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Evidence Prof. Strickler 2009 UNIT I – RELEVANCE Rules: 401, 402, 403, 104(a), 104(b), 407 - 411 CHAPTER 1 – GENERAL PRINCIPLES of RELEVANCE Rules: 401, 402, 403, 104(a), 104(b) I. Probativeness and Materiality • FRE 401, 402, and 403 are the primary “relevance” rules • 402 establishes the basic principle that evidence that is not relevant is not admissible, while most evidence that is relevant is admissible. • 403 is one of the exceptions to the norm that relevant evidence is admissible (402)  relevant evidence may be excluded if it poses problems that substantially outweigh its probative value. • 401 defines relevance – Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.  So there are really 2 definitions in 401 (See Diagram on p19): o 1. Materiality: Evidence must be material – that is, it must bear on a fact that is of consequence to the determination of the action.  Whether evidence is material turns on what issues are at stake, which usually turns on the substantive law of the jurisdiction; to decide whether an issue is material, look to the substantive law.  Example: Evidence of a victim’s lost earning potential is immaterial (and therefore irrelevant) in a criminal murder trial, but material (and possibly relevant) in a civil wrongful death suit. o 2. Probativeness: Evidence must be probative of a material fact. The evidence must have a tendency to make the existence of that fact more probable or less probable than it would be without the evidence. o Logical relevancy • Relevancy is not an inherent characteristic of any item of evidence but exists as a relation btn an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or disprove any proposition, then it is relevant to that proposition. o An offered item of evidence may be excluded as irrelevant for either of these 2 reasons: (1) bc it is not probative of the proposition at which it is directed; (2) because that proposition is not provable in the case. • Two kinds of evidence: o 1. Direct evidence – if the evidence is believed, then the fact is established; no inference has to be drawn; just have to believe. Example: Eye-witness testimony  Evidence  Fact o 2. Indirect / Circumstantial Evidence – does not directly prove anything but leads to inference that something happened / establishment of fact; requires deductive reasoning.  Evidence  Inference  Fact o Evidence + A premise or generalization about the way things are  Material Fact • 401 and 104(a) doesn’t allow the jury to decide if it is relevant and if it’s not, then they can dismiss it; the judge has to determine whether to admit or reject the evidence.


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US v. JAMES o Question: Should the TJ have allowed court documents, detailing Ogden’s violent past or was it irrelevant for the self-defense claim? – It should have been allowed. o Holding: The records, if admitted, would have corroborated D’s testimony that she had heard Ogden tell her the stories of his violent past. The DCt thought the only function of the evidence would have been to show D’s state of mind and that, since she had not seen the records, the documents proved nothing as to her state of mind. That interpretation was too narrow. Because the crux of D’s defense rested on her credibility and bc her credibility could be directly corroborated through the excluded documentary evidence, exclusion was prejudicial and more probably than not affected the verdict II. Conditional Relevance o FRE 104(b) Relevancy conditioned on fact - When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition • Compare 104(a) with 104(b) o 104(a)  Judge determines o 104(b)  Judge asks if there is sufficient evidence for a reasonable fact-finder to decide that the condition was fulfilled  Burden of proof standard is a mere preponderance of the evidence. o COX v. STATE o Question: Was the admission of the evidence proper? Under 104(b), did the ct make a preliminary determination that there was sufficient evidence to support a finding that the conditional fact (that D knew about what happened at the bond reduction hearing) existed? - Yes. o Rule: Standard for determining if the evidence is sufficient to support a finding of the conditional fact: This court adopts the standard that the judge must determine only that a reasonable juror could make the requisite determination based on the evidence before it. o Analysis: The admissibility of Puckett’s testimony is governed by 104(b). The relevance of Puckett’s testimony depends on a condition of fact – whether D knew about what happened at the bond reduction hearing. Here, the state introduced evidence that D spent almost every day at the Hammer house where Hammer’s mother lived. Hammer and Cox were close friends and Hammer’s mother attended the hearing. This evidence is sufficient to support the inference that Cox had learned what transpired at the hearing. The admission of evidence was proper. o A. The Problem of Conditional Relevance o In Cox and Fitzhugh (Prob 1.7), there is evidence that might be relevant, but only if some other condition is met. In each case, 104(b) tells us that the contested evidence is admissible only upon, or subject to, the introduction of evidence sufficient to support a finding of the conditional fact. The theory behind the rule is that the chain of inferences leading from the contested fact to the conclusion of D’s guilt is severed if the conditional fact is not established. o B. 104(b) v. 401: How do we know when the evidence is conditional?


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It seems that all cases involve conditional relevance and a chain of inferences. Most experts agree that there is no separate problem of conditional relevance

Within any logical chain of inferences, a clever lawyer could spot a missing link. Those lawyers would then argue a conditional relevance objection and force the judge to analyze the problem under 104(b). Where no conditional relevance objection is made, the judge is likely to let in the proffered evidence so long as it surmounts the bare relevance standard of 401.

o 401 Standard – bare relevance: The TJ would ask simply whether the evidence
has any tendency to make the existence of a fact relevant to the outcome more probable or less probable. Example: Whether the outcome of Hammer’s bondreduction hearing had any tendency to make it more probable that Cox had a motive to kill (and therefore did kill) Leonard. The answer would presumably have been yes, as long as there was any non-negligible chance that Cox had heard about the outcome of the hearing.

o 104(b) Standard – conditional relevance: The TJ would only admit the evidence
if the prosecutor introduced sufficient evidence to support a finding that a relevant condition was fulfilled. Example: Evidence of the bond-reduction hearing could come in only if the prosecutor had introduced evidence to support a finding that Cox had heard about the hearing.

What kind of finding is needed? – In HUDDLESTON v. US, the SCt found that 104(b) requires that the proponent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence (lenient).

Therefore, there is little difference in the HUDDLETON standard of conditional relevance for 104(b) and 401’s bare relevance standard.

o C. “Upon, or subject to” in 104(b)
If evidence of the fulfillment of the condition is not already in the record, the judge may permit the evidence to be permitted subject to evidence of the connection being admitted. The prosecution still must introduce evidence that connects the evidence and the outcome/fact; if the prosecution fails to do so, the judge will instruct the jury to disregard the conditional evidence. III. Probativeness v. The Risk of Unfair Prejudice • 403 – virtually every piece of evidence admitted at trial must survive this rule’s Probativeness-versus-risk-of-unfair-prejudice weighing test. Only the narrow class of evidence defined by 609(a)(2) is altogether exempt from 403 scrutiny. Must first be admissible under 401 to undergo 403 o Although Relevant…: 403 permits exclusion of otherwise relevant evidence. o Evidence may be excluded…: may; decisions whether to exclude evidence under 403 are committed to the TJ’s discretion and are reviewable on appeal only for abuse of discretion. o If probative value is substantially outweighed by…: 403 is a liberal evidence rule in that it is friendly toward admission of evidence. Even if the evils of o


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evidence actually outweigh probative value, though only slightly, the rule still grants no permission to exclude; the evils must substantially outweigh the probative value. o The danger of unfair prejudice…: Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing the probative value, which permits exclusion of relevant matter under 403. o The danger of confusion of the issues, or misleading the jury o Or by considerations of (1) undue delay, (2) waste of time, or (3) needless presentation of cumulative evidence • A. Photos and Other Inflammatory Evidence o STATE v. BOCHARSKI  Question: Under 403, did the prejudice of the gruesome photos outweigh their probative value? – Yes, but they did not affect the outcome of the trial.  Rule: Standard for admissibility of photographic evidence: Relevant photographs may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense. However, if a photo is of a nature to incite passion or inflame the jury, the ct must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value. A TCt’s decision in this regard will generally not be disturbed unless we find a clear abuse of discretion.  Holding: Here, the photos introduced by the state went to largely uncontested issues; D did not challenge the fact of the victim’s death, the extent of her injuries, or the manner of her demise. The issue is over two of the photos, which were admitted for the purpose of showing the angles of the wounds; however, there was no testimony at trial rendering the photos particularly meaningful. The pictures had little tendency to establish any disputed issue in the case; accordingly, the photos were introduced primarily to inflame the jury. Judges have an obligation to weigh the prejudice against the probative value; but here, he did it wrong. However, their admission did not prejudice the jury. o COMMONWEALTH v. SERGE  Brief Fact Summary: Defendant appeals his conviction for murder after the prosecution introduced a computergenerated animation short based on the prosecution's theory of the case.  Rule of Law and Holding: "It should be noted that conspicuously absent among the factors to be considered in determining the relevancy and prejudice of evidence is the potency of the evidence. Thus, although the use of illustrative demonstrative evidence by an expert, such as a CGA, may help explain his or her opinion and make the testimony more persuasive than it otherwise might have been, it is not proper grounds for excluding this relevant evidence.



