Evidence Outline

Introduction to Evidence
 Why have Evidence Law?
o Evidence mediates between truth and justice
 Factual truth is different from legal truth
 Legal truth= the verdict
o Evidence Law has the aspiration to get stuff right
 In the Name of the Father clip- go to the court to right the wrongs done at
the court
 People equate courthouses with justice (especially done in pop
culture)
o Evidence Law tries to ensure this belief remains by creating
an environment to get to the “right” answer
 But it still misses the mark sometimes
 See the recent pop culture trend- Making a Murderer and Serial
 Trials are about painting a picture
o Problem with Evidence Law today: cognitive science has evolved faster than the
Rules
 Why have the Rules of Evidence?
o Efficiency- avoid needless or repetitive testimony
o Legitimacy
o Precision- most trustworthy evidence allowed in
o Social policy
 What is Evidence Law?
o 2 aspects to evidence
 Facts in the world used to back legal arguments
 Scheme of rules (code established in 1975)
 Codification of existing common law
 Almost every state has adopted the Rules wholesale
o Palimpsest- books washed to be used again
 Metaphor for evidence law- see traces of what came before
o Why not have a free proof system?
 Accuracy (precision), fairness (relevancy), legitimacy, social policy rules
(some relationships trump truth), efficiency, consistency
 Core values are fairness and accuracy
o Fairness= being fair but also appearing fair
 When is a jury looked into?
o When constitutional rights are at risk- see Pena-Rodriguez v. Colorado (before the
Supreme Court this term)
 Trial timeline (*involve evidence rules)
o Claim/indictment filed  *pre-trial motions seeking admission/exclusion of
evidence  jury selection  opening statements  *prosecution’s/plaintiff’s
case  defendant’s motions  *defendant’s case  *rebuttal case  closing
arguments  jury instruction  verdict

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 Nothing about evidence rules is self-executing
o Constant strategic decision-making
 Can just remain quiet through bad testimony to make it go faster and not
draw attention
 Can be risky though- lose the ability to appeal (Rule 103(a)(1)-
waive objection)
 Appellate review of evidentiary errors
o Review- abuse of discretion (rarely overturned on appeal)
 If no objection, only reversed for plain error that is particularly egregious
o Many errors are deemed harmless
 102
o These rules should be construed so as to administer every proceeding fairly,
eliminate unjustifiable expense and delay, and promote the development of
evidence law, to the end of ascertaining the truth and securing a just
determination.
 103(a)
o (1)- objections are waived if not made at the time of the objectionable question
o (2)- To preserve the issue for appeal, the substance of the evidence sought to be
admitted must be made known to the judge via an offer of proof
 104(a)
o Judge determines qualifications of witnesses, existence of privilege, and
admissibility of evidence
o Role of judge- gatekeeper of information for the fact finder
 What about bench trials?
 Trust the judge to rule only based on what is admissible
o Most evidence questions are 104(a) questions
o standard for determining if expert is allowable
 Preponderance of the evidence- judge’s discretion
 105
o If the court admits evidence that is admissible against a party or for a purpose—
but not against another party or for another purpose—the court, on timely request,
must restrict the evidence to its proper scope and instruct the jury accordingly.
o Limiting instructions- same evidence but can only be used to evaluate x but not y
 606
o Jurors cannot testify on internal deliberations
o But they can testify on external issues (i.e. issues that non-jurors could also testify
on)
o Jurors may not testify to:
 “any statement made or incident that occurred during the jury’s
deliberations” or
 “the effect of anything on that juror’s or another juror’s vote” or
 “any juror’s mental processes concerning the verdict or indictment”
o Except that a juror may testify on the question:
 whether “extraneous prejudicial information was improperly brought to
the jury's attention” or

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  whether “an outside influence was improperly brought to bear on any
juror.”
 611
o (a) judge given “reasonable control” over questioning of witnesses
o (b) cross is limited to subject matter of direct and matters affecting credibility
(should all be leading questions)
o (c) no leading questions on direct
 Tanner v. United States
o Defendant seeks new trial because the jurors were high/drunk/sleeping
o Was this an external or internal issue?
 Are mind altering substances outside influences?
 O’Connor (majority)- no- excludes the juror from testifying
o Equates intoxication to illness
o Very worried about making all verdicts questionable
o Wants to protect the jury- values finality (institutional
argument)
 Deliberate without fear
 Protect jurors from harassment
 Preserve legitimacy of verdicts- jury system might
not survive “efforts to protect it”
 Marshall dissent- drugs are outside influences
 Warger v. Shauers
o a plain reading of Rule 606(b) precludes the use of juror testimony when a party
is seeking a new trial on the basis of juror dishonesty during voir dire.

Admitting Evidence
 First must meet general relevancy threshold (Rule 401)
 Then look at unfair prejudice (Rule 403)
o This is a highly discretional rule
 Questions to consider regarding relevance/character evidence
o What are the legal issues and factual context?
o What is the piece of evidence?
o What is the evidence being offered to prove?
o Is the probative value outweighed by unfair prejudice?
o How is the evidence being used?
 Substantively or for impeachment purposes?
 For hearsay ask:
o Is it made out of court?
o Is it intended as an assertion?
o Is it offered to prove a truth?
 Analysis of out-of-court statements post-Crawford:
o If it hearsay?
 Is it an assertion?
 Is it offered for its truth?
o Is it within an exception (803, 804) or an exemption (801)?

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 o If yes to above, but it is offered against the defendant in a criminal case, then
Confrontation Clause is implicated.
o Post-Crawford, ask if the statement is testimonial?
 If testimonial, the declarant must:
 Testify at trial and be subject to cross
 Be unavailable and subject to a past opportunity to cross
 OR forfeiture must apply
o Even assuming hearsay and constitutional challenges are met, still can resort to
discretionary 403 weighing
 Approach to questions concerning expert testimony:
o 1- does the witness qualify as an expert in the relevant field (702)
o 2- will the expert’s analysis assist the jury (702)
o 3- is the testimony on a proper topic for expert opinion (702 and 704)
o 4- does the expert’s opinion rest on proper data (703)
o 5- Daubert analysis:
 a) is the methodology reliable?
 Error rate
 Peer reviewed
 Use of controls
 General acceptance
 b) does the expert’s analysis “fit” the issues in the case?
 3 questions to ask for inadvertent disclosures (Williams v. DC)
o 1- is it actually inadvertent?
o 2- were reasonable steps taken to prevent it?
o 3- were reasonable steps taken to rectify the error and how quickly were these
steps taken?

Relevance
 401
o Unique in structure- inclusion rule vs. exclusion rule
o Liberal rule- cuts toward admissibility if it is a close call
o Relevant= having any tendency to make a fact more or less probable that it of
consequence to the case
 402
o Relevant evidence is admissible unless [otherwise provided]. Irrelevant evidence
is not admissible.
o The rest of the Rules of Evidence- exception to the admission of relevant
evidence
 No exceptions for all irrelevant evidence being inadmissible
 104(b)
o If relevance turns on a condition of fact, the contested piece of evidence goes to
the jury only if the judge determines that:
 there is evidence sufficient to support a finding of the condition,
 which means evidence from which “the jury could reasonably find [the
condition] by a preponderance of the evidence.” (Huddleston)

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 o The judge does not actually decide whether the condition is established, only
whether a reasonable jury could think so.
 United States v. James
o Evidence that James wants admitted- Ogden’s criminal record that James didn’t
know (only heard him brag about it)
 Why is it relevant?
 Corroborates James’ testimony by making it more likely that he
boasted about true things
o Prosecution can then make weight arguments (attempting to make the victim
compelling again) or can raise other objections about admissibility (i.e. unfair
prejudice/character)
 Conditional Relevance
o Cox v. State
 Conditional relevance
 If relevance turns on a condition of fact, the evidence only goes to
the jury if the judge determines that:
o There is evidence sufficient to support a finding of the
condition, which means evidence from which “the jury
could reasonably find [the condition] by a preponderance of
the evidence” (Huddleston)
 Balance between gatekeeping and fact-finding-
preserves the judge/jury construct
 Key fact- Cox had spent most of his time at Hammer’s house
 Balancing Probative Value and Unfair Prejudice
o 403
 Weighs unfair prejudice and probative value
 Most litigated rule of evidence
 Only guards against unfair prejudice (all relevance evidence is prejudicial,
especially very powerful evidence)
 Probative value (weighing test):
 How strong/sturdy is the brick in your wall?
 How important the evidence is to your case?
 Liberal rule- sides on letting evidence in
 “May”- gives the judge a lot of discretion
 At issue with videos and photos recently
 Future of jury trials- virtual reality recreations of the crime scene
 But Rule 403 is still at issue here
 Doesn’t help with common sense situations
 Ex: sarcastic statements (see Presumed Innocent clip)
 Jury understands common sense and makes reasonable inferences
on its own
 Aspect of Rule 403 that is often forgotten but utilized by courts= waste of
time rationale (especially when the evidence is unnecessarily complex)
o Evaluating statistical evidence
 1- soundness of the math
 2- accuracy of the underlying facts

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  3- nature of the evidence and the ability of the jury to evaluate the flaws
o State v. Bocharksi
 Defendant- not contesting manner of death
 Court- skull photos should not have been admitted (unfair prejudice)
 But it was a harmless error (so it didn’t affect the verdict)
 What prejudice are we afraid of with photos and videos?
 Animating emotions (rage, anger, sadness, etc.)
o Want to keep someone accountable (only target for these
emotions for the jury is the defendant)
 What can a prosecutor do to get a photo admitted?
 Zoom in/out
 Question about sensitivity during voir dire to screen out overly
sensitive jurors
 Make it black and white
 Change the framework
 Crime scene photos vs. Aaron Hernandez selfie
 Crime scene photos- speaks to the facts of the case
 Aaron Hernandez selfie- speaks to the character of the defendant
o Commonwealth v. Serge
 Concern for disparity of resources (uneven playing field)
 CGI- very lifelike for the times (is it too powerful?)
 But it is lifeless- there is no sound or facial expressions
 Strong warning to the jury initially was important
o United States v. James (dissent)
 The government can be prejudiced by evidence as well as the defendant
 Seen when the character of the victim is attacked
o Flight cases
 Prejudice is always consciousness of guilt so the question lies in whether
the probative value outweighs this
 Chain of inference
 Defendant’s behavior to the flight  flight to consciousness of
guilt  consciousness of guilt to consciousness of guilt concerning
the crime charged  consciousness of guilt concerning the crime
charged to actual guilt
 Chain of Inference and Flight
 Ex: they fled because they live in a community that doesn’t speak
to the police in any situation
o Not unfairly prejudicial
o But if they fled for prior convictions, then may be unfairly
prejudicial (crimes must be similar in kind and not too far
in the past)
 Defendant has to give unflattering information
about himself to “justify” his flight
o Evidence of non-flight
 Rarely let in

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  Defendant could be staying put because he knows it makes him look
innocent
 Maybe defendant wasn’t able to leave or had a family obligation, etc.
o United States v. Myers
 Myers’ flight- prior bank robbery
 Issue with step 3 of the chain of inference
 Also unclear if he is really fleeing from the police or not- so there
is an issue with step 1 of the chain of inference as well
 Evidence of either flight is inadmissible
o People v. Collins (probability evidence)
 Poor witness testimony- only really have a set of characteristics for the
couple and the car
 Bad math
 Problems with the independence of the variables
 Made up ratios (based on a survey of the clerical staff)
 Wrong application of the product rule
 Doesn’t take account of human error
 Danger- math and numbers seem very credible, especially to laypersons
(jurors)
 Piece of evidence seems more probative than it is (rule 403
argument)
o This argument can also be used to argue against expert
testimony
 How to use probability evidence today
 Let the jury reach its own conclusion for how likely something is
o Prosecution in closing- unluckiest person in the world
argument
 Good statistical evidence is fine
 DNA, toxic tort claims, discrimination cases
o United States v. Jackson (effect of stipulations)
 Will inclusion or exclusion lead to a fairer outcome?
 Goal of Rule 403
 Conditional ruling: evidence is inadmissible if Defendant stipulates that
he was in Georgia at the time
o Old Chief v. United States (narrative relevance)
 How much leeway do parties have to flesh out their narratives?
 Evidence in conflict- name and nature of the prior felony
 Holding- inadmissible but Defendant must stipulate to a felony without
actually naming it
 Defendant offered to stipulate to the felony- lowers the probative
value of naming the actual felony
 Pg. 89- most quoted section
o Descriptive richness
o Moral reasonableness
o Momentum- satisfy gaps the jury needs to fill

