413-414
to the civil arena
F. Character Evidence Generally Admissible When Character is Element
of Charge, Claim, or Defense: FRE 404(a) doesnt apply because
character is being proved for its own sake, not for supporting an inference
that a person behaved in a certain way on a certain occasion
1. Criminal Cases: Rarely, if ever, is character an element
a. Civil Cases: Rare
1. Negligent Entrustment: P must prove D was negligent
in entrusting an instrumentality to a third person, that
third person was by character unsuited to be entrusted
33

2. Defamation: Truth defensePs character is likely to be

element of that defense
3. Wrongful Death: Character of decedent is element of
damages
4. Child Custody: character of parents often at issue

b. Form of Proof: reputation, opinion, OR specific instances

under FRE 405(b)
G. Prior (Bad) Acts Admissible to Prove Specific Points FRE 404(b)
1. FRE 404(b)(2) Non-exhaustive List: may be admissible to prove
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, lack of accident
a. First Questions: 404 relevant in permissible way? and 403
prejudicial value?
b. Proving Context: there are other permissible uses for prior
acts that lie beyond those listedmost importantly providing
context for charged offensemust be necessary or helpful
to jurys understanding of charged crime
1. E.g. prosecutor offers evidence in kidnapping cases that D
kidnapped V because of a marijuana sale gone awry
2. The party offerings evidence of prior crimes, wrongs, or acts under
404(b) must specify the particular purpose for which it is offered
3. Degree of Similarity Required: 404(b) doesnt necessarily require
that the prior act being admitted into evidence be similar to the
charged crime. Depending on what point youre trying to prove,
though, similarity may be required for the evidence to have probative
value.
a. Modus Operandi: prior act must have high degree of
distinctive similarity in order to show that two crimes bear a
signature of the accused, such that his participation in the
first shows probably participation in the second.
4. Certainty That Prior Bad Act Was Committed: proponent of prior
bad act bears burden of proving it
a. Forms of Proof: Conviction not required, but is weightiermay
be admitted even if D was acquitted
b. Standard of Proof to Get Prior Act Admitted: evidence
sufficient to support a finding that D committed the prior act is
enough (judicial gatekeeper)then it is a jury decision.

34

5. Exclusion of Prior Bad Acts Under FRE 403: Factors for deciding if
prior bad acts cause undue prejudice outweighing probative value
a. Whether issue is disputed
b. Certainty of proof of prior act
c. Probative force of evidenceremoteness in time?
d. Inflammatory or prejudicial effect
e. Effectiveness of limiting instruction
f. Prolong current proceedings?
6. Notice Required: On request by D, prosecution must provide notice
in advance of trial of general nature of evidence that it intends to offer
under FRE 404(b)
H. Evidence of Habit or Routine Practice: Admissible under FRE 406 to
prove that on a particular occasion a person or organization acted in
conformity with that habit or routine practicewhether evidence of
habit/routine practice is corroborated or not
1. Habit: regular practice of meeting a particular kind of situation with
a specific type of conductvolitional evidence (e.g. going to church
every Sunday) doesnt qualify
a. Habit is more specific than character (always using a turn signal
v. being a careful driver)
b. Habit involves behavior that is more regular than character
(always buying groceries with credit card v. being willing to use
credit)
c. Habit is more automatic/unreflective than character (taking
stairs two at a time v. being punctual)
2. Methods of Proving Habit: Habit is usually proved by witnesses
describing prior specific instances of conduct, or, e.g., he always puts
his hat on the third peg; may be proven by opinion
a. Sufficient Instances: 104(a) question

Relevancy: Specific Applications

A. Some principles exclude and limit certain types of evidence that might
otherwise satisfy relevancy standards
B. Subsequent Remedial Measures: post accident precautions, taken to
prevent similar accidents cannot be admitted to prove negligence/culpable
conductcan be admitted to prove ownership or control