The belief that it was “unsafe” was a judgment call and based on the knowledge at the time. • See CHARTS (81-83) • FRE 407. in other cases had arisen. Tuer’s death in no way • 5 . although not barred by 407. and feasibility. in their view. the evidence it governs fails a 403 weighing test. With respect to the reasons cited to the feasibility issue. implicating that when anyone takes measures. and that. Intro FRE 407-411 reflects the rule-writers’ judgment that.Downloaded From OutlineDepot. • Strict Liability: A 1997 amendment to 407 made it clear that the rule applies in strict liability (defective product) lawsuits. However. he and the hospital believed was not worth taking. • “If Controverted”: The qualifier. It was feasible but. The fact that the protocol was changed following Mr. 409. Tuer’s apparently stable condition at the time and then intensive monitoring he would receive during the waiting period. • TUER v. not advisable. control. 410 is a distinct outlier. and 411 all prohibit only certain uses of the evidence they govern. II. Feasibility: The issue about feasibility that arose here was when D offers some other explanation for not putting the measure into effect sooner – often a judgment call as to comparative value or a trade-off btn cost and benefit or btn competing benefits – and P characterizes that explanation as putting feasibility into issue. some cts disagree bc the language of 407 states. the change in protocol was inadmissible to impeach D’s brief statement that restarting Heparin would have been unsafe. the measure was not believed to be as practical as the one employed. “When…measures are taken…”. as a matter of law. while permitting all other uses. at the time. as it bars evidence of aborted pleas of guilty or no contest for all purposes and specifies only 2 narrow windows of admissibility. SRM evidence has been held inadmissible to impeach testimony that. That does not constitute an assertion that a restarting of the Heparin was not feasible.” should be construed to apply to ownership. there was a relative safety risk that. Subsequent Remedial Measures • FRE 407 • Third Party Reparis o Most courts admit evidence of subsequent remedies carried out by someone other than D bc the public policy of the rule provides no grounds for excluding evidence of third-party repairs. D was not asserting in any absolute sense that restarting the Heparin would have been unsafe but only that. Some cts have found that evidence of third-party repairs. o II. has too little probative force to get past 403. weighed against Mr. 408. “if controverted. or that D was using due care at the time of the Rules: 407-411 I. MCDONALD o I. given the complications that could have arisen. from an inadvertent puncture of the carotid artery. Here. Impeachment: Whether the evidence is allowed for impeachment seems to depend more on the nature of the contradiction than on the fact of it. Consistent with the feasibility approach. at the time of the event. The statement must be read in context. o How can another party’s later repair be relevant to D’s negligence?  The probative value of most subsequent remedies is that they amount to an admission by D that its previous conduct was unsafe.

III. o May evidence of statements be used to impeach?  With 410. • 409 bars evidence of a person’s statements to pay the other’s medical bills. 410 addresses compromises in criminal cases. • BANKCARD AMERICA v. is also barred by the rule. But remember that such settlements may be admissible to show a witness’s bias. Liability Insurance • FRE 411 • Two rationales 6 . then it will frustrate the purpose of the rule. D’s testimony was admitted to show his state of mind and to explain why D converted accounts (ie: breached).Downloaded From OutlineDepot. 408 does not say whether statements made during compromise negotiations may be used to impeach a witness who later makes contradictory statements in courts: • For impeachment – The language of the Rule: A strict reading of 408 suggests that there is no bar against statements made during compromise negotiations if used to impeach later contradictory statements. The purpose of 408 is to encourage settlements. UNIVERSAL BANCARD SYSTEMS o Holding: 408 forbids the admission of statements made during settlement negotiations to prove liability or the lack of liability. the rule requires that the claim be disputed as to either validity or amount. o 408 does not protect offers to compromise made before a “claim” of some sort has been made o The policy considerations which underlie 408 do not come into play when the effort is to induce a creditor to settle an admittedly due amount for a lesser sum. Hence. • Against impeachment – The Rationale of the Rule: 408 is meant to encourage settlements. The rule does not require exclusion when the evidence is offered for another purpose. etc. for example. such as proving the bias or prejudice of a witness. but will not bar evidence of anything else including careless blubbers such as apologies. It would be an abuse of 408 to let P lull D into breaching the K and then prevent D from explaining its actions bc the lulling took place around the settlement table. • Compromises with Third Parties: Neither 408 nor 409 limits its exclusionary reach to compromises or payments btn the 2 parties in this suit. Congress specifically rejected the use of statements made during negotiations to impeach D if she later testifies at trial in a criminal case. o 408 only applies in civil cases. if offered to prove liability for or invalidity of the claim. Evidence that one of the parties in the suit settled with a 3rd party. If inadvertent statements made during negotiations can be later used against you in trial. suggests that D did not honestly believe that his judgment call was appropriate at the time. Settlements will not be encouraged if one party may seduce a party into violating a K during settlement and then accuse the other party of violating the K. a witness may be biased in favor of a party that it settled with or vice versa. without the other party having the opportunity to rebut that at trial. Compromise Offers and Payment of Medical Expenses • FRE 408 and 409 • 408 excludes evidence of conduct or statements made during compromise negotiations.

804. Having insurance doesn’t have any probative value that you were negligent o 2. 804. then A’s statement would be hearsay. according to 410. in response to this offer. “Watch out for o 1. In that case. but it does not necessarily follow that P is entitled to a similar shield. Plea negotiations are inadmissible against D. it rejected immunity bc D did not come forward with incriminating evidence about the other Ds. as he claimed throughout the trial.” If this statement was offered to prove that Joey really was looking for him and really did have a gun. To decide whether any particular out-of-court statement is hearsay. and that D. Example: B offered evidence that A told him. Is the litigant offering the statement to prove (the truth of) what is says?  Non-Hearsay Uses of Out-of-Court Statements: • When deciding whether evidence of an out-of-court statement is or is not hearsay. 805 807. thereby “rejecting” immunity. BIAGGI o Facts: D sought to prove that P had offered him immunity if he would give what P regarded as truthful information regarding wrongdoing by other Ds and various public officials. based on his denial of knowledge of wrongdoing. does not depend on the soundness of A’s testimonial capacities. focus on what the statement is offered to prove and how the statement proves that fact. 802. was not credible. The probative force of a rejected immunity offer is clearly strong enough to render it relevant under 401. He’s looking for you. Defining Hearsay • 801(a)-(c). B is not offering A’s statement to prove the truth of what is asserts. • Hearsay is an out-of-court statement offered by a litigant to prove what the statement asserts. 802 • The Hearsay rule is about the reliability of the evidence the jury hears. 802. On the other hand. when offered to prove B’s reasonable fear of Joey.Yes o Holding: Even on P’s view or the matter. we must ask: o 1.Downloaded From OutlineDepot. Pleas in Criminal Cases • FRE 410  Unlike the other specialized relevance rules. 807 104 CHAPTER 7 – HEARSAY Rules: 801. Was evidence of the offer admissible? . 803. the testimony would not be hearsay if offered to prove that he had reason to fear Joey at the time of the attack. 803. and he has a gun. denied knowledge of any such wrongdoing. The available inference is that he really lacked such knowledge. the evidence that 410 addresses is always barred except where specifically permitted. • The critical question is whether the litigant is offering evidence of the out-of-court statement to prove what the out-of-court speaker 7 . The evidentiary significance of A’s words. The inference is the same whether the immunity offer is viewed as “rejected” by D’s inability to satisfy P’s condition or “rejected” by P’s assessment that its condition was not satisfied. P does not dispute that it made the offer but contended that P had rejected immunity for D after reaching the conclusion that the testimony he would give. Danger of unfair prejudice V. 805. 104 I. • UNITED STATES v. UNIT II – RELIABILITY Rules: 801.

” • Where evidence of non-verbal conduct is relevant only as supporting inferences from the conduct to the belief of the actor and thence to the truth of his belief. Your friend’s statement contains the implied assertion that the dog needs a bath.” you would naturally conclude Laura’s dog was dirty. That is what your friend intended to communicate. bc people do not usually lie to themselves. This is so when conduct (often a gesture) is the equivalent to a verbal assertion. The Advisory Committee Note to 801(a) states. • A key difference between assertive conduct and non-assertive conduct is the out-of-court actor’s sincerity. “Could this conduct be a lie?” If a person acts without an audience. “there is a stopsign ahead. An example is when a person rubs his thumb and fingers together to mean money. And that communicative intent is the essence of an assertion. between express and implied assertions. Commands also have assertive intent. in the hearsay context. • Most oral and written expressions are manifestly assertive. When trying to determine whether certain conduct is an assertion. then the answer must be no.”  Nonassertive Words • This usually only encompasses involuntary expressions. “nothing is an assertion unless intended to be one. the speaker asserts.  Implied Assertions • If a fried said. because a man does not lie to himself. Is it an assertion?  Conduct as an assertion • Non-assertive conduct cannot constitution hearsay. “What is your name?”.” Questions may be assertive. then the person could not have been lying. “Don’t run that stopsign.Downloaded From OutlineDepot. There is no reason to distinguish sharply. If a person does not intend to assert anything (or there is no audience). • Note that the distinction btn an assertion and a nonassertion often will depend on context.  Indirect Assertions 8 . the speaker asserts. inadmissible unless accommodated within one of the exceptions to the rule. such as saying “ouch” when you hit your knee.”  Words may be offered to prove something other than what they assert. Example: by saying. 2. “I don’t know your name. Example: by saying. “Laura ought to give that dog a bath. prevailing doctrine stigmatizes the evidence as hearsay. ask yourself. • One has to intend his actions to communication something. 801 is our unwillingness to rely on the outof-court declarant’s sincerity.”. Some conduct is clearly assertive. But a person who intends to assert something (or has an audience) could be lying to o was asserting (hearsay use) or merely to prove that the statement was made and heard (non-hearsay use). • The Advisory Committee’s Note to 801(a) says that close cases should “be resolved in favor of admissibility.