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  I.e. if murder involving gun, then a gun must be
shown (even if it is a terrifying gun)
 Dissent: there is probative value to the nature of the felony
 Different levels of morality for felonies
o Violent felonies vs. non-violent felonies
o Adds descriptive richness to your narrative
 Rule 403 balancing- stipulation to felony lifted scales
 “force beyond any linear scheme of reasoning”
 Specialized Relevance Rules
o Focus on rationales for the rules
 Extrinsic policy concerns:
 Rule 407- encourage safety measures
 Rule 408- incentivize humane impulses
 Rule 409- encourage settlements
 Relevance rationales:
 Rule 407- doesn’t signal negligence before incident happened
 Rule 408- motivated for desire for resolution
 Rule 409- results from humane impulses
o 407- subsequent remedial measures
 Can use subsequent remedial measures to prove anything (such as
ownership, control, feasibility of precautionary measures, or
impeachment) other than negligence, culpable conduct, product defect, or
need for warning
 shield not a sword (see Wood Chipper problems)
o 408- compromise and offers to compromise
 Can’t admit substance of settlement discussions to prove validity of claim,
amount of claim, or impeachment by contradiction
 Larger forbidden category than Rule 407
 Admissible to demonstrate witness bias or prejudice, refute a charge of
undue delay, and prove obstruction of a criminal investigation or
prosecution
o 409- payment of medical expenses
 Really protects insurance companies, rather than being purely a good
Samaritan rule (cynical view)
 Not admissible to prove liability
 Does not extend to conduct/statements made in course of offering
assistance
o Tuer v. McDonald
 Problem: doctor testified that it would have been unsafe to restart Heparin
 Issue: can the subsequent remedy be introduced for impeachment
purposes?
 Feasibility spectrum
 Possible – Practicable – Desirable
o Court: finds the standard as practicable (but not all
jurisdictions use this)

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  Doctor thought restarting Heparin was
impracticable at the time
 Impeachment issue
 Court: needs to be more than just contradicting evidence to be
admissible
o Bankcard America, Inc. v. Universal Bancard Systems, Inc.
 Rule trying to be used as a sword, not s shield by Bankcard (which makes
the court peeved)
o 21st Century Fox, Roger Ailes, and Gretchen Carlson settlement
 21st Century Fox gave Carlson $20 million and apologized to her (but 21st
Century Fox wasn’t being sued)
 Apologies and the Evidence Rules
 Victims want someone to take responsibility
 Ex: doctors can’t apologize to family (insurance and litigation
issues)
o Can say “I’m sorry this happened to you,” but not “I’m
sorry I made a mistake”
 State laws- have created safe havens for apologies
 Could this settlement be used in a case brought by different woman?
 Rule 408- barred because it speaks to the validity of the claim
o However, if Carlson were testifying at that case, then the
court would admit evidence to show witness bias
 What about the apology part?
o Had to be said to reach the settlement and we want to
encourage settlements (so seems that it should be excluded)
o State laws come into play here- generally apologies are not
covered under Rule 408 (unless they are statements of
fault- grey area)
o 410 - plea agreements
 Broader than most Rules
 Not admissible against the defendant
 Guilty plea is later withdrawn
 Nolo contendre pleas - no probative value
 Statements made during plea proceedings
 Statements made during plea negotiations with prosecutor
 Admissible
 If necessary to complete a partial account of plea negotiations and
 In a perjury or false statement prosecution, if the statement offered
was made under oath, on the record, and in counsel’s presence
 Accepted and completed guilty pleas are admissible
 Policy consideration: encourage free and open exchanges (like Rule 408
with settlements)
 When do plea negotiations begin?
 Anything said to law enforcement officers (especially surrounding
an arrest) is not under this Rule

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 o Law enforcement officers- not authorized to negotiate a
deal
 On its face, the Rule only protects the Defendant
o 411- liability insurance
 Not admissible to prove- that insured acted negligence or otherwise
wrongfully
 Admissible for any other purpose (such as proof of agency, proof of
control, proof of ownership, to demonstrate witness bias)
 Insurance doesn’t really tell us anything
 People with insurance may be risk-preferring or they may be risk-
averse
 Jurors understand and have insurance themselves
 They talk about it during deliberation even if it is not brought up at
trial
o But does it really affect verdicts?
 Scholars think that they affect about 40% of
verdicts (but this is hard to quantify)
o Williams v. McCoy
 Defendant claims that Plaintiff is profit-seeking (Plaintiff retained an
attorney before going to the chiropractor)
 Evidence at issue: claim adjuster came to Plaintiff to persuade her
to take a settlement offer
 Holding: court dislikes that Defendant was using Rule 411 as a sword
rather than as a shield
 Plaintiff’s theory of relevance got it out from under the Rule
o Defendant then argued unfair prejudice (Rule 403
argument) but the court wasn’t buying it
o United States v. Biaggi
 Rejecting immunity is very probative- it is very hard to get immunity
(consciousness of innocence if reject it)
 This is made more important by all the damning evidence speaking
to Defendant’s consciousness of guilt
 Criminal case- more leeway given to Defendants
 Constitutional right at stake- due process issues
o All evidence not barred by Rules 407-411 is still subject to Rule 403
 Can still make arguments concerning the unfair prejudice/confusion/delay
vs. probative value balance
 If 403 fails, then go for a jury instruction concerning the evidence in
question

Character Evidence
 Character Evidence
o 404(b)- non-propensity uses of character evidence
o Does not ban character evidence when character is an element of the offense
o True exceptions- Rules 413, 414, 415
o If character evidence is permissible, how can it be admitted?

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  Rule 405- opinion and reputation evidence
 Specific instances- inquiry only on cross
o Probe basis of the testimony (credibility)
 Reputation testimony- shadow cast in the community
o Communities are becoming bigger and more complex now
 Opinion testimony- another person’s subjective view of the
defendant
 On cross- able to bring up issues that would never be allowed in
other situations
o Just need good faith to raise issues
o Very few questions will be allowed before having to back
down
o Can also call a rebuttal witness (but defendant can then
cross on specific events)
 Propensity Evidence
o People act in trends (social psychology)
 We over-attribute aspects about ourselves
 Ex: if we fail a test, it’s because of certain circumstance, but if
another fails a test, it’s because they aren’t smart enough
o Situation matters a lot more than we used to think
 But integrity carries across context in the Rules
 This is the reason most criminal defendants don’t take the stand
o Jurors almost always overweigh character evidence, so defendants end up paying
for their pasts
o 404(a)
 Evidence of a person's character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the
character or trait (propensity).
 Exceptions:
 If character is an element
o Self-defense (see the James case)
o Child custody cases (best interests of the child)
o Defamation cases
o Hate crimes
 If the defendant opens the door concerning himself/herself (“mercy
rule”)
o Only applicable to criminal law cases
o Showing honesty traits in theft cases (but have to be careful
not to open the door to far for the prosecution)
o Prosecution can then respond and vilify the defendant
 If the defendant opens the door concerning the victim
o Only applicable to criminal law cases
o Seen a lot in self-defense cases (showing a violent
disposition in the victim)
o Prosecution can then rehabilitate the victim or can show
that the defendant has the same bad trait

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 o In murder cases- if evidence of any kind establishes that the
victim was the first aggressor, then the prosecution can
offer evidence of the victim’s peaceful nature
 Evidence speaking to truthfulness
o Applicable to both criminal and civil cases
 404(a)(2)(A)- mercy rule
 Criminal defendant can put on evidence of a pertinent trait, i.e.:
o honesty in a theft case
o meekness in an assault case
o law-abiding character in any criminal case
 But there is a catch:
o Once the defendant offers such character evidence, the
prosecution can call rebuttal witnesses or cross examine the
defendant’s character witnesses to refute the defendant’s
claim of good character.
 404(a)(2)(B)- character of alleged victim
 A criminal defendant may offer evidence of a pertinent character
trait of a crime victim, i.e.:
o violent disposition to demonstrate that victim was first
aggressor
o reputation for violence to demonstrate that defendant made
a preemptive strike in self defense (James)
 Again, there is a catch:
o The prosecution can then call rebuttal witnesses or cross
examine defense witnesses to establish that the victim was
non-violent.
o Since the 2000 Amendment to FRE 404, introducing
evidence of a victim’s character also “opens the door” to
demonstrating that the defendant has that same character
trait.
 404(a)(2)(C)- character of alleged victim
 If the defendant in a murder case offers evidence of any kind to
establish that the victim was the first aggressor:
o The prosecution may then offer evidence of the victim’s
peaceful character.
 Character evidence- highly prejudicial with little probative value (Rule
403)
 So why have Rule 404 if this seems to be covered by Rule 403?
o Need more consistency and uniformity
 Everything except propensity theories is admissible
 So push truth arguments or other non-propensity uses
o People v. Zackowitz
 Legal issue- was the murder premeditated (issue of degree)
 Evidence at issue- other guns owed by the defendant at his house that were
not used in any way in the shooting

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  Prosecution’s argument- the evidence will be used to show that the
defendant was criminally inclined (expressly against Rule 404)
 Could have maybe tried to argue that they were using it to show
intent (but this is weak here)
 Danger- the jury will think it is more probative than it really is (too
prejudicial)
 Second danger- defendants will be unfairly surprised
 Dissent by Judge Pound
 The guns here speak to the present crime
o They are party of the story for this incident, not propensity
evidence
o He was selecting from that group of guns to use at this
particular shooting incident
o Serial, Season 1, Episode 1
 Adnan was painted as a dual-personality liar
 Podcast looks at the kinds of people who would get involved in
this situation
 Rules of evidence shield inquiry into whether someone could do
something just by looking at them/hearing them speak
 Facts can mean one thing to some and another thing to others
 Like insurance or flight evidence
 Sometimes people don’t act the way we think that they would
 Other Acts Evidence
o 404(b)
 prior other acts (can be prior, contemporaneous, or subsequent to charge)
 Big question: what is the evidence trying to prove?
o Serial example: the evidence of Adnan smoking pot 
connects him to Jay (fills gaps in the story)
 Gets around the propensity box (narrative integrity)
 Narrative integrity
 Ex: library card of kidnapping victim is
seen in the trunk of the defendant’s car
during a completely separate DEA sting
drug deal
 May be admissible for other purposes:
o Motive
 Financial records for robbery case
 Retribution motives
 Gang involvement for shooting case
 Drug addiction for financial crimes
o Opportunity, preparation, or plan
 Job history for toxins used in poison case
 Proving you’re in a place that you shouldn’t be
 Unsavory Google searches (must be a pattern
though)
o Intent (broadest category)

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  Zackowitz case
o Knowledge
 Prior cases/claims to show expertise
 Prosecution has to be very careful with this- not
smart to use this for drug knowledge (most drug
knowledge is commonly learned)
 Requiring specialized knowledge
 When against admission- make the pool of people
with this knowledge larger
 Knowledge can just mean the person was on notice
o Identity
 Must speak to specific MO (very narrow)
o Absence of mistake or accident
 Defendant must claim accident first
 If you had accidentally shot someone before
cleaning your gun, you would be so careful ever
cleaning a gun again
 Would have changed your behavior
o Doctrine of chance- what are the odds these things keep
happening (unluckiest man in the world)
o The purpose for which the evidence is offered need not be
one of the enumerated ones, but it must be clearly
identified by the proponent.
 A common but unenumerated purpose for offering
other acts evidence is narrative integrity: the “res
gestae” or “inextricably intertwined” theory of
relevance.
 Prosecution must give notice of intent to introduce such evidence
 Even if the evidence is admissible under 404(b), it must still pass 403
 The probative force of the evidence.
 The extent to which the point for which it is being offered is
disputed.
 The adequacy of the proof of the prior act.
 The proponent’s need for the evidence: Is it cumulative?
 The availability of less prejudicial means of proof: Is a stipulation
adequate?
 The prejudicial impact of the evidence: Is it inflammatory?
 The effectiveness of a limiting instruction.
 The extent to which admitting the prior acts will prolong the
proceedings.
 404(b) applies to criminal and civil cases
 Very often appealed- most used Rule to overturn convictions
o Very harmful errors (highly unfairly prejudicial)
 Generally the court will give a limiting instruction
o United States v. Trenkler

