Evidence

Muller
Spring 2014

**Pretend like you are writing to a judge on exam!

I. INTRODUCTION
**Evidence is so important b/c we value the sanctity of jury so much that we can make sure that the jury
only gets the “good stuff” and its reliable/relevant/trustworthy
Background
 Congress heavily involved in creation of rules- **Advisory committee notes actually important
 Judicial conference  advisory committee  judicial committee  SC  Congress
 No evidence rules if no jury trial
 Jury Process
o selection- voir dire
 Challenge for cause
 Preemptory challenges (for “any” reason, but not race or sex)
 Hardships exemptions
 Generally will include elderly, employed, postal workers, etc. vs. workers
o Trial
o Jury instructions
o Deliberations
 Secret, want to leave this alone
 Nullification- doesn’t matter, just say “not guilty”
Purpose: Rules of Evidence are designed to help us seek the truth, efficiency, reliability, mechanism for
jury control, other extrinsic values over truth (ex. spouses talking with each other)
FRE 606(b)- Juror’s Competency as a Witness
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may
not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything
on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court
may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions: A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
Tanner- Jurors consumed alcohol, drugs, and slept does NOT qualify as an outside influence (like
flu, lack of sleep, bad food, etc.)
 Secrecy important b/c we want people to deliberate without fear or harassment/ finality/
preserves community trust in system
 Can’t use jury testimony about deliberations to show that jury is incompetent under 6th
Amendment/have other options: better voir dire, atty pays attention, pre-verdict jury evidence,
non-juror evidence
Prob 1.1 (p 16)- racism? *depends on state but no 606(b) violation b/c it is an extrinsic influence no more
external than drugs/alcohol
 II. RELEVANCE

FRE 401- Test for Relevant Evidence

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Probable: logical relevance/makes a fact more or less probable (i.e. brick in wall)
Materiality: of consequence in determining/affects result of case (i.e. not an element in the case)
**This is a low threshold, but must articulate inferences well (and just has to be one possible inference)
Relevant {Evidence ---Probative--->Fact ---Material--->The Action}
 Prob 1.1 (p25)- “show me the body”
o Evidence = statement
o Fact = killed somebody
o Relevant: probative and material, even though competing inferences
 Prob 1.2 (p26)- brotherhood requires to lie and kill for each other
o Evidence = in secret society
o Fact = lying
o Relevant
 Prob 1.3(p26)- polygraph consent
o Evidence = statement “Go ahead Doc hook me up”
o Fact = innocence
o Relevant
 Prob 1.4(p27)- knowledge of carrying a weapon
o Evidence = her testimony
o Fact = did not know
o NOT relevant b/c not material b/c knowledge of law not an element
 Prob 1.5 (p28)- voluntary intoxication
o Evidence = drunk
o Fact = not purposeful or knowingly
o NOT relevant b/c not material b/c voluntary intoxication is not a defense
Jones- GF gave daughter gun and she shot BF. GF claims self-dense and says BF bragged about previous
violent attacks/killing. Documents (unknown at the time) that events occurred are relevant, not
that it verifies claim’s validity, but in that if corroborates story
 Prob 1.6 (p34)- Violin case
o Evidence = just cash in case
o Fact = prob didn’t raise case to shoulder  cop is a liar
o Relevant
FRE 402- General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute;
 these rules; or
 other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.

FRE 104(b)- Preliminary Questions

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition
that the proof be introduced later.
**Want to exclude info not to influence jury or have them take it into consideration
Conditional relevance: admissible only if x is true and there must be enough evidence to prove x
 Materiality isn’t at issue here
Cox- C’s friend H accused of child molestation by L. After hearing, H stuck in jail/i.e. not bond reduction.
Can result of hearing be admitted? Could show motive, IF C knew about hearing. Must show C knew
about hearing BEFORE evidence admitted. C was at H’s mom’s house and mom was at hearing. Likely
enough to show that he knew about the hearing so okay to admit evidence.
 Prob 1.7 (p35)- “her son” vs. “our son”
o Conditional relevance: told bio father AND planned on telling the son
o Likely not enough based on preponderance of evidence that he knew
FRE 403- Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
Direct Evidence
 if true establishes point
 issue = credibility of witness
Circumstantial evidence
 requires an inference (not necessarily bad)
 **Balancing act/weigh benefit w/ harm Highly deferential to ct/very hard to overturn on appeal
Photos and other inflammatory evidence:
 Ex. Clip: Lesions on face vs. chest  probative value high
 Ex. Clip: dead baby v. victim and photo of baby in ground  probative value low
 Ex. Clip: lavish Greek party  probative value low
 Ex. Pic holding gun in selfie  probative value low
 Prob 1.8 (48): Pic of gun, along with housemates guns, does not show dirty/clean interior 
probative value low
Bocharski- found old lady stabbed that moved into neighboring campsite. Can the pictures be shown?
 Obviously relevant: evidence = pics/fact = dead  murder
 Probative value: low = other sources for material/no disputes
 Undue risk = jury might become too emotional over pics
 Most pics okay, but pics with rod in head to show angle of stab has no probative value because no
testimony given about angle and very gruesome/jury visibly recoiled
 Here, standard = abuse of discretion, but not reversible error b/c harmless
James, part II- relevant, but dissent thinks it’s unduly prejudicial b/c previous actions show that
defendant is a “bad guy”
 Ex. OJ Simpson trial/Furman tapes that show cop using n-word in contrast to direct testimony/
adds credence that he is a racist, liar, and may have planted evidence
o Unfair prejudice? Only show enough to contradict testimony, but don’t need ALL tapes
Evidence of Flight
 Movie Clip: Going to gay porn theater.
o Relevant: Do you take risks? Unreasonable risks elsewhere, then maybe in work too
o But maybe unfair prejudice?
 Prob 1.9 (p63)- fleeing trouble
o Relevant: Evidence of flight suggests guilty
o But could explain flight b/c of priors, but priors info might unfairly prejudice jury
 Prob 1.10 (p64)- ran away from police, but had marijuana and threw it away, no charge
o Relevant and prob not unfair prejudice
 Prob 1.11 (p65)- staying put in town despite negative rumors about reputation/guilt
o Relevant b/c some probative value, but not unfairly prejudicial bc there are 2 explanations
 Movie Clip: robbery/car fleeing from cop
o Relevant: could be evidence that they committed crime or just wanted to avoid interaction
Probability Evidence
Collins- Math case!! Product rule (multiply probability together to get odds)
 Independent (odds are independent) v. dependent variables (odds of one depend on another)
o Ex. blond hair and ponytail/black, beard, and mustache
 Here: don’t have good reason for odds (asked office personal)/know if they are independent or
dependent variable/witnesses could be wrong
 FRE 403: Misleading the jury
Effect of Stipulations
Movie Clip- accused of murder, chased down hallway, and said “you are right, you are always right”
Old Chief- Charged as felon in possession of firearm. Want to disclose about past felony of assault and
bodily injury.
 Relevant: must prove he was a felon/prior shows this/says will admit he is a felon without details
 Objection: trying to show type of felony, not just that he is a felon
o Relevant? Yes b/c element of crime
o Unfairly prejudicial? Shows he is a bad guy
o Probative value? Part of story, jury expectations, but low because there is an alternative
available means/not tightly connected to case/its a discrete, isolated legal status
Specialized Evidence Rules *Not THAT important, established by Congress
Evidence barred IF used to prove X (FRE 410):
 b/c of limited probative value or risk of unfair prejudice, etc.
 Other pub policy reasons
But MAY be admitted for another purpose…
FRE 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove:
 negligence;
 culpable conduct;
 a defect in a product or its design; or
 a need for a warning or instruction.
[Limited probative value-i.e. not an admission AND **Pub policy-i.e. encourage peeps to take safety steps]
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership,
control, or the feasibility of precautionary measures. [subject to 403]
Prob 2.1 (p99)- chained wolf after attack of dog, then wolf attacked kid
 Inadmissible for first b/c subsequent, but not for kid attack
Prob 2.2 (p110)- wood chipper, still buying them but had made a subsequent change
 Here, evidence is admissible b/c it is used for some other purpose (i.e. correct jury
misimpression that it is the exact same machine)
Prob 2.3 (p111)- wood chipper part II said was safest chute, but then changed it
 Here, admissible b/c it is used for other purpose (i.e. impeachment or disputed feasibility of
precautionary measures)
FRE 408. Compromise Offers And Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable
consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a
criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
[Limited probative value- i.e. desire for peace rather than concession of weakness of position AND
**Public policy-i.e. promoting settlement]
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating
a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. [subject to 403]
Movie clip: hospital talking about paying P “want to make it right,” it’s a “tragic event”
 Can’t be used to determine validity or for impeachment
Prob 2.4 (p117)- hotel inspection report about defects. For settlement/negotiation or okay for trial?
 Without rule wouldn’t have brought someone in/this puts a value on litigation
 Doesn’t matter that it is a third party b/c view negotiations broadly
FRE 409. Offers To Pay Medical And Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is
not admissible to prove liability for the injury. [subject to 403]
[Limited probative value (i.e. humane impulses) AND Public policy (i.e. admission would tend to
discourage assistance)]
1. Doctors say sorry? Claims generally drop
 Doesn’t prohibit statements, just offers to pay
FRE 410. Pleas, Plea Discussions, And Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the
plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a
comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not
result in a guilty plea or they resulted in a later-withdrawn guilty plea.
[Lover probative value (e.g. avoid risk of greater penalty instead of actual guilty) & b/c of pub
policy (i.e. promotes plea bargaining)]
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced,
if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the
record, and with counsel present. [subject to 403]
 Please + plea discussions barred Outright!! But few limited circumstances it is admitted
 Notes: Some interpret stricter or looser as to who this applies to (e.g. “against the defendant”)
FRE 411. Liability Insurance **Basically don’t want juries to think about insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently
or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice or proving agency, ownership, or control. [subject to 403]
[Limited probative value (i.e. tenuous evidence at best) AND risk of prejudice (i.e. juries would decide on
improper ground)*** AND Public policy (i.e. encourages insurance)]
Williams v. McCoy- insurance generally not admissible in trial, BUT D says that P got attorney before she
went to doctor and P says she got attorney because insurance claim adjuster said she had no claim
 Admissible to avoid misimpression and not to show negligence/wrongful act under 411.
But 403? Unfair prejudice?
Prob 2.5 (p 130)- claims adjuster tape recorded “mistaken” statement
 Fact that he works for insurance co. only relates to potential bias which isn’t really at issue
 Not admissible because of unfair prejudice
Prob 2.6 (p 131)- both parties have same malpractice insurance. Is it admissible?
 If insurance co loses, witness loses. If they win, he wins.
 Admissible b/c could show bias, but low probative value b/c minimal affect on witness and
some risk of unfair prejudice so NOT admissible
Prob 2.7 (p 132)- failure to report instances of child abuse. D wants to admit she had liability insurance
for abuse. Admissible b/c it shows that she would have no motive to hide that she didn’t report
(apparently)
 III. CHARACTER EVIDENCE