801(d)(1) and 801(d)(2). Exemptions from the definition of hearsay for certain out-of-court statements offered for the truth of what they assert. was financially stressed and therefore had a motive to rob the bank. in 3 categories: o 1. and that it is relevant in the current trial.  These types of hearsay statements are thought to be particularly free from the risk that the maker of the statement intended to lie. III. o Additionally. Statements Exempted from the Federal Rules Definition of Hearsay (# 3 above) • A. o Unless the answer to both questions is yes. Statements of this kind are usually Example: The out-of-court statement “Alice is starting chemotherapy. Hearsay exceptions that apply without regard to whether the declarant is available as a witness. These types of statements are usually admissible only if the proponent shows that the declarant is unavailable. The statement therefore is being offered to prove what it asserts – and is hearsay. However. which in turn leads to the ultimate fact (that he had a motive to rob). the statement is not hearsay. the immediate fact (that Alice was starting chemo) is a necessary link in the chain of inferences leading to the intermediate fact (that her son was financially stressed). accordingly. Since the statement is being offered to prove something other than what it asserts.Downloaded From OutlineDepot. Admissions o 801(d)(2) o An admission is anything a party has ever communicated sought to be introduced by the opposing party at trial o The proponent of an out-of-court statement who seeks to take advantage of the admission rationale is only required to show that the statement was once made by the opposing party. whether or not the declarant is available to testify. This class of statements includes admissions. II. a residual or “catch-all” exception allows admission of statements that are outside the coverage of the enumerated exceptions by that seem similarly trustworthy. • 9 .” would be hearsay if offered to prove the nature of Alice’s treatment. o 3. Exceptions to the Hearsay Rule • Note: 805 covers hearsay within hearsay • The Fed Rules exceptions to the hearsay exclusion are organized. o 2.  These are out-of-ct statements offered to prove the truth of what they assert that universally is allowed into evidence despite the hearsay rule. who supported his mother. the prosecutor would argue. Hearsay exceptions that apply only if the declarant is unavailable as a witness. it is not hearsay. and  These types of hearsay are thought to be particularly necessary in special circumstances. The prosecutor might get around the rule by saying that the statement is being offered to prove that Alice’s son. even without a belief that the statement is likely to have been truthful when made or that the statement is particularly necessary to a party’s case. and certain statements made out of court by a person who appears in court as a witness. which are any statement ever made by a party in the current case if introduced against that party.

silence during a custodial interrogation cannot be treated as an admission of guilt. then. a statement that harms the speaker’s interests is more likely to be truthful than is ordinarily hearsay. INC. he could have responded. Cross-examination. Thus a party’s books or records are usable against him. the theory is that the person would. promises.Downloaded From OutlineDepot. 801(d)(2)(D) adopts o 10 . people rarely lie in ways that hurt themselves. though. Although people often lie to advance their interests. (See Example on p96 in Examples and Explanations) • MAHLANDT v.  2. A lawyer is the most common example. It seems fair to many that people ought to be forced to live up to their own claims. usually it is bc those words incriminate the D. When a prosecutor offers a D’s own words against her. As a general matter. and statements. o Five types of statements are defined as admissions by 801(d)(2):  (A) A party’s own words. o Holding: The notes of the Advisory Committee on the Rules discuss the problem of “in house” admissions with referent to 801(d)(2)(C) situations. (See Examples on p95 in Examples and Explanations) • Advisory Committee Notes (208): When silence is relied upon. if untrue. protest the statement made in his presence. without regard to any intent to disclose to third persons. (See Example on p95 in Examples and Explanations)  (B) Adoptive admissions – a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. Our inability to cross-examine hearsay declarants is a principal justification for the hearsay rule. It would seem odd.  3. the circumstances naturally call for a response. Silence can be treated as an admission if most people would have spoken to contradict something like a statement just made to the party. This is not a (C) situation bc Poos was not authorized or directed to make a statement on the matter by anyone.  (C) The statements of a person authorized to speak on behalf of someone who becomes a party to a lawsuit are admissible as admissions when offered against the party. he failed to respond rather than responding in a natural way • According to the Supreme Courts’ interpretation of the Due Process Clause and 5th Am. for a party to complain that she can’t cross-examine the declarant when she is the declarant. Requirements: The party against which the statement is offered would have had to heard the statement.  (D) A statement is an admission usable against a party if it is made by a party’s agent or employee concerning something within the scope of agency or employment during the time of the agency or Primary Rationales:  1. under the circumstances. WILD CANDID SURVIVAL & RESEARCH CENTER. Communication to an outsider has not generally been thought to be an essential characteristic of an admission. relevant at the time of trial to an issue in the trial.

UNITED STATES o Holdings of this case: o 1.such as whether a conspiracy in fact existed at the time the out-of-court statement was made and whether any such conspiracy included the declarant and the D – are to be decided by the TJ under 104(a). o 3. o 2. but are important to a witness’s testimony:  613 governs the impeachment of witnesses with past inconsistent statements • Past inconsistent statements. (See Example on p96 of Ex and Explanations). B. • BOURJAILY v. but merely to show that the witness says different things at different times and therefore should not be believed. and the making of the statement while the relationship continues. o 4. The ct reserved the question whether the contested hearsay statement could be admitted if the statement is the only evidence of such preliminary facts. as a general proposition. when offered to impeach.  (E) A coconspirator’s statements are considered admissions when offered against another coconspirator so long as the statements were made during and in furtherance of their conspiracy. Now the last two issues of the case are encompassed in the last sentence of 801(d)(2).com • the approach which. The contested hearsay statement itself could be evidence of the existence of the conspiracy and other preliminary facts. Prior Statements by a Witness and Past Testimony o 801(d)(1) o Inconsistent Statements offered to Impeach  There are 2 rules that do not concern hearsay at all. are established. • The problem does not arise when a witness’s past inconsistent statement is admitted under 801(d)(1)(A). o Note that this case was decided before the FRE were enacted. Once agency. The party against whom such statements are offered may ask the judge for a limiting instruction to the effect. Note that a litigant must satisfy far more stringent conditions to admit a past inconsistent statement for its truth under 801(d)(1)(A) than to use it merely to impeach under 613 11 . The Ct declared that the TJ should resolve such questions by a preponderance of the evidence. Note that 104(a) is also important to this rule. are not offered for the truth of what they assert. and the jury may consider them for their truth. Such statements come in substantively. makes statements made by agents within the scope of their employment admissible. the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.Downloaded From OutlineDepot. The preliminary questions posed by the coconspirator exception to the hearsay rule .

com 612 doesn’t concern hearsay. and (2) that the witness made the prior statement before the time of the alleged fabrication or before the time that he or she was subject to the alleged motive to lie. (Legislative History)  (B) prior consistent statements • A prior consistent statement is any statement by a witness made out of court before the witness’s testimony that reinforces or supports the testimony. the composite which is prepared from the statements similarly ought to be admissible either bc the composite retains the character of the statements that led to its creation or bc the composite is not a statement within the meaning of the hearsay rule. (2) before the witness testifies. However. [Note that the court does not answer whether the composite sketch was a “statement” as defined by 801(a)] • US v.Downloaded From OutlineDepot. the SCt has interpreted it to include that requirement in TOME v. OWENS  12 . o Although 801(d)(1)(B) does not explicitly state that the prior consistent statement must have been made before the witness had a motive to falsify his or her testimony. a prior consistent statement does not have to have been made under oath in a proceeding as is required for substantive use of a prior inconsistent statement.  See Chart (386 of Casebook) o There are 3 types of out-of-court statements by a witness that may fall outside the definition of hearsay (See Chart on 99 of Examples and Explanations). evidence that a prior consistent statement was made is permitted to be introduced only if the proponent shows: (1) that the witness’s testimony has been attacked as recently fabricated or influenced by a motive to lie. US. This type of statement may be introduced for the truth of what it asserts. that (3) conflicts with something the witness says in testimony. This rule deals with the mechanics of refreshing a witness’s memory. and (4) was made under oath at a proceeding. WEICHELL o Holding: Since the statements of the witness that led to the creation of the composite drawing of the suspect are admissible. • See Example on p99 of Examples and Explanations  (C) statements identifying a person • See Example on p100 of Examples and Explanations • COMMONWEALTH v. • Under the Fed Rules. Thus a statement made after the speaker had a motive to testify falsely but before the witness testified in court would not be eligible for the non-hearsay treatment of 801(d)(1)(B). 801(d) (1):  (A) prior inconsistent statements • A prior inconsistent statement is any statement by a witness: (1) made out of ct. • The Rule as adopted covers statements made under a grand jury.

