Evidence

A:17
B:14
C:14

Form of evidence (extrinsic/intrinsic)も意識(character evidence, impeachment)!!

Evidence............................................................................................................................................................1

Probative value & Policy Exclusions.............................................................................................................3

A <Relevance – Pragmatic Consideration>..........................................................................................................3
B<Relevance – Subsequent Remedial Measures (SRM)>....................................................................................3
B<Relevance – Settlement in Civil Case>..............................................................................................................3
C<Relevance –Pleas & Plea Negotiations>............................................................................................................3
B<Relevance – Hospital or Medical Expense>......................................................................................................4
C<Relevance – Liability Insurance>.....................................................................................................................4

Physical & Documentary Evidence................................................................................................................5

C<Authentication - General>.................................................................................................................................5
C< Best Evidence Rule – Principal Situations>....................................................................................................5

Character Evidence, Bad Acts, Habit............................................................................................................6

A <Character Evidence – Offered by Criminal Defendant>...............................................................................6
A <Character Evidence – Offered by Prosecution>.............................................................................................6
A <Character Evidence of Victim – Self Defense>...............................................................................................6
A <Character Evidence – Sexual Misconduct (Victim’s Conduct. Civil / Criminal)>........................................7
A <Character Evidence – Sexual Misconduct (Defendant’s Conduct)>..............................................................7
A <Character Evidence – Civil Case>...................................................................................................................7
A <Defendant’s Prior Bad Acts (Other Crime) for Non-Character Purpose: MIMIC>...................................7
B<Habit or Routine Practice >...............................................................................................................................8

Impeachment....................................................................................................................................................9
B <Impeachment – own W>...................................................................................................................................9
B<Impeachment – Prior Inconsistent Statement>................................................................................................9
B<Impeachment – Criminal Convictions>............................................................................................................9
A<Impeachment – Specific instances of conduct (Prior Bad Acts)>...................................................................9
B<Impeachment – Bad Character for Truthfulness (Reputation and Opinion)>............................................10
B<Impeachment – Sensory Deficiencies>............................................................................................................10
B<Impeachment of Hearsay Declarant>.............................................................................................................10

Presentation of Evidence...............................................................................................................................11
C<Judicial Notice>................................................................................................................................................11
B<Present Recollection Refreshed>.....................................................................................................................11
C<Past Recollection Recorded>...........................................................................................................................11
A<Opinion Testimony – Lay Witness>...............................................................................................................11

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 C<Expert Witness >..............................................................................................................................................12

Privilege..........................................................................................................................................................13
C<Attorney-Client Privilege>..............................................................................................................................13
C<Attorney-Client Privilege – Voluntary Waiver>............................................................................................13
C<Attorney-Client Privilege – Inadvertent Waiver>.........................................................................................13
B<Spousal Confidential Communication Privilege>..........................................................................................13
B<Spousal Immunity>..........................................................................................................................................13
B<Exception to Spousal Privileges (Both)>.........................................................................................................14

Hearsay...........................................................................................................................................................15
A <Hearsay Statement – General & Hearsay within Hearsay>........................................................................15
A <Non-Hearsay Statement>...............................................................................................................................15
A <Hearsay Exclusion (not hearsay) - Prior Statement>...................................................................................15
A <Hearsay Exclusion – Party Admission (Party-Opponent Statement)>.......................................................16
C<Hearsay Exception – Unavailability>.............................................................................................................16
C<Hearsay Exception – Statement Against Declarant’s Interest>....................................................................16
C<Hearsay Exception – Dying Declaration>......................................................................................................16
A <Hearsay Exception – Excited Utterance>......................................................................................................17
A <Hearsay Exception – Present Sense Impression>.........................................................................................17
B<Hearsay Exception – Present State of Mind, Declaration of Intent, Physical Condition>..........................17
A <Hearsay Exception – Medical Treatment or Diagnosis>..............................................................................17
A <Hearsay Exception – Business Records>.......................................................................................................18
C<Hearsay Exception – Public Records>............................................................................................................18
A <6th AM Right to Confront Witnesses >...........................................................................................................19

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Probative value & Policy Exclusions

A <Relevance – Pragmatic Consideration>

The issue is whether the court may decide the evidence is inadmissible.

 The general rule is that all relevant evidence is admissible. Evidence is relevant if (1) it has any
tendency to make a material fact more probable or less probable than it would be without the
evidence; AND (2) the fact is of consequence in determining the action.