35

1. Ownership, Impeachment, Feasability: Post accident measures

may be proved to show ownership or control of premises, impeach
witness, and to show feasibility of alt. design
C. Settlement Negotiations: Offers and statements made in negotiations are
inadmissible to prove liability, invalidity of civil claim, or damages
1. Form of statement doesnt matterconditional, hypothetical, or
unqualified assertions
2. Claim must be in dispute for the exclusionary rule to apply
3. Exceptions: Proof of settlements is sometimes admissiblenonparty
witnesses may be crossed on settling with a party if it indicates bias
D. Pleas and Plea Bargaining: FRE 410 Withdrawn guilty pleas, nolo pleas,
and staements by D during plea bargaining generally inadmissible
1. Plea Bargaining only includes meetings with opponent attorney,
NOT police (unless police are part of bargaining process)
2. Prosecution can bring in plea bargaining statements to rebut/provide
context when D has brought in others of his plea bargain statements

36

Impeachment and Rehabilitation

A. Overview: All witnesses who testify are subject to impeachmentattacking
credibility. Witnesses may not be impeached on collateral matters 5 Most
common ways of impeaching:
Nonspecifi
c: DK what
to doubt
Definite:
Why to
doubt

1. Bias: animus, sympathy, motive, corruption no fed rule but

allowed
2. Defect in Sensory or Mental Capacity: No FRE
3. Bad Character for Truth or Veracity: 3 techniques
a. Prior bad acts indicating dishonesty FRE 608(b)
b. Prior criminal convictions FRE 609
c. Reputation or opinion evidence FRE 608(a)
4. Prior Inconsistent Statements: FRE 613

Specific
Indefinit
e

5. Contradiction: No FRE
B. Who May Impeach: Proponent or opponent may impeach any witness
FRE 607
1. When a calling party impeaches her own witness by means of prior
inconsistent statements that are admissible only to impeach, courts
sometimes conclude that the right of impeachment is being abused to
get in otherwise inadmissible evidence and block the testimony

Types of Impeachment
A. Bias: witness can be impeached by showing of bias for or against a party,
which includes animus, sympathy, motive to falsify, corruption, and bribery
Under penumbra of FRE 611
1. Bias Always Relevant: Bias is always relevant, meaning 3 things
a. Bias is a matter of consequence to the determination of the
action under FRE 401
b. Bias is extrinsic evidence
c. Courts cannot unreasonably limit the attacking party to explore
bias through questioningi.e. exempt from rule requiring cross
stay within scope of direct
2. Proving Bias

37

!
!

a. By Examination of Witness; Direct and Cross: Party may

want to bring out facts that would indicate possible bias so jury
doesnt think hes hiding those facts; if witness is going to be
impeached by prior statements indicating bias, cts require the
witness be asked about those prior statements before
extrinsic evidence of those statements is introduced .
b. By Extrinsic Evidence: Bias is never collateralthus it can be
proved by extrinsic evidence
1. E.g. proof witness made certain statements indicating
bias
c. Restricting Proof of Bias: Parties need latitude to show bias,
no undue restrictions. Parties need to be able to develop
relevant points sufficiently to let fact finder make informed
eval.
B. Defect in Sensory or Mental Capacity: Use this method if a defect (1)
affected the ability of the witness to observe and understand at the time
of the events or (2) affects her memory and ability to recount the events at
trial
1. No FRE; FREs did no end all common law traditions
2. Forms of Proof; Cross and Extrinsic Evid.; Bringing Out on
Direct: Attacking party may call witnesses to testify to another
witnesss defects.
3. Alcohol/Drug Use: usually excluded unless direct bearing on witness
abilities
4. Mental Illness: Attacking party may show by extrinsic or cross if
witness has mental illness/disability that has direct bearing on ability
to perceive/recall
C. Bad Character for Truth or Veracity: Prior Bad Acts: This impeachment
involves cross ONLY (no extrinsic) about specific instances of conduct that
suggest untruthfulness by witness. That is a collateral barcannot
impeach witnesses on collateral matters. FRE 608(b)
1. Acts must directly bear on truthfulnessinvolve falsehood or
deception
a. Inappropriate to ask about the fact of an arrest, charge or
indictment, unfair proxies for behaviorask about the
underlying facts
1. Broad, middle, and narrow interpretationsany
misconduct all the way to actual falsehood or deception

38

2. Good Faith Requirement: Cant pull shit out of your ass, a string of
denials about acts that didnt actually occur leaves the witness
effectively impeached