Emotional. • A. Statements of Current Mental.  For any of them to qualify for exclusion from the hearsay definition.  Thus. 803(2) – must only “relate” to the event that was startling. o 802 is not violated by admission of an identification statement of a witness who is unable.Downloaded From OutlineDepot. o Most survey research is intended to develop information about what people think.23 Specific categories of hearsay are admissible under the Fed Rules whether or not the declarant is available. the declarant thought he had seen Bill on the previous day. a statement about a past act will be hearsay if offered to prove that the past act occurred. proof that a declarant said. It would be admissible to show that at the time the declarant said it.” would be inadmissible if offered to prove that the declarant did see Bill on the day before he spoke. Excited Utterances o 803(2) o If a statement about a stress-inducing event is made in response to someone’s question. some cts may rule that it was not the product of the speaker’s stress.  Some courts have permitted this only when there is other evidence to back it up. bc of a memory loss. o The mental state exception permits the introduction of testimony that a declarant stated a plan to meet another person to show that the other person went to the location where the declarant said they would meet. Thus. proof that respondents articulated particular beliefs is admissible under the mental state exception. Statements Defined as Hearsay but Admissible without Regard to Declarant’s Availability • 803 . In contrast.  803(1) – can be made during/immediately after. not whether what they think is an accurate reflection of reality. v. there must be a showing that the declarant is “available for cross-examination” concerning the declarant’s out-of-court statement. o Present Sense Impression and Excited Utterance Compared  803(1) – must “describe” something. “I saw Billy yesterday. • C. to testify concerning the basis for the identification. Additionally. Present Sense Impressions o 803(1) • B. and to show that he went from Wichita to Crooked Creek with Hillmon. 803(2) – must be made while declarant is under the stress/excitement. and whether the declarant carried out the plan. or Physical Condition o 803(3) o The mental state exception allows proof of a person’s statement of fact to show that the person believed the fact to be true but prohibits the use of a person’s statements of feeling to prove that a remembered fact is true. Letters from him to his family and his wife were the 13 . o MUTUAL LIFE INSURANCE CO. there is a “catch-all” provision. o A statement of a person’s plan or intention is considered an expression of thenexisting mental state. HILLMON  Holding: Evidence that just before March 5 Walters had the intention of leaving Wichita with Hillmon would tend to corroborate the evidence already admitted. It will be admitted as relevant on 2 issues: whether the declarant had that plan.

There would be an end. The evidence should have been admitted. is it reasonable for the physician to rely on the info in diagnosis/treatment. • Note that most authorities discredit this holding now because they find that Hillmon and Walters would have had to have made plans to go away together before he wrote the letters. than if there had been no proof of such intention. and more than that. not as narratives of facts communicated to the writer by others. The key question is whether theses statement were reasonably pertinent to diagnosis/treatment. E. All of her statements were within the scope of the rule bc they were related to her physical condition and were consistent with a motive to promote treatment. shortly before the time when other evidence tended to show that he went away.Downloaded From OutlineDepot. but as evidence that. or nearly that.” Lucy’s statements fall primarily into the 3rd category. The rationale behind the rule has often been stated. to the rule against hearsay if the distinction were ignored. and second. evidence of his intention. UNITED STATES  Holding: (Discussing the statement “Dr Shepard has poisoned me. as his own testimony that he then had that intention would be. evidence that he expressed that intention at that time is as direct evidence of the fact.”)Declarations of intention. The existence of a particular intention in a certain person at a certain time being a material fact to be proved. o SHEPARD v. and it does not require statements to be made to a doctor. (2) past or present sensations. pointing backwards to the past. nor yet as proof that he actually went away from Wichita. if not the only attainable. Also. The testimony now questioned faced backward and not forward. What is even more important. so it wasn’t intention since they had already met and agreed to it. Statements for Medical Diagnosis or Treatment o 803(4) o This exception does not require that the statements be made by the person who needs medical help. This at least it did in its most obvious implications. 2 independent rationales support the rule and are helpful in its application. casting light upon the future. D. It focuses upon the patient and relies upon the patients’ strong motive to tell the truth bc diagnosis or treatment will depend in part upon what the patient says. is the declarant’s motive consistent with the purpose of the rule. have been sharply distinguished from declarations of memory. he had the intention of going. o UNITED STATES v. Thus. to an act by someone not the speaker. which made it more probable that he did. there is nothing in the content of the statements to suggest that Lucy was responding to the doctor’s questions for any reason other than promoting treatment. and (3) inception or general cause of the disease or injury. A 2 part test flows naturally from this dual rationale: first. IRON SHELL  Holding: 803(4) admits 3 types of statements: (1) medical history. The letters in question were • • natural. it spoke to a past act. All three types are admissible where they are “reasonably pertinent to diagnosis or treatment. We find no facts in the record to indicate that Lucy’s motive in making these statements was other than as a patient seeking treatment. Past Recollection Recorded 14 .

However. STATE  Requirements for Past recollection recorded in 803(5): 803(5) requires that 4 elements be met: • (1) the witness must have had firsthand knowledge of the event.Downloaded From OutlineDepot. o If you can’t get the person to remember. If showing a witness a document revives the witness’s memory.  The party against whom the “refreshed memory” witness has testified is entitled to introduce the doc the witness used. o Past Recollection Recorded vs. then the witness will not be able to testify about that subject.  The record will be read to the jury. then 612 has to be used. • (2) the written statement must be a memorandum made at or near the time of the event while the witness had a clear and accurate memory of it. o It is imperative that the proponent try to refresh the memory first before admitting the statement into evidence. they just don’t remember what it says. In 803(5) the declarant has to take the stand. F. • (3) the witness must lack a present recollection of the event. A party questioning the witness is permitted to try to stimulate the witness’s memory in a wide variety of ways. o The proponent of the document (or other type of record) must show that the witness once had knowledge about the subject. it is even sufficient if the individual testifies to recognizing her signature on the statement and believes the statement is correct bc she would not have signed it if she had not believed it true at the time.” and that the witness made the record (or adopted a record) when the witness had a fresh memory of the info. If a writing is used to refresh the memory. • In particular. there si no hearsay issue bc the document (which is a written out-of-court statement) is not introduced into evidence. the witness may testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time. An assertion of the statement’s accuracy in the acknowledgement line of a written memorandum or such an acknowledgment made previously under oath will not be sufficient. Business Records • 15 . otherwise his memory cannot be refreshed. subject to 612 safeguards. you may can get the writing in by itself if the person says that they remember saying it or writing it down and it was o 803(5) and 612 o The person first has to demonstrate a loss of memory or bad recollection. If showing the witness the statement doesn’t enable the witness to say truthfully that his or her memory about some relevant subject has been refreshed. At the extreme. that the witness does not have adequate recollection of the subject to testify “fully and accurately. and • (4) the witness must vouch for the accuracy of the written memorandum. the witness must acknowledge at trial the accuracy of the statement. to meet the fourth element. o JOHNSON v. Past Recollection Refreshed  Past Recollection Refreshed has no connection with hearsay. but it will not be treated as an exhibit.

We thus conclude that the sender o 803(6). accounts payable. matters observed and reported under legal duty by public employees other than police and law enforcement personnel. VIGNEAU  Holding: 803(6) does not embrace statements contained within a business record that were made by one who is not a part of the business if the embraced statements are offered for their truth. you don’t need the business record exception for documents of a party (if offered against him) because that would come in as an admission. these reports are calculated for use essentially in the court. 803(7) o To qualify a doc for treatment under 803(6).  The rule’s categories are reports about: the activities of the govt entity. A record may still be hearsay if the circumstances of its preparation indicate a lack of trustworthiness or if the source of the info similarly seems unreliable.  In criminal trials. where there is evidence that the business itself used a procedure for verifying identity. o Business records often involve multiple hearsay or hearsay within hearsay and have to satisfy 805 o Lack of an entry in a business record is admissible evidence. bills of lading and the like. and factual findings resulting from legally authorized investigations. 803(7) o Usually. o 803(8) deals with public records and reports.  Like in business records. o PALMER v. accounts receivable. HOFFMAN  Holding: An accident report is not typical of entries made systematically in business. may introduce findings from official investigations. Their primary utility is in litigating. 803(10). the proponent must show that it was made as part of the usual activities of the org. but not the prosecution. of something’s nonoccurrence or nonexistence if its occurrence or existence would normally have been recorded. Unlike payrolls. and that the record was made near the time of the occurence of what it describes. the reports are not for the systematic conduct of the enterprise as a railroad business. The probability of trustworthiness of records because they were routine reflections of the day to day operations of a business would be forgotten as the basis of the rule. not in railroading o UNITED STATES v. if relevant. not in the business. the D. G. Public Records and Reports o 803(8). address and phone number on the forms should not have been admitted for their truth (since there was no other verification). and according to which party seeks to introduce them. like the sender’s name on the WU form. • 16 . Some cases have admitted under the business records exception “outsider” statements contained in business records. In short. that a person with knowledge of what the records says made the record or reported the info to the person who made the record. matters observed an reported under legal duty by police and law enforcement personnel. A witness must testify about how the record meets these requirements.Downloaded From OutlineDepot. 803(10) covers proof that a govt report does not say something. It describes 3 types of reports and varies the power of the hearsay exception according to whether they are sought to be introduced in a civil or criminal case.

Statements Defined as Hearsay but Admissible if the Declarant is “Unavailable” • A. OATS o Holding: The exclusionary provision of 803(8)(B) was only intended to apply to observations made by law enforcement officials at the scene of a crime or in investigating a crime. and there was no loss of confrontation rights. HAYES o Facts: An IRS tax examiner was the custodian of the records and she testified that they were kept in the ordinary and regular course of business. therefore. it should be admissible along with other portions of the report. Vest testified and was cross examined at some length. The question is whether it should have been excluded under the rationale of UNITED STATES v. OATES o Facts: A chemist made a report in a drug case. he rightly allowed them to be admitted into evidence. o We thus think it manifest that it was the clear intention of Congress to make law enforcement reports absolutely inadmissible against Ds in criminal case. The TCT admitted the computer data evidence under 803(6). Other Exceptions o 803(9). As the trial judge in this action determined that certain of the JAG Report’s conclusions were trustworthy.803(23)  these are mostly specific instances of Business Reports or Public Records IV. Rule 803(6)? Should courts admit the report against criminal Ds under that rule? • UNITED STATES v.Downloaded From OutlineDepot. that portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely bc they state a conclusion or opinion. o Our conclusion that the chemist’s report and worksheet do not satisfy the standards of 803(8) components perfectly with what we discern to be clear legislative intent not only to exclude such documents from the scope of 803(8) but from the scope of 803(6) as well. • H. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement. 803(8)(C) does not compel the exclusion of documents properly admitted under 803(6) where the authoring officer or investigator testifies. the underlying rationale for 803(8) and the basis of the court’s concern in OATES. They show that D failed to file a return for the 1981 tax See Chart 14 (p117)  But what if the report in question satisfies the criteria of the business records exception. Here. • UNITED STATES v. Former Testimony o 804(a) and 804(b)(1)  17 . RAINEY  Holding: We hold. o BEECH AIRCRAFT CORP v. This is because such testimony protects against the loss of an accused’s confrontation rights. and not to reports of routine matters made in nonadversarial settings.