 Rule 403 Exclusion: The court has a discretion to exclude relevant evidence if the probative value of
the evidence is substantially outweighed by a danger of: (i) unfair prejudice, (ii) confusion of issues,
(iii) misleading the jury, (iv) undue delay, (v) waste of time, and (vi) unduly cumulative.
 Unfair prejudice = Unnecessary + might cause the jury to improperly sympathize or dislike a
party.

B<Relevance – Subsequent Remedial Measures (SRM)>

The issue is whether the evidence of the subsequent remedial measure is admissible.

 The general rule is that evidence of subsequent remedial measure is inadmissible to prove (i)
negligence, (ii) culpable conduct, (iii) product defect, or (iv) a need for a warning.
 However, such evidence is admissible to prove (a) ownership or control, or (b) feasibilities of a safer
condition, if either issue is controverted + (iii) impeachment.

B<Relevance – Settlement in Civil Case>

The issue is whether evidence of the settlement in a civil case is admissible.

 The general rule is that, in the event of a disputed civil claim, evidence of (i) a settlement, (ii) an offer
to settle, or (iii) statements of fact made during settlement discussion are inadmissible to prove
liability.
 However, such evidence is admissible to impeach witness on the ground of bias [Bias 以外の impeach
はダメ(Prior Inconsistent Statements とか)].

[Enron exception] In addition, statements of fact made during settlement discussions in civil dispute with
a government agency are admissible in later criminal case.

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C<Relevance –Pleas & Plea Negotiations>

Inadmissible
 an offer to plead guilty
 a withdrawn plea
 Statements made during plea discussions;
 a nolo contendere plea (no contest)

B<Relevance – Hospital or Medical Expense>

The issue is whether the evidence of the offer to pay hospital [medical] expenses is admissible.

Evidence that a party has paid or offered to pay an injured party’ hospital or medical expenses is
inadmissible to prove liability.

C<Relevance – Liability Insurance>

The issue is whether the evidence of the liability insurance is admissible.

The general rule is that evidence that a person has (or does not have) liability insurance is inadmissible
for the purpose of proving negligence. However, such evidence may be admissible for: (i) proving
ownership or control, if that issue is controverted, or (ii) impeachment for bias

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Physical & Documentary Evidence

C<Authentication - General>
All evidence MUST be authenticated before being admitted. A party must prove that the item it seeks to
admit is actually what the party purports it to be.

Physical evidence may be authenticated through witness testimony; OR by evidence that shows it has
been held in a substantially unbroken chain of custody.

Voice recordings may be authenticated by anyone who has heard the person speak (either first hand or
electronically) and have identified the recorded person as the speaker.

C< Best Evidence Rule – Principal Situations>

The issue is whether the testimony as to the contents of the document is admissible.

The general rule is that if a party seeks to prove contents of a writing, the party must either (i) produce
the original writing, recording, or photograph or a reliable duplicate of these, ; or OR (ii) provide an
acceptable excuse for its absence (the “best evidence rule”).

 Acceptable excuse: (a) lost or destroyed without bad faith; (b) cannot be obtained by any available
judicial process; (c) not produced after proper notice was given to the party in control
 Exception:
(i) Summary/Chart of Voluminous records, provided that the original records would be admissible
and they are available for inspection. (FRE1006)
(ii) Certified copies of public records. 公的記録の証明付写しである場合 (FRE1005)
(iii) Collateral documents (i.e., not important document in the case).
(iv) Fact to be proved exists independently of any writing

This rule applies only when proving contents of a writing, which arises in two principal situations:
(a) the writing is a legally operative document in the present case (i.e., the writing itself creates
rights and obligations;); and
(b) the witness is testifying to facts that she learned solely from reading about them in a writing.

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Character Evidence, Bad Acts, Habit

A <Character Evidence – Offered by Criminal Defendant>

The issue is whether the evidence of the defendant’s character offered by the defendant himself is
admissible in criminal case.

 The general rule is that evidence of a defendant’s character is inadmissible to prove propensity.
 However, a defendant in criminal case may introduce evidence of his own character for of a
relevant pertinent trait.
 The form of such evidence is limited to witness’s testimony to reputation in the community at
large and his personal opinion about the trait. However, the W may not testify to specific acts of
conduct.