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  Prosecution’s goal: show nobody else could have done this (narrow the
pool)
 Identity argument
 Could also speak to specialized knowledge
 Defendant: unfair prejudice
 Bombings are rare
 The prior bombing didn’t cause any injuries (in fact it was
intended to cause no injury)
 Prosecution: probative value
 Bombings are so rare (same argument as unfair prejudice just the
other side)
o People v. Dailey clip
 Evidence at issue: testimony that defendant had specialized military
training to dispose of a body
 Is this really specialized knowledge?
o Can’t many people clean up and dispose of a body (seen on
TV and in movies)
o Could be specialized knowledge, but the evidence is not
very probative to outweigh the unfair prejudice
o Presumed Innocent clip
 Correct objection would have been to character evidence
 Prosecution’s response- speaks to motive (strong argument that is
likely to win)
o Also speaks to opportunity (no forced entry)
 Defense’s response- highly unfairly prejudicial (adultery)
 Court would likely give limiting instruction if admit the evidence
o United States v. Stevens
 Reverse 404(b)
 Arises in misidentification cases
 Rule 403 issue- waste of time
 Have to try them in the alternative case or try the alternative person
 But it must still have factual similarities to be relevant
o United States v. DeGeorge
 Guy is uninsurable because of the past 3 boat incidents
 Fills the gaps in the story to the jury about the complex
transactions that occurred before the defendant bought this 4th boat
o Rex v. Smith
 Creation of doctrine of chance
 Very controversial doctrine (Fisher does not believe this is a real
doctrine)
o Differs from absence of change because there is objectively
nothing to change after the first “accident”
o Huddleston v. United States (The Huddleston Standard)
 February 1985- Defendant sells 38 stolen black and white TV sets
 Charged offense- April 1985- Defendant sells 5,000 stolen Memorex
videotapes

15
  May 1985- Defendant sells stolen kitchen appliances
 Prosecution wants to bring in prior and subsequent events because
Defendant is claiming he didn’t know videotapes were stolen
 Prosecution’s argument- speaks to knowledge
o But only relevant is Defendant knew those items were
stolen
 Other acts come in if the jury could reasonably find the conditional fact
(here, that the TVs were stolen) by a preponderance of evidence
 Sexual Assault Cases
o Rules 413, 414, 415
 Require notice to the defendant
 Without these Rules, how would these prior bad acts be admitted?
 Motive
o Ex: pedophiles have preferences (but even this is a stretch)
 Very similar to propensity to kill (over a period of
time)
 Common scheme/plan- sex crimes are about control more than
desire
o Works better when it is the same victim
 Argument in favor of Rules
 Evidence may be overweighed (but that is ok with the recidivism
rate being so high)
o Also balances out the fact that victims’ (especially
children) testimony is often underweighted
 Prior acts don’t need to have been convictions or charges
 Goals of Congress- protect victims and bring justice in these cases
 Make these cases easier for Prosecutions to win these notoriously
hard cases
 Overt criticism from almost the entire legal community
 Recidivism rates data isn’t probative (however these rates may be
skewed by the lack of reporting)
 Problem with usual suspects idea- police wouldn’t further look at
only past offenders
o Wrongful convictions problems as well
 Still must pass 403 weighing
 PREJUDICE:
o Danger of unfair considerations
o Possibility of jury confusion
o Delay by mini-trial
 PROBATIVE VALUE:
o Similarity of other acts and charged acts
o Closeness in time
o Frequency of other acts
o Presence or absence of intervening events
o Need for evidence beyond the testimony of defendant and
victim

16
 o 413- Evidence of Similar Crimes in Sexual Assault Cases
o 414- Evidence of Similar Crimes in Child Molestation Cases
o 415- Evidence of Similar Acts in Civil Cases Concerning Sexual Assault
o United States v. Guardia
 Evidence in question- testimony of four other women
 Court- Rule 413 requirements
 1- Defendant accused of sexual assault
 2- Evidence is of another offense of sexual assault
 3- Evidence must be relevant
 Here, the evidence passes 413 so now look to 403 (same 403 analysis as
any other case)
 Issue for the court here- medical aspect to the case
 Experts would have to be brought in to discuss proper procedures
(likely would have conflicting experts)
o So too time consuming and confusing to the jury under 403
o United States v. Mound
 Issue: whether these Rules violate due process
 Dissent- Defendant’s will be punished by acts that have never been
charged
 Majority- 403 will keep out this level of prejudice
 Proof of Defendant’s and Victim’s Character
o 404(a)
 Character evidence is not admissible to show propensity.
 Three exceptions:
 Pertinent character trait of the accused if the defendant opens the
door (criminal cases only).
 Pertinent character trait of the victim if the defendant opens the
door (criminal cases only).
 Character of a witness for truthfulness (criminal and civil cases).
o 405
 Rule 405- opinion and reputation evidence
 Specific instances of conduct- inquiry only on cross
o Probe basis of the testimony (credibility)
 Reputation testimony- shadow cast in the community
o Communities are becoming bigger and more complex now
 Opinion testimony- another person’s subjective view of the
defendant
 On cross- able to bring up issues that would never be allowed in
other situations
o Just need good faith to raise issues
o Very few questions will be allowed before having to back
down
o Can also call a rebuttal witness (but defendant can then
cross on specific events)
 Rule 405(a)

17
 Must have good faith basis for inquiring into specific events
(Michelson v. US case)
 Rule 403 weighing still applies
 Limiting instructions will generally be given
o Michelson v. United States
 Rule 405 codifies this ruling
 Defendant’s lawyer asks him about his 15-year-old misdemeanor charge
on direct
 Fronting or removing the sting (strategic move)
 On cross- 26-year-old arrest is brought up
 Also none of the 5 witnesses had heard of this and only 2 had
heard of the 15-year-old misdemeanor)
 Court- defendant opened the door but prosecution is limited to what is
brought up by the defendant (i.e. limited to how far defendant opens the
door)
 Still cares about fairness: rely on limiting instructions; look to
how long character witnesses knew defendant (especially for very
old charges); defendant opens this up so it can be finished
 Dissent- concerned about confusion and unfair prejudice
 But this is dealt with through Rule 403 (trial court discretion)
 Juries
o Doubt by William Finnegan
 Tangle of the case comes with the taco bar alibi
 Detective Lyons- jury didn’t know what to make of him
 Threatened 2 alibi witnesses with perjury
 Old Chief reasoning (gap-filling idea)
 2 alibi witnesses speaking after about how they wish they could
have said other things (i.e. talking about how he is a wimp)
 The jury latched onto little pieces and made their own assumptions
because they didn’t get the whole story
o Ex. jury speculation about what was happening at the taco
bar when really it was just a bunch of kids from East
Village eating tacos together (it wasn’t some underground
drug ring)
 Jury is hungry for more information
 Detective Lyons- jury felt he was acting in good faith (jury had in
their mind that prosecution would want more testimony)
 Leah’s mom in the courtroom
o Jury speculated that she was buying drugs from him (not
just that she was there to support him because he had lived
with them for a year)
 What did the defense need to address?
 Defendant’s bloody hands- explain that he is an addict (typically
they are non-violent)
o Only way to do this is through character evidence

18
  Address the 2 other people he supposedly did the mugging with
o Seemed like he was kind of a loner who didn’t have friends
 But you want people to like your client
 Must be very careful introducing character evidence however
 Big question: how much should we give to the jury?
 Rely on limiting instructions arguments (because the instructions
themselves aren’t often great)
 Remember: legal truth doesn’t equal “truth”
 How much factual truth do you want to give to the jury so they get
to the legal truth you want?
 Evidence of Habit
o 406- habit
 Evidence of a habit or routine practice is admissible to prove conduct in
accordance with that habit or practice on a particular occasion.
 Ex. perm testimony during Legally Blonde
 Habit- semi-automatic behavior that is morally neutral
 This is very probative and not very prejudicial (morally neutral)
 Morally neutral- can’t be religious practices or violent behavior or
drug habits
o Alcohol habits- rarely allowed in unless paired with other
habits such as geography
o Complete abstinence of drinking will be let in
 Rule 403 is still at play (make argument for habits close to the moral line)
o Halloran v. Virginia Chemicals, Inc.
 To establish habit- must be high value of times
 Not doing it occasionally won’t kill the habit
 Must be more than un-patterned conduct
 Something done without really thinking
 Predictable and predictive behavior
 Character for Truthfulness
o Impeachment of witnesses
 Witness has propensity to lie (loophole in the rules)
 Juries are naturally good at detecting credibility and honesty
 Rules about accuracy (expose perjury)
 Exposing particular testimony as untrue, not just calling the witness a liar
 3 general methods
o Contradicting by conflicting evidence (highlight internal
inconsistencies)
o Contradicting by past inconsistent statement
o Evidence of bias
 Ex. A Few Good Men clip- doctor (witness) has a
dog in the fight
 My Cousin Vinny grits clip- example of contradicting by conflicting
evidence (internal inconsistencies)
 Rule 403 still applies
 Every witness puts truthfulness in issue (Rule 404(a)(3))

19
  Credibility may be attacked by any party (Rule 607)
o But can’t use this as a backdoor to get impeachment
evidence admitted
 Rule 608 (character impeachment)
 Applies to both civil and criminal cases
 Cannot introduce extrinsic evidence when impeaching a witness using
character evidence
o 404(a)(3)
 Every witness puts truthfulness in issue
o 607
 The credibility of a witness may be attacked by any party
o 608
 Character for untruthfulness may be raised by opinion or reputation
evidence.
 Evidence with respect to character for truthfulness is admissible only after
credibility has been attacked.
 Specific instances of dishonest conduct may be inquired into on cross
examination.
 Good faith basis for inquiry into specific acts required.
 No proof by extrinsic evidence.
 Applies to both civil and criminal cases
o Trial clips (Easerly v. Lettwin)
 “What reputation does x have?”
 Not allowed (reputation concerning what?)
 “What reputation concerning truthfulness does x have in the real estate
community?”
 Allowed
 “Would you believe x under oath?”
 Allowed (seen in advisory notes to the Rule)- assist jury in
determining credibility of a witness
o Not recommended to ask however
 Can you ask about specific acts of dishonesty?
 Not on direct, but can be asked on cross
 Once attacking truthfulness occurs, other side can bring witnesses to speak
to honesty/integrity/etc. (rehabilitation efforts)
o United States v. Whitmore
 Trial court doesn’t allow any of the three witnesses testimony to impeach
the officer (Soto)
 2 of the witnesses were rejected because the reputation evidence
was too remote (lack of sufficient acquaintance)
 Third witness (defense counsel) was rejected because it wasn’t
representative of the “court” community
 DC Circuit affirmed this
 Trial court also didn’t allow the defendant to cross Soto on various
character topics
 DC Circuit reversed this and found that the error was not harmless

20
 o Only need a good faith reason to ask about such topics
o Defendant has a right to put on his best case
o 609 (Prior Convictions)
 Evidence that a non-defendant witness has been convicted of a felony is
admissible subject to Rule 403
 Rule 403 weighing test is done with respect to prejudice on the
defendant, not prejudice on the witness
 Evidence that defendant has been convicted of a felony is admissible if its
probative value outweighs unfair prejudice (609 weighing test below)
 Evidence that witness has been convicted of a crime that requires proof of
an act of dishonesty is admissible
 Ex: perjury, embezzlement, etc.
 No Rule 403 weighing
 Applies to both felonies and misdemeanors
 Time limit of admissibility- 10 years (from date of conviction or release
from incarceration)
 If over 10 years, admissible if probative value substantially
outweighs prejudice and must give advance notice
 If conviction was pardoned or annulled, it is excluded if no other
subsequent felony convictions (restoring civil rights doesn’t count)
 If done because proven innocence, then inadmissible
 Juvenile adjudications- only admissible if non-defendant witness and only
if necessary for a fair determination of guilt or innocence in criminal cases
 Ex: molestation or assault cases
 Pendency of appeal does not affect admissibility (presumption of
correctness)
 Keeps a lot of defendants from taking the stand
 Very often litigated
 Has its own weighing test (apart from Rule 403)
 Anyone who engaged in criminal conduct lacks integrity
 Historically, any person convicted of past criminal conduct was not
allowed to testify (1800’s)
o 609 Tests for Admitting Prior Convictions
 1) crimes requiring proof of (or admission to) dishonest acts or false
statements shall be admitted
 2) felony convictions for witnesses other than the defendant admitted
subject to Rule 403
 3) felony convictions for witnesses other than the defendant admitted
subject to Rule 403
 4) if any of the above is more than 10 years old, then admitted only if
probative value substantially outweighs prejudice (and notice must be
given)
 5) juvenile adjudications are admitted only if necessary for a fair
determination of guilt or innocence
o 609 weighing test (Gordon case)