Dying Declarations o 804(b)(2) o Notice that the declarant doesn’t actually have to had died. For civil cases there is an additional liberalization: The requirement of opportunity and motive to cross-examine can be satisfied by the presence in the earlier proceeding of a predecessor in interest to the party against whom the testimony is offered in the current trial. but still has to be unavailable. There must be “a settled hopeless expectation” that death is near at hand. The nature of the 2 proceedings – both what is at stake and the applicable burden of proof – and. testimony at an earlier proceeding or deposition is admissible to prove the truth of what its statements assert if the party against whom the testimony is offered had an opportunity to cross-examine the declarant. The record furnishes no proof of that indispensable condition. was therefore properly excluded. Nothing in the condition of the patient on May 22 gives fair support to the conclusion that hope had then been lost. to a lesser extent.Downloaded From OutlineDepot. The conversation with the nurse occurred 2 days later. UNITED STATES  Holding: To make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death. o SHEPARD v. It is also admissible if that party’s motive to cross-examine at the earlier proceeding was similar to the motive the party would have if the witness testified at the current trial. Under these circumstances. In civil and crim cases. There was as yet no thought by any of her physicians that she was dangerously ill. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. it can be shown beyond reasonable dispute that the prosecutor had no interest at the grand jury in proving the falsity of the witnesses’ assertion that the “Club” did not exist (see why on p 427). was accorded an adequate opportunity for such examination. and the retina suffused with blood. a predecessor in interest to the present party. Therefore. offered by Ds. and her speech was rational and orderly. in assessing similarity of motive under 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. the pupils of her eyes dilated. Here. At that time her mind had cleared • Any deposition that you take can end up being something used in trial. the testimony may be received against the present party. in pain. The declarant’s illness began on May 20. AMERICAN EXPORT LINES  Holding: If it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have. delirious. B. the cross-examination at the prior proceeding – both what was undertaken and what was available but forgone – will be relevant though not conclusive on the ultimate issue of similarity of motive. therefore. and o o 18 . She was found in a state of collapse. o UNITED STATES v. DINAPOLI  Holding: The proper approach. in the final analysis. the “similar motive” requirement of 804(b)(1) was not met and the witnesses’ grand jury testimony. the previous party having like motive to develop the testimony about the same material facts is. o LLOYD v.

agents.  WILLIAMSON v. Even so. That limitation has no application to statements introduced by the prosecution in a criminal case or by any party in a civil case. Statement by Person Rendered Unavailable: Forfeiture by Wrongdoing o 804(b)(6) o A party forfeits the right to exclude a hearsay statement if the party was involved in an act that wrongfully kept the declarant from being a witness at trial. 804(b)(3) provides that the statement may be admitted only if corroborating circumstances clearly indicate that the statement is trustworthy. By its terms 806 extends to statements of spokespersons. Statements Against Interest o 804(b)(3) o Affected interest must be monetary or proprietary rights and freedom from criminal liability. And it applies to hearsay admitted under 803 or 804. o 250 (note by the Advisory Committee) o It is important to relate this exception to the last sentence of 804(a). to attack. and coconspirators under 801(d)(2)(C). a judge must consider what a statement would typically mean to a “reasonable” person. The rule permits litigants to attack a hearsay declarant’s credibility by any of the techniques available against live witnesses. it had the potential to harm an important interest of the declarant. UNITED STATES • Holding: Non-self-inculpatory portions of a declarant’s what is said must have been spoken in the hush of its impending presence. Difference?  804(a): Employer takes deposition of own employee and then transfers him oversees and that he will be fired if he voluntarily returns to testify. o When a statement against penal interest is offered to exculpate an accused. property. o The declarant need not be a party nor does it matter in whose favor the statement is sought to be introduced. Only when a party’s own statement or adoption comes in against her under 801(d)(2)(A) or (B) and when a live witness’s past words are admitted under 801(d)(1) is there no provision for an attack on the declarant’s credibility. Residual Exception • 807 19 . like party admissions and the declarant in SHEPARD.Downloaded From OutlineDepot. even if combined with self-inculpatory portions. V. cannot be admitted under the statements against interest rationale • D. or (E). don’t include social rights. (D). The proponent must show that the declarant is unavailable and must show also that when the declarant made the statement. o 806 opens the credibility of declarants and live witnesses. and not left to conjecture. o In applying this exception. • C. and then tries to use 804(b)(1). The patient must have spoken with the consciousness of a swift and certain doom. What is decisive is the state of mind. Can’t do this because of 804(a)  804(b)(6): ? Employee is threatened into refusing to testify o Burden of Proof: the party seeking to use the out of court statement has to prove by a preponderance of the evidence that the other party has done the wrongdoing. or criminal liability interests. in terms of having an effect on that person’s monetary. the state of mind must be exhibited in the evidence.

but should be evaluated under the residual hearsay exception. that exception should be relied on instead of the residual exception. The danger of giving too much weight to evidence of character is especially great bc litigants sometimes seek to prove a person’s character with evidence of specific acts of the person. The Character-Propensity Rule • PEOPLE v.Downloaded From OutlineDepot. there is nothing to mark the D as a man of evil • • • The residual exception may be invoked regardless of the availability or unavailability of the declarant. If a statement is admissible under one of the traditional hearsay exceptions. 608. LASTER o Holding: The DCt did not err in admitting the purchase orders and other related docs under 807 as there was no indication that the records were not reliable. and 609 I. or the jury might punish that person for having done the specific act (which the other side wants to use to prove bad character) on the theory that his offense deserves punishment even if he is not guilty of the crime charged. This rule finds an equally trustworthy statement not specifically covered by 803 or 804 admissible if it is material. Chapter 3 – Character Evidence Rules: 403. 20 . • A.  Problem = this evidence can cause unfair prejudice. and its admission best serves the interests of justice. 607. The jury may take proof of character as justifying condemnation irrespective of guilt of the present charge. The risk that the jury will give excessive weight to the vicious record of crime thus exhibited. more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. • 2. 404.  In ZACKOWITZ. The judgment of conviction should be reversed. the analysis of a hearsay statement should not end when a statement fails to qualify under a traditional hearsay exception. DALLAS COUNTY CASE UNITED STATES v. The Propensity Box o Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time. and allow it to bear too strongly on the present charge. apart from the suspicion attaching to the possession of these weapons. the jury might punish the person against whom character evidence is brought simply for being a man of bad character. ZACKOWITZ o Holding: The endeavor of introducing the evidence here was to generate an atmosphere of professional criminality. It was an endeavor the more unfair in that. which can take 2 forms: • 1. For example. However. He was not in crime as a business. the prosecutor’s aim was exactly the purpose the rule forbids: the state was trying to show that the D had a propensity to act in a particular way in order to prove that he acted in that way on the night of the shooting.

 2. through-the-box purpose to make clear to the jurors how they are not supposed to use the evidence (Example of Instruction on page 135). and waste of time – against the probative value of the evidence. o Sources of confusion from this rule:  1. around-the-box purpose for which the evidence of other acts is being admitted. 404(b)’s list of possible “other purposes” is merely illustrative but not • • Other dangers = the specific acts often used to prove character could distract or confuse the jury. Routes Around the Propensity Box o Instead of going through the propensity box. substantially outweighed by the risk it poses of unfair prejudice. a litigant may find ways to go around the propensity box. a litigant may not lead the jury on a chain of inferences that goes through the propensity box. as a matter of law. and it could have taken place either before or after the crime charged. she may choose to exclude the evidence under 403. The  21 . the list of possible “other purposes” presented in the rule is unnecessary. or acts” refers to any acts other than those directly at issue in the case. Also. 404(b) does not require trial judges to admit evidence of other acts whenever such evidence does not violate the propensity evidence ban. C. This provision merely restates the substance of 404(a). wrongs. juror confusion. 105 directs the TJ. If the judge believes the jury will not abide by the limiting instruction. The statement that such evidence “is not admissible to prove the character of a person in order to show action in conformity therewith” is superfluous. at the D’s request. If the D wishes.Downloaded From OutlineDepot. For example. There is still the risk that the jury would use the evidence as something other than proof he was at the crime scene. juror confusion. the jury could hear that Zackowitz owned several guns and conclude on its own that he is a man of vicious propensities who acted in conformity therewith in shooting Coppola (See Diagram on 135) • In such situations. a TJ normally must weigh the risk of all of these harms – unfair prejudice. 404 reflects the judgment of Congress that the probative value of propensity evidence is. 404(b) o 404(b) specifically recognizes several permissible routes around the propensity box. The phrase “other crimes. o Such an instruction cannot always ensure that the jury will not use evidence of other acts in the forbidden way. The judge’s instruction should explain in clear terms the permitted. In a sense. the judge should spell out as well the forbidden. o When conducting a weighing test under 403. The Advisory Committee’s Note to 403 says that one of the factors a judge should consider when weighing the risk of unfair prejudice is “the probable effectiveness or lack of effectiveness of a limiting instruction” (RB 47). to deliver a limiting instruction to the jury. B.  This is not to say that the judge necessarily should admit evidence. 404 would not forbid this alternate use of the evidence.  3. In general. and waste of time. o See 133 for diagramming the propensity box.