FRE 404. Character Evidence; Crimes Or Other Acts

(a) Character Evidence.
(1) Prohibited Uses. 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.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait,
and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut
evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts. [NOT exceptions, but outside scope of the propensity box]
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request
by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer
at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice. [403?]
Zackowitz- mechanic insults wife and husband shoots mechanic (gun at apartment or on person?).
Evidence at question: other weapons at apartment
 Relevance: own weapons  weapon owners are more likely to shoot people more likely to
shoot here (i.e. prove bad character)  this is propensity and not admissible
 Problems: Jury give excessive weight and might think general violence  violent in this instance/
Jury think he is a bad person and deserves punishment regardless of guilt
 When could they have been admitted? If at scene of crime  shows intent v. heat of moment
Propensity Box and how to get around it
 Want to exclude character evidence because of the probability of unfair prejudice
o Excessive weight by jury
o Punish b/c of propensity/justify condemnation
 Limited probative value (E.g. “interactionism” social science)
 Bar b/c if evidence is not to be focused on  confuses/distracts/time consuming
 But Can introduce a limiting instruction
Proof of knowledge
Movie clip: killing people in battle- admissible?
 Propensity: Killed before and more likely to kill again? Low risk?
 Around box: knowledge of how to use gun? Plan? Lack of mistake?
Prob 3.1 (p165)- hacker bypassed sales department and got shipment of computers send to bogus
address/being charged for another hack and want to introduce evidence of guilt in other case
 Probative value: Want to show specialized knowledge of how to hack system which most cant do
 Risk of unfair prejudice: did it once, so did it again, but not might of
 Limiting instruction? For purposes of knowledge to hack, but not propensity
Movie Clip: charged with killing wife, wife disappeared, witness on stand had previous relationship with
D said was threatened- not admissible?
 Propensity: shows he threatened previous lover/ said he knew how to “get rid of her” w/out blood
 Knowledge: he can conduct the crime in the way it was committed (i.e. without leaving blood)
 Risk of unfair prejudice: very high
Prob 3.2 (p166)- want to show drug seller in previous instance to prove part of drug trafficking here
 Propensity: used to show character of being involved in drugs
 Knowledge? General knowledge of drug trade BUT if same type of drug/area then maybe better
 Probative value = low and high Risk of unfair prejudice: bad person
Prob 3.3 (p166)- train crash caused by drunken person. Reputation of being drunk. Admissible?
 Propensity: he was a drunk and so likely drunk here
 Probative value: knew of drunk behavior before and didn’t do anything  negligent
Proof of motive
Prob 3.4 (p167)- shot police. Want to introduce evidence that was charged for attempted murder before
and did not appear for trial 1 year ago and 2 states away. Admissible?
 Propensity: charged with attempted murder before
 Reason: Motive of not wanting to get caught b/c of severity of offense
 Risk of unfair prejudice: might actually think he did kill before
Movie clip: murder in apt./no sign of forced entry
 Evidence of affair = bad character? Or led to murder?
 Prob not unfairly prejudicial on 403
Prob 3.5 (168)- thrown from streetcar and wants to admit evidence that conductor did not heed first two
bells to stop. Shows trying to get to end of route quickly, NOT propensity of general carelessness
**Shows specific motive/instance v. general character all the time (aka propensity)
Proof of Identity
Prob 3.6 (p169)- lots of weapons at home and one that matches description.
 Can admit the one that matches and has dead agents weapons
 What about other weapons and writing against cops? Shows propensity? But could show planning
and motive? Prob not admissible
Prob 3.7 (p170)- saw lottery lists at apartment, Can’t be used to show that he was in the apartment (i.e.
propensity that he was there because of prior illegal gambling)
Prob 3.8 (p171)- evidence of bike brochures and a biker did it… propensity evidence and within scope of
rule, but hard to articulate why improper
Trenkler- Bomb case. Admitted evidence of prior bomb that had similar char (despite many diff)
 MO = distinct/unique characteristics that means it cannot be anybody else (Dull
commonalities are not enough)
 Sliding scale: identical v. just a bomb  Here, middle and so no abuse of discretion
Narrative Integrity
Prob 3.10 (p189)- Court says can admit evidence of gun incident, but not say Russian roulette. Lends to
narrative integrity of why she would remember that it was the same gun 4 years before.
George- yacht fraud case. Buys boat at inflated price from himself/insures the boat and then try to sink it
by cutting holes, but failed miserably and had bogus sea pirate story. Want to admit evidence of previous
3 lost vessels. Propensity evidence?
 Want to show 3 previous times boat has sunk didn’t want to reveal to insurance co. Adds to
narrative so that jury will understand why went through such lengths to change ownership.
(Didn’t talk about collecting money from insurance.)
Absence of Accident
Prob 3.11 (p193)- Says cleaned gun and accidentally shot wife. Can evidence that the same thing
happened to prior wife be admitted? Makes it less likely it was an accident
Prob 3.12 (p194)- tossed dog into street to death reacting to bite v. anger over owner’s fender bender.
Can evid. that beat mutt to death be admitted? Propensity he hurts dogs-Doesn’t show lack of accident.
Huddleston Standard
Huddleston- sold and possessed videocassette tapes, but claims ignorance. Gov wants to admit evidence
of “similar acts”: i.e. sold possibly stolen TVs and appliances
  Conditional relevance: only relevant if can prove TV/appliances were stolen by a preponderance
of the evidence
o Judge decides whether there is enough evidence to conclude stolen by preponderance of
evidence  Evidence should be admitted if sufficient evidence to support finding by
jury that D committed similar acts
Prob 3.13 (206)- robbery after bank robbery. Both wore ski masks. Best reason not to admit evidence?
Likely unfair prejudice. Don’t want to say acquitted of the previous crime b/c standard about whether he
did it before is preponderance of evidence v. reasonable doubt.
OJ Simpson clip: previous incident “OJ is going to kill me.” About intent v. propensity. “He is a batterer.”
Rules which allow propensity evidence in domestic violence/sexual abuse.
Movie Clip: pastor’s two wives die with brain injuries from falling down stairs and car accident. Want to
introduce evidence of first death.
 Propensity? Lack of accident, but falling down stairs and driving car are diff
o doctrine of chances- suspicious circumstances that converge suggest lack of mistake
 Jury decided by preponderance of evidence killed first wife
Exceptions to Propensity Evidence
Defendant accused of sexual assault or child molestation
 Judicial conference advised Congress not to pass these rules, only Dep’t of State wanted these
 Can admit evidence of prior “bad acts”—not just prior convictions (**Must be specific acts)
 Much more likely to repeat acts is not necessarily true/ changes incentives for police
 Ironically Clinton signed these into law and then it was used against him
FRE 413. Similar Crimes In Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that
the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
Guardia- Sexual abuse claim during gynecology exam. Want to introduce 4 other claims of sexual abuse.
 413 still covered by 403 b/c says “may” admit. But what effect does 403 have? Never or always
admit? 413–415 not unique 403 analysis, same analysis as other rules.
 Here: Ct excluding evid did not abuse discretion b/c would be confusing/risk of unfair prejudice
 Law defines sexual abuse and judge decides if meets standard/jury decides if true/judge
decides if should be excluded under 403
FRE 414. Similar Crimes In Child Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that
the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

FRE 415. Similar Acts In Civil Cases Involving Sexual Assault Or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the
court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be
considered as provided in Rules 413 and 414.

Proof of the D’s and the V’s character

FRE 404(1)(2)(a)- If of criminal D or by prosecutor to rebut same
 If D opens door, prosecutor can step in and bring contrary character evidence
FRE 404(1)(2)(b)- If of V offered by criminal D, or by prosecutor to rebut same
 If D tries to talk about V’s character, then prosecutor can say D has same character
FRE 405. Methods Of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by
testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character
witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or
defense, the character or trait may also be proved by relevant specific instances of the person’s conduct. [NOT to show
propensity  showing EXISTANCE of trait]
  Character traits that show element of charge/claim/defense
o Entrapment- not entrapment if predisposed to commit crime
o Libel or slander- truth is defense
o Custody case- good and bad parent
Michelson- convicted of bribing fed rev agent. D called five Ws to prove he had a good reputation. Prosec
asked Ws if they knew about 20+ year old offenses. Want to show that the Ws were not credible. No
abuse of discretion to allow evidence
 D can bring in evidence about D’s or V’s character, but then prosecutor can rebut it
 Common law: Ws can only talk about general reputation/opinion NOT specific acts
o Low risk to admit this evidence and b/c life/liberty at stake
 Prosec can ask about specifics, “have you heard?” allowed but NOT “Did you know?”
 Limiting instruction: not whether specific act happened, but whether it affects your reputation
 Character evidence must be pertinent to case (i.e. peaceful ≠ truthful)
Prob 3.15 (p249)- said I wouldn’t shoot anybody, but brought up evidence that said she shot someone
 D introduces that she would not shoot someone (i.e. her character), so Prosecutor can question
about that (i.e. but you said you have)  Admissible b/c undermines previous W statement
Prob 3.16 (p250)- V shouts things about person and D wants to admit evidence to show violence
 Not admissible b/c D cannot use specific acts (though he can bring general propensity evidence)
Prob 3.17 (250)- want to admit evidence of boasting about previous killings, aka specific acts
 Can admit b/c element of self-D, i.e. reasonable fear
 Not asking jury to go through propensity box, but to determine V’s state of mind
o NOT about trait of violence, but what she thought/believed trait of violence was at the time
Prob 3.18 (251)- want to show expert testimony of toxicologist to show effect of drugs on that day 
specific act is allowed to show impact of drugs on the victims mind. 403? Could go either way.
Exceptions to Propensity Evidence
Specialized Character Evidence--Witness Credibility
Movie clip: treatment for STDs? Generally not admissible b/c likely not relevant and probably propensity
(i.e. promiscuous behavior)
FRE- 404(a)(3)
Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609
 Impeachment Testimony (can only impeach once the person has testified)
 Error (mistake) v. lying
 Lying today v. liar (propensity to lie)
o Contradiction by conflicting evidence or past inconsistent statements
o Evidence of bias (e.g. Movie Clip: clean bill of health report so must have died by poison?
Shows that doctor had alternative bias to hide other possibility of misdiagnosis)
FRE- 607-Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s credibility.