A <Character Evidence – Offered by Prosecution>

The issue is whether the evidence of the defendant’s character offered by the prosecution is admissible.

 The general rule is that evidence of a criminal defendant’s character is inadmissible to prove
propensity.
 However, if the defendant has introduced his good character, the prosecution may rebut with
evidence of the defendant’s bad character for the same trait by
 [form of evidence] (i) calling its own reputation or opinion witnesses to contradict defendant’s
witness, and/or (ii) by cross-examining the defendant’s character witness with inquiry into whether
the witness has heard of defendant’s specific misconduct pertaining to the trait. (prosecution must
have good faith basis for the question.)

A <Character Evidence of Victim – Self Defense>

The issue is whether the evidence of the victim’s character offered by the defendant to prove self-
defense is admissible in criminal case.

[to prove the initial aggressor]

A criminal defendant may offer evidence of the victim’s bad character for violence to prove that the
victim was the first aggressor. The form of such evidence is limited to reputation or opinion. The
prosecutor may rebut this by evidence of either (i) the victim’s good character for peacefulness, or (ii)
the defendant’s bad character for violence.

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 [Furthermore, in a homicide case in which the defendant pleads self-defense, a prosecutor may offer
evidence of the alleged victim’s good character for peacefulness to rebut any evidence that the victim
was the first aggressor, regardless of whether the defendant introduced the victim’s violent character.]

[to prove D’s reasonable belief of imminent harm]

[The defendant may also offer evidence of his own knowledge of the victim’s bad character for violence
for the purpose of showing that he reasonably believed the need to use self-defense. The form of such
evidence is not limited (i.e., reputation, opinion, or specific act).]

A <Character Evidence – Sexual Misconduct (Victim’s Conduct. Civil / Criminal)>

Generally NOT, Exception for specific defenses.
The issue is whether the evidence of the victim’s character offered by the defendant is admissible in the
sexual misconduct case.

The general rule is that in a case involving alleged sexual misconduct (civil or criminal), the defendant
may not introduce evidence of (i) the victim’s sexual predisposition or (ii) the victim’s prior sexual
conduct. However,

 in a criminal Criminal case, a defendant may introduce:

(a) evidence of the victim’s other sexual activity with the defendant, but only if the defense is
consent,
(b) evidence of the victim’s sexual activity with others, but only to prove that someone other than the
defendant was the source of physical evidence, or
(c) evidence required to be admitted by the defendant’s Due Process rights (e.g., “love triangle
defense” to prove the victim’s motivation to lie).

 in a civil Civil case, evidence of the victim’s sexual behavior or predisposition may be admissible if it is
not excluded by any other rule and if its probative value substantially outweighs the danger of (1)
harm to the victim and of (2) unfair prejudice to any party.

A <Character Evidence – Sexual Misconduct (Defendant’s Conduct)>

Generally YES
The issue is whether the evidence of the defendant’s prior sexual assault [child molestation] offered by
the prosecution [plaintiff] is admissible.

In any civil or criminal case alleging sexual assault [child molestation], the prosecution [plaintiff] may
offer evidence of the defendant’s prior sexual assault [prior child molestation] for the purpose of
proving the defendant’s propensity to commit sexual assault [child molestation].

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A <Character Evidence – Civil Case>

The issue is whether the character evidence is admissible in civil case.

 The general rule is that evidence of a person’s character is not admissible in civil case. However,
such evidence may be admissible if such character is an essential element of a claim or defense
(e.g., (i) negligent hiring or negligent entrustment, (ii) defamation, (iii) child custody).
 The form of such evidence is not limited (i.e., reputation, opinion, or specific act).

A <Defendant’s Prior Bad Acts (Other Crime) for Non-Character Purpose: MIMIC>

The issue is whether the prosecutor [plaintiff] can introduce evidence of prior specific acts of the
defendant as substantive evidence at trial.

 The general rule is that evidence of the defendant’s other crime or specific bad act is inadmissible
to prove propensity.
 However, such evidence may be admissible (both in criminal and civil case) for proving: (i) motive,
(ii) intent, (iii) absence of mistake or accident, (iv) identity (e.g., modus operandi), or (v) common
scheme or plan.
 To be admissible, there must be sufficient evidence for a reasonabley jury to conclude that the
defendant committed the prior act. And its probative value must not be substantially outweighed
by risk of unfair prejudice.
 If the court decides that the evidence is admissible, the court must instruct jury regarding the
limited purpose of the evidence. Upon the defendant’s request, the prosecution must give pretrial
notice of intent to introduce such evidence.