we have adopted a 2-part test for determining the admissibility of 404(b) evidence. confusion of the issues. even when offered to prove identity. and 609 o 413 o 414 o 415 • Sometimes the error of calling these other purposes “exceptions” to the propensity evidence ban can lead a court to the wrong result. 404(b) simply doesn’t grant litigants permission to invite the jury through the propensity box. The permitted inference is not that this is the D’s kind of crime. (1) The DCt must determine whether the evidence has some special relevance independent of its tendency simply to show criminal propensity. Proof of Motive o 3. or undue delay. Proof of Identity  One way to prove guilt when identity is in dispute is to show that the crime matches the D’s Modus Operandi (M. The permitted purposes listed by 404(b) are not “exceptions” to 404(a). • Genuine exceptions to 404(a) are: o 404(a)(1) o 404(a)(2) o 404(a)(3). • UNITED STATES v. 22 .O. Proof of Knowledge o 2.Downloaded From OutlineDepot. Other Act Evidence: In the First Circuit. (2) If the evidence has special relevance on a material issue. and the present offense matches that crime in idiosyncratic wasy. TRENKLER o I. the similarities btn the 2 crimes must be so distinctive that the inference that nobody else could have committed the crime overcomes the jury’s temptation to engage in propensity reasoning pure and simple. then we may infer the D committed the present offense as well. Routes Around the Propensity Box • Remember that 404 bars only one thing – the forbidden inference of action on a particular occasion in conformity with a character trait. the ct must then carefully conduct a 403 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.  4. is not admissible if the chain of inferences leads through the propensity box. (See illustration on 138 of Case Book) • Evidence of other acts. The admission of such evidence remains within the court’s discretion. 608.). Typically. but that this could not be anyone else’s rule says “may”. For this route around the propensity box to be legitimate. They are merely possible uses of other-acts evidence not banned by 404(a). judges will evaluate the evidence under 403 and exclude if its probative value is substantially outweighed by the risk of unfair prejudice. • See DIAGRAM of CHARACTER EVIDENCE (140) II. If we know that the D committed a particular crime in the past. as elaborated by 607. • 404(b)’s list of permitted routes around the box is not exhaustive: o 1.

The test must focus on the totality of the comparison. proof of absence of mistake or accident). we have cautioned that an exact match is not o II. demanding not a facsimile or exact replica but rather the conjunction of several identifying characteristics or the presence of some highly distinctive quality. 404(b) evidence is offered bc it has special relevance on the issue of identity. we have required. Scutton instructed the jury at the outset that the evidence was admissible to help the jury to draw an inference as to whether the death of Mundy was accidental or designed by the prison (ie. the inflammatory nature of the evidence. SMITH • At trial. 404(b) Evidence: Probative Value and Unfair Prejudice: Resolving that the DCt didn’t abuse its discretion in finding that the Quincy bomb had special relevance on the issue of identity does not end the analysis. must be whether the characteristics relied upon are sufficiently idiosyncratic to permit an inference of pattern for purposes of proof. the proponent must demonstrate the 2 acts exhibit a commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual. He also advised the jurors that they could use the evidence of Burnham’s and Lofty’s deaths when considering whether the D had a system of murdering women he married in order to get their money (ie. Doctrine of Chances  REX v. The question for the ct. therefore. However. the jury could draw from that series of fortunate accidents the inference of design. as in this case. in resolving whether the evidence supports an inference that the 2 incidents are sufficiently idiosyncratic. Absence of Accident 6. DEGEORGE 4. We must also review the TCt’s determination that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. proof of motive or plan). the strength of evidence establishing the similarity of the 2 acts. STEVENS • US v. Indeed. as a prerequisite to admission.Downloaded From OutlineDepot. the DCt acted within its discretion. Narrative Integrity (Res Gestae) 5. o b. such as the govt’s need for the evidence. The matter o o o 23 . finally. Identity: a. Several factors weigh hevily in this balancing. a showing that there exists a high degree of similarity btn the other act and the charged crime. both judge and prosecutor suggested a number of aroundthe-box theories that might – or might not – have justified Justice Scrutton’s decision to admit evidence of Burnham’s and Lofty’s deaths. • US v. 404(b) Evidence: Special Relevance: When. Here. and the degree to which it would promote an inference based solely on the D’s criminal propensity.

but indeed such a witness is not allowed to base his testimony on anything but hearsay. [405 modified this aspect of evidence law by permitting character witnesses to testify about their opinion of the D’s character as well as about D’s reputation]. however. Scrutton’s insight – the sheer improbability that Smith’s 3 wives could all die in their tubs without foul play – has become known as the doctrine of chances. IV. UNITED STATES o Question: Whether the TCt must make a preliminary finding before “similar act” and other 404(b) evidence is submitted to the jury. The HUDDLESTON Standard • HUDDLESTON v. not only is he permitted to call witnesses to testify from depended on the unusualness of the occurrence and the number of times it was repeated. the community in which he has lived and the circles in which he has moved. If offered for such a purpose.  See 2 articles on Doctrine of Chances III. UNITED STATES (pre-rules case) o A D may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged.Downloaded From OutlineDepot. such evidence should be admitted if there is sufficient evidence to support a finding by the jury that D committed the similar act. the witness must qualify to give an opinion by showing such acquaintance with the D. – No. Advisory Committee’s Notes on 404(b) indicates that the tct should asses such evidence under the usual rules for admissibility: “the determination must be made whether the danger of undue prejudice outweights the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under 403…We conclude that a preliminary finding by the ct that the Govt has proved the act by a preponderance of the evidence is not called for by 104(a). However. The text contains no intimation. however. no can he testify that his own acquaintance. similar act evidence is relevant only if the jury can reasonable conclude that the act occurred and that the D was the actor. the price a D must pay for attempting to prove his good name is to throw open the 24 . Such questions of relevance conditioned on a fact are dealt with under 104(b). The witness is. Proof of The Defendant’s and the Victim’s Character • 404(a) and 405 • MICHELSON v. and knowledge of D leads to his own independent opinion that D possesses a good general or specific character. in which the ct simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact – here. When D elects to initiate a character inquiry. But. that the tvs were stolen – by a preponderance of the evidence. observation. allowed to summarize what he has heard in the community. inconsistent with commission of acts charged. o Holding: 404(b) protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character. But. evidence is admissible under 404(b) only if it is relevant. recognized in some quarters as an around-the-box use of otheracts evidence. The witness may not testify about D’s specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits. that any preliminary showing is necessary before such evidence may be introduced for a proper purpose. the evidence is subject only to general strictures limiting admissibility such as 402 and 403. in this context.

even if the D has not put his own character in issue. o 404(a)(2) permits criminal Ds to offer proof of pertinent traits of the alleged victim’s character. There was no corresponding principle at CL.  2. “Have you heard?” has general approval. The cross-examination may take in as much ground as the testimony it is designed to verify. give only criminal Ds the option to open the character inquiry. 25 . and 405(a) generally perpetuate the traditional common law principles you see at work in MICHELSON. The rule rejects granting the privilege to civil litigants (ACT to 404(a). The Common Law and the Federal Rules Compared o 404(a)(1). By this test. D typically aims to prove that the victim is a violent person who. o Both rules permit Ds to prove only pertinent traits of character. the inquiry was permissible. 405(a) provides that whenever proof of character is allowed under either 404(a)(1) or 404(a)(2). o Both rules.Downloaded From • • entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. o Both rules give the D the sole option to open the character inquiry. o These rules diverge from the Cl in only 2 significant ways:  1. 404(a)(2).  Ds most often deploy 404(a)(2) when pleading self-defense against a charge of violence. were afloat…Since the whole inquiry is calculated to ascertain the general talk of people about D. and law-abiding citizen. acting in conformity with this violent propensity. would tend to weaken the assertion that he was known as an honest. o Whether the D offers evidence of her own character under 404(a)(1) or of the alleged victim’s character under 404(a)(2). rather than the witness’ own knowledge of him. that proof may take the form of either reputation or opinion evidence. Proving Character Under 404(a)(1) and 404(a)(2) o 404(a)(1) permits criminal Ds to offer proof of pertinent traits of their own character. then the prosecution may offer evidence that the D shares this same trait of character. 404(a)(1) provides that if D offers evidence of an alleged victim’s character under 404(a)(2). The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors. the form of inquiry. the manner of proof is controlled by 405(a). and “Do you know?” is not allowed. Both 404(a)(1) and 404(a) (2) specifically permit the D to lead the jury through the propensity box. Only a conviction may be inquired about to undermine the trustworthiness of the witness. The CL permitted proof only by rep. if admitted. B. whether or not well-grounded. RB 50-51). It was proper cross-examination bc reports of his arrest for receiving stolen goods. A. by their terms.  The only exception to this rule is a narrow one: In homicide cases 404(a) (2) permits the prosecution to offer evidence of the victim’s peaceable character if the D has offered evidence (even non-character evidence) that the victim was the first aggressor. was the first aggressor in the encounter with the D. It is not only by comparison with the crime on trial but by comparison with the reputation asserted that a ct may judge whether the prior arrest should be made subject of inquiry.