FRE- 608- A Witness’s Character for Truthfulness or Untruthfulness

a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s
reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been
attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to
prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the
court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or
untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates
only to the witness’s character for truthfulness.
(a) Either party may offer GENERAL evidence of a witness’s character for truth/untruthfulness
(b) on cross-ex a party may ask a witness about SPECIFIC instances of a witness’s conduct if they
are probative of character for truthfulness/untruthfulness
 Different for criminal case (stronger requirement)
 Probative:
o People that lie or more likely to lie
o Reputation evidence is just what people think/heard
o Trust jury to trust propensity for legit reason and not prohibited reason under 404(a)(1)
Movie Clip: Asked about reputation in business world, but canNOT admit reputation evidence if civil
(not criminal) case. Can be asked for truthfulness under 608.
Prob 4.1 (p269)- Witnesses:
o Reputation for peacefulness? Bad, not about truth
o Reputation for truthfulness? Must be under attack first
o Specific event? No, must be general
o Opinion = liar? Yes
 On cross-ex: Expelled from school? No b/c not about truth/ Lie of med app? Yes b/c about truth
Prob 4.2 (p275)- Want to ask about lies to: (1) Get out of jury duty/ (2) Get new drivers license/ (3) Help
boss’s daughter fudge app to school
 If doesn’t take stand, cant ask about specifics, only general reputation
 If does take stand, can be asked to show not truthful about (1) and (20 b/c lied to gov and maybe
(3), but would be harder
 Can’t introduce to prove a liar and propensity to commit crime, but can introduce to prove
testimony is not trustworthy
 ** Whenever D is only stand, more problematic b/c more risk of unfair prejudice
FRE 609. Impeachment By Evidence of A Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal
conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one
year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a
defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that
establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false
statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the
witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect;
and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair
opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later
crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of
innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the
pendency is also admissible.
**At common law, D’s could not testify. But now b/c don’t want impossible choice (i.e. don’t testify and
get convicted or testify and get convicted)
Brewer- charged with kidnapping/stolen car/ P wants to admit previous 4 convictions (one is
kidnapping), but what standard should be applied?
 Within 10 year window? (i.e. is it subject to (b))
o All 4 within 10 years- violating parole with/in ten years counts
o 10 years from trial or indictment? Most say indictment, but doesn’t matter here
 (a) here: witness is D probative value outweighs its prej effect to that D? Towards admission
 5 factors:
o Nature of crimes: Truthfulness is high/ Violence is low
 (here = violence)
o Time of conviction
 Here: continued conflict with law
o Similarity b/n past crimes and charged crime- More similar, more likely to exclude to
avoid prejudice
 Here: one is kidnapping/3 are different
o Importance of D’s testimony
o Centrality of the credibility issue: Important  allow it
 Here: kidnapping is not allowed, but other 3 allowed in
Hierarchy (most permissive to most restrictive)
 609(a)(2)- False act, MUST be admitted (E.g. fraud vs. bank robbery)/ Must be able to conclude
deceit from face
 609(a)(1)(A)- Witness IS NOT the accused, death or 1+year prison  MUST be admitted
 609(a)(1)(B)- Witness IS accused, death or 1+year prison  must be admitted if probative value
outweighs the prejudicial effect
 609(b)- More than 10 years passed  if probative value, supported by specific facts and
circumstances substantially outweighs its prejudicial effect
 609(d)- Juvenile, not admissible UNLESS to impeach non D-witness in crim case if necc to fairly
determine guilt or innocence
Movie Clip: Record shows…
 Arson, less than 10 years? Low probative value b/c not about truthfulness
 Reform school? No b/c about juvenile and not for guilty/innocence
 Arson, more than 10 years? NO. b/c stricter standard
 Perjury? Yes b/c false act
 Larceny, less than 1 year punishment? No? b/c not false act unless element of crime and not
serious enough crime? 608? Wont use 608(b) as back door around 609
Movie Clip: “close relationship with daughter” but doesn’t know about disciplinary action/breaking into
house  Okay under 608 (specific acts on cross-ex)
Prob 4.3 (p284)- non-convictions not admissible/ if not crime of falsity, likely not admissible/ if greater
than 10 yrs, then must weigh probative evidence
 1, 2, - no/ 3, 5- prob yes/ 4- prob no
Prob 4.4. (p297)- admit prior drug conviction for impeachment (609)/ must weigh probative value as to
untruthfulness with prejudicial effect (does not have to substantially outweigh)
Prob 4.5 (p298)- misdemeanor of 6 mo. penalty for tampering with meter (element could require
deception, but not necc.) 10+ years? 2002  2012 (not sure)
 tampering with meter to deceive meter co.  crime of falsity  admissible
Rehabilitation
 Prob. 4.6- cannot introduce counter witness testimony if credibility not first questioned
 Prob 4.7- if bias ≠ character assault ≠ introduce counter-character testimony evidence of good
character for truthfulness
Extrinsic Evidence
Prob 4.8- CanNOT admit extrinsic evidence on a collateral matter, but if proves collateral matter +
something else, then may be permissible
 Ex. cannot call counter-witness to counter witness testimony that witness lied on stand
 Ex. Says not in business with D’s father, but can bring another W to say she is b/c it shows bias.
Prob 4.9- propensity evidence shows lying tendency (vs. motive) not admissible as extrinsic evidence
Rape Shield Law
Historical Backdrop (est. 1978)
 Undermining credibility of witness by showing traits:
o Divorce/hasty remarriage/promiscuity
 Raise questions about reputation about pertinent trait
o i.e. engaged in consensual sex outside marriage before, so likely it happened this time?
Abbot- “And will you not more readily infer assent in the practiced Messalina, in loose attire, than in the
reserved and virtuous Lucretia?
Sibley- says don’t need to admit men’s sexual history because doesn’t tell us about man’s truthful/ but can
admit for women b/c tells us about their truthfulness
 Incentivize victims to report crime
 Protect privacy of victims
 Past sexual history doesn’t say much about this case
FRE 412. Sex-Offense Cases: The Victim
(a) Prohibited Uses. The following evidence is not admissible in a civil [added 1994] or criminal proceeding involving alleged
sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual
predisposition if its probative value substantially outweighs the danger of harm to any victim [reverse 403] and of unfair
prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in
controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim
and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record
of the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.
Past Sexual Behavior with the Accused
Prob 5.1- sadomasochist relationship. Admit email correspondence with others that she likes it?
 Conditional relevance, is it sexual behavior with respect to the accused
 Probative of consent? Yes, but high risk
 ***Not a defense to say reasonably believed was consenting
V’s past sexual behavior is relevant (i.e. tendency to prove/disprove fact) in a rape prosecution
 **Const. always trumps rape shield law
Prob 5.2 (p332)- accused of rape, but said fingerprints were from consensual sexual encounter a month
before. Is this evidence admissible? Limit scope?
State v. Smith- 12 year old accused D of sexual assault. Want to admit evidence that she had previously
falsely accused 3rd party of sexual behavior.
 Is this evidence of past sexual behavior or about credibility? Not about actual sexual behavior/pre-
disposition, but about false allegations and can be admitted
Prob 5.3 (p337)- Smith evidence directly concerns victims credibility so not barred by rape shield law,
but must satisfy other rules:
 Need a non-propensity reason to admit evidence about false allegations AND cant admit extrinsic
evidence (R 403/404/608)
 Huddleston- just need enough evidence for a reasonable jury to conclude fact is true
Prob 5.4 (p338)- alleged rape and want to admit evidence by 3rd party of prior false allegation, but
everyone knew it was consensual. NOT admissible
 608b? no extrinsic evidence allowed
 About falsity? Or about consent?  propensity/consented before so did this time.
Proof of bias
Olden v. Kentucky- admit evidence of extramarital affair? Only way D can prove other motive to say rape is
to ask V about affair. Here, evidence is to show bias in this instance (not in general)
Prob 5.5- Kobe Bryant accused of rape. Want to introduce:
1. Sexual acts with others shows MO- NO, shows propensity
2. Had sex with 2 Ws and this is relevant to credibility- D has right to cross-ex Ws in terms of bias-i.e.
ongoing relationship/might lie for her. Likely admissible, but probably lim in scope to avoid prej
3. Sexual acts closely after rape to counteract PTSD- Inherent risk/likely not allowed b/c PTSD does
prove much for rape case
 Media gets ahold of in camera hearing info. Ct cant stop them from pub unless not permissible
under law, but CO only say presumptively irrelevant unless relevant for x and y. So no injunction.
Narrative Integrity (res gestae)
Stephens v. Miller- 2 conflicting stories: V says woke up and found D trying to undress her/D perjured
himself and lied about getting dropped off in store. D says that it was consensual, but he said something
that made her upset so she claimed rape. D claims narrative integrity- jury wont believe “something
happened to make her upset” (not propensity about prior sexual history). Maj concerned this will
provide incentive for others to lie about embarrassing details they mentioned to make victim claim rape.
D’s State of Mind
US v. Knox- V has sex with BF/falls asleep/wakes up and friend is having sex with her. D claims didn’t
know she refused consent b/c she was awake and made suggestive comments. Want to introduce
previous “loose” conduct/knowledge easy target/ etc.
 Issue = was she awake or asleep so state of mind doesn’t matter and is propensity
 D said about his propensity to think she would/did consent- only admissible if knowing = element
Civil Cases
Prob 5.6- Jones v. Clinton- In civil case MAY admit evidence if probative value substantially
outweighs danger of harm/unfair prejudice. MAY admit evidence of V’s reputation ONLY IF the V
placed it in controversy.
 Why treat V and D differently in civil cases?
o Don’t want to discourage V’s coming forward
o V’s have legit interests in keeping past a secret/D doesn’t in non-crim past
o Might not always be beneficial D to reveal info
 IV. HEARSAY

***RELIABILITY- is evidence sound? (i.e. trustworthy)

 At common law certain classes weren’t trustworthy: atheists, felons, case parties, spouses, etc.
Competency
 Children invited to testify in sexual abuse cases, but not necessarily competent
 Assume most people are competent and the rest can hopefully be exposed on cross-examination
 Not concerned about jury making mistake on prejudice, but saying evidence is not reliable as
matter of law and cannot be fixed even with robust cross-ex
FRE 601. Competency To Testify In General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the
witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

FRE 602. Need For Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does
not apply to a witness’s expert testimony under Rule 703.