21
  1) nature and seriousness of the prior conviction (focus on probative worth
with respect to veracity)
 2) how recent or remote the prior conviction is and whether defendant has
led a legally blameless life since
 3) similarity between past crime and charged conduct
 4) importance of defendant’s testimony
 5) centrality of the credibility issue
 Swearing contests (he-said/she-said)- in favor of admission
o United States v. Brewer
 Timing- count from when released
 Also committed many offenses while on parole (leans toward
admission of all offenses)
 Weighing test (Rule 609)
 Old kidnapping charge- inadmissible (same charge)
 All other convictions- admitted
 Rehabilitation & Extrinsic Evidence
o Impeachment (or an attempt to impeach) may open the door for rehabilitation
efforts from the other side
 If impeached for truthfulness (character), opens the door for rehabilitation
 If impeach for bias or something else, then doesn’t open the door for
rehabilitation
 Rape Shield Law
o Sexual assault cases
 Often boils down to the issue of consent- becomes a swearing match
 So victim must be a witness
o Broad efforts to impeach the victim as a witness led to the
broad Rule 412
o Can question complainant under cross (no extrinsic evidence though)
 If can impeach for bias instead, then can use extrinsic evidence
o 412
 (a) Bars:
 Evidence of an alleged victim’s other sexual behavior
o Huge swath of behavior here
 But doesn’t include behavior intrinsic to the specific
encounter (like foreplay)
 Evidence of an alleged victim’s sexual predisposition
o Including dress, lifestyle, and some forms of speech
 Applies to both criminal and civil cases (even if no criminal charges are
brought)
 (b) Exceptions:
 Criminal cases
o Specific instances of sexual behavior to refute physical
evidence
o Specific instances of sexual behavior with the accused, if
offered by the prosecutor, or by the defendant to prove
consent

22
  Rule 403 still applies (victim attacks)
o Any evidence the exclusion of which would violate
defendant’s constitutional rights (both substantive and
impeachment evidence)
 Confirmation Clause, Compulsory Clause, or Due
Process rights
 Civil cases
o Admissible evidence of sexual behavior/predisposition if its
probative value substantially outweighs the danger of harm
to any victim and unfair prejudice to any party
 Slanted against admission (stricter and heightened
Rule 403)
 Burden is on the proponent
o Reputation evidence is also admissible only if alleged
victim puts it in issue
 (c) Procedural requirements
 Written notice to all parties and the victim within 14 days
o In camera hearing which will be sealed along with motion
 Keeps defense lawyers in check (makes them re-assess their strategies)
 The Accused clip
 Jodi Foster line- “you ain’t gonna defend me”
o Victim is only a witness, not a party to the suit
 Rule 412 gives prosecutors the ability to “defend”
the victim
 Rule 412 gives defendants fewer options to impeach
(but constitutional rights still always trump)
 Legislative history- rationales
 Encourages victims to come forward and testify (similar to
rationale in Rules 413-415)
o Prosecute these cases with more ease
 Reduce the harm on the victims (protect them from harassment and
embarrassment)
 Very limited inclusion Rule- care more about harm to the victim than the
outcome of the case
 Prior false accusations are not banned
o People v. Abbot
 Court- 2 kinds of victims (modest vs. promiscuous)
 Archaic idea: that there is a link between chastity and truthfulness
o This still subtly arises today
 Archaic idea: promiscuous women more likely consent
o State v. Smith
 Prior false accusations are sexual behavior, rather it only speaks to
truthfulness (impeachment)
 No Rule 412 hearing
o 412(b)(1)(C)- Constitutional Considerations
 Olden v. Kentucky

23
  Olden extends to prototypical witness bias raised on cross
examination; attacks on a witness’s general character for
credibility are outside the constitutional guarantee.
 There may also be an adequate basis to establish bias by exploring
the personal relationship/friendship without questioning on sexual
history per se.
 Stephens v. Miller
 In the Stephens case, an almost evenly divided court rejected the
argument that the defendant’s right to testify in his own defense
trumped protection of the victim, but the same evidence might
have come in on cross examination of the victim if there were a
claim that she had some bias against him because of the rude
remarks.
 Alternative explanations for a child victim’s sexual sophistication
may also be allowed pursuant to this exception.
 Consensual acts of prostitution may require evidence that the
complainant is a prostitute, but evidence of prostitution cannot be
offered only to impugn character where consent is not in issue.
 United States v. Knox
 One common argument is that complainant’s sexual history bears
on defendant’s perception of consent where a reasonable mistake
as to consent provides a defense (in a jurisdiction where the
substantive rape law requires a culpable mental state). This will
rarely be admitted, however, because it is generally considered
unreasonable to base consent on prior conduct with other parties.
And re Knox, note that the facts didn’t admit any possibility of
mistake as to consent because the important issue was whether the
victim was asleep or awake. Of course there is no good argument
that one has a constitutional right to introduce irrelevant evidence.

Hearsay
 How do I know that something is true?
o Need to be able to test for accuracy and reliability
 Dangers of hearsay
o Person isn’t under oath when the statement is made
o Jury isn’t able to observe demeanor
o No opportunity to cross-examine
 Hearsay chain of inference
o Declarant said something (1) declarant believed what he or she said (2)
declarant’s belief evidences the truth of the statement
 (1): risk of faulty narration or insincerity
 (2): risk of faulty memory or perception
 Cautions regarding applying the hearsay rules
o Don’t conflate the witness and the declarant
o Refer to the matter asserted in the statement, not the matter asserted by the
proponent of the evidence in the case

24
 o “Out of court” encompasses statements from trial x offered at trial y and other
statements under oath. It also refers to statements made by the testifying witness
on other occasions, including in other courtrooms.
o Victims aren’t parities in criminal cases
o Judges determine fit with exemptions/exceptions under 104(a), but except with
regard to admissions, hearsay declarants must have “personal knowledge” just
like witnesses, and that is a 104(b) determination
 Rule 602
o All witnesses (except experts) must have personal knowledge
 Double hearsay- someone testifies to what someone else said another person said
o Must have justification/exception for each layer
 Categories of admissible out-of-court statements
o Statements not offered for the truth of the matter asserted
o Statements exempt from the definition of hearsay under 801
o Statements that fit within one of the exceptions under 803
o Statements that fit within one of the exceptions under 804 (applicable only when
declarant is unavailable)
o Statements that fit under the residual exception in 807
 Exceptions/exemptions
o Key aspects: trustworthy and necessity
 Impeachment vs. substantive evidence
o Substantive use- using the prior statement to prove the truth that it asserts
 So must find an exception to the hearsay rule first
 Hearsay Exceptions
o 2 categories
 Declarant is unavailable to testify (restricted exceptions)
 Doesn’t matter if declarant is unavailable (unrestricted exceptions)
 Definition
o Definition (Rule 801): out-of-court assertion/statement (not made while testifying
at the current trial/hearing) offered for truth of the matter asserted in the statement
o 801(a)-(c)
 Is it a “statement” intended as an assertion?
 What is that statement being offered to prove?
 Is it being used to prove that it was said (not hearsay) or prove what was
said (hearsay)?
 Doesn’t matter is good or bad to the speaker (different from exception
concerning contrary to interest of speaker)
 Statements that are hearsay:
 Written, spoken, and nonverbal
 Must be intended as an assertion (even an implied assertion is
hearsay)
o No audience for the conduct (can’t lie to yourself in
hearsay) so unintended assertion (not hearsay)
 Statements that aren’t offered for their truth (so not hearsay):
 Statements offered to demonstrate their effect on the listener
 Statements offered to show the speaker’s state of mind

25
  Verbal acts (alleged defamatory words)
 Performative utterances (“I now pronounce you”)
 Statements offered as circumstantial evidence
 Must be offered against a party of the case
 Have a chance to challenge it by taking the stand
o 802- Rule Against Hearsay
 Hearsay is not admissible unless any of the following provides otherwise:
 a federal statute;
 these rules; or
 other rules prescribed by the Supreme Court.
o A Place in the Sun clip
 Bus conductor’s testimony- offered to show motive
 Not hearsay- doesn’t care whether woman’s statement is true,
rather only care about the effect of the statement on the bus
conductor when he heard it
o Can machines generate hearsay?
 Most courts have held that machine printouts aren’t hearsay statements
 Same for the actions of animals
 Controversial issues:
 Someone has to program the machine (or train the animal)
 Someone has to then interpret the results
o Shallock v. Heinze clip
 Why is the witness testifying? (i.e., what is the testimony being offered to
prove?)
 If it is to show that others were on notice of the issue, then it is not
hearsay
 If it is to show that she was actually afraid of him, then it is
hearsay
o Because it speaks to the truth of her statements made out-
of-court
 If there are two reasons for the evidence and one is hearsay but the
other is not, then the court will give a limiting instruction
o Sir Walter Raleigh Trial
o Falknor excerpt
o Assertions
 Exemption for Admissions
o Categories of admissions (801(d)(2))
 Direct admissions
 Adoptive admissions
 Words/conduct manifesting endorsements or by silence when a
response is appropriate
 Did the party hear and understand the statement or accusation?
 Did anything prevent her from refuting it?
o Reasonable fear of violence?
o Some other motive to stay silent?

26
 o Miranda: A party may adopt an admission during non-
custodial interrogation and possibly during custodial
interrogation pre-Miranda warnings, but NOT during
custodial interrogation after Miranda warnings have been
given.
 Did the circumstances call for a response?
 Did the party fail to respond?
 Authorized admissions
 Vicarious admissions
 Mostly in employment matters
 Employee must be acting in accordance to job’s duties
 Coconspirator admissions
 Made during or in furtherance of the conspiracy
 Statements of Agents & Coconspirators’’ Statements
o Vicarious Admissions
 801(d)(2)(C)- statement by an authorized spokesperson
 801(d)(2)(D)- statement by agent/employee
 Must be during employment and within the scope of the
employee’s duties
 common sense about relationships
o Bootstrapping- using the statement to prove employee/conspirator/etc.
 Can use this but must also have other proof (bootstrap plus)
 The evidence in contention cannot stand alone
 See the Bourjaily case
o Coconspirator admissions
 Court must find a conspiracy by a preponderance of the evidence (can
bootstrap but must have more than just the statement to prove the
conspiracy)
 Statement must be made by a coconspirator
 Statement must be made during the conspiracy (once arrested, the
conspiracy is over)
 Statement must be in furtherance of the conspiracy
o Rule 805
 Each layer of hearsay must be met with an exception to be admissible
o Mahlandt v. Wild Canid Survival & Research Center, Inc.
 Evidence in contention
 Note left by Poos for the director of the Center (his boss)
o Admissible against Poos- made by Poos
o Admissible against the Center- Poos is an agent/employee
(vicarious admission)
 Conversation between Poos and the director of the Center
o Admissible against both Poos and the Center- same as
above
 Board minutes
o Admissible against Center- Board is agent of the Center
o Inadmissible against Poos- he wasn’t there

27
  Vicarious admissions don’t flow from employer to
employee
 Don’t need first-hand knowledge for admission
 Can take the stand and argue this if the declarant wants
 Rule 403- why do we need to have three different pieces of evidence
saying the same thing?
o Bourjaily v. United States
 Judge uses 104(a) to determine if there is a conspiracy
 Phone call statement and the fact that this guy was there with his
car at the certain time
o This evidence was sufficient to establish a conspiracy
(bootstrap plus)
 Impeachment by Prior Statements
o Impeachment
 Must have a good faith basis
 If crossing on non-character impeachment, can bring in extrinsic
evidence to prove bias or prior inconsistent statements
o Only used to discredit witness (can’t use it substantively)
o 613
 Purely an impeachment rule
 No hearsay issue- evidence is not being offered to prove the truth
of what it asserts
o United States v. Barrett
 Evidence in contention- testimony of Delany and Kelley (the waitress who
overheard the conversation)
 Doesn’t meet the Rule 801(d)(1)(A) exception to hearsay so it
can’t be used substantively
 Can be used to impeach Adams though for prior inconsistent
statements (need good faith basis is all)
 Court- trial court erred by not allowing this evidence to impeach Adams
o Commonwealth v. Troisi clip
 Cab driver testimony- matters who paid him for the cab fare
 On cross- not calling him a liar (not character impeachment),
rather impeaching him for prior inconsistent statements
o Limiting instruction- evidence she paid him can’t be used
substantively though
 If cab driver refuses to admit his prior statement, defense can call
witnesses to prove it (since its not character impeachment)
o United States v. Ince
 In federal court- shooting occurred on a military base
 MP Stevens testimony- allowed to impeach Neumann’s testimony for
prior inconsistent statements
 But can’t be used substantively
 At 2nd trial- prosecution called Neumann only to impeach her so they
could call MP Stevens