3. Discretion to Exclude: Trial judges have discretion to bar questions

when probative value is overbalanced by the need to protect parties
from undue prejudice FRE 608(b)
4. No Extrinsic Evidence: Extrinsic evidence of prior misconduct is
collateral, hence inadmissiblemust take the witnesss answer for
what it says, not necessarily the first answer though. BUT TRY TO
ARGUE FOR ADMITTING THE EVIDENCE OF THE PRIOR BAD ACTS
AS EXTRINSIC EVIDENCE OF INFLUENCE (BIAS) ON A WITNESS
D. Bad Character for Truth or Veracity: Prior Criminal Convictions: FRE
609 High risk of unfair prejudice, especially if witness is party to the
litigation. 2 Prongs:
1. Felony Convictions: FREs allow use of ANY prior felony conviction to
impeach, subject to balancing probative/prejudice value and time
restrictions possible imprisonment in excess of one year is the
general rule for what is a felony

a. Balancing Test for Impeaching Witnesses Other Than

Accused: Felony convictions are admissible to impeach subject
to 403(so long as the prejudice doesnt substantially
outweigh probative)favors admittance
1. BoP: Opponent
b. Balancing Test for Impeaching Accused: Felony convictions
admissible to impeach if the court determines that the
probative value of admitting outweighs prejudicial
effectFavors exclusion
1. BoP: Proponent
c. Factors for Balancing
1. Nature of Prior Crimereflection on honesty/integrity
2. Recency/RemotenessPresumption of 10 year exclusion;
still factor within 10 years
3. Similarity to Charged Crimeresemblance weighs
heavily for exclusion, more likely to cause prejudice
4. Extent and Nature of Recordlong rap sheet weighs more
heavily than an isolated incident

39

5. Importance of Ds TestimonyFear of extenisive felony

impeachment may deter D from testifying; judge may
protect him b/c testimony is important
6. Importance of Credibility Issuescreidbility is hotly
contested/important to outcomemore extensive
impeachment allowed
7. Conviction in Trial where D Testifiedif D testified to his
innocence and was found guilty, it is highly probative that
a prior fact finder found his testimony false
2. Convictions for Crimes involving Dishonesty of False
Statement: FRE 609(a)(2) Convictions should be admitted 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.
a. This reaches felonies AND misdemeanors
b. AUTOMATICALLY admissible, no discretion by trial judge to
exclude
c. Narrow Category: perjury, false statement, criminal fraud,
embezzlement, and false pretense. Crimes involving deceit,
untruthfulness, or falsification.
d. Crimes That Involved Dishonesty: Many courts ask
whether proving any element of the crime required proof of
deception; whether lying/deceit is a prima facie element
1. W/in discretion of the court to decide whether to look at
the crime objectively or factually how a crime was
actually perpetrated
3. Conviction: Contested conviction, guilty plea, or nolo
4. Ten Year Limit: Clock starts ticking at date of conviction or release
from confinement, whichever is later. Preferable end datedate
charges are filed in pending case requiring impeachment. Judicial
discretion to overcome.
5. Extrinsic Evidence of Conviction: Admissible
6. Details About Conviction: Date, place, nature of conviction,
punishment imposed. Witness may explain if he wished but that opens
him up to further prodding.
7. Conviction Obtained 609 Governs: No failing to mention
conviction and discussing facts to benefit from 608

40

E. Bad Character for Truth or Veracity: Reputation or Opinion Evidence:

FRE 608(a) Use of one witness (character witness) to show that another
witness (principal witness) is untruthful. Ct.s allow opinion or reputation
evidence.
1. Circumstantial Rather Than Direct: Testimony indicates that the
principal witness is by character or disposition untruthful; different
from testimony that he actually lied(direct evidence). FRE 404(a)(3)
provides exception to general rule barring character evidence to prove
conduct.
2. Opinion & Reputation Evidence: I know target witness, she is not
honest and will lie when it suits heropinion; I am acquainted with
the reputation of target witness for truth and veracity, and that
reputation badreputation
3. Foundation for Character Testimony
a. Foundation for Reputation: Character witness must be
acquainted with the community where the principal witness
spends most of his time
b. Foundation for Opinion: Character must have known
principal for some period of time in some setting
c. Character witnesses influence by knowledge of the case may be
excluded if testimony rests on or has been affected by
impressions of guilt in case
4. Crossing Character Witness: attack the witnesss knowledge of the
principal witness or the community at issue
a. Ask if character witness is aware of certain bad conduct of
principal witness, if yes and still vouchingpoor judgment; if no
poor knowledge
1. NOTE: character witnesses testimony about principal
witnesss (when D) acts cannot be used to determine Ds
guilt, only witnesss credibility
F. Prior Inconsistent Statements: Jury may not know whether prior or
current statement is correct, but blowing hot and cold reduces credibility;
can overcome other bars to admissibility e.g. Miranda (US v. Havens)
1. Inconsistent: Differs significantly from the thrust of trial
testimony, OR comparing statements indicates witness has changed
view or made mistake.
a. Material Omission: Omitting a material detail, which under
circumstances would likely have been included if true, is
inconsistent.