B<Habit or Routine Practice Evidence>

The issue is whether the evidence of the defendant’s habit is admissible.

Habit or routine practice of business evidence is admissible to prove the person acted in conformity
with that habit. Admissible habit must have frequency and particularity. (regular response to a specific
set of circumstances)

[Note: Like evidence of personal habit, a regular routine practice of an organization is admissible to prove
conduct on a particular occasion.]

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Impeachment

B <Impeachment – own W>

A W’s credibility may be attacked by any party, including the party calling her.

B<Impeachment – Prior Inconsistent Statement>

The issue is whether the prior inconsistent statement is admissible.

A prior inconsistent statement is admissible for impeachment.

[Form of evidence]
Under the Federal Rules, an inconsistent statement may be proved byThe permissible form is intrinsic
evidence (cross-examination) or extrinsic evidence.
to introduce extrinsic evidence,
However, extrinsic evidence is allowed ONLY IF (1) relevant to a material issue at a trial; AND (2) a
proper foundation is shown – the witness must be given an opportunity to explain or deny the allegedly
inconsistent statement, and the opposing party must be given an opportunity to examine the witness.
However, this foundation is not applicable to party-opponent statements .required if the witness is the
opposing party.

B<Impeachment – Criminal Convictions>

The issue is whether the party may impeach a witness with a past criminal conviction.

A witness may be impeached with a past criminal conviction, if the convicted crime is
(a) any crime of dishonesty or false statement (regardless of felony or misdemeanor)  ALWAYS
admissible [no discretion, automatic admission]; or
* e.g., perjury, forgery, criminal fraud
(b) felony, if
(i) the witness is a criminal defendant, and the probative value outweighs the prejudice [criminal D
のときは、balancing が通常と異なる]; or
(ii) the witness is not a criminal defendant, and the probative value is not substantially outweighed
by pragmatic consideration (criminal D 以外のときは通常の the FRE 403 balancing test)
[discretion].
* sex crimes are generally not considered relevant to credibility (especially when the danger of unfair
prejudice is high); but drug convictions have been deemed relevant.

 [Time limit – 注:10 年経ったら絶対使えないわけじゃない] Notwithstanding the above, If more than

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 10 years have passed since the later of conviction or release from confinement prison, , whichever
is later, Inadmissible UNLESS (1) the probative value must substantially outweighs the prejudice;
and (2) the proponent gives an adverse party reasonable written notice of the intent to use it.

AC<Impeachment – Specific instances of conduct (Prior Bad Acts)>

The issue is whether the party may impeach a witness with the witness’s bad acts.

A witness’s credibility may be attacked on cross-examination by questioning him with specific instances
of conduct (i.e. prior bad acts) ONLY IF the conduct is probative of the witness’s character for
truthfulness.
A party may impeach a witness with her bad acts about her bad character of truthfulness.
 The permissible form is only intrinsic evidence (cross-examination). Extrinsic evidence is NEVER
admissible.
 Also, cross-examiner must have good-faith basis for the inquiry, and permission to make the inquiry
is subject to the court's discretion.

B<Impeachment – Bad Character for Truthfulness (Reputation and Opinion)>

The issue is whether a nonparty is competent to testify as to a witness’s poor reputation for veracity in
the community.

A party may impeach a witness by calling another witness (extrinsic evidence) to testify as to reputation
in the community or his personal opinion about the target witness’s bad character of truthfulness.

B<Impeachment – Sensory Deficiencies>

The issue is whether the party may impeach a witness with the witness’s sensory deficiencies.

A witness may be impeached with his sensory deficiencies that could affect his ability to observe,
remember, or relate facts accurately. perception or memory.
The permissible form is intrinsic evidence (cross-examination) or extrinsic evidence.

Examples: (i) bad eyesight, (ii) bad hearing, (iii) mental retardation, (iv) forgetfulness, (v) intoxication or
consumption of drug at the time of the event or while on the witness stand.

B<Impeachment of Hearsay Declarant>

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The issue is whether a party may impeach the hearsay declarant.

If hearsay is admitted, the opposing party may impeach the credibility of the declarant by any evidence
that would be admissible if the declarant had testified as a witness. may use any of the impeachment
methods to attack the credibility of the hearsay declarant.