FRE 603. Oath or Affirmation to Testify Truthfully

Before testifying, a W must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty
on the W’s conscience.

FRE 610- Religious Beliefs

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility
Hearsay- Concerned about: Ex. Statement C made, but C not present so cant cross-ex him
o Perception- saw Tom, but mistook him for john
o Memory- witness saw tom and recognized him, but now thinks its john
o Narration- witness means to say tom, but says john
o Sincerity- means to deceive
 Event  Perception/Memory  Declarant  narration/sincerity  Jury
 Assume witnesses are reliable b/c Swear oath/penalty for perjury/ Jury can observe witness on
stand/ Cross-ex
 Event  Perception/Memory  Declarant  narration/sincerity  say something 
perception/memory  witness  narration/sincerity  Jury = HEARSAY
FRE 801. Definitions That Apply To This Article; Exclusions From Hearsay
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it
as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
....
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of
the relationship under (D); or the existence of the conspiracy or participation in it under (E).
FRE 802. The 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.

Non hearsay used of out-of-court statements

 To prove statements impact on someone who heart it
 To prove a legal right or duty triggered by—or an offence caused by—uttering a statement
 To impeach the declarant’s later, in-court testimony
 **Not offered for truth of matter asserted (only care about effect of statement)

Out Of Court Statement (OOCS)

| |
OOCS belief OOCS prove affect on listener/ observer
| | (other purpose)
| | |
Intended to communicate anything else 403
| |
Hearsay 403
| |
0 Exceptions
|
403

Hearsay?
 Prob 7.1 (p384)- signed affidavit of dead declarant. High reliability of witness, but cant check
veracity of declarant = hearsay
 Prob 7.2 (385)- made money symbol. Non-verbal conduct counts, but cant know what declarant
meant = hearsay
 Prob 7.3 (385)- “I said this” (declarant witness) = hearsay
 Movie clip: accused of murdering girl, “says I wont leave unless you promise” = motive. Is it
hearsay to allow witness at train station hearing statement? NOT hearsay (doesn’t matter what
was meant by statement, but just to show reaction to statement)
 Movie clip: accused of shooting husband. Sharing conversation. Introducing statement “shake
your head up” to show fear/etc. NOT hearsay b/c about effect of matter asserted (not truth)
 Prob 7.4 (385)- testified about blood result of test. Behind result is computer but behind
computer is programmer/technician. Strict reading = hearsay, but no court will prob find
hearsay b/c too far removed
 Prob 7.5(386)- introduced D’s boasts to show state of mind/effect on listener = NOT hearsay
 Prob 7.6(386)- introduce statement about being told horses belonged to someone else to show
affect on listener = NOT hearsay
 Movie clip: testifying told supervisor they were scared of guy. Admitted for purpose: to show that
he was on notice (regardless of truth) or that harassment actually happened? Purpose matters.
 Prob 7.7(387)- Not hearsay for one purpose, but hearsay for another purpose. Only win
ineffective assistance of counsel if true. This is double hearsay (he said that he said)/but lawyer
had duty to investigate matter if heard it (i.e. effect on listener).
 Prob 7.8 (387)- introducing “nothing else to declare” to prove a lie, not whether he did or not =
NOT Hearsay/wants friend to testify that he said “I have more items to declare,” wants to show
legal effect (i.e. being prosecuted for not declaring) = NOT hearsay
Assertions
If asserting something by conduct, assume ulterior motive, BUT if not asserting something (i.e.
intent to communicate/just act just like normal person) then assume it is true = NOT hearsay
 Ex.
o Fact = ship was safe
o Basis = captain walks around ship, inspects it, and sails away
o Implication = thought ship was safe, but did he intend to communicate it
 Ex.
o Fact = island must be safe
o Basis = senator “declared/asserted” that would be fine going to island b/c safe
 Movie Clip: Santiago didn’t pack bags or make a phone call despite transfer in 6 hours. Used to
show no transfer order. But no intentional communication/assertion
 Movie Clip: evidence of letters, shows that post office believe Chris Cringle is the one and only
Santa Clause. Not an intentional assertion.
 Assertions can be implied and indirect
Not Assertions
 Non-assertive words
o Ex. Ouch- reaction
 Words used to prove something other than what they assert (not to prove truth/falsity of
statement)
o Ex. introduce letters about x, y, z to show sanity/competence to make a will
 Assertions offered as circumstantial proof of knowledge
o Ex. evidence of details of bedroom to show that she had been in D’s bedroom
Problems (401)
 Hearsay- Ag minister eating beef in public during mad cow scare
 NOT hearsay- Never mentioned husband’s new boat is not asserting he didn’t buy one
 NOT hearsay- Meth recipe found in hotel room to show part of drug ring b/c knows how to make
meth (knowledge of drug v. truth of good recipe)
 NOT hearsay- not trying to communicate “this is the guy” by shooting him, just trying to get him
 NOT hearsay- no intent to communicate gambling establishment when trying to place a bet
 Hearsay- clearly intent to communicate when “why did you stab me?”
 NOT hearsay- “I didn’t tell them about you” not an intent to communicate about involvement
 NOT hearsay?- no intent to communicate to self in diary, but could be instances where he intends
to communicate to anyone (i.e. hidden diary or left on dying bedside?)
Hearsay Quiz- Answers in back!!

Exclusions to Hearsay
FRE 801- Exceptions
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
....
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it
existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Opposing party’s statements
 Don’t question sincerity (reliability) of person’s statements not in best interest-can cross-ex
 Movie Clip: want to show babysitter didn’t like the baby- i.e. motive to kill- NOT hearsay b/c out-
of-court statement by P in an individual or representative capacity
 Prob 7.11 (p410)- billing 104 hours a week to show not injured to point cant work
 Prob 7.12- OJ blood test “we will see” to show innocence is not statement being made against D,
but allowing blood draw might be act of consent not meant to comm innocence- could go both way
 Movie Clip: insurance fraud about burned truck. Want to admit D’s statement “look mister, I’m
just a poor guy” in response to insurance statement: “kerosene shavings” statement
o Want to admit insurance agent’s statement under 801(d)(2)(B) by saying D adopted or
believed statement to be true (even though statement not made by/against out of ct party)
 Prob 7.13(p 411)- Sitting on front porch, “You can get another [crack rock] from my buddy.”
Would prob rebut the statement if not true and affirmed what happened by grabbing drugs. 
Excluded from hearsay definition
 Prob 7.14 (p 412)- Statement: “tell the truth, it will set you free”
 Understood what was being said/ Implication that she wants him to confess
 Refused to respond/pointed to sign that says being monitored
 Necessitated response, but at liberty to respond? Likely hearsay.
 Prob 7.15 (p 419)- “those guys were supposed to shovel and salt, but bagged it/ went home early”
 An employee making statements in the course of his employment
 Excluded from hearsay def under (d)(2)(D) b/c more likely to be truthful/have knowledge
Conspirator’s Statements
Bourjaily- transfer drug to “friend”  Want to get statement in to show truth of statement
 To enter under 801(d)(2)(E) must show:
o Conspiracy existed
o Included both declarant and party against whom statement is offered
o Declarant spoke during course of and in furtherance of conspiracy
 Bootstrapping: can admit statement b/c conspiracy and statement is used to prove conspiracy
Prob 7.16 (p 429)- Y just got a brief case and doesn’t speak any English and N “translated” Arabic
statement to undercover agent that heroine was strong
 Can admit Arabic statement, but testimony about English translation is hearsay within hearsay
 Judge decides if statement can be admit to determine if conspiracy existed
 Did conspiracy exist?
o Behavior (v. statement): gave suitcase to guy  prob a co-conspirator
o Statement made in furtherance of conspiracy
 Prob admissible as exclusion from hearsay definition.
**Authorized is looser than agency/employer-employee relationship
FRE 104(a)- Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition
that the proof be introduced later. [Huddleston standard]
 Ct decides preliminary Q about whether evidence is admissible/then jury decides if fact exists
 Admit hearsay statement to determine if by preponderance of evidence conspiracy existed, then
admitted for jury determination
Declarant-Witness’s prior statement
 First statement is probably more reliable than on stand
 Prob hear anyways through impeachment
 Party is on stand and subject to cross-ex on own statements
FRE 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement,
a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents
to an adverse party’s attorney.
**Not introduced for truth- just to show that not the same statement as right now (i.e. not consistent)
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is
admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing
party’s statement under Rule 801(d)(2).
**Extrinsic evidence allowed b/c just one specific lie (not proclivity to lie)
Movie clip: before said girl paid/ on stand says guy paid. Introduce prior statement to impeach witness
 Valid evidence of on-stand statements
 What about out-of-court statements? Can only use evidence to determine truth of in-court
statement not for truth of statement = confusing to jury
 Admissible as extrinsic evidence under FRE 613, but maybe not under 403
Barrett- A is convicted burglar and points finger at B. D and K overhear A makes statement at restaurant
that B was not involved. Want to introduce this to impeach A (cant admit for truth of statement b/c
otherwise hearsay)  Admit. Witness on stand and can examine party who made
Prob 7.17- directed verdict of acquittal b/c Introduced to impeach witness when she says have no
idea/doesn’t remember and P.O. said she was interviewed and said something different
 But doesn’t have evidence that something happened (b/c witness testimony and impeachment
don’t give evidence- cant look at substance of previous statement)
Ince- N doesn’t remember on stand, but admitted previous statement to impeach credibility b/c on night
she said I shot the gun  Should exclude evidence because government is trying to impeach own
witness and runaround hearsay rule b/c looks like substantive evidence that is highly prejudicial and
low probative value
FRE 801(d)(1)(A)-
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition;
 Impeachment evidence is not to show truth of statement, but to show that it is different
from current on-stand testimony
 Prob 7.19- inconsistence prior testimony can be used as impeachment, but also under above rule
can admit for substance b/c can cross-examine and jury can decide which account to believe
 Prob 7.20- Judge decides if rule applies (i.e. if really doesn’t remember or if lying)… so it depends
FRE 801(d)(1)(B)-
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
Movie Clip: Testimony from jail-mate that he fooled everyone (and he is pleading insanity). Can be made
if made by opposing party against that party.
 Want to introduce convo of jail-mate with DA to show improper motive. Can introduce b/c don’t
care about truth of matter asserted, but effect on listener.
 Under 801(d)(1)(B)- could introduce statements by jail-house snitches mom who said he called
and said guy lied on stand
o Matters if makes statement before or after talked to DA (if before no motive, if after subject
to improper motive)
**Proposed Amendment to 801(d)(1)(B) to make timing of statements are determinative
Past Consistent Statements
Tome- timing of statements matter. If before motive arises, fine. But if after, dramatically less
value and cannot be admitted.
Statements of Identification
FRE 801(d)(1)(C)-
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(C) identifies a person as someone the declarant perceived earlier.