41

1. E.g. Calvin testifies at trial that Driver reeked of alcohol

after the accident, but Calvin didnt say it to the on scene
police, this counts as inconsistent and helps to impeach is
trial testimony
b. Lack of Memory at Trial: Lack of memory at trial when prior
affirmative statements on point were made are often
inconsistencies; sometimes courts only deem it inconsistent if
it seems feignedfeigning is 104(a) question
1. e.g. Seth IDed D during police line up but at trial says he
cannot remember the robbery. Police testimony detailing
Seths earlier identification is admissible for impeaching
Seth because it is inconsistent. It is only admissible as
substantive evidence that D was the robber because it is
not hearsay, statement of identification FRE 801(d)(1)(C)
2. Foundation Required: FRE 613(a)
a. Prior Written Statements: Need not be shown to witness
before impeaching attack, but shown to opposing counsel upon
request
b. Prior Oral: Witness is afforded no refresher; opposing counsel
gets contents of statement on request
3. Opportunity to Explain: Extrinsic evidence of prior statement is only
allowed if witness has opportunity to deny or explain at sometimecan
call impeaching witness as extrinsic evidence of prior inconsistent
statement even if the statement was not brought up during cross of
principal witness
4. Abuse of FRE 607: 607 allows for impeachment of own
witnesscourt will look to primary purpose for calling that witness;
may not call if primary purpose is to put otherwise inadmissible
statements in front of the jury

Rehab
A. Overview: Rehab cannot precede attack; but you can anticipate
impeachment and bring out bad facts on direct. Any rehab engaged in must
respond directly to an attack.
1. e.g. impeaching eyesight cannot be rehabilitated with evid. Of good
character for truth
B. Allowing Witness Opportunity to Explain: Allow witness opportunity on
redirect to directly counter impeaching claims

42

C. Good Character for Truth and Veracity: under FRE 608(a) a supporting
witness may testify to the good character for truthfulness of the principal
witness that was attacked for bad character-opinion/reputation
1. Attack on Character: This method of rehab is only allowed if
character for truthfulness attackedwhat proof of good character is
allowed depends on how witness was impeached.
a. Character Evidence 608-609: proof of good character
allowed
b. Prior Inconsistent Statements: doesnt pave way for GCfTV
evidence, generally
c. Bias: Generally dont imply lack of truthfulness; generally dont
allow GCfTV evid.
d. Contradiction: No
2. Lay foundation: Acquainted with witness or community
D. Prior Consistent Statements: attack on memoryintro prior consistent.
Prior inconsistent that witness denies making, prior consistent may support
denial. Rebut claim of recent fabrication or improper influence or motive.
1. Admissible for ToMA in OOC Prior Consistent Statement:
801(d)1(B)
2. Must be prior to motive to fabricate.

Opinion and Expert Testimony

Lay opinions are admissible if they are based on personal perception and
helpful to trier of fact FRE 701
o May not be based on scientific, technical, or other specialized
knowledge covered by 702 Expert Testimony

Witness may testify to what she think or believes, without certainty

Expert testimony (knowledge, skill, experience, training, or education) is

admissible when it will assist the trier of fact to understand evidence or
determine a fact at issue FRE 702
o Based on sufficient facts or data
o Product of reliable principles/ methods

Must lay foundation for expert status

Determining Expert Status is 104(a)

43

Even expert testimony that opines on an ultimate issue of fact is acceptable

FRE 704(a)
o Not acceptable if it speaks to criminal defendants elemental metal
state FRE 704(b)

FRE 703 Expert Testimony can be based on

o Facts perceived
o Facts learned at trial
o Outside knowledge
Knowledge acquired through 3d party (i.e. based on hearsay)
can still be 60 pkno unmediated contact between nature and
thought; BUT expert cannot be conduit to get in others opinions