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Presentation of Evidence

C<Judicial Notice>

The issue is whether the jury is required to accept the judicial notice.

A judge may recognize a fact as true without formal presentation of evidence (judicial notice) if the fact
is indisputable and: (i) a matter of common knowledge in the community, or (ii) capable to be easily
verified and cannot reasonably be questioned.
 Judicial notice is conclusive in a civil case.
 However, it is not conclusive in a criminal case. Just satisfies P’s burden of producing evidence on
that fact.

B<Present Recollection Refreshed>

The issue is whether the witness may be shown a writing to jog his memory.

The general rule is that a witness may not read from a prepared memorandum. .
However, if (1) a witness forgets is unable to recall something (2) he once had personal
knowledgeknew, he may be shown anything to jog his memory.

In that case,However, only the opposing party has a right to offer the document into evidence.
He may also: (i) inspect the item or, (ii) use it on cross-examination, or (iii) introduce it into evidence.

C<Past Recollection Recorded>

The issue is whether a written record made by a witness can be admitted when the witness cannot
independently recall its contents.

 The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible. However, a writing may be read to the jury
if:
1. the witness once had personal knowledge;
2. the witness now forgets it;
3. showing a refresher fails to jog the witness’s memory;
4. the writing was either made or adopted by the witness;
5. the writing was made when the event was fresh in the witness’s memory; and
6. the witness can attest that, when made, the writing was accurate.

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  If such recorded recollection is used, the party using the recorded recollection may ONLY read the
record into evidence, and ONLY not show the record to the jury. (Tthe opposing party may show it.)

AB<Opinion Testimony – Lay Witness>

The issue is whether the lay witness is competent to testify as to his opinion.

Lay opinion testimony is admissible if it is: (i) rationally based on the witness’s personal knowledge
direct observation, (ii) helpful to the trier of the fact jury, and (iii) not based on scientific, technical or
other specialized knowledge.

Examples: sobriety, emotion, speed, handwriting, smell, insane, character.

C<Expert Witness >

The issue is whether the expert opinion is admissible.

To be admissible, (i) a witness is qualified as an expert, (ii) the subject matter is one where specialized
knowledge is helpful to the trier of the factjury, (iii) the W believes in the opinion to a reasonable
degree of certainty, (iiiiv) an expert opinion is supported by a proper factual basis, and (iv) an expert
opinion must be sufficiently reliable, i.e., the expert used a reliable method and reliably applied it.

To determine reliability of expert opinion, a judge asks the following questions: (i) has the methodology
(1) publication and peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in
the field. (the “Daubert” standard)
been tested? (ii) are there known rates of error? (iii) has the methodology been subject to peer view?
and (iv) has the methodology been generally accepted?

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Privilege

C<Attorney-Client Privilege>

The issue is whether the attorney may testify as to the conversation with her client.

 The general rule is that confidential communication between an attorney and client made during
professional legal consultation is privileged.
 However, such privilege does notDOES NOT apply: (a) regarding future crime or fraud, (b) when
the client puts the legal advice in issue, or (c) in attorney-client dispute; (d) subsequent disputes
between jointly represented clinets.

C<Attorney-Client Privilege – Voluntary Waiver>

The issue is whether the attorney may testify as to the conversation with her client by the waiver of the
privilege.

If there is a confidential communication between an attorney and client during professional legal
consultation, only the client has the power to waive the privilege. After the death of the client, the
privilege continues and only client’s estate can waive it.

C<Attorney-Client Privilege – Inadvertent Waiver>

The issue is whether the attorney has to testify as to the conversation with her client.

An inadvertent disclosure of a privileged communication will not waive the privilege, so long as the
privilege holder:
(i) took reasonable steps to prevent the disclosure; and
(ii) took reasonable steps to rectify the error.

B<Spousal Confidential Communication Privilege>

The issue is whether the witness [may testify/is required to testify] as to the conversation with her ex-
husband.

Each spouse has a privilege as to (1) a confidential communication between spouses (2) made during
the marriage and relied on the intimacy of the marital relationship.
• Held by both spouses = either may assert it.
• The privilege survives the termination of marriage.

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 • Regardless of civil or criminal.

B<Spousal Immunity>

The issue is whether the prosecution may compel a married person to testify against his/her spouse in a
criminal proceeding.