U.S. Const. amend. VI- In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .”
Movie Clip: police line up and identified #3. Previous statement admissible under 801(d)(1)(c). People
are more likely to forget faces over time, so want to trust previous statements.
Weichell- have police sketch (considered a statement) made right after shots fired. With drawing there is
an additional level of translation, but just as, if not more, reliable than at trial ID.
Owens- beaten and has memory loss and is trying to identify attacker. During one hospital visit IDed
attacker, but cant remember anything about it.
 Not much to cross-ex him about if he cant remember, but still has opportunity to cross-ex. Subject
to cross-ex b/c right is not subject to successful cross-ex
 Don’t want witnesses to use mem loss as an excuse to not admit bad evidence
 Concerned about truthfulness and insincerity, which can be addressed somewhat on cross-ex
Prob 7.21- could introduce FT’s statement “my kids dad” as identification, but not “slapped in face.” FT
on stand earlier and can be cross-exed. Prob not hearsay b/c ID of someone declarant perceived earlier.
 Why allow in? Reluctance of V’s to identify D’s in court
Act/Event  Declarant  Statement |||  declarant/W OR waitress OR co-conspirator Officer ||| jury
FRE 804 Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a
privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or
mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other
reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or
(4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s
unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an
opportunity and similar motive to develop it by direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true
because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or
criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to criminal liability.
Past Testimony- 804(a)–(b)(1)
Prob 7.22 (474)- hearsay and D was unavailable and no opp for D to cross-ex that statement at grand jury
proceeding (prosecutor but no defense counsel there)
Prob 7.23 (275)- Unavailable b/c of head injury. Cross-exed at earlier proceeding + had opp and similar
motive? Might want to know how much involved in civil proceeding v. criminal proceeding. Either way.
Duenas- had a suppression hearing and R gave a statement to officer S. R wont testify at trial and want to
admit statement to S, who has since died. Issue: did R have similar motive to cross-ex S?
 Does not have to be identical
 Here, introduced for circumstances statement was given ≠ later introduced for sub of claims
Llyod- failed to show up for trial and pre-trial hearing multiple times. Issue: is a predecessor in interest
have the opp and sim motive to develop test by direct, cross or redirect examination under 804(b)(1)?
 Focus is on similar motive, not on who person is- Both wanted to show fault of
intox/aggressor/hostility and thus was admissible
Statements Against Interest- 804(b)(3)
Movie clip: “did you have an affair with her?” “Yes.”
 Other woman = dead/wife = murder
o Introduce to show motive/effect of wife (don’t care if true)
 Other women = dead/husband = murderer
o Hearsay- admit for truth of matter asserted
o P can introduce statements made by D (statement made against party opponent)
 Husband = dead/other woman = murder
o Hearsay- for truth of mater asserted
o Made by unavailable witness (husband) and against his interest but not contrary to
proprietary or pecuniary interest/expose to civil or criminal liability
Prob 7.24 (p 489)- “did you rob that truck” “ask M, it was her idea”
 Introduce against him b/c made by him against him
 Introduced against M? not against his interest to say it was M
Williamson- Can bring in statement b/c unavailable and made against interest. But cant bring in
statements not made against interest even if made in conjunction with statements against interest
Prob 7.25 (p495)- owed a favor and concerned about kids, so only burned a little
 Could be hearsay b/c point to someone else, but prob not hearsay b/c it is a statement vs interest
Prob 7.26 (p496)- told sister we robbed store and we both shot him (him in foot and other guy in neck).
Statement against interest? Could go either way.
 (B)(3)- something by corroborating circumstances that clearly indicate its trustworthiness
 someone else had additional statement supporting his statement so it could possibly be admitted
Prob 7.27 (497)- “Tilly said it wasn’t bucky, it was buzzy”- against own interest to say know who is
involved in crime. Can use other testimony to corroborate statement  Prob not hearsay
Movie Clip: guy smothered to death and wrote “dyle”
 Imminent statement of death? Don’t know if he wrote it or if he knew death was imminent or why
he wrote it or if he was in the right mind.
Shepard- S Dead/want to admit hearsay statement “Dr. S poisoned me.” BUT must believe that death is
imminent. Nothing suggesting imminence of death b/c seemed to be improving and died a week later
 But what if she thought it was hopeless and she was going to die. Still must have requisite
knowledge to admit and here, she does not.
Prob 7.28 (498)- Told recovery was hopeless and was in right mind and said “Clyde did not shoot me and
I saw who it was.” Does he believe himself to be on death’s door? Plausible argument that it is not
hearsay, but may need more info.
FRE 806- Attacking and Supporting the Declarant’s credibility
When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the
declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if
the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom
the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on
cross-examination.
Forfeiture by Wrongdoing
**If you do something to make W unavailable you essentially forfeited right to bring in evidence
Gray- lady marries guys, they somehow die, and she collects insurance money. Robert is dead and G
claims R’s statements that G was crazy are hearsay and shouldn’t be allowed because R is unavailable. G
says that if she did kill him, it wasn’t because she wanted him to testify at this trial.  Allowed.
 Standard: preponderance of the evidence
 Doesn’t matter about alleged motive- not allowed if
o D engaged in wrongdoing
o D intended to render W unavailable (not necc to have intent for specific trial)
o Did make witness unavailable
FRE 803- Exceptions to Rule Against Hearsay
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after
the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of
excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or
terms of the declarant’s will.
Present Sense Impressions and Excited Utterances
 Unusually trustworthy or need for these b/c motive to tell truth/no opportunity to tell lie
Movie clip: Called police and said Benjamin “broke in” and was not armed
 Present sense impression? Made while D perceived it
 Point is think statement is trustworthy (no time to lie or change narration) but allowed as
exception to rule against hearsay
Movie clip: office clip, recording meeting “Dwight is naked and has a plastic knife”  FRE 803(1), (2)
Prob 7.29-
 That dog just bit me- not hearsay
 You need to control your dog- not hearsay
 Thank God I had my sports watch on- hearsay b/c mentioned at home after stress of event
Prob 7.30- making 911 call
 We have two dogs rampaging out in the hall- not hearsay
 I hear… screaming- not hearsay
 I think they’re attacking the owner too, I reckon. She’s screaming right now. –hearsay? But prob
more 602 knowledge challenge
Prob 7.31- statement to police and then changed story at trial
 Excited utterance under 803(2)- not sure timing, but likely close/she was still crying so prob not
hearsay
 Could introduce to impeach, but want to introduce for truth of matter if possible
Prob 7.32- shot, call, and then runs outside and asks who shot the gun and yelled out after a pause, “joe
puleio.” Stress of gun shot at that time? Yes, likely a hearsay exception.
Movie clip: did she say that she would have to leave if she was pregnant. D being charged with wife’s
death. Offered for truth of matter asserted, but exception b/c shows existing state of mind.
Hillmon- well-insured husband disappeared. A body was found, but unsure if it was H or W. Letters from
W saying he was traveling with H. This is relevant, but is it trustworthy enough?
 Allowed to show state of mind/intent to do something. No perception or memory trouble, so
more willing to allow it in.
 Each brick builds a wall
 HYPO: what if introduced to show H and W intended to travel together? Not okay. W can
communicate his state of mind via letter, but not allowed to say H intended to travel together via
letter. Can only introduce evidence of D’s state of mind.
Prob 7.33 (p51)- A meeting I in parking lot for marijuana. A never seen since..
 Can intro to prove A did not disappear voluntary, but not to prove I kidnapped A
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Assume people tell truth to Dr b/c trust dr and want a correct diagnosis/treatment and to get well
Iron Shell- child abuse and made statements to doctor. Can causes be allowed? Surrounding facts
allowed if relevant to treatment/diagnosis
 Ex. hit by car v. hit by car running red light  1st okay, 2nd not
 Look at motive of disclosing info and look at doctors reliance on info
Prob 7.34
 Lawyer’s testimony that B said he fell and hit head- hearsay
 Dr’s testimony that B said he fell and hit head- NOT hearsay
 Dr’s testimony that B said M pushed him
o Just someone pushed him? Allowed and don’t need to know name, BUT M is the caretaker,
so likely part of diagnosis  elder abuse?  likely allowed and not hearsay
Prob 7.35 (p 537)- Asked what happened in response to mark on face/chest and child said playing with
dad’s records and got it dirty, and father twisted his arm
 Likely hearsay exception b/c pertinent to diagnosis is linked to child abuse
Prob 7.36- should saying important to tell truth be part of analysis?
 Prob not. b/c most children know doctors are supposed to do and prob wont know to lie
Prob 7.37
 Testimony about H’s statements and gesture to prove he had eaten food from deli- admissible
 Nurse testimony, wife called and said husband ate bad meet from deli- hearsay exception
 M said D said had signs of arsenic poisoning and to hospitalize immediately offered to show signs
of arsenic poisoning. Pertinent to treatment/diagnosis? Likely, but maybe no
Recorded Recollections (and refreshing memory)
5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