Experts can opine without laying foundation for opinion; must disclose on
cross FRE 705

Court may appoint experts FRE 706

Fryerequiring showing that scientific technique is generally accepted by

consensushas been rejected for Daubertrequiring showing of
reliability
o State courts are split between standards; feds use Daubert
o Colorado uses Schreck hearings

Court will make a preliminary determination of reliability of expert testimony

under Daubert
o Testimony presents valid sciencei.e. reliable
Factors for Reliability
Testing/falsifiability
Peer Review
Error Rateknown or potential
Operational Standards
General Acceptance
o Science must be pertinent, relates directly to issues;
o Evidence still excludable under 403if it will confuse or mislead the
jury

Kumho TireCourt extended Daubert standard to all forms of expert

testimony

44

45

Burdens and Presumptions

A. Burden of Proof
1. Burden of Production: the requirement imposed on each party to
produce sufficient evidence to support a jury finding in its favor on
the elements of its charge, claim, or defense. Must produce sufficient
evidence on every element; failure will result in summary judgment.
a. Shifting BoProduction: If a party succeeds in carrying its
burden by offering evidence that is cogent and compelling,
that a reasonable jury would have to find in its favor on all
elements, then the BoProduction shifts to the other side. Unless
the other side carries its burden by offering sufficient evidence,
the case will go to party 1 on motion to dismiss, directed verdict,
JaML
1. I.e. prosecution or complainant needs to offer minimum of
sufficient evidence to take case to jury otherwise no claim
exists and there would be Motion for Summary
Judgment/dismissal without other side needing to offer
counter evidence
2. Burden of Persuasion: The requirement of persuading the factfinder
on every element of its charge, claim, defense
a. Standard of Proof: Typical terms for the burden of persuasion.
b. Burdens Coincide: Normally the party who bears the
BoPersuasion at the beginning also bears the BoProduction.
c. BoPersuasion Never Shifts
B. Standards of Proof
1. 3 Common Standards
a. Preponderance: existence of fact is more probable than not
b. Clear and Convincing: More stringent than preponderance
c. BRD
C. Assignment of Burdens in Civil Case
1. Burden of Pleading
2. Burden of Production: generally, a party has the burden of
producing evidence whenever finding against that party on a point
would be required in absence of that evidence. Also in evidence
supporting allegations youve made in complaint

46

3. Burden of Persuasion: Party has Bo persuasion on each fact that is

essential to his claim or defense.
D. Assignment of Burdens in Criminal Cases
1. Production
a. Prosecution: carries bo production for each element of the
charge failure to produce sufficient evidence is directed
verdict of acquittal
b. Defense: Not required to produce evidence rebutting an
element of the charge; only required to produce for a true
affirmative defense. E.g. duress, self-defense but not lack of
motive, presence of consent, etc.
2. Persuasion
a. Prosecution: BRD
b. Defense: May carry on affirmative defenses, preponderance
E. Presumptions and Related Concepts
1. Presumption: In civil cases, a presumption is a rule that if X (basic
fact) is established, then Y (presumed fact) must be found absent
counterproof.
2. Inference: If X is established, Y may be found. Sometimes is the
leftover of a presumption met with counter proof
F. Sources and Examples of Presumptions
1. Sources
a. Evidence Codes
b. Statutes
c. Case law
2. Examples
a. Absent 7 years: Presumed dead
b. Proper Mailing: a letter properly mailed is presumed to have
been delivered ~3days
c. Sudden violent death is accidental
d. Negligence by Bailee: Goods entrust to bailee in good
condition and returned damaged, negligence is presumed
G. Conflicting Presumptions: e.g. man marries two women, both marriages
presumed valid and ongoing.

47

1. General Rule: Whichever is founded on weightier considerations of

policy and logic
H. Burden-Presumption Relationship: Presumptions can satisfy and shift
burdens of production, can satisfy burden of persuasion
I.

Effect of Presumption When Counterproof Contests the Basic Fact: If

trying to prove death by 7 year missing presumption, counterproof as to
whether not heard from in 7 years makes the presumption a conditional
presumption; If the jury finds that he has been missing for 7 years, it must
find that he is dead

J.