In a criminal case, the prosecution cannot compel the defendant’s spouse to testify against the
defendant, so long as they are currently married.

B<Exception to Spousal Privileges (Both)>

DO NOT apply (a) in cases between the spouses; OR (b) when a spouse commits a crime against the other
spouse or their children.

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Hearsay

A <Hearsay Statement – General & Hearsay within Hearsay>

The issue is whether the statement is inadmissible by the hearsay rule.

The general rule is that Generally, hearsay is an out-of-court statement by a declarant offered to prove
the truth of the matter asserted is hearsay and inadmissible unless it falls within an exception to the
hearsay rule.

[Hearsay within hearsay]

An out-of-court statement that incorporates other hearsay is admissible only if both the outer hearsay
statement and the inner hearsay statement fall within an exception to the hearsay rule.

A <Non-Hearsay Statement>

The issue is whether the witness’s statement is admissible.

 The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible. However, a
 A statement is not hearsay if it is:
(i) offered for impeachment;,
(ii) verbal act (legally operative word);,
(iii) offered to showing effect on a person who heard or read; OR , or
(iv) circumstantial evidence of speaker’s state of mind.

A <Hearsay Exclusion (not hearsay) - Prior Statement>

The issue is whether the witness’s own prior statement is admissible.

 The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.

 However, if the witness testifies at trial and is subject to cross-examination about a prior
statement; AND

1. Prior Identification
 a witness's prior statement identifiesying a person as someone the witness perceived earlier
is not hearsay
[あてはめ：the portion of the statement that reads “……” is not hearsay because it is a statement

16
 of prior identification.]

2. Prior Inconsistent
 (1) the prior statement was inconsistent with the declarant’s testimony; and a prior
inconsistent statement is not hearsay if (2) the statement is made under oath during a formal
proceeding or in deposition.

3. Prior Consistent
 a prior consistent statement is not hearsay if it is used to rebut an accusation of a motive to lie
and made before the motive to lie arose.

A <Hearsay Exclusion – Party Admission (Party-Opponent Statement)>

The issue is whether the opposing party’s out-of-court statement is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.
 However, any statement of a party opponent offered against the party is non-hearsay.an
admission by a party-opponent is excluded from hearsay.
 To be an admission, the statement need not have been against the declarant’s interest when made,
and may even be in the form of opinion. Personal knowledge is not required.

<Vicarious Admission>
 A statement by an agent or employees of a party offered against the principal or employer is
admissible if (i) it concerns a matter within the scope of the agency or employment; and (ii) it was
made during the existence of the agency or employment relationship.
 A statement of one co-conspirator offered against other co-conspirator is admissible if the
statement was made during and in furtherance of the conspiracy.

<Adoptive Admission>
If a party adopts a statement made by another person, it is as though the party herself made the
statement. Adoption by silence occurs when a party who hears another person’s statement remains
silent under circumstances in which a reasonable person would have denied protest if the statement
were false.

C<Hearsay Exception – Unavailability>

The issue is what is “unavailability” in the context of hearsay exception.

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 Unavailability is recognized by
1. privilege,
2. absence of jurisdiction,
3. illness or death,
4. lack of memory,
5. stubborn refusal to testify

C<Hearsay Exception – Statement Against Declarant’s Interest>

The issue is whether the out-of-court adverse statement is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.
However, a statement is admissible if: (i) the declarant is unavailable; (ii) the declarant knew at the time
it was made that the statement is against the declarant’s pecuniary, proprietary, or penal interest.
[Special requirement in Criminal cases] A statement against penal interest must be supported by
corroborating circumstances that clearly indicate its trustworthiness.

C<Hearsay Exception – Dying Declaration>

The issue is whether an out-of-court statement made immediately prior to death is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible. However, a statement is admissible if:
1. the declarant is unavailable;
2. the statement is made under a belief of certain and impending death, and
3. the statement concerns the cause or circumstances of the declarant’s impending death.
This exception applies
[Limited application]
in civil case: No exception or
in criminal case: ONLY homicide case.

A <Hearsay Exception – Excited Utterance>

The issue is whether the out-of-court statement is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the

18
 matter asserted (“hearsay” evidence) is inadmissible. However, a statement is admissible if:
1. the statement concerns a startling event; and
2. the statement was made while the declarant was still under the stress of the excitement caused
by the event.
Unavailability of the declarant is not required.