FRE 612. Writing to Refresh a W’s Memory

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an
adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to
introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing
includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest
be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue
any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony
or — if justice so requires — declare a mistrial.
**Different from 612 (refreshing recollection) b/c 612 can be anything, doesn’t have to be written
down (can be a plate of fettuccini?)
Johnson- witness doesn’t want to testify and doesn’t remember making statement or signed it  hearsay
b/c didn’t guarantee memory was correctly transcribed/facts were true. Must testify today that had
clear memory at time, but not today
Prob 7.38- S wrote number of license plate down after M called out number
 S didn’t remember number, but saw envelope and it did not jog memory
o M’s statement in under present sense/excited utterance
o S’s writing  hearsay exception, can read it but not admit envelope into evidence/exhibit
b/c not admitted by adverse party
 M forgot, saw envelope, and then recited it  hearsay exception under 612
 Admit envelope as exhibit after M’s testimony? No b/c adverse party prob
6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Movie Clip: admitting nurse signed admission form, asked patient when she last ate and she responded
full feel 1 hr prior, wrote 1 on admission form
 Admit to show Dr knew patient ate right before- not hearsay b/c to show affect on Dr
 Admit nurses statement that she ate before- hearsay exception? Could admit to record if part of
regular practice when patients come in
movie clip: 5 min to cook grits
 cross-exe would ask diff Q than reading report and still opp to counter recorded recollection
Business Records
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in
paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
Palmer v. Hoffman- train crash and dispute over whether there was a light/whistle/bell. Want to admit
business report of accident from dead engineer.
 Motive to lie to boss b/c wouldn’t want to be fired  lack of trustworthiness
 Do not want to extend to “any regular course” of conduct that has a relationship to business
 Here: not a record made in systematic/routine conduct of business, it is an accident report which
would lead to more companies creating “reports” to avoid liability
Prob 7.39- Event  Donohue  Reason for return = chord loose  clerk  return form  jury
 (This is hearsay within hearsay) Can admit return form for what it alleges (i.e. what was reported
to clerk) BUT Donohue cannot admit for truth of actual event
 Other party admitting it? Assume clerk wrote “chute clogs” and D claims chord is loose. Can admit
the whole thing for truth of matter asserted
o Hearsay exception: Business record admitted
o Outside of definition of hearsay: can admit statement of an a party opponent
Prob 7.40 (p561)- Event  Anderson  “sample belongs to B. Bonds”  Valente  BALCO log  jury
 Gov wants to introduce statement to jury for truth of matter asserted (i.e. samples are bonds)
 Can introduce log for what it was told, But what about truth of what is told?
 Anderson refusing to testify under subpoena/paid by bonds/friends with bonds/trainer/
 Agent relationship? Statement of agent come in, but here no
 o Usually don’t make damaging statements unless true, but is there enough control over
the situation? Majority of 9th cir. said no (9th cir didn’t agree  okay to be confused)
Public Records and Reports
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter
observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized
investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a
public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that
kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14
days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court
sets a different time for the notice or the objection.
**Generally Police Records not allowed, but most others are
Movie clip: no book that talks about Gitmo “code red” duty. Want to introduce to show no documentation
 Not hearsay b/c absence of something is not what they are intending to communicate
 Otherwise 803(10) could be used to introduce it
Beech Aircraft v. Rainey- airplane crash with no survivors. Gov does report of training exercise accident
and contains facts and opinions/conclusions: rollback or pilot error?
 Report admissible under broad approach b/c Exceptions says reports based on fact findings,
which can include opinions/conclusions and leg history is unclear b/c houses disagree
 Cant introduce if speculation/baseless assumptions/untrustworthy  must be allowed under
other rules as well
Residual Exception
FRE 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the
statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through
reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable
notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has
a fair opportunity to meet it.
Dallas County v. Commercial Union Assurance- Courthouse collapsed. Was it damage by lighting or fire
mention in more than 20 –year-old newspaper? Necessary b/c of time lapse any memory of witness
would be more unreliable than and trustworthy b/c wont write about something that wouldn’t
happen/no correction run  admissible under residual exception
**This can be anything no matter how close it fits or doesn’t fit with any exception
 V. THE CONFRONTATION CLAUSE

6th Amend- “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . .”  incorporated to states in 1965
 Relationship of hearsay and CC = Venn diagram
Mattox- 2nd trial, but 2 witnesses from first trial that were fully examined and cross-ex died, and want to
exclude their testimony b/c not present to confront witness at 2nd trial
 CC = Concerned about being able to cross-ex, but here already had opportunity
 Don’t want to exclude all testimony from dead witnesses  Must be unavailable and
opportunity to cross-examine witness testimony
**Prob is when declarant is unavailable, but still let statements in through other people even if available
Roberts- Made hearsay circle big and only maybe statements against interest falls outside
 Rule of Necessity: Right to be confronted only with reliable testimony, but out of necessity
sometimes witness not available, still can be admitted IF
 Rule of Reliability: statement is reliable shown through indicia of reliability
Wright- leading questions of abuse of 2-year-old not okay
 To confront = to face, unless had “particularized guarantees of trustworthiness”
Maryland v. Craig- closed-circuit TV for child testimony
Crawford- stabbed guy who tried(?) to rape wife. Not clear if guy had weapon/WA has spousal privilege
 Wife is unavailable  look at exceptions  statement was against interest?
o Prob not admissible under FRE b/c against his interest, not wife interest
o He is claiming const right to confront wife about statement
o Must look at reliability- Not a firmly rooted hearsay exception
 Indicia of trustworthiness, maybe?
 Move to Roberts analysis
o Witness could be very broad (i.e. any statement used)
 But looking at adverse-witnesses
 Old approach- substantive right that focuses on reliable testimony
o Too broad- applied to all witness statements
o Too narrow- letting in statements where D didn’t have opportunity to cross-ex
 New approach- procedural right to face accuser
o Testimonial evidence is barred if W unavailable and not subject to cross-ex
 Bash multi-factor tests under old approach b/c reliability is an amorphous, subj concept
 Results of other cases are good, rationale is just bad, but overturned Roberts
After Crawford-
 Domestic violence cases where victim doesn’t want to testify b/c scared to face abuser  these
cases are being dropped b/c witness refuses to come in
 Testimonial v. non-testimonial test: If on-going emergency ≠ testimonial
 Favors defense over prosecution
New v. Old
 New (Scalia/ Ginsburg/ and maybe Thomas)
 Old (Roberts/Alito/ Sotomayor/ kagan/ and now Kennedy /Breyer and maybe Thomas)
Movie clip: questioning shot person in hospital bed (3 blinks yes, 2 blinds no)
 Old:
o Necessary b/c unavailable
o Reliable b/c dying declaration = firmly rooted exception
 New:
o if testimonial, wont get in even though reliable, relevant evidence not allowed even though
shot guy
o If not testimony, would get in
Substantive guarantee = right to confront someone
 If unavailable?
o Roberts- Looked at hearsay rules to determine if statements were reliable—i.e. hearsay
exception  no confrontation clause violation
o Crawford- procedural right to confront witness in court and subject them to cross-ex
 Witnesses against = testimonial
 Regardless if reliable, unavailable and testimonial it is barred
Davis-
 non-testimonial:
o look at circumstances objectively
o primary purpose = meet ongoing emergency
 Testimonial:
o circumstances objectively indicate no such ongoing emergency
o Primary purpose of interrogation = establish or prove past events potentially
relevant to later crim prosecution
**Forfeiture- if you render witness unavailable you don’t get the benefit of excluding testimony
 Hearsay- must be for the purpose of excluding their testimony
 CC- with intent to render them unavailable as a witness  waiver of right
 **essentially the same unless state has a different hearsay exception
Prob 8.1- domestic abuse, makes statement, but then wont testify. Can statement be admitted?
 Hearsay: Hearsay exception? Prior inconsistent statement
 CC: Testimonial, but…
o Unavailable?
 Pre-trial motion- Can we even really make that determination before trial?!
 Prosecutor is nervous b/c she wont testify or disagree with statements
 She will testify so she isn’t technically unavailable,
 BUT she was willing to testify, then says no
o D made her unavailable by wrongdoing? Yes
 Expert test- domestic abuse cycle: honeymoon stage
 100+ phone calls/ blowing kisses at hearing
o Intent? Yes
o Forfeited? Likely, but possibly tabled until trial?
Michigan v. Bryant- guy shot at gas station/ police ask what happened and who shot him/ Bryant
responds to questions, but dies shortly thereafter
 Are statements admissible? YES b/c ongoing emergency (Objective Standard)
o Dying declaration and excited utterances- not brought up
o Issue: does it violate CC? Primary purpose of interrogation?
 Davis- reported assault in progress = ongoing emergency
 Hammon- event over/no more violence/ ≠ ongoing emergency
 Here: not domestic violence, but public safety threat  assailant has a gun!
 Greater threat to public  more likely ongoing emergency
 Broader than domestic violence
 Factors: prob non-testimonial if factors show ongoing emergency = reliable
 Location: lying on ground of gas station parking lot
 V’s motives: reporting guy to stop him/get help
 Medical condition: bleeding on ground suggests not testimonial
 Interrogators motives: police trying to handle situation- figure out what
happened/what is going on
 Formality: not very
Davis v. WA- 911 phone call- ongoing emergency until . . . ? Ct says non-test until “what direction running”
  Running now: no ongoing emergency b/c not armed/dom violence means prob wont hurt others
 Locked door: Victim- Still concerned about safety. But she said she was okay and didn’t need
medical team/ Operator- stop talking and answer by questions
Bryant- 911 call/23 knife wounds and died shortly thereafter. No on going emergency?
 Defense: Once said he wasn’t there/ Name not necessary to determine if he is there, more likely
testimonial/ No ongoing emergency for public, just individual/ Trying to put it on record- who it is
 Prosecution: V’s motive: Name relevant so they know who he is in case he returns?/ Interrogator-
facts relevant to ongoing emergency (No motive/Just asking if need help)/Informal- lying on
ground of house dying/ D forfeited right to CC b/c he intended to make her unavailable as a W
Prob 8.3- Testimonial b/c no ongoing emergency when just talking about a drug deal/ doesn’t want
to share name b/c concerned about future litigation and establishing a record
Melendez-Diaz- Forensic evidence/ reports  send to lab, tested, report sent back
 Hearsay=reliable b/c routine business record. BUT lots of humans involved (i.e. fabricating report)
 Record when made for prosecution? CC gives right to confront person who made report
Bullcoming- bring in another lab tech because lab tech that prepared report is on unpaid leave. SC says
cant cure CC by talking to surrogate witness
 Justice Thomas concurrence: forum and solemn process  Formality of process
 When is it a statement when a machine spits out a result? Here obvi too much human involvement
 Higher degree of concern when prosecutor sends over blood to determine alcohol content
or powder to determine if cocaine. Lab tech obvi knows what they are hoping to find out
CC doesn’t apply
 Not offered for truth of matter asserted
 If appear at trial and can cross-ex
 Prior opportunity to cross-ex
 Forfeiture
 Dying declarations
 Non-testimonial statements (present ongoing situations)
o Casual/offhand remark
o Co-conspirator
o Business records
o On going public emergency
CC applies
 Out of court statements made by non-available witness offered for truth of matter asserted
 Testimonial
o Solemn declarations made to police
o Primary purpose of establishing/proving past facts
William v. Ill- rape, DNA test, results are a lot to 1 that it was the D
 Not introducing evidence for truth of matter asserted- Expert opinion reaches conclusion
relies on results but not admitted results for truth
 Not testimonial b/c no ongoing emergency- Don’t know what results prosecutor is using it for
unlike Bullcoming/DNA evidence often is exculpatory
 J. Thomas with plurality-No notary present, not a formal/solemn proceeding
Prob 8.4- Letter about poisoning given to neighbor = testimonial
 Primary purpose is testimonial, yes, but if it lacks formality/ maybe dying declaration?
Prob 8.5- D’s friend told nephew they killed guy and nephew testifies at trial
 Not formal, casual remark to nephew not intended to create record  not testimonial
 Cant confront friend whose statement is made for the truth of matter asserted  CC violation
Prob 8.6- rape, questioning by nurse with officer present, victim died of seizure
 Specific info about injuries pertinent for diagnosis and not given formally. But, info could later be
used in every case by police if not testimonial…
 VI. EXPERT TESTIMONY