Effect of Presumption When Counterproof Contests the Presumed

Fact
1. FRE / Thayer: Common law view; a presumption shifts only the
burden of production. Presumption disappears from the case in the
face of sufficient counterproof; bursting bubble view

2. Reformist / Morgan: Presumption shifts burden of persuasion to

opponent to disprove the existence of the presumed fact by
preponderance
3. Intermediate: Allow presumptions to take the case to the jury even
when there is counterproof against presumed fact; 3 Intermediate
Views
a. Presumptions play a role until substantial and uncontradicted
evidence is offered against presumed fact
b. Presumptions play a role until the adverse party offers
counterproof that the jury believes
c. Equipoise, presumptions play a role until the fact finders
believe the nonexistence of the presumed fact is as likely as
existence
K. Effect of Presumptions under FRE 301: Presumption shifts only the
burden of production
1. Extent of Counterproof Required: FRE 301 requires the opponent
to produce sufficient evidence
2. Federal Statutory Presumptions: Not governed by 301
L. Presumptions in Criminal Cases: At most, court can instruct a jury that it
might infer, if it chooses, on the basis of basic fact X and all the other
evidence in the case, that presumed fact Y exists
M. Permissive Inferences/Presumption: Allows, but doesnt require, the trier
of fact to infer the elemental fact from proof by prosecutor of basic one
analyzed as applied/effecting case at hand

48

1. Required: There must be a rational way the trier of fact could make
the connection permitted; otherwise there is risk that explaining
inference is prejudicial
a. Note: If a presumption imposes an extremely low burden of
production on the opponent, it acts like a permissive inference
and should be analyzed as such
2. SandstromCriminal presumptions not allowed rephrash as
permissive inferences.
a. Given Instruction: The law presumes that a person ordinarily
intends that consequences of his voluntary acts
1. Problem: a reasonable juror could have thought that he
had no choice in whether Ds acts were voluntary
effectively shifting the burden of persuasion to D that they
were involuntary
a. Note: Prosecution may no effectively shift its own
burden(s); but instructing on presumptions against
Ds defense i.e. allocating burden of persuasion of
his own defense to D may be ok
b. Permissible Alternatives: You may find that D acted
purposefully or knowingly only if you conlucde that the evidence
proves the point beyond a reasonable doubt. Depending on the
circumstances, it is sometimes possible to reach that conclusion
on the basis of proof that a person acted voluntarily
3. County of Ulster v. Allen
a.

49

Privileges
A. Attorney-Client Privilege
1. Purpose: encourage open communication for quality representation
2. Elements
a. Client holder of privilege; covers preliminary convos before
retention
b. Lawyer anyone that is or client reasonably believes to be
licensed to practice law
1. Privilege covers representatives of the lawyer and outside
experts employed to help the lawyer
c. Legal Services privilege only applies to legal services
d. Communication privilege only applies to communicaitons
between lawyer and client
1. Observations: not covered
2. Facts Arent Covered: The communications, not the
facts contained therein are the only thing that is covered.
3. Pre-Existing Writings: not covered, e.g. client letter to
spouse
4. Lawyers Statements: Covered for the most part, they
reflect what the client has said
e. Confidentiality Privilege only applies to communications
intended to be confidential. Presence of representatives of
lawyer or experts helping out does not destroy privilege;
Confidentiality is a question of intention; intention is
judged primarily by precautions taken
1. Other Outsiders: Presence of other outsiders not
representatives of client or lawyer or communicative
intermediaries, indicates confidentiality was not intended
2. Disclosure Intended: If client intends communication to
be made public by lawyer, no privilege
3. Voluntary Disclosure: if non-privileged disclosure is
made, privilege is waivedtalking about underlying facts
does not destroy, only discussing actual communications
to or from lawyer