28
  Can’t do this- Stevens was really called to prove the truth of the
matter asserted (so it is hearsay)
 Rule 403 is still at play- value of the credibility of Neumann
(probativeness) vs. sneaking in a confession (highly prejudicial)
 Stevens testimony would likely fail Rule 403 even in the first trial
o Silence
 Can be an adoptive admission if non-custodial
 Maybe can be used if in custody but haven’t been read the Miranda
warnings (although trend towards not allowing this)
 Cannot be used if in custody and have been read the Miranda warnings
 Weight argument- common sense to remain silent with law enforcement
o Fletcher v. Weir
 Can silence be used to impeach?
 Courts are split
o Fletcher v. Weir- post-arrest silence without Miranda
warnings can be used to impeach
o Recent trend towards post-arrest silence as common sense
so can’t use to impeach
o Salinas v. Texas
 5th Amendment and Miranda warnings are separate rights
 Alito- can use silence substantively pre-custodial and pre-Miranda
 No convincing compulsion factor
 5th Amendment must be expressly invoked for protection
 Thomas- no testimony so there is no 5th Amendment protection
 Breyer- silence was clear that 5th Amendment claim was implied
 Exemption for Past Statements of Witnesses
o 801(d)(1)- prior statements by witness
 (A)- inconsistent statements given under penalty of perjury at a hearing or
trial (“prosecutor’s rule”)
 Grand jury testimony qualifies (under oath) even though you can’t
cross someone in front of a grand jury
o But the declarant doesn’t have to be crossed, only the
witness
o Statements to law enforcement do not qualify
 Threat of perjury incentivizes truth telling (purpose)
 Changes in memory constitutes inconsistency
o Only need tension between the present and prior statements
 Don’t need a flat out inconsistency
 Cross requirement
 (B)- consistent statements offered to rebut an express or implied charge of
recent fabrication or improper influence or motive
 Only for repair purposes
 Trivial variations don’t matter
 To rebut:
o Attack can be express or implied

29
 o Exemption available to the pre-motive requirement (as
established in Tome) if the declarant’s credibility has been
attacked on another ground other than motive to fabricate
 Cross requirement
 (C)- statement of identification made after declarant perceived the person
 Underlying idea- the out-of-court statement is more reliable
 Cross requirement- Owens case (not much more than physical
presence is required)
 Inverse correlation between confidence in identifications and
positive identifications
o Violent crimes- victim more focused on weapon than
perpetrator (weapon blindness)
 Only apply when the declarant is on the stand as the witness and is able to
be cross examined
o Lack of memory at trial- still a tension with the prior statement though
 For the judge to decide if there is an inconsistency
 If witness is faking memory loss, then inconsistent
 If the memory loss is real, then it is a tougher call
o Trend in decisions to allow prior statement in
o Tome v. United States
 Court: common-law pre-motive requirement existed (all except Scalia
agree with this)
 Purpose of pre-motive requirement: reliability, necessity, and need
to keep the focus on in-trial happenings
 Here, the statements are inadmissible because they were made
post-motive
 Must bolster motive to fabricate, not the veracity of the statement
itself
o Commonwealth v. Weichell
 Complete sketches typically are considered identifications under
801(d)(1)(C)
 Some courts consider the sketch to be a series of statements made
by victim so not under this rule and unreliable (subject to coercion
by law enforcement)
o See dissent here
o United States v. Owens
 Court: even if witness faced memory loss, they can still be crossed so
statement of identification is admissible
 Can cross on witness’s lack memory to discredit the witness
 If witness just claims memory loss, then they hold the power on
whether the statement comes in
o Can manipulate the situation to suppress the identification
 Limit (minimum requirement): witness must at least remember
making the initial identification (at least must remember some
circumstances surrounding the identification)

30
  Dissent: witness and declarant are “different people” so the other side
cannot question the declarant’s first identification
 Standard for memory loss cases- must accomplish something on cross
(showing lack of memory to discredit the witness is sufficient)
 Exceptions Requiring Unavailability of Declarant
o 804
 (a)- unavailable to testify definition
 Necessary, but not sufficient means
o Privilege
 BUT if the person is a party to the case, then the
statements (which would be admissions) come in
(Rule 801)
o Refusal to testify
o Lack of memory (no relevant memory)
o Death or illness
o Absence from court
 Declarant is not considered unavailable if the proponent of the
statement contrives declarant’s unavailability
 (b)(1)- exception for former testimony (not excluded by hearsay rules if)
 Declarant is unavailable
 Prior opportunity for cross (sufficiently similar motives- fact-
intensive: is there a common nucleus of facts? What are the
incentives?)
o In a criminal case, the party against whom the statement is
offered must have had the opportunity and a similar motive
to develop the testimony.
o In a civil case, a predecessor in interest with similar
motives suffices.
 Strongest hearsay evidence- only missing the ability to see the
demeanor
 (b)(2)- dying declaration (see below)
 (b)(3)- exception for statements against interest (not excluded by hearsay
rules if)
 Declarant is unavailable
 Reasonable person in declarant’s situation would not have made
the statement unless believing it to be true
 Must parse the self-inculpatory and blame-shifting parts of the
statement
 corroborating circumstances are required when statements against
interest are offered in criminal cases.
o United States v. Duenas
 Evidence at issue: Officer Smith’s former testimony at the suppression
hearing
 Did the defendant have similar motive questioning?

31
  Court: no- at the suppression hearing the circumstances around the
admission was the focus, while at trial the content of the admission
was the focus
o How high in generality must the court look in its analysis?
o Lloyd v. American Export Lines, Inc.
 “Predecessor in interest”- fact-centric and similar discussions on
culpability
o Williamson v. United States
 Statements against interest
 Must parse statement into self-inculpatory, blame-shifting, and appeasing
law enforcement parts
 Plus-factors to admit (the corroboration piece)- can use impeachment
evidence (low standard)
 Required by statement against interest rule in criminal cases
 Dying Declarations
o Typically, the issue with a dying declaration is whether the belief that death was
imminent was present
o 804(b)(2)
 Must be a prosecution for homicide or a civil case (i.e., a will dispute).
 Personal knowledge required.
 Statement must be made while declarant believed that death was
imminent.
 Statement must concern the cause or circumstances of impending death.
 Justified by:
 Reliability: Notions of spiritual and psychological pressure.
 Necessity: Exceptional need for the evidence in homicide case.
o Charade clip
 To admit a dying declaration, it must be a civil case (typically a will
dispute) or a homicide case, the declarant must believe the death is
imminent, and the declaration must concern the cause or circumstances of
the impending death
 For Audrey Hepburn to testify, she must have personal knowledge
o Shepard v. United States
 Imminence requirement isn’t present
 Victim didn’t die for a while after making the declaration and she
had hope of recovery when she made the statement
 Fear of death is not enough
 When words are scarce, they won’t be used in vain
 Mainly romantic justifications for this rule
 Court- only admissible if casts light on future
 Here, the evidence is backward looking so inadmissible
o The Fugitive clip
 Wife is in a lucid state
 The declaration still comes in even though she misidentifies her killer
 Raises the question of whether dying declarations are actually
reliable

32
 Exceptions Not Requiring Unavailability of Declarant
o 803(1)-(3)
 (1)- present sense impressions
 Requires:
o Description or explanation of an event or condition.
o While the declarant is perceiving the event or condition or
immediately thereafter.
o By a declarant who perceived (generally saw or heard) the
event or condition.
 Requires immediacy of the description/explanation by someone
who saw or heard the occurrence
 (2)- excited utterances
 Requires external stimulus, excited reaction, and statement relates
to stimulus
o Excited reaction- subjective test (look at nature of event
and who spoke)
 This is often victim cries
 When responding to questions, you lose this exception
 (3)- statements of then-existing condition (state of mind)
 Requires:
o A statement of intention, emotion, sensation, or physical
condition.
o Forward-looking (with the exception of wills cases).
o Offered to prove only the declarant’s future conduct
(limitation on Hillmon).
 Advisory Notes
o Says that Hillmon still stands undisturbed
 Not completely true
 Can’t import another’s (like Hillmon’s)
intentions (only the declarant’s)
 If intervening conversations happen, then less likely to be admissible
 I.e., calling the police first or speaking with medical personnel or a
lawyer
o Mutual Life Insurance Co. v. Hillmon
 Evidence: letters from Walters to his fiancé and sister saying he is
travelling with Hillmon to a campsite
 Hearsay- being offered to prove he was intending to leave with
Hillmon
 Court- these letters are the only way to get his intention in (necessity
rationale)
 Hillmon chain of inference
o Walters’ letters state his intention to go away with Hillmon
 Walters did intend to go away with Hillmon  Walters
in fact went away with Hillmon
o Differs from Shepard chain of inference
 Past conditions are not admissible (i.e., “I didn’t mean to hit him”)

33
o 803(4)-(10)
 (4)- medical diagnosis or treatment
 Rationale: not to your advantage to lie to your doctor (or any
caregiver)
 Cause of injury is only admissible if necessary for treatment
o Admissible in sexual and domestic abuse cases because the
treatment matters if the assailant is in the home or there is
an issue with infection (like STDs)
 Asking someone to get a doctor fits the exception easily
 Nurse communication fits within the exception (furthering
treatment)
 Doctor statements to families are admissible only if in furtherance
of the treatment (i.e., telling the family to do something for
treatment)
 (5)- Recorded recollection
 Requires:
o Firsthand knowledge by the witness.
o A statement written or adopted by the witness at or near the
time of the event described.
o Testimony as to the witness’ lack of present recollection.
o Confirmation by the witness that the record is accurate.
 Can read statement to jury but can’t admit it as an exhibit
 Typically used when questioning police officers
 Witness must testify to lack of present recollection and to confirm
that the record is accurate
 Refreshing recollection is different (technique, not an exception to
hearsay)
 (6)- Business records
 Requires:
o Record of a business (broadly defined).
o Regularly maintained.
o Made promptly after the events described.
o Made by a person with knowledge or based on information
transmitted by a person with knowledge.
o Supported by testimony or certification by a records
custodian.
 doesn’t apply if trustworthiness of source/method is called into
question (safety valve)
 The Verdict clip (where the nurse testifies on her intake record)
o Evidence being offered to show the other staff was on
evidence
 Then the record isn’t hearsay
o Evidence also being offered to prove when the victim last
ate
 Then the victim’s statement is hearsay- but medical
record exception

34
  If the nurse was missing- could get record intake in
through business record exception
 The Verdict clip (where nurse testifies that doctor told her to
change the form)
o Trustworthiness is questioned so not admissible under
business records exception
 (8)- Public records
 Encompasses records of public offices or agencies:
o (A) Setting forth the activities of the office or agency.
o (B) Setting forth matters observed and reported according
to a legal duty (excluding police reports in criminal cases).
o (C) Setting forth factual findings resulting from an official
investigation (in civil cases and against the government in
criminal cases).
 Police reports aren’t included under this rule in criminal cases
 Most controversial- evaluative reports (still has the safety valve
concerning trustworthiness of the sources)
 doesn’t apply if trustworthiness of source/method is called into
question (safety valve)
 Police reports
 Often sneak police reports in under Rule 803(6) as business
records
 US v. Oates- Can’t use Rule 803(6) business record exception as a
back door
o If chemist is testifying, then could use the recorded
recollection exception
 No longer a Confrontation Clause issue because the
defendant can cross the chemist
 US v. Hayes- allows admittance of IRS record under Rule 803(6)
o Different kind of report than in Oates
 More binary and less likely to be distorted
 US v. Weiland- similar to IRS record so admissible as a business
record (less likely to be distorted)
o 612
 Mechanics for admitting refreshing memory evidence
 Opposing party gets to see what is used to refresh the memory
o United States v. Iron Shell
 Test: 1) is the declarant’s motive consistent with the purpose of the rule
and 2) is it reasonable for the physician to rely on the info in treatment?
o Johnson v. State
 Witness won’t verify the accuracy of the record
 Even though the police statement has internal verification
(signature and date at the bottom), the witness must give
testimonial accuracy of the record
 Prosecutor should have locked in the witness at the grand jury (Rule
801(d)(1)(A))

35
 Or could have used the witness’ prior testimony as long as the
previous occurrence allowed the other party to cross on similar
matters (Rule 804(b)(1)(A))
 Pg. 547- vouching for accuracy
o Palmer v. Hoffman
 Court: report after the accident has questionable trustworthiness so not
admissible
 Accident report- was it general practice or for the purpose of
litigation (mitigating liability)?
o Care about the primary use of the report
o Beech Aircraft Corp. v. Rainey
 Evidence at issue: JAG Report concerning the crash (evaluative report)
 Opinions vs. facts
 Court: report is admissible because findings of fact include
opinions (can’t completely separate opinion and fact)
o Inadmissible if trustworthiness is in question (look at
motive of investigation, thoroughness of investigation, etc.)
 Residual Exception
o 807
 Rare exception to be employed (see legislative history)
 4 conditions
 Statement has equivalent circumstantial guarantees of
trustworthiness
 Offered as evidence of material fact
 More probative than other evidence that can be procured through
reasonable efforts
 Purposes of rules and interests of justice are served by admission
o Dallas County v. Commercial Union Assurance Co.
 Newspaper article- evidence in question
 Only way to get this evidence before the jury (so long ago)
 Trustworthy- wouldn’t be reported if it didn’t happen
 Learned Hand- very rare to use this exception