A court will consider:

 Nature of the event (dramatic/traumatic accidents or robbery are startling; forgery or breaching of
contract not startling)
 Passage of time

A <Hearsay Exception – Present Sense Impression>

The issue is whether the out-of-court statement is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.
However, a statement is admissible if: (i) the statement describes an event; and (ii) the statement is
made while the event is occurring, or immediately thereafter.

B<Hearsay Exception – Present State of Mind, Declaration of Intent, Physical Condition>

The issue is whether the out-of-court statement is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible. However, a statement is admissible if:
1. it is a contemporaneous statement concerning
2. the declarant’s then existing (a) physical condition or (b) state of mind including future plan.

A <Hearsay Exception – Medical Treatment or Diagnosis>

The issue is whether the out-of-court statement is admissible.

 The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.
 However, a statement is admissible if: (i) the statement is made for the purpose of obtaining
medical treatment or diagnosis; AND (ii) concerning medical history or symptoms (past or present)
(a) present symptoms, (b) past symptoms, or (c) the general cause of the medical condition (not incl.
details of liability or identity of tortfeasorwrongdoer, except identity of domestic or child abuser).

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 This exception also applies to a statement made solely for the purpose of obtaining expert opinion
testimony.

[患者自身の発言じゃなくてもこの例外に該当し得る]
"The statements also need not refer to the declarant's own physical condition, but have often been held
admissible where they related to someone else's symptoms, pains, or sensations, provided that they
were made for purposes of diagnosis or treatment." (Admissibility of statements made for purposes of medical
diagnosis or treatment as hearsay exception under Rule 803(4) of the Uniform Rules of Evidence, 38 A.L.R.5th 433)

A <Hearsay Exception – Business Records>

The issue is whether the statement in the record is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.

However, a hearsay statement is admissible if it was (i) made in the regular course of the business (ii) by
an employee with duty to record who had personal knowledge of the event (iii) at or about the time of
the event (iv) where the business regularly keeps the record. + (v) authenticated

C<Hearsay Exception – Public Records>

The issue is whether the statement in the record is admissible.

The general rule is that an out-of-court statement by a declarant offered to prove the truth of the
matter asserted (“hearsay” evidence) is inadmissible.

The record must have been made (at or near the time of the event) by and within the scope of the duty
of the public employee.
If the opposing party shows that the record was made under the circumstances indicating a lack of
trustworthiness, the record is NOT admissible.

Records of a public office or agency setting forth:

1. the activities of the office or agency (e.g., payroll records); or
2. matters observed pursuant to a duty imposed by law (e.g., Weather Bureau records of
temperature), except police observations in criminal cases; or

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 3. findings of fact or opinion resulting from an investigation authorized by law (e.g.,OSHA inspection
report on safety conditions of factory), in civil actions and against the government in criminal
cases.
are admissible as a hearsay exception.

A <6th AM Right to Confront Witnesses Confrontation Clause>

The issue is whether the prosecution may offer the statement as evidence.

Under the Sixth Amendment of the United States Constitution, a defendant has a right to be
“confronted” with the witness against him. This means that the prosecution may not offer an out-of-
court statement (even if it falls within a hearsay exception) when (1) the statement is testimonial; (2) the
declarant is unavailable to be cross-examined at trial [今回の trial で cross examine できない]; AND (3) D did
not have an opportunity to cross-examine before the trial. [これまで cross examine できていない]
hearsay in violation of the defendant’s right to cross-examine the declarant (even if it falls within a
hearsay exception).

“Testimonial” includes:
1. grand jury testimony,
2. statements in response to police interrogation if the primary purpose of the questioning is to
collect testimony to be used at establish or prove facts potentially relevant to a later criminal
prosecution,
3. affidavits prepared for use at trial, and
4. police reports prepared for prosecutional purposes.
5. forensic laboratory report if the primary purpose is to accuse a targeted individual of criminal
conduct.

“Testimonial” does not includes:

1. statements in response to police interrogation if the primary purpose of the questioning is to
enable police assistance to meet an ongoing emergency,
2. business records,
3. forensic laboratory report if the primary purpose is not to accuse a targeted individual of
criminal conduct.

Dying declaration to a police officer may be admitted though it may be testimonial.

A criminal defendant forfeits his Sixth Amendment right of confrontation by committing a wrongful act
that was intended to keep the witness from testifying at trial.

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