the essential element here is that the D have been reasonably in fear – and not that the victim have been a violent person. claim. To persuade the jury that the victim attacked first. Acting in self-defense simply isn’t defined as “attacking someone of violent character. The self-defense  26 . This never leads the jury through the “propensity box. however. ANDERSON o Holding: Although the literal language of the exceptions to 404(a) applies only to criminal cases. permit inquiry into relevant specific instances of conduct on cross-examination of the character witness. (see 220) o 405(b) does apply when the existence of the character trait – and not any conduct done in conformity with that triat – is the thing to be proved. • C. Distinguishing Proof of Character Under 413-415 o 405(a)’s requirement that proof be by reputation or opinion doesn’t apply to 413 – 415. The rule preserves the CL bar against proving character by evidence of specific acts. Ds were entitled to present evidence of Perrin’s character from which the jury could infer that Perrin was the aggressor. Resolving a Parental Custody Dispute (see 221)  These 3 situations have 1 fact in common: the litigant’s aim is to prove the existence of the character trait. Accordingly.” o One case in which 405(b) does not apply is in self-defense. Rebutting a Defense of Truth in a Libel or Slander action (see 220)  3. But cross-examination about specific acts is not a means of proving or disproving that the D (or victim) actually has the character trait in question. These rules in fact require proof by specific acts. or defense. The 3 most common examples are:  1. Distinguishing Proof of Character Under 405(b) o 405(b) causes much confusion. Proof of Defendant’s and Victim’s Character in Civil Cases • PERRIN v.” It may help. • D. a D often offers evidence of the victim’s violent character. the D may invoke the exceptions to 404(a).” V.  The risk of the jury using this evidence to show that the person actually did the act in question and therefore has a propensity for that act is one species of unfair prejudice and might be considered by the ct when conducting a 403 weighing test. the litigant may ask about specific acts only to test the character witness’s knowledge of the D’s reputation (if the witness has offered reputation evidence) or her familiarity with the D (if she has offered opinion evidence) o The judge will most likely limit how the jury will use these inquiries. not to prove any action done in conformity with that trait.Downloaded From 405(a) permits the character witness to testify in the form of opinion or reputation only. Ds charged with violent crimes often claim that the alleged victim was the first aggressor and that the D therefore acted in self-defense. when the central issue involved in a civil case is in nature criminal. Rather. • 405(a) does. we agree with the DCt here that. Rebutting an Entrapment Defense (see 220)  2. However. mostly from what is considered “an essential element of a charge. but is not necessary.

generally been admissible to prove conformity on specified occasions…At least in this kind of case. to the satisfaction of the TJ. by introducing evidence of such habit or regular usage. VI. there is little risk of unfair prejudice to the govt. to punish the D for his past bad acts or for his general bad character. that is. But criminal Ds bear the slightest burden of any litigant. • The rule-writers clearly intended that only criminal Ds should have the option to offer character evidence under 404(a)(1) and 404(a)(2). however. that he expects to prove a sufficient number of instances of the conduct in question (see FRE 406). Few of us think about 27 . Here. evidence of habit has. P was seen a sufficient number of times. exclusion was proper. even if unconvinced of the D’s guilt in the present case. Evidence of a habit o Evidence of habit or regular usage. where the issue involves proof of a deliberate and repetitive claim raised in this case is not functionally different from a self-defense claim raised in a criminal case. a party should be able. since the days of the CL reports. whatever the validity of allowing evidence of the victim’s character under 404(a)(2) in a wrongful death claim. and hence negligence on a particular occasion. it involves a repetitive pattern of conduct and therefore predictable and predictive conduct…the keyword is predictive. a party must be able to show on voir dire. RB 60). and it is preferable that D be able to fix. involves more than unpatterned occasional conduct. o To justify introduction of a habit or regular use. But. the times and places of such occurrences. Our most invariable actions are those we do automatically and almost without volition. to allow the inference of its persistence. Evidence of Habit • 406 • HALLORAN v. a finding of habit or regular usage would be warranted and the evidence admissible for the jury’s consideration. the DCt should not have permitted testimony about prior specific incidents. if properly defined and therefore circumscribed. • What is habit? o Habit = invariable regularity (ACN to 406. When the accused offers evidence of his good character. o 2. VIRGINIA CHEMICALS INC o Because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again.Downloaded From OutlineDepot. All parties agree that character evidence typically has little probative power. Permission to offer character evidence about Ds and their alleged victims was a special dispensation to criminal Ds whose life or liberty were at hazard. the Court is not convinced that PERRIN should extend to admission of evidence concerning the D’s character under 404(a)(1) in a civil securities fraud suit. • SECURITIES AND EXCHANGE COMMISSION v. If on the other hand. • Evidence of past conduct generally vs. A prosecutor’s evidence about the accused’s bad character could prompt the jury. It is therefore of little use to a litigant who bears a substantial burden of proof. Character evidence about an accused creates an asymmetrical risk of unfair prejudice. o 3. Why? o 1. conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances. However. if D’s witness was prepared to testify to seeing P using an immersion coil on only one occasion. at least generally. TOWERS FINANCIAL CORP. o Holding: There are a small number of cases from outside the 2nd Circuit that allow the 404(a)(1) exception to apply in civil cases.

Cts occasionally admit evidence of habitual drinking. o 2. There are 6 exceptions to this general rule of exclusion: o 1. 404(a)(3) – Character of witness • 404(a)(3) o Proof of the character of a witness may be admitted as provided in 607. 413 – Similar offenses in a sexual assault prosecution o 2. The witness’s sponsor may then use character evidence to support her credibility. 414. 415 – Similar offenses in a civil action concerning sexual assault or child molestation o 4. o Is regular drinking a habit?  ACN to 406 (RB 59) suggests that regular drinking does not qualify as a habit. The latter rules permit only the criminal D to initiate the use of character evidence.Downloaded From OutlineDepot. 608 and 609  In general these rules say that once a witness has offered testimony. Although it is easy to think of people who commit repeated violent acts. it is far harder to identify someone who (almost) always. 404(a)(1) – Character of accused o 5. 28 . 609 413. Because proof of habit doesn’t involve drawing inferences from general “traits of character. 415 I.  608 and 609 constrain when and how a party may offer evidence about a witness’s character for • putting on a seatbelt. 405. yet many of us do so every single time we drive. the opposing lawyer may use character evidence to attack the witness’s credibility. Lack of volition is therefore one sign that behavior qualifies as a habit. 608 and 609 permit either party to initiate an attack on a witness’s character for truthfulness. o Can a person be habitually violent?  ACN to 406 (RB 59) says that “evidence of other assaults is inadmissible to prove the instant one. is generally barred. 607. 608. Character and Credibility: Study Guide • Evidence of a person’s character. The latter rules apply by their terms only in criminal cases. lashes out. • But these rules also offer more liberal proof of character of the witness than the rules governing evidence of the character of the accused (404(a)(1)) and the victim (404(a)(2)) o 1. 406 therefore permits proof by evidence of specific acts. But. But the true touchstone of habitual behavior is regularity and hence predictability.” it falls outside 404(a)’s bar against evidence of character offered to show action in conformity therewith. 404(a)(2) – Character of victim o 6. if offered to prove action in conformity therewithin. CHAPTER 4 – CHARACTER FOR TRUTHFULNESS Rules: 404(a)(3). especially when the drinking in question is precisely defined. 414 – Similar offenses in a child molestation prosecution o 3. whereas the rules governing evidence of the character of a witness apply in both criminal and civil cases. in a frequently recurring set of circumstances.

would be excluded bc the D’s peaceableness would no longer be pertinent. Whereas. Evidence must pertain to character for “truthfulness or untruthfulness. contradiction in the form of a past inconsistent statement made by the witness. but it depends on the circumstances.Downloaded From OutlineDepot. o 608(b) allows more liberal use of specific instances of conduct than does 405(a). which may expose the testimony as implausible. A witness’s character for truthfulness may be supported only after it has been attacked. for example. which governs the forms of character evidence offered under 404(a)(1) and 404(a)(2). such as physical evidence.  608(b) provides 2 explicit limitations: • • • • • • 29 . must bear on a “pertinent trait of o In addition. o Can an attack on the truthfulness of a witness’s testimony in this proceeding ever constitute an attack on the witness’s general character for truthfulness?  CAN to 608(a) says that “evidence of bias or interest does not” qualify as an attack on the witness’s character for truthfulness under 608(a)(2) (RB 125). all character evidence. or contradiction in the form of other evidence. Impeachment Evidence o See Flowchart on 247 of Case Book Non-Character Modes of Impeachment o Most attacks on a witness’s credibility are not attacks on the witness’s character for truthfulness.”  2. the testimony of another witness. 607 – permits either party to attack a witness’s credibility. including the aprty that sponsored the witness. but this kind of evidence may call in questions of the witness’s general character of truthfulness.  In general. perception. to be relevant. offered in an embezzlement case. including the person about whom the character witness is testifying. 608(b) would allow this. 608(b) – permits a party to ask on cross-examination about specific instances of the conduct of a witness.  405(a) permits inquiry into specific instances of conduct during crossexamination of the character witness. but not during cross-examination of any other person. may offer evidence of her character for peaceableness under 404(a)(1). if the contradicted testimony can be explained as a mistake of memory. 608(a) – permits either party to offer evidence of the witness’s “character for truthfulness or untruthfulness” in the form of opinion or reputation. o 2 limiting principles:  1. Rather. A person charged with a crime of violence.” (404(a)(1) and 404(a)(2)). most attacks on credibility suggest merely that this testimony is a lie. o See Example and more explanations on 244 Limitations on 608(b)(1) o 608(b)(1) exposes every witness who takes the stand to possible crossexamination about past “specific instances of conduct” of the witness that might suggest she has an untruthful character. Attacks on the truth of specific testimony most often take one of 3 forms: evidence of the witness’s bias. or the common experiences of life. or narration. That same evidence. and might not be a lie at all. then the contradiction certainly would not qualify as an attack on character for truthfulness.