50

4. Eavesdroppers: Privilege remains intact if the client

took reasonable precautions to maintain confidentiality
3. Joint Clients: applies to both, one can waive his privilege for his
statements so long as that waiver does not disclose communication to
or from the client maintaining privilege
a. Exception for Suits by One Against Another: such
communications are not privileged if the clients become
adversaries. Each may offer whatever the other said to the
lawyer, even in confidence
b. Reason for Exception: there was never intent from client1 to
keep client2 in the dark
4. Pooled Criminal Defense; Allied Lawyers: Courts generally apply
privilege to encourage this efficient cooperation.
a. Privilege Against Outsiders: when separately represented
clients consult on matters of mutual interest, privilege applies
against outsiders
b. Privilege Among Clients: Little case law, but the policy
behind privileging pooled defendants suggest applying it among
clients
c. Common Interest: must share common interest and agree
expressly or implicitly to cooperatedoesnt apply to
adversarial-arms-length communications
5. Corporate Client
a. Control Group: Most restrictive standardconfines privilege to
communications by people in the corporate managerial
hierarchy who have authority to act on any advice given.
Rejected by SCt.
b. Subject Matter: Privilege for corporate clients applies to
communications by any employee relating to subject matter that
is within the scope of his job or responsibilities to the corp.
c. Upjohn Approach: Four factors for defining the scope of
privilegeclaims not to be a comprehensive approach to all
corporate client questions.
1. Obtain Legal Advice: Corporate employees made the
communications in talks with counsel for purpose of
obtaining legal advice for the corporation.

51

2. Request by Superiors: Employees made

communications at the direction of their superiors in
the organization. (Request helps show purpose)

3. **Scope of Duties: Communications related to subject

matter within the scope of duties of the employee.
Critical and Central to Upjohn approach.
4. Treated as Confidential: The corporation treated the
communications as confidential from beginning to
end: gathered in private interviews; memorialized in
notes and memos that were not shown to outsiders and
had limited intra-circulation; i.e.;
a. Kept confidential as against outsiders
b. Limited access within the corporation
d. Employee-Eyewitnesses Excluded From Upjohn: Tugboat
crew that was eyewitness to the events did not fall within the
attorney-client privilege when they reported what the saw to the
lawyers
e. Corporation Holds Privilege: Corporate entity holds the
privilege, former managers dont hold privilege as to their own
communications
f. Note Overlapping Privilege: Corporation and employees will
often have aligned interests, thus each holding their own
privilege
6. Hard Cases: Sometimes privileges give way to more important
considerations
a. Client Identity: Ordinarily the identity of the client is not
privileged info
1. But see Baird v. Koerner: Lawyer hired to
anonymously pay back taxes for his client. Court
concluded under these circumstances the identity of the
client was privileged.
a. Rule: identity is protected if disclosure would
reveal confidential communications between client
and lawyer
b. Other Unprivileged facts:
1. Fee arangements
2. Fact of consultation
3. Clients whereabouts
52

c. Lawyers Observations: unprivileged

7. Exceptions to Coverage
a. Future Crime or Fraud: ongoing or future crimes or frauds not
covered; applies only if attorneys assistance was obtained in
furtherance of such activity and the client knows or should have
known the activity is illegal
1. Crim-Fraud Exception: Information seeker bears
burden of proving that crime-fraud exception applies.
Judge may conduct in camera inspection of the material
on which the opposing party claims privilege in order to
rule on the privilege claim; information seeker must
introduce facts (usually sufficient evidence) that support a
good-faith belief that exception applies (US v. Zolin)
8. Claiming Privilege: holder must claim when asked to disclose
104(a) question whether it exists
9. Waiver by Voluntary Disclosure: voluntary disclosure of significant
part of privileged matter waives privilege, so does failure to claim at
appropriate time.
10.Waiver by Inadvertent Disclosure: Courts look to
a. Degree of care exercised by privilege claimant
b. Presence of extenuating circumstances
c. Behavior of privilege claimant in taking remedial steps after
learning of disclosure
B. Marital Privilege: Spousal Testimony: Typically criminal cases only

1. Holder: Federal rules say it is only witness FRE 501

2. Scope: anything except proof of OOC statements that a party has
made
3. Marriage: Doesnt matter whether couple was married at the time of
events, status at trial matters. Sham marriages excluded, 104(a)
question
4. Exceptions: Adversaries or joint participants in crime
C. Martial Privilege: Marital Confidences
1. Holders: Each can refuse and prevent
2. Scope: All communications uttered in confidence during
marriagedoesnt cover noncommunicative conduct

53

a. In Confidence: children of tender years dont destroy

confidence
3. Communications: Assertive conduct is covered.
a. US v. Mongomery: written note by wife left for husband on
kitchen counter was within privilege.
b. US v. Estes: Husband dumping loot on marital bed was
communicative
4. Exceptions: Adversaries or joint participants