The Confrontation Clause

 Sixth Amendment- “In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.”
o Applies only in criminal cases and only for the accused
 What does it mean to be a “witness”?
 Purpose of cross: expose hesitancy, motive, etc.; get context behind evidence; expose
contradictions; promote truth (the witness is less likely to lie face-to-face); expose bias
o To Kill a Mockingbird clip
 Without in-court cross, we wouldn’t see the witness’ demeanor and
wouldn’t see his single-minded focus on framing the defendant (i.e., his
bias)

36
 Only required to have the opportunity to cross, don’t have a right to great cross-
examination
 My Cousin Vinny clip
o Cross is often performative- can’t be done without the face-to-face element
 A Few Good Men clip
o Cross is performative- can’t goad the witness without cross (need the face-to-face
encounter)
 No right to confront your conspiracy (so doesn’t implicate the Confrontation Clause)
 Out-of-court statements admissible against criminal defendants if (note, no reference to
reliability; also these are procedural, not substantive):
o Not offered for their truth (non-testimonial)
o Cross-examined at trial
o Made by an unavailable declarant and defendant had past opportunity to cross
o Confrontation right forfeited by wrongdoing (where that wrongdoing was
perpetrated with the intent to prevent testimony)
 Example: domestic violence cases
o Or the statement is non-testimonial
 Testimonial statements (subject to the Confrontation Clause)
o Solemn declarations (Crawford and Davis)
o Prior testimony (Crawford)
o Statements with the involvement of government officers (Crawford)
o Primary purpose of interrogation is to establish or prove past facts (Davis)
o Affidavits (Melendez-Diaz)
 Non-testimonial statements
o Casual, off-hand, or overheard remarks (Crawford)
o Statements in furtherance of a conspiracy (Crawford)
o At least some business records (Crawford)
o Primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency (Davis and Bryant)
 Mainly at crime scenes and 911 calls
 The Roberts Era
o Pointer v. Texas
 Incorporates the Clause against the states
o California v. Green
 Clause is not just the codification of hearsay and its exceptions
 If a witness is available, they have a duty to produce them
o Ohio v. Roberts
 Overruled by Crawford
 2-part test for the Clause
 1: Necessity- must show that the declarant is unavailable
 2: Reliability- must have guarantees of trustworthiness
o Idaho v. Wright
 Residual exception is not firmly rooted in hearsay rule
o Maryland v. Craig
 Court allows child to give testimony through a closed-circuit TV without
facing the defendant in person (care about her psychological health)

37
  Scalia in dissent- this is wrong- Clause requires face-to-face
confrontation
 Crawford v. Washington
o Court- this case shows the inadequacy of the Roberts test (each court along the
way found something different)
 Starts fresh with the Clause and looks to the history of the common law
regarding confrontation
 “Witness”- has an element of accusation
o What is testimony?
 1: Only ex parte in-court testimony (narrowest definition)
 Thomas’ hard-fast view
 2: Content-based conception- does it sound like it could be a formal
testimony?
 3: Statements made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use
at a later trial (broadest definition)
o Suggests that dying declarations are so rooted in common law so always pass
constitutional muster
o Rehnquist (concurrence)- shouldn’t overrule Roberts
 New test is too confusing for lower courts
 Analysis of out-of-court statements post-Crawford:
o If it hearsay?
 Is it an assertion?
 Is it offered for its truth?
o Is it within an exception (803, 804) or an exemption (801)?
o If yes to above, but it is offered against the defendant in a criminal case, then
Confrontation Clause is implicated.
o Post-Crawford, ask if the statement is testimonial?
 If testimonial, the declarant must:
 Testify at trial and be subject to cross
 Be unavailable and subject to a past opportunity to cross
 OR forfeiture must apply
o Even assuming hearsay and constitutional challenges are met, still can resort to
discretionary 403 weighing
 Hearsay exceptions post-Crawford
o 801(d)(1)- not under the Clause (subject to cross)
o 801(b)(2)- not under the Clause (no constitutional right to confront yourself)
o 803(1)-(3)- depends on if testimonial
o 803(4)- generally non-testimonial but careful where the medical record functions
as a report of factual findings
o 803(5)- not under the Clause (subject to cross)
o 803(6)-(8)- generally non-testimonial, unless prepared for litigation
 Forensic reports trigger Clause
o 804(b)(1)- doesn’t trigger Clause (Crawford requirements are embedded)
o 804(b)(2)- dicta but likely not under the Clause

38
 o 804(b)(3)- often testimonial (unless between confidants then likely non-
testimonial)
o 804(b)(6)- may not fall under the Clause if done to silence declarant
 Davis v. Washington
o Some dividing lines courts have used:
 Scene secured (testimonial) vs. not (non-testimonial)
 When begin asking identifiers (moves to testimonial)
 But dual-purpose here: get record to prosecute and so police better
understand what getting into
o Look for spontaneity- more likely to be non-testimonial
o Hearsay exception: excited utterance
 911 call: call for help vs. desire to bear witness (primary purpose test)
o Are the statements given to structured questioning?
 If yes, leans toward testimonial
o Has the crime ended and where is the suspect? (Hammon case)
 Whorton v. Bockting
 Giles v. California
o Forfeiture situation- requires intent to cause witness to be unavailable to testify (6
Justices)
o Concurrences
 Thomas- Clause only applies to “formalized” testimony
 Souter- procedural take
o Dissent by Breyer
o Strong dicta from all 9 Justices: relaxing the forfeiture rule in domestic violence
cases
 Michigan v. Bryant
o Whose perceptions matters?
 Bryant: focus on declarant’s perspective, but it is colored by the person’s
perspective who receives statements
o Hearsay exception: dying declaration (under Crawford, this would get around the
Confrontation Clause because it is so deeply rooted)
 Prosecution didn’t lay the foundation for this so came in as an excited
utterance
o Court: primary purpose was to assist police so non-testimonial (seem to care
about reliability here)
o Scalia (dissent): using reliability instead of primary purpose
 Must focus on the declarant’s intent
 Here it is testimonial- need to be able to cross on perspective
o Thomas (dissent): lacks the formality so it is non-testimonial
 Defining Testimonial Hearsay
o Melendez-Diaz
 Evidence- forensic analysis reports of cocaine (sworn affidavits)
 Issue- is this just paperwork or does it count as a “witness”?
o Court- it is testimonial (set up a notice system)
 But, defendants still don’t often call the analyst to
the stand even after this case

39
 o Bullcoming v. New Mexico
 Ginsburg- look at the purpose of the statement (footnote 6)
 The declarant is still crucial to this
 Evidence- BAC lab report (business record exception)
 Court- this is testimonial
o Issue- is the surrogate testimony by a comparable analyst
ok under the Confrontation Clause?
 Court- no (human error changes reliability)
 Sotomayor- testimonial because clearly evidentiary
 Kennedy- too costly to trials
 Both Sotomayor and Kennedy brought back reliability language from
Roberts case
o Williams v. Illinois
 Alito- evidence is not being offered for its truth so not testimonial
 Thomas- not testimonial because it is unsworn (lacks formality)
 Breyer- brings reliability back
 Kagan- need to be able to cross on reliability of the test and the sample
o Ohio v. Clark
 Again shows how divided the Justices are the Clause
 What is the mandatory reporter’s primary purpose?
 Court: focus on declarant’s perspective and the children are too young to
know to speak for purpose of evidence (spontaneous statements)
 Primary purpose of all involved was to protect the children from
the ongoing emergency so non-testimonial
 Scalia- only the declarant’s perspective matters so non-testimonial even if
speaking to police
 Thomas- not sufficiently solemn so non-testimonial
 The Burton Doctrine
o Bruton is about evidence that is admissible against one defendant but not another
defendant in the same case. And there, when the evidence in question amounts to
a confession, the Court has recognized that limiting instructions are likely
ineffective. This typically occurs when the prosecution offers a statement by one
defendant that necessarily implicates another, but there is a hearsay problem, a
Confrontation Clause violation, or both. Even if a defendant has herself
confessed, she may still be harmed by admission of a codefendant’s confession
that references her.
o The Bruton problem can be solved by separate trials (or, rarely, separate juries for
defendants in the same trial); by the testimony of the confessing codefendant who
submits to cross examination; or by redaction.
 Be careful with redaction, however, because a majority of the Court
recognized in the Gray case that “blanks” can still be accusatory.
 Some cases accept the use of straight redaction if the reference to
other participants could be to parties not before the court, and
“neutral pronouns” that make redaction non-obvious are a
possibility as well. But then the declarant/codefendant against

40
 whom the statement is admissible may have an objection if
redactions and substitutions change the meaning of the statement.
o Burton v. United States
 Juries aren’t able to follow limiting instructions when jointly trying
accomplices where one confesses (admissible against confessor (it is an
admission) but not the accomplice)
 Confessions are too persuasive to juries
 Dissent (White)- can just use redaction
 Why are we more skeptical of limiting instructions here but not
everywhere else?
o Gray v. Maryland
 Court- obvious blanks in the statement violate the 6th Amendment
 Should use neutral pronouns or “me and a few other people…”
o Scalia- if editing the statement like this, it is being
dishonest to the factfinder
 Compulsory Process
o (1) highly reliable and extremely important defense evidence blocked by a state
hearsay rule might nonetheless be admissible; (2) defense evidence excluded by
an evidentiary rule that serves no legitimate purpose or a rule that is being applied
in an arbitrary fashion that does not serve its intended purpose may also come in
pursuant to a Sixth or Fourteenth Amendment claim.
o The Compulsory Process Clause doctrine, sometimes referred to as the Chambers
rule, requires the admission of evidence (usually excludable hearsay) when
barring it deprives a criminal defendant of a fair trial.
 Think of it as the inverse of the Confrontation Clause, which keeps out
otherwise admissible evidence because of constitutional concerns
o It applies only rarely, and only in cases where the facts and circumstances suggest
fundamental unfairness or a miscarriage of justice. (Justice Scalia has referred to
Chambers as “an exercise in highly case-specific error correction.”) The unusual
case in which a Chambers claim might prevail will likely be a murder trial in
which excluded hearsay clearly points to an alternative perpetrator. There is a
heavy emphasis on reliability, and where you see “pervasive assurances” of
trustworthiness surrounding a third-party confession that exonerates the accused,
you may well have a constitutional claim.
o Hard to win this claim (so very rare)
o Chambers v. Mississippi
 Must be critical evidence with pervasive trustworthiness
 Defendant received unfair trial (due process and 6th Amendment issues)
 Typically this arises in alternative perpetrator murder cases
 Trustworthiness- reliability, ability for government to cross,
corroborated with multiple statements
o Later cases have slightly expanded the Chambers doctrine beyond its facts.
 The Green Court referred to a right to present evidence that is unusually
necessary and reliable

41
 Crane v. Kentucky suggests that there is a constitutional claim when an
evidentiary rule precludes a “meaningful opportunity to present a
complete defense”
 the most recent Holmes case overturned a murder conviction because a
state evidentiary rule precluded a “complete defense” while being applied
arbitrarily and without legitimate purpose.
 In Rock v. Arkansas, the Court also held that a state competency rule
excluding a defendant’s hypnotically refreshed testimony violated the
Compulsory Process Clause because a restriction on a defendant’s right to
testify cannot be “arbitrary or disproportionate to the purposes [it is]
designed to serve.”
o Holmes v. South Carolina
 Valid state evidence rule that that is being arbitrarily applied against the
defendant

Lay & Expert Opinions

 Bob Dylan- “you don’t need a weatherman to know which way the wind blows”
 701- lay testimony
o Must have firsthand knowledge (Rule 602)
o Helpful to a clear understanding of the witness’s testimony or the determination
of a fact in issue.
 (*) Reliable
 (*) Material
 (*) Necessary
o Not based on scientific, technical or other specialized knowledge.
 (*) Opinion based on everyday life rather than specialized knowledge.
 (*) Added in the 2000 Amendment to prevent an end-run around Daubert.
o Saying a person looked sad- If describe facial expressions/demeanor and it will
have the same effect as the inferential opinion, then it is typically allowed
o Time and cause of death typically requires scientific knowledge (see Brother’s
Keeper)
o For child pornography cases where actual age matters, need medical expertise to
determine actual age
o Does knowing it is cocaine require specialized knowledge?
 Just must establish familiarity with the drug (see Advisory Notes)
 Purity of the cocaine would require specialized knowledge
 702- testimony by experts
o 104(b) determination
o Permissible when:
 Scientific/specialized knowledge will assist trier fact
 Witness is qualified specifically to give the opinion rendered
 AND meets the Daubert/Kumho Tire requirements (702(b)-(d))
o Can’t have an expert testify about the law at issue in the case
 Can have an expert testify to foreign law
o Codification of Daubert
o 702 (b): The testimony is based on sufficient facts or data.