Lay Opinions: Concerned about reliability for opinions, but there are exceptions when it is allowed
FRE 701- Opinion Testimony By Lay Witnesses:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Prob 9.1 (735)- admit “He sounded depressed” (expect people to recognize this characteristic)
Prob 9.2- admit testimony that she looked 20 or 21 years old
Prob 9.3 (739)- admit testimony that white powder looked and tasted like cocaine b/c she had tasted it
before. **can use someone who tasted X before to identify X b/c hard to describe taste
 No Specialized knowledge b/c no training/edu necessary
Prob 9.4 (747)- explains how he deciphered phone book hieroglyphics is rationally based on what he did
and helpful. No specialized knowledge and just b/c a detective doesn’t mean everything he says is
expert testimony (can speak as lay person). He doesn’t need to be a cryptologist to figure out symbols.
Expert Testimony
FRE 702- Testimony By Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; [Helpful]
(b) the testimony is based on sufficient facts or data; [Sufficient basis]
(c) the testimony is the product of reliable principles and methods; [reliable principles/method] AND
(d) the expert has reliably applied the principles and methods to the facts of the case. [reliably applied to case facts]
 Video clip: lady used to be a mechanic on generalized car knowledge  **Doesn’t have to be
formal training/education
 Jinro America- worked and lived in Korea does not make him an expert on MO/culture of Korean
business Qualifications must match testimony. If they did still likely prejudicial under 403.
 Prob 9.5 (749)- Columbian marijuana v. American. This is specialized knowledge which would
make this expert testimony and likely qualifies as an expert b/c of extensive experience smoking
marijuana (1000x)
 Prob 9.6 (756)- “how hungry is Panchito? Would he like to have breakfast?” = I am trafficking
drugs in the morning.
o Specialized knowledge to know that this is a code.
o Qualifies as an expert? YES. Listened to wiretaps/ training/ experience working in large-
scale drug trafficking orgs/ listen to more than 350 wiretaps (might want to know more)
Improper Topics of Expert Testimony
Matters of Common Knowledge
 Prob 9.7(757)- macho and match sound similar trademarks. But confusion over words is by
common people, so no need to have expert testify/ not useful
 Prob 9.8 (758)- housing discrimination by using all white advertising. Most people would prob
know that it would be offensive, but only psychologist could describe “focus group” method
 Prob 9.9 (759)- Common person understands slip and fall, but Difference of floor coefficient of
friction is expert testimony. BUT not allowed if it is a legal conclusion and here said “unreasonable
risk”—but unclear if that is a legal conclusion or not
FRE 704- Opinion On An Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) 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.
Opinions on law and opinions on ultimate issues
Prob 9.10 (760)- opinion that they possessed supplied with intent to manufacture meth (even though one
guy said he was unaware what other guy bought  rejected testimony)
 704(b)- intent is not a common lay term, but a legal term and intent = mental state/ condition that
constitutes an element of the crime charged
Hygh v. Jacobs- professor testified that it would constitute deadly physical force that would not be
justified under the circumstance and defined deadly physical force
 Telling jury what to think = ultimate conclusion on legal matter  Cant tell jury the result
Opinions of Credibility
 Prob 9.11- med evidence revealed V could not be facing cops at time what shot despite cops test
o Jury should make ultimate credibility of witnesses and here crossed line b/c got to
issue of credibility when Expert rejected lying b/c it would be such an easily disproved lie
o Would be okay if just say that it is a possibility v. they wouldn’t want to lie about it
 Batangan- child abuse case. Expert called in to say why he thought she was telling the truth, but
telling the truth is a questioned reserved for the jury
o “you know how 6 and 7 year olds act” ≠ expert/ I believe victim and so should you ≠ okay
Opinions on Eyewitness ID
 Guilbert- D wants an expert to testify about witness-identification failures. ¾ W knew D and not
concerned falsely IDed b/c already know them. Assume jurors can realize that ID could be
mistaken  expert testimony could be helpful, but not necessary
o Here: should have allowed expert testimony for that one witness, but harmless error b/c
enough other evidence with other witnesses
 Prob 9.12 (p782)- GF uses stolen cell and check book. Positively IDed D as robber in photo array 9
days later. Factors: supporting corroborating evidence/ gun/ contemporaneous account/1 W/ 10
seconds. DP violation? But most would prob not find it admissible b/c harmless error???
Proper Basis of Opinion Test
FRE 703- Bases Of An Expert
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent
of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
 opinions based on facts/data
o Personally observed
o Made aware of at the hearing
o Been made aware of before the hearing
 Can reach an opinion based on inadmissible evidence
Williams debate over whether expert witness could make DNA statement that it was a one in a lot of
chance that D was the guy
FRE 705. Disclosing The Facts Or Data Underlying An Expert
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to
the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
1. Prob 9.13- stashing guns in car is common based on interviewing criminals
o Likely rely on study/ Reliable to rely on it- 60 inmates a day for a year
o Comes in as an opinion, but data (i.e. actual conversations) is debatably excluded
 Prob 9.14 (792)- dr note by brain resident writing it down from a heart operation is “bizarre,”
which admits negligence and no one would write it down unless true  rely on it
o If suing hospital- Agent of hospital?
o Other doctors- prob no hearsay exception.
o Ct said wouldn’t reasonably rely on it BUT Muller says admissible as to opinion, but not the
underlying facts and probative value prob doesn’t substantially outweigh prejudicial effect
Assessing the Reliability of Expert Scientific Testimony
Frye- generally excepted science is admissible
Daubert- drugs causing drug defect?
 Flexible Factor Test:
o Whether the technique/methodology can be or has been tested
o Whether it has been subjected to peer review and publication
o The known or potential rate of error
o The existence and maintenance of standards controlling the technique’s operation
o General acceptance in the relevant scientific community
 Does this lessen or weaken thresh hold?
o Loosening standard b/c allows more factors- i.e. fringe/up-and-coming science can come in
o Stricter b/c allows judges to be gatekeepers- If judge determines improper
method/invalid science evidence  not admissible
 Methods don’t always yield the same result, judge just looks at reliability of methods
(not the result)
 Must be reliable and relevant (i.e. useful to trier of fact)
Kumho Tire Co.- extended Daubert to all expert testimony, not just scientific expertise
Joiner- Appellate standard of review = abuse of discretion
Aftermath
 Silicon breast implant cases- had to rely on “loose” science
 Good tool to dismiss number of cases if no causation based on lack of science
 This elevates role of judge who likely doesn’t know much about science
o Seminar wont teach much, but what is the other option?! Give it to the jury?
o Cross-ex not able to bring out pitfalls b/c qualifications are impressive?
 Lawsuit on radiation after nuclear power plant accident
o Before v. after
o Control for alternatives
o Other
 Time/duration/length of exposure
 Volume
 Distance
o Relative risk
 Graph: Linear/ Exponential/ S-curve
 Increase rate
 Distinction between result and methodology
Technical Knowledge
 Are juries better able to understand technical knowledge than science? NO
 Kumho Tire- tire blow-out and crash. Wanted expert witness to testify that it was based on
manufacture defect based on problems: low tread, lots of miles, puncture holes, portions are bald
o Created 2/4 factor test/ Couldn’t tell how many miles driven on car/ Looked at tire day of
deposition
o Technical experts subject to Dauburt factor test Concerns: efficiency/wasting time
 Prob 9.16- Hedonic damages on human life
o Qualified as expert? Yes/ Assist jury? Yes/ Relied on proper data? Yes
o Methodology appropriate under Daubert? Most likely not (but wont be overturned on app)
 Objective testing? No
 Published and subject to peer-review
 Error rate? Don’t know
 Standard? Yes
 Accepted in field? Generality to specific person? Valuing life/ complying with laws
 Movie Clip: tire forensic evidence is “identical”
  DNA accepted and used, but what about fingerprints, hair/fiber/ handwriting analysis, firearms
ballistics?
o Don’t have to meet the same high standard of science b/c not science, so let it in as
useful specialized knowledge
o Cant let people say it IS the D’s fingerprint, but can say what they found points of similarity
and likely a match  cant claim certainty/ can only claim as good as it purports to be

AUTHENTICATION, ID, AND THE “BEST EVIDENCE RULE” (**concerned about reliability)
FRE 901- Authenticating Or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a
familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert
witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical
or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it
with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the
number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was
the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably
transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; AND
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an
accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal
statute or a rule prescribed by the Supreme Court.