Authenticationi.e. Laying the Foundation

A. Generally: Showing something is what the proponent claims it to benot
taken at face value
1. Applies Everywhere: Applies to everything but live testimony: seen
people are people, heard words are words.
2. Steps in Process
a. Marking it for identification
b. Proving it is what the proponent claims, using testimony of
someone with personal knowledge
c. Offering the exhibit as evidence
d. Let opposing counsel examine it
e. Allow an opportunity for objection
f. Obtain ruling on objection
g. Mark object as an exhibit
3. Roles of Judge & Jury: Authentication is conditional relevancy, i.e.
judge plays screening role
a. Jury Determines: If sufficient evidence burden is met, jury
determines whether that something is authentic
b. Overwhelming: cogent and compelling evidence, jury may be
told to accept it as what it is purported to beatypical in
criminal trials
c. Insufficient: not enough proof, judge excludes
4. Burden: Proponent must lay foundation

54

5. Pretrial Authentication: often in civil cases most of it is hashed out

prior, including stipulation. Stipulation occurs in criminal context, but
often many questions left for trial
6. Liberality of FRE 901(b)(4): appearance, contents, substance, etc.
i.e. face value are part of consideration.
B. Tangible Objects: usually a combination of circumstantial evidence and
testimony by someone with personal knowledge
1. Testimony by Knowledgeable Person: Authentication generally
requires testimony by someone who has 602 PK and can ID the object.
The more familiar/distinctive the object the less foundational testimony
is needed.
2. Chain of Custody: useful when no witness can ID by 602 PK
a. Normally showing CoC involves calling each person who
handled the object
b. Gaps are ok, with people on either side of gap present
C. Writings: Proving a particular person wrote or signed a document
1. Lay Opinion: Familiarity with handwriting of a person, lay witness can
authenticate doc without having watched execution
2. Expert Opinion
3. Comparison by Trier
4. Distinctive Characteristics and Reply Letter Doctrine
a. Matching Knowledge: proponent may show Z wrote a
document by showing author of doc knew things Z knew or used
code words Z uses
b. Reply Doctrine: A letter can be shown to be from K if it is an
apparent reply to letter or inquiry directed to K
c. Name is Insufficient: Someones name on something is a
considered factor but not sufficient alone to show that someone
authored it
d. Letterhead insufficient:
5. Public Records and Documents
a. Certified Copy: certificate of authenticity

Best Evidence Doctrine

55

A. Generally: Requires content to be proved by the writing itself, unless

unavailable through no fault of proponent
B. Rationale: writings are superior to other evidence; insures completeness
and prevents forgery/faud
C. Coverage: Writings, photo/video, recordings
1. Allows duplicates
D. Writing: anything that contains or memorializes numbers, letters, or
words, including computer output
1. Inscribed Chattels: Sometimes courts exclude inscribed chattels
from the rule
E. Application: 2 situations
1. Substantive law requires proof of contentcontract suit
2. Party strategy brings substance to prominencesomeone relies on a
business record under FRE 803(6), raising that defense requires proof
of content
F. Where it Doesnt Apply
1. Matters incidentally recorded: the fact that something was
recorded doesnt automatically bring within purview of rule; party may
testify that he paid even if a receipt exists
2. Absence of Content: When proving that something was not on a list
can be proven without the list
3. Matters other than content: proving preparation or execution of a
document
G. Production Excused
1. Original lost or destroyed
2. Opponent possession of original
3. Not obtainable by ct. process
4. Writing relates to collateral matter, not the central issue
H. Public Records: provable by certified copy w/ seal
I.

Summaries of Voluminous Material: May be offered provided that the

voluminous material is itself admissible and made available to opponent

J.

Judge and Jury

1. 104(a): application of doctrine

56

2. 104(b): Whether writings exist/are genuine

57

Questions
Under 801(d)(1)(c) statements of identification, what is second viewing?
What do you mean when you say that modern trend is to not require independent
proof of exciting event?
How should we address circularity issues that arise in co-conspirator statements
where preliminary fact decision is the same as an ultimate fact decision?
What is the rifle shot child abuse exception?
If police reports are banned as public records, 803(8)(A)(ii) why was it permitted in
Baker v. Elcona Homes?
What benefits would be gained by failing to mention conviction thus keeping
questions under governance of 608(b)?
Is it permissible for the jury to receive instructions to make presumptions against
Ds defense claims; i.e. allocating burden of persuasion to D to prove his own
defense?

58