42
 o 702 (c): The testimony is the product of reliable principles and methods.
o 702 (d): The expert has reliably applied the principles and methods to the facts of
the case.
 704- Opinion on an Ultimate Issue
o An opinion is not objectionable just because it embraces an ultimate issue.
 Exception: In a criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a defense.
Those matters are for the trier of fact alone.
 Approach to questions concerning expert testimony:
o 1- does the witness qualify as an expert in the relevant field (702)
o 2- will the expert’s analysis assist the jury (702)
o 3- is the testimony on a proper topic for expert opinion (702 and 704)
o 4- does the expert’s opinion rest on proper data (703)
o 5- Daubert analysis:
 a) is the methodology reliable?
 Error rate
 Peer reviewed
 Use of controls
 General acceptance
 b) does the expert’s analysis “fit” the issues in the case?
 United States v. Granier
o Forensic analytics required so needed specialized knowledge
 Thus government needed to give the defendant notice
 United States v. Johnson
o If dueling experts- jury decides which is more reliable
 Opinion Testimony
o Can’t testify about credibility (for the jury to decide who is and isn’t lying)
o 703- Bases of Opinion Testimony by Experts
 Experts may rely on:
 Facts or data learned by firsthand observation.
o Ie. treating physician or accident reconstruction expert.
 Facts or data gathered from the trial itself.
o Testimony the expert has actually heard, or
o A hypothetical question summarizing facts in evidence.
 Facts or data acquired secondhand through reading or through
talking with others (including inadmissible hearsay), provided that
other experts would reasonably rely on such information.
o Otherwise inadmissible bases of expert testimony cannot be
disclosed to the jury unless the probative value
substantially outweighs prejudicial effect.
o 705
o Hygh v. Jacobs
 Expert is acting like a 13th juror
 Giving more than facts needed to come to a verdict
 May not define “deadly use of force”- judge’s job

43
 o State v. Batangan
 Expert testimony is inadmissible
 Swearing-match cases- expert is advising jury on how to determine
if child is lying (this is ok)
o But not ok for expert to examine this victim to advise jury
on whether this particular victim is lying
o State v. Guilbert
o In re Melton
 703 weighing test- probative value (i.e., understanding expert’s testimony)
of inadmissible hearsay must substantially outweigh prejudicial effect
 Expert Scientific Testimony
o Frye v. United States
 Rationale/notion that efficient processing of info is better (likely
fabricated)
 Similar to rationales for hearsay exceptions (i.e., spontaneity is
more reliable than efficient processing)
 The language of general acceptance followed for a long time in federal
courts and many states
 Still often carries the day in Daubert test jurisdictions
 Why did the court initially focus the scrutiny on the scientists?
 Scientists have a particular authority
 Jurors don’t have the tools to evaluate trustworthiness of scientific
testimony
 Frye test was pretty lax standard because relevant scientific community
often means the people who make a living off that science (so likely
accepts it)
o Daubert v. Merrell Dow Pharmaceuticals, Inc.
 Procedural posture: appellate court affirmed summary judgment
 Why does summary judgment matter so much for class actions?
o High stakes- summary judgment is much cheaper for
defendants
 “General acceptance”- no link between Bendectin and birth defects
 Court came in with more liberal test for expert testimony
 Show scientific knowledge (good grounds of methodology) and
that the knowledge assists the jury (fit) to answer the question in
the case
 Enumerated Daubert factors (exemplary rather than exhaustive)
 Whether the technique or theory can be or has been tested.
 Whether the technique or theory has been subjected to peer review
and publication.
 What the known or potential rate of error of the technique or
theory is when applied.
 Whether standards are maintained to control the technique’s
operation.
 Whether the technique or theory has been generally accepted in the
relevant scientific community.

44
  Illustrative additional Daubert factors
 Whether opinion developed independently of the litigation
 Extent of analytical gap between data and opinion
 Expert’s consideration of alternative explanations
 Whether expert is applying the same rigor as a witness as would be
applied as a professional in the field
 Whether the field of expertise itself is known to be reliable
 Qualifications and professional stature of the expert
 Rule 702(b), (c), and (d)- codification of Daubert
 Judge decides admissibility/reliability of expert testimony by
preponderance of the evidence
 Don’t have to show by preponderance of the evidence of correct
conclusion by expert testimony, rather the rigor of methodology
 Jury decides which expert’s conclusions are correct
 Judge’s decision reviewed by appellate courts only for abuse of
discretion
 Polygraph Evidence
o Parks and Rec lie detector clip
 What factors do we consider when determining admissibility?
 Reliability issues (Daubert) and 403 issues (Colliris)
 What does it mean to “pass” a lie detector test?
 Didn’t deviate from non-efficient processing
 Reliability assessments vary (depends on who you ask)
 Prejudice comes from aura of infallibility, threatens jury’s fact-finding
role, distracts jury, sucks time and resources (expert cross takes a long
time)
 Daubert factor analysis
 Can we test lie detectors?
o In Parks and Rec, they tested using controls (already
knowing the answer to certain questions)
 Peer reviewed?
o There are many polygraph journals; low readership though
 Also be wary of who reviews- do they make a living
off of this?
 Error rate
 General acceptance?
o If relevant scientific community is polygraphers, they do
generally accept lie detection evidence
 They profit from this- so be wary of their opinions
o Lie detectors
 Most courts applying Daubert find lie detector results inadmissible
 Tricky when defendant tries to admit it- then must consider
Daubert factors and 403 weighing test
 Court in Crumbly (footnote on pg. 823) says on the other side of the 403
scale is:

45
  Self-proclaimed innocent man who wants to prove his innocence
with the help of lie detector evidence
 If in rare case (where defendant is offering it), you let in the lie
detector evidence, but have limitations
o Government must be notified
o Government can test using its own lie detection
o Defendant proffers and testifies (because it’s used to
corroborate or impeach defendant’s testimony) and will
submit to cross
 Some courts have allowed evidence of defendant’s willingness to take lie
detection test only if defendant is available for cross
o Compulsory process clause
 Requires necessity (i.e., critical to the defense) and reliability
 Lie detection fails reliability
o United States v. Scheffer
 Most cited for “jury=lie detector” (Thomas)
 More about faith in the jury
 8-1 decision denying defendant’s right to lie detection evidence here
 But 5 votes objecting categorical rule against lie detection
o Daubert on remand
 Showed Daubert wasn’t what the Supreme Court expected (it wasn’t so
liberal of a test)
 Substitutes with a new analysis: whether expert’s research done for
litigation or not
 More focused on fit (footnote 17- page 817)
 Adds a prong: helpfulness inquiry- didn’t consider the 3 pieces of
evidence in combination, rather requires separate analysis
 Summary judgment rulings doubled after Daubert
 Many defense lobbying groups supported extension of Daubert
 DNA quickly became the gold standard of evidence- almost always
admitted
 What if lie detection becomes more scientific?
 Point of Daubert- accommodate new science
o United States v. Semrau
 fMRI looks inside cortex of the brain (no other physiological changes)
 Issue with the expert’s financial incentive:
 They are paid which isn’t a Daubert factor
o But in this case, he’s testing for free in litigation to expand
its admissibility and create a lucrative business out of it
 Fairness issue: prosecution wasn’t aware (no notice)
 Accuracy of the test: expert says it only has a big false-positive issue and
less accuracy when tired
 Is it possible to test accuracy?
 The measurements are not made in real-world setting
 Lots of methodological problems

46
  One day the test may fix these but 403 issues remain- only one side
gets the opportunity to do the test
 A Civil Action clip
o What can a judge use to assist in the gatekeeping role?
 Experts paid for by the court
 Very rare: Intrudes on the adversarial process, judges aren’t the
factfinder, and judge doesn’t want to look clueless (lose face)
 Neutral pool of experts (parties don’t like this)
 Non-Scientific Expertise
o Kumho Tire Company v. Carmichael
 Daubert applies to any technical form of expertise (even financial
expertise)
 Expert- merely visual inspection of the tires
 Rule 702- all experts are treated the same
o No clear line between scientific and technical expertise
 Here, doesn’t pass the Daubert screen
o The methodology is unreliable
 Expert didn’t know how many miles on tires
o Application of methodology was an issue
 Things altered to fit the sought outcome; disregard
of important factors
o State v. Kinney
 Expert evidence (except for evidence concurring false reporting) is
sufficiently reliable so allowed in
 False reporting- seems that the expert is acting as a lie detector
here so goes too far (taking on the job of the jury)
o But defense didn’t object to this- no Rule of Evidence is
self-executing
o Offensive use of experts rather than defensive use of
experts
o Expertise
 Science is a dynamic field
 Daubert is about screening out bad science at the current time
o See new drug released that is the same chemical make-up
as Bendectin
o See also new research on Shaking Baby Syndrome
o See also arson science and bite marks
 Authentication
o 104(b)- documents authenticating the item must be on the record (so must be
admissible)
 The jury must see it to make the determination
o 901- Authentication
 must prove that an item is what the proponent claims it is (credibility of
things)
 901(1)-(4)- documents
 Testimony of a witness with firsthand knowledge of the writing

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  Handwriting:
o Based upon familiarity not acquired for purposes of
litigation.
o Comparison by jury with exemplar.
o Comparison by expert with exemplar.
 Circumstantial evidence:
o Context (reply to a duly authenticated communication).
o Content (facts peculiarly known to the writer).
o Other distinctive characteristics (language patterns).
 901(5)- voice identification (mostly seen with wire taps)
 Knowledge can be firsthand or from a recording
 Requisite familiarity may be acquired either before or after the
speaking being identified.
 901(b)(8)- ancient documents (20+ years old)
 Offered 20 years or more after document created.
 Document in a condition that creates no suspicion about
authenticity.
 Document found in a place where, if authentic, it is likely to be.
 901(6)- telephone calls
 Incoming calls require more than assertion of identity:
o Content of statements.
o Reply technique.
o Voice identification.
 Outgoing calls to individuals:
o Calling of a number assigned by the telephone company.
o Self-identification or other circumstances that indicate the
person contacted.
 Outgoing calls to businesses:
o Number assigned to the place of business by the telephone
company.
o Conversation related to business reasonably transacted over
the phone.
 901(b)(9)- self-authenticating things (example- congressional reports)
 104(a) determination (so the judge decides)
 901(b) and 902- list of admissible items
 104(b) determination (for the jury to determine authentication)
 Stems from the fear of forgery
 On top of all other evidence rules (i.e., must also pass relevance and
hearsay rules)
 No fixed rules to prove authentication
 Chain of custody (often seen with things found at crime scenes- like drugs,
guns, etc.)
 Don’t need perfect chain for each case (case specific)
 Difference between investigating and prosecuting
o 902
 901(b) and 902- list of admissible items

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 o Standards of proof
 Authentication- 104(b) (reasonable jury)
 Less rigorous in a sense because you don’t need the judge to agree
 Hearsay- 104(a) (the judge)
 Still preponderance of the evidence but determined by the judge
o United States v. Stelmokas
 Documents at issue are 50+ years old (so ancient documents)
 Was it reasonable that they were found in the Lithuania?
o Court: yes, so the docs are allowed in
 Defendant claims he was framed
o Court: documents were not accessible for many years
 Common sense says that these are authentic
o State v. Small
 No hearsay problem if the call is with the defendant (party in suit)
 So must first authenticate the call as with the defendant
o Circumstantial evidence- context, content, other testimony
by defendant’s wife
 As an aggregate, this is sufficient to authenticate the
call
o Simms v. Dixon
 Don’t need the actual photographer to testify, only need someone who can
say the photos accurately represent the scene
 Unless there are issues raised about manipulation
 For surveillance footage- have employee of security company explain the
process and say that this footage is an accurate representation of what
happened
o Wagner v. State
 System based inquiry- time and date stamp, evidence of
tampering/manipulation/editing, angling, chain of command
 Best Evidence Rule
o Issues over trustworthy copies are no longer a big issue
o Safeguard against forgery
o Almost always harmless error
o Generally documents of some kind (can’t be actual objects like the smoking gun)
o 1001
 (1)- “letters, words, numbers, or their equivalents”
 Includes printouts from a GPS and drawings
 (3)- definition of original
 Writing or recording itself
 Any counterpart intended to have the same effect as the original:
o Multiple wet-ink contracts
o Carbon copies
o Negatives or any prints therefrom
o Any printout or output from computer data
 (4)- admissibility of duplicates
 Duplicates are admissible the same extent as originals, unless:

49
 o (1) Genuine question about the authenticity of original.
o (2) Unfairness (ie. only segment of original reproduced).
 “Duplicate” generally includes any mechanical reproduction.
o 1002
 1002- “to prove content”
 the actual statement matters (technically not the recording of it)
 Where the writing is inherently at issue in the litigation, ie.:
 Contract
 Copyright infringement
 Will
 Lease
 Written libel
 Child pornography
 Where the writing has independent probative value and is not merely an
illustration of testimony.
o 1003
 1003 and 1001(4)- admissibility of duplicates (see above)
o 1004
 1004- exceptions to requirement of original
 (1) Originals lost or destroyed through no fault of proponent.
 (2) Originals exist but are not obtainable by any process or
procedure.
 (3) Opponent possesses the original and does not produce it.
 (4) Writing, recording, or original not closely related to a
controlling issue.
o Seiler v. Lucasfilm
 Rule 1001(1)- drawings are writings
 No originals
 The recreated drawings made post-movie don’t count as duplicates
o Rule 1004- not under any exception (he has likely
destroyed the originals himself)
o United States v. Jackson
 No originals or duplicates- only cut-and-paste with comments
 Issues with human error and manipulation
 Court: can’t use the evidence

Privileges
 Privileged relationships
o Communication made in confidence
o Confidentiality is the force behind the communication in the relationship
o Society has to view the relationship as valuable
o The injury to the relationship from disclosure is greater than the benefit to be
gained from receiving information into evidence
 Anatomy of a Murder clip
o Arguments against privilege

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  Acts as a blockade to truth and gives privilege to powerful profession
which writes the rules (in the case of attorney-client privilege)
o Arguments for privilege
 Not all about allowing attorneys to gin up bogus theories to get killers off
 Encourage full and frank communication
 Encourage zealous advocacy of clients
 The following are not privileged relationships
o Parent-child
o Sibling
o Doctor-patient (but psychotherapist-patient is)
o Accountant-client
o Journalist-source
 Not a dynamic area of the law
 Attorney-client privilege is seen to yield to the compulsory process clause (when
exonerating an innocent defendant or when there is a compelling law enforcement
interest)
o O’Connor’s view in Swidler & Berlin
 Judges are not bound by the Rules of Evidence when ruling on the Rules except for with
privilege
o For privilege:
 Can only hold an in camera session if there is a really good claim
 Standard for bringing a claim of no privilege- good faith that the
privilege does not apply
o Burden is on the party trying to break the privilege
 501- Privileges
o Rule 501- common law governs claim of privilege
 Where do we get privileges from?
 “Reason”- policy arguments
 “Experience”- what is the consensus among the states?
 The actual Rules (not adopted so no independent force but may be
authoritative)
o required reports
o attorney-client
o psychotherapist-patient
o spousal
o clergy-penitent
o vote
o trade secrets
o state secrets
o informant identity
 The Constitution (constitutional values)
o Ex: clergy privilege from the free exercise clause
o Rationale: protect relationships
 Trustworthiness idea- protect full disclosure in communications
 Not really the rationale behind self-incrimination protection though

51
 o Can interpose privilege at trial, before trial (grand jury stage), or in any situation
where you are being compelled to disclose information
o Dangerous Patient Exception
 Proposed 504- Psychotherapist-Patient Privilege
 Proposed 503- Lawyer-Client Privilege
 Proposed 506- Communications to Clergymen
 Proposed 511- Waiver of Privilege by Voluntary Disclosure
 Jaffe v. Redmond
o Psychotherapist-patient privilege- newest privilege
 Attorney-client is the oldest and most robust privilege
o The Court finds this a new privilege under Rule 501
 Reason- need absolute candor when getting treatment for mental ills
 Experience- all 50 states plus DC have this privilege already
 Evidence wouldn’t exist without this privilege (chilling idea)
 No one would speak to licensed therapists
 Absolute privilege except where safety is a concern
 Not a case-by-case determination as the 7th Circuit held
o Dissent (Scalia)
 If tell the truth in therapy, then must face the consequences in court
 Doesn’t value psychotherapy or social work
 Says that these conversations should be done through getting
advice from parents, clergy, friends, etc.
o Values some relationships over others
 In re: Grand Jury Subpoena, Judith Miller
o Journalist-source privilege
 Not an actual protected privilege
 Issues with this privilege:
o Who constitutes a “journalist”?
o National security issues
o Branzburg case- reporter has no First Amendment protection testifying before a
grand jury
o Sentelle- no such privilege exists
 No common-law privilege for reporters and not all states recognize this
privilege
o Henderson- if there is such a privilege, it is not absolute (national security
matters)
o Tatel- there is such a privilege (need it to counter the chilling effect)
 The evidence at issue would never come into being without a robust
privilege (see Jaffee)
 Not an absolute privilege though- weigh public interest in information
with the harm from a leak (law enforcement imperative)
 Here, privilege should be overridden
 Morales v. Portuondo
o Ethical dilemmas (unclear whether anyone actually did anything wrong)
 For the prosecutor- believe you have the right man, but part-way through
the trial the defense attorney comes to you with this info he received

52
  What do you do?
o If you had found exculpatory info, then must bring it to
light (not the case here)
o Here, should investigate (follow up on the info)
 If find corroborating evidence, then inform defense
counsel and likely let the others go
 If find nothing, then it is a hard question
 For Forbes’ defense counsel- clear duty to the client (advised him to stay
quiet/plead the 5th)
 Correct in telling him that coming forward would only add him to
the defendant list without getting anyone free
 His job is to protect his client (not to right wrongs)
 For the priest- directed him to legal counsel
 Clearly conflicted- sought spiritual and legal counsel, wrote to the
convicted persons, wrestled with formal vs. informal confession
idea
 Free exercise problem- law shouldn’t interfere with sacrament
(sanctity idea)
 For the judge- took an aggressive stance to the solution
 “hero” of this story in a sense
o Layers to the case
 Habeas claim
 Claim of actual innocence (so state exhaustion isn’t an issue)
 Privileges
 Priest-penitent privilege
o Court says this was waived when he divulged his
communication to the priest with counsel
 But this was also privileged communication so
weak argument for waiver
o Also found there was no privilege because it was an
informal confession
o But the compulsory process clause trumps here
 Attorney-client privilege
o Court- no waiver and survives the death of the client (so it
remains in force)
 Compulsory process clause trumps here
 Hearsay
 Statements to convicted defendant’s mother and attorney- allowed
under statement against interest exception
 Statements to own attorney and priest- residual exception
 Compulsory process clause
 Must balance privilege against claim under this clause
 Must be vital, unavailable by other means, and reliable
o Here it meets all three so privilege is trumped

53
  Reliable- against his interest, told multiple people,
corroborated by other testimony, and he showed
genuine guilt and remorse
 Attorney-client privilege can’t stand in the way of
the truth
 Weighing test
o 5th Amendment claim vs. compulsory process clause: 5th
claim will always win (but prosecution can then offer
immunity)
o Attorney-client privilege vs. compulsory process clause:
weighing test and courts have come out both ways
 Attorney-Client Privilege
o Requires:
 Attorney-client relationship
 Is there an attorney? (includes secretaries, paralegals,
investigators)
 Is there a client?
o Includes corporate clients
 the communication was made by employee to
corporate counsel
 at the direction of supervisor
 for the purpose of obtaining legal advice
 concerning matters within the scope of the
employee’s duties
o Applies to codefendants, according to the joint defense
privilege. If an attorney is serving a codefendant for a
limited purpose, that attorney represents the codefendant
for that purpose.
 A communication
 Verbal or nonverbal
 ID of clients, transfers of property, and info on fees don’t count
 Made in confidence
 Eavesdropping doctrine- must make reasonable precautions to
prevent eavesdropping
 E-mails qualify if the parties took reasonable precautions to ensure
confidentiality, but where there is random monitoring of e-mail by
an employer, or a message is left on several different servers and is
vulnerable to interception, the privilege may be defeated.
 For purpose of facilitating professional legal services
 Doesn’t apply to work that a non-lawyer could preform
 Split in authority on:
o Preparing tax returns.
o Investigative work
o Waiver

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  Attorney-client privilege- privilege lies with the client so can only be
waived by the client (based on whether the client took reasonable
precautions)
 Waive if act inconsistently with continuing desire to keep communication
confidential
 Voluntary disclosure to third parties (unless in furtherance of
seeking counsel)
 Attack an attorney’s competence
 Failure to invoke privilege
 Inadvertent disclosures
o Exceptions to privilege
 Services of lawyer sought to enable commission of crime/fraud
 Communication is relevant to dispute between claimants through same
deceased client
 Communication is relevant to a breach of lawyer/client duty
 Communication concerns attested document and lawyer is an attesting
witness
 Communication made by client bears on a matter of common interest
between that client and other clients who jointly retained or consulted the
attorney, and the communication is offered in an action between the
clients
o Can’t just use the lawyer as a shield
 Cannot cloak preexisting documents with immunity by turning them over
to an attorney
o People v. Gionis
 No privilege- no relation to any professional attorney-client relationship
 Attorney clearly said at the beginning that he wouldn’t represent
him
o BUT he did give some legal advice and showed up to court
for him once
 So, can this communication be parsed?
 Court- the entire communication is not privileged (don’t parse it)
 Kennard- can parse it
 Mosk (dissent)- entire communication is privileged (don’t parse it)
 Focus on the overt warnings/disclaimers by the attorney
 Look at the dominant aspect of the relationship
o The Firm clip
 Are the bills under attorney-client privilege?
 Likely no (seems to seek a waiver to cover his bases)
 Does waiving the release of the bills waive any other information?
 No
 BUT, any fraud/crime (i.e., money laundering) is not under
privilege
 Threat that if anything happens to him, the holdings will be released is an
idle threat (false threat)
o 502- Attorney-Client Privilege and Work Product

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 o 3 questions to ask for inadvertent disclosures (Williams v. DC)
 1- is it actually inadvertent?
 2- were reasonable steps taken to prevent it?
 3- were reasonable steps taken to rectify the error and how quickly were
these steps taken?
o Williams v. DC
 Key fact- it took them 2 years and 8 months to attempt to rectify the error
 Immediacy matters
o Swindler & Berlin v. United States
 Attorney-client privilege doesn’t end when the client dies
 Evidence at issue- handwritten notes made by the attorney during a
conversation with Foster before he committed suicide
 Court- Foster still has interests to protect even after death (his innocence)
 Reputational interest survives beyond death (seen when he claimed
innocence in his suicide note)
 O’Connor (dissent)- attorney-client privilege after death is not absolute
 Wants to create a balancing test
o Take matters of national security into account
 Familial Privileges
o Why only marital privileges?
 Line drawing issues with broader familial privileges
 Marriage- has legal recognition
 Old, common-law privileges- the courts don’t like to extend privileges
beyond where there is sufficient precedent
 Parenting doesn’t get chilled by the Rules
 Giving judges too much discretion leads to instability
o Proposed 505- Husband-Wife Privilege
o Spousal privileges
 Privilege against adverse spousal testimony
 Applies to any adverse testimony, not just confidential
communications.
 Can concern events either before or during the marriage.
 A lawful marriage is required at the time of the testimony.
 The majority view is that it applies only in criminal cases.
 Testifying spouse holds the privilege.
 See Trammel v. US
 Marital confidences privilege
 Rationale: promotes free exchange between spouses
 Closely parallels the attorney-client privilege.
 Protects only against the disclosure of communications made:
o in confidence
o in the course of the marriage.
 Can be invoked after the marriage has ended.
 Applies in civil and criminal cases.
 Both spouses hold the privilege.

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  Presence of or disclosure to a third party destroys confidentiality
unless it is a young child.
 Exceptions
o Crime/fraud exception
o If proceedings against the spouse or her property or their
kids
 When is the privilege destroyed?
o If said in the presence of or disclosed to a third party
 Unless it is to young children
o Both spouses must waive the privilege
 Must take reasonable precautions to stop other
spouse from disclosing or that spouse also waives
the privilege
o Trammel v. United States
 Court- if a spouse is willing to testify against the other, then the marriage
is likely unrecoverable
 The privilege lies with the witness spouse
o Would be unjust if non-testifying spouse held the privilege-
no way for witness spouse to mitigate own sentence
 Pro-prosecution ruling- no benefit for the government to flip a witness
spouse if that witness spouse cannot testify
 Footnote 7- domestic violence exception to the privilege
 If wife stops cooperating mid-way through the trial after having
already testified/given a statement (i.e., if she is recanting), the
government can compel her to continue to testify

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