FRE 902- EVIDENCE THAT IS SELF-AUTHENTICATING

The following items of evidence are self-authenticating; they require NO extrinsic evidence of authenticity [to] be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular
possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a
political subdivision of any of these entities; or a department, agency, or officer of any entity named above;
and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A doc that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal — or
its equivalent — that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a
foreign country’s law to do so. The document must be accompanied by a final certification that certifies the
genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate
of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the
signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a
consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign
 country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to
investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or
filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the SC.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course
of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully
executed by a notary public or another officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the
extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares
to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record
that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified
person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make
the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign
record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with
a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a
criminal penalty in the country where the certification is signed. The proponent must also meet the notice
requirements of Rule 902(11).
 Stelmokas- guy had naturalization revoked upon finding Nazi involvement. Thinks that documents
are suspicious b/c they wouldn’t be in capital, other documents were destroyed/ Conspiracy that
these documents would be scattered around Europe, really?
o All necc for authentication is preponderance of evid. standard that docs = authentic
 Prob 10.1 (898)- authentic “to send money” forms? Don’t know that he wrote name on form.
o Find someone familiar with handwriting/ fingerprints/ teller  Don’t have to guarantee
it is what it says it is, only need enough evidence that jury could find that it is
 Prob 10.2- investigating guy and familiar with handwriting. SPLIT:
o Preparing for litigation fails authentication
o Familiarity not for litigation/ pre-indictment and thus can authenticate
 Prob 10.3- anonymous note in stolen car “Light green car, change cars” etc.
o Say that note was the note found in car  authentication
o Other ways to exclude
 Hearsay? Effect on cop
 Confrontation clause? Testimonial- prob not b/c not formalized
 Movie- husband thinks calling his mistress but calls wife. May authenticate voice b/c recognize
voice for years of hearing it
 Movie: want to bring in phone call and to authenticate it was him. Called “Booth” and no objection
o Trace- evidence that call was made to number assigned at time/ Lay identification
 Prob 10.4-pizzahut robbery. Evidence how *69 works. Enough circum evid, if manager doesnt call
 Simms v. Dixon- don’t have to call in photographer to authenticate picture  Just ask if photo
accurately represents scene
 Prob 10.6- staged photograph about position by window where shot next day
o Ok for W testimony of position inside window, but not for shooters view/ where he was
 Movie- video camera in quick-mart robbery. Authenticate via testimony of store clerk, but if dead,
then self-authenticating if absence of forgery
“Best Evidence” Rule: **Focus on reliability and don’t want to rely on human testimony
FRE 1001. Definitions That Apply To This Article
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have
the same effect by the person who executed or issued it. For electronically stored information, “original” means any
printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph
includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces the original.

FRE 1002. Requirement Of The Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute
provides otherwise.

FRE 1003. Admissibility Of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity
or the circumstances make it unfair to admit the duplicate.

FRE 1004. Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by
pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at
the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.

Proof of content
 If actual document is in dispute (i.e. content of it is in Q) need original or duplicate
o E.g. copyright/libel/ child pornography
 Own independent probative value (i.e. when doesn’t illustrate human memory/testimony)
Prob 10.8- witness testifying about perjury from previous trial
 About testimony ≠ about written
 (lay) best evidence = trial transcript
 Don’t need writing to prove content  NOT under best evidence rule
 Could possibly say under 403 unfairly prejudicial (b/c inflection, imperfect memory)
Prob 10.9- neighbor who wrote license plate number on card after arson asked to testify what number
was on license plate
 Document not in dispute, no independent probative value ≠ best evidence
 Don’t need card to prove content. But license plate itself might fit under best evidence.
Prob 10.10- testimony about GPS backtrack with GPS. Observed data not travel of boat = best evidence Q
 (a) no evidence that they are lost/destroyed/couldn’t produce data
o bad faith? If gov doesn’t do work will likely find bad faith
Jackson- cut and paste IM from chats into word doc with D charged with sexual assault
 IM text itself has probative value, BUT Cut and past ≠ accurate duplicate of original b/c doesn’t
contain entire convo and has editorial comments
 FRE 1004
o lost or destroyed- Yes, but in bad faith b/c 4 hour delay.
o Relevance, but hearsay is not as reliable
 Concerned jury will base decision on something other than fact (e.g. emotion)
 Public policy rationale
 VII. PRIVILEGE

Intro
 Relevant and reliable, but keep it out for some other public policy concern based on relationship
 But sometimes have to reveal secret info
 Ask: why should certain things be disclosed and other things kept out?
 No privilege  talk less and wouldn't have info to disclose which would be excluded
FRE 501- Privilege In General
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of
privilege unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute; or
 rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
[States all have “wildly different” common law rules]

Psychotherapy privilege
Jaffee- Police offer doesn’t want to reveal convos with psychotherapist
 Rationale to have privilege: Benefits of public/police officers have good mental health/ Need to be
honest (and wont be honest if discoverable)
 Rationale to NOT have privilege: Will suppress relationships, but people wouldn’t talk if had to
disclose info of convos  so wont lead to much more info than already have
 SC rejects balancing test and creates a per se rule, but doesn’t define nuances
 Social workers protected b/c no discernable difference
**Don’t extend privilege to doctor-patient relationship (b/c talking about communicative activity)
 Prob 11.1- Threats mentioned to pt/told had to relay info to persons threatened under state law
o NOT privileged b/c not confidential- knew threats would be disclosed
o Rationale= prevent harm to society/ 9th Cir. wants honesty and has no privilege

Lawyer-client privilege
 4 characteristics
o Privilege is only the client’s
o Only confidential communications made to facilitate professional services
o Intent to have communication confidential
o Only to communications with lawyer, not underlying facts
 Having privilege Insulates wrong doers by excluding relevant info/doesn’t help justice/society/etc
 BUT even though guilty, law recognizes other things that will exculpate you
o b/c might not know other legal defense if could not confess
o If atty had to testify if called, would stifle ability of trust/disclosure to lawyer
FRE 502- Attorney-Client Privilege And Work Product; Limitations On Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the
attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure
is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-
product protection, the waiver extends to an undisclosed communication or information in a federal or state
proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not
operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
 (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal
Rule of Civil Procedure 26 (b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of
a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the
disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by
disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver
in any other federal or state proceeding. [(d) and (e) = clawback agreement]
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding
only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to
federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule.
And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-
client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its
intangible equivalent) prepared in anticipation of litigation or for trial.
 Safeguards against inadvertent disclosure
 Disclosure ≠ waiver
 Prob 12.1- talked to client in corner of court room during recess
 Intent to keep it private? From client or attorney perspective? Yes, if from client perspective/
not waived  Holder of privilege is the one who can waive it = client
o But if knew of additional room? Client still doesn’t likely know
 Prob 12.2- dumpster diving- Throwing something in trash is not always confidential b/c there are
ways to make it more confidential (i.e. shred it). But privileged if reasonable (not best) steps
taken. Here, reasonable steps b/c dumpster on private property and torn in 16 pieces.
Shredders might not be required to prevent waiver.
 Williams- 2 page email communication in first 10 pages of 104 page document. Not privileged b/c
o No reasonable steps to prevent inadvertent disclosure (when can’t explain process of
review and production) and failed to take reasonable steps taken after (asked for
return of document, but didn’t follow through until 2 years 8 mo. later)
 Prob 12.3 (992)- phone not hung up properly and recorded discussion = privileged
o Insulting comments about V and similarities with other victims is part of attorney client
privilege/ Careless hanging up of phone is inadvertent and rectified once found out
 Must be confidential: Fee arrangements and client’s identity is generally not confidential
UNLESS disclosing identity tantamount to finding him liable (narrow)
o Prob 12.4 (999)- unknown driver known to atty. Look to purpose of nondisclosure
 If b/c he is concerned he would be liable/ settlement/ prosecution  protected
 If just a ploy to conceal identity  NOT protected
 Prob 12.5- stolen typewriter NOT privileged b/c not under attorney-client relationship/ a lay
person could turn over stolen property  if lay person could do it ≠ privileged
 Prob 12.6- source of counterfeit bill NOT privileged b/c must be in context of confidential comm
 12.7- Handwriting recognized by attorney from previous case is NOT privileged b/c just normal
observations not comm  Only excluding communications, not underlying facts
o Waiver extended to death
 Swidler- scandal and guys talks with attorney, but committed suicide. Atty-cleint protection
survices death b/c otherwise wouldn’t speak (concerned about reputation/ civil liability for
estate/ embarrassing family and friends)
o Dissent- what about innocent crim defendant? Could possibly waive in this case
Familial Privilege
 2 privileges:
o Spousal = absolute barrier to testify by spouse (doesn’t matter what about if crim)
 Fed: criminal
 Assertion: witness (b/c if want to testify vs. spouse, prob not marital harmony to
protect)
 Survive marriage: NO only during
 Rationale: preserving marital harmony
o Marital = looks at context of communication
 Fed: both crim and civil
 Assertion: both D and witness
 Survive marriage: both during and after
 Rationale: encourage husband + wife to be open in their communication
 ONLY Communication that happened during marriage
 Movie clip: guy calls wife instead of mistress and she confronts him in bedroom. Can wife testify?
o Phone call
 Spousal privilege: Wife can invoke
 Marital privilege: Both can invoke
 But husband prob didn’t intend to have private comm with wife b/c thought
it was mistress
 Wife can prob invoke it b/c thought it was husband
o In bedroom
 Spousal privilege: wife can invoke it
 Marital privilege: both can invoke
 Only applies to confidential communications
o Communications okay if in front of infant- privilege still applies
 Rakes- extortion scheme and both husband and wife were victims
o Crime-fraud exception
 If communications used in furtherance of crime, not protected by privilege
(e.g. co-conspirators of crime or victim of crime by spouse)
 Victim is not a “participant” in crime and thus communications don’t fit exception
o H disclosed facts, but communications with W is still privileged ≠ not waived
 Prob 13.1- private email from work computer that had disclaimer
o Waived at common law
o Wife likely intended communication to be private, and thus could prob claim privilege
 Prob 13.2- left note on kitchen counter = likely privileged
o Government’s burden to establish that marital communication was NOT intended to
be private  here: intended to be confidential
o What about kids at house? Government must show lack of intent
 Prob 13.3- told FDA agent about ants at plant/ want to bring in convo with wife
o Even though underlying facts can come in, did not waive communication w/ wife!
o Martial privilege applies even after marriage b/c communication during marriage
o Wife argument? She is being charged with a crime and maybe under DP can bring it in