Ie. a combative nature.  (2) The time of conviction and the witness’ subsequent history • The Court is of the opinion that the D’s continued conflict with the law. • US v. those convictions which are for the same crime should be admitted sparingly. this principle would apply only to the prior kidnapping conviction. the nature of these 4 convictions is a factor against admitting them for impeachment. that is the end of the 1. convictions over ten years ago. or other causes. Here. most cts will not permit a lawyer to use 608(b) to offer evidence that is of a type covered by 609. Note the extra-protective weighing test that 609(a)(1) erects for criminal Ds. a limiting instruction would be given to the jury emphasizing that they are admitted only to impeach. BREWER o Balancing Test under 609(a): There are 5 factors to determine if the probative value of admitting the evidence outweighs its prejudicial effect under 609(a):  (1)The nature of the crime • Here. As a general guide. is a factor supporting admission of the convictions for impeachment purposes. the nature of these crimes is that of violent action against individuals. generally have little or no direct bearing on honesty and veracity. WHITMORE III. Use of Past Convictions • 609 – permits counsel to impeach witnesses with evidence of their past crimes o 609(a)(1) gives criminal Ds stronger protections against impeachment by past crimes than are accorded most witnesses.”  2. Thus. Acts of violence which may result from a short temper. the lawyer may not call a 2nd witness to prove that the 1st indeed told the lie. a lawyer may not ethically ask about specific instances of conduct without having a good-faith basis for believing that they took place.  30 .  A third limitation is implicit in 608(b)’s reference to “the discretion of the court”: the inquiry must survive a 403 weighing test. • The ban on extrinsic evidence means the lawyer must accept the witness’s answer to the question. but is excluded by 609. even while on parole. extreme provocation.  Finally.  A fourth limitation comes from MICHELSON: In general. strong reasons arise for excluding those which are for the same crime bc of the inevitable pressur on lay jurors to believe that if he did it before he probably did so this time. There is a strong argument to keep the prior kidnapping conviction from the jury’s knowledge.Downloaded From OutlineDepot. It may not be proved by extrinsic evidence.  (3)Similarity btn the past crime and the charged crime • Where multiple convictions of various kinds can be shown. If the Court should admit any of the four convictions. If the lawyer asks about a specific lie allegedly told by the witness at some point in the past and the witness denies it. the specific instances of conduct must be “probative of truthfulness or untruthfulness. • See Impeachment Diagram on 247 of Casebook • US v.

BRACKEEN o Under 609(a)(2). 31 .  Evidence that meets the “dishonesty or false statement” standard “shall be admitted. o 609(a)(2)  The BRACKEEN ct focused on the meaning of the “dishonesty or false statement” standard in 609(a)(2).” It need not survive a 403 test and is not subject to the trial court’s discretion. a bank robbery is not per se a crime of dishonesty. • Evidence offered against the accused in a criminal case must survive a stricter weighing test: It is admitted only if its probative value outweighs its potential to cause unfair prejudice to the D. the D normally may appeal. it is subject to the constraints imposed by 609(b). not the penalty actually assessed. and not to those crimes which bad though they are. o 609(b) – When the conviction is more than 10 years old. (2) the prosecutor must introduce evidence of the contested conviction (OHLER) Character and Credibility: Study Guide o 609(a)(1)  Is written in terms of the available penalty.  The evidence is admissible against a witness other than the accused in a criminal case only if it survives a 403 weighing test. the “important of the defendant’s testimony.Downloaded From OutlineDepot. Congress intended 609(a)(2) to apply only to those crimes that factually or by definition entail some element of misrepresentation or deceit. and  (5) The Centrality of the Credibility issue. US v.  This is a stricter weighing test than either of those called for in 609(a) (1). the date trial begins. holding that bank robbery generally doesn’t qualify under this standard.” means that the more critical the D’s tetstimony is to his case. that a D may not appeal from the tiral judge’s ruling unless 2 conditions are met: (1) the D must in fact testify at trial (LUCE). and (d). The BREWER court laid out the 5 factors for determining this. The SCT has ruled. Therefore. it will be excluded unless the ct determines that the probative value of the conviction substantially outweighs its prejudicial effect. courts overwhelmingly look to the underlying facts of the crime and not merely the charge. however.  The endpoint for this time limit could be the date of the present indictment. The date of indictment seems preferable. in general it will be a felony. o The ct suggested that the 4th standard. the House Committee Report seems to indicate that a narrow interpretation of the word “dishonesty” should be used. do not carry with them a tinge of • • •  (4) Importance of D’s testimony. the more hesitant the ct should be to admit the impeaching evidence.  When deciding whether a crime involved dishonesty of false statement. but the only requirement is that it is punishable by at least 1 year or death. If the TJ disregards 609’s safeguards and wrongly admits evidence of past convictions to impeach a D. or the date the witness testifies. (c). However.

other than conviction of a crime as provided in 609. regardless of the witness’s answer. but not otherwise. one very easily could read the vague term “credibility” in 608(b) to include more than “character for truthfulness. o As 608(a)(2) makes o 609(d) – juvenile adjudications are never admissible in civil cases or to impeach the testimony of criminal defendants.  What is an attack? – any attack under 608 and 609.” (CAN to Rule 608(b). Extrinsic Evidence In the Context of Character Evidence o Under 405(a) the litigant may ask a character witness on cross-examination whether that witness has heard of a specific act committed by the person about whose character the witness is testifying. 414. the litigant may cross-examine a witness about specific instances of conduct that bear on character for truthfulness. they must survive the strictest standard of any prescribed in these rules. the lawyer may present no other evidence (ie. A lawyer therefore may offer any sort of evidence otherwise permitted by the rules to prove that the witness is biased or to contradict the witness’s testimony. one party may rehabilitate its own witness’s character for truthfulness only after the other party has attacked the witness’s character for truthfulness. • A. 413. o Extrinsic evidence that tends to prove both a collateral matter and something else may well be admissible  See Examples on 282-83 o 608(b)’s bar against extrinsic evidence applies only to evidence offerd to show the witness’s general character for truthfulness. o Under 608(b). no extrinsic evidence) regarding the act. and the litigant need not wait for the opposing party to attack first.  Also. (RB 129)) CHAPTER 5 – THE RAPE SHIELD LAW Rules: 412. In other words.” • B. Even when used against other witnesses in a criminal case. an attack on the truthfulness of a witness’s testimony in this proceeding can sometimes constitute an attack on the witness’s general character of truthfulness. 404(b). V. “Rule 402 and 403 displace the CL rules prohibiting non-character-based impeachment on “collateral matters. but the rule explicitly states that such conduct.Downloaded From OutlineDepot. The rule places no restriction on extrinsic evidence offered to show that the witness lied in this case. • The truthfulness of a witness’s testimony in this proceeding may be corroborated by non-character evidence without regard to the constraints imposed by 608. may not be proved by extrinsic evidence. 415 32 . depending on the circumstances. Extrinsic Evidence in the Context of Contradicting Specific Testimony o Counterproof is admissible if it contradicts on a matter that counts. Use of Extrinsic Evidence • CL principle = extrinsic evidence will not be admitted on a collateral matter. Rehabilitation • “Rehabilitation” concerns a party’s attempt to support a witness’s character for truthfulness. however. (See the rule) o The Various Standards of Admission (See 267 of Case Book) IV.

Historical Backdrop • PEOPLE v.lied when she told Russell she had been raped and has continued to lie since. petitioner has consistently asserted that he and Matthews engaged in consensual sexual acts and that Matthews – out of fear of jeopardizing her relationship with Russell. 412 is inapplicable in sexual assault cases where D seeks to question witnesses regarding the victim’s prior false allegations concerning sexual behavior for impeachment purposes…When considering the admissibility of such evidence. Therefore. SMITH  Question: Did the TCt improperly preclude D from introducing the evidence of prior false allegations of molestation made by the victim? – Yes  Analysis: 412 is inapplicable to the instant situation as evidence that the victim had previously accused another male of molesting her and then quickly retracted those accusations is not evidence of past sexual behavior of the victim. history or reputation for chastity. Here. Past Allegedly False Accusations o STATE v. and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness. II. but rather impeachment evidence used to attack the victim’s credibility. based on the evidence presented by D. A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. A 33 . • STATE v. ABBOT o Evidence of an alleged prostitute’s prior sexual encounters with other men was admissible to rebut the accusation of rape. Explaining the Source of Physical Evidence • C. The Shield Law • 412 • A.Downloaded From OutlineDepot.” The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. SIBLEY o Testimony that D’s general character for chastity and virtue was bad was admitted to support that D raped I. the question for the TCt is not whether it believed the prior allegations were false. (as in HUDDLESTON) • D. 404(b)-Style Uses of Evidence of Past Sexual Behavior o 1. Because the evidence that D attempted to introduce did not concern the victim’s prior sexual behavior. the prior false allegations of sexual assault by the victim do not constitute “past sexual behavior” for purposes of 412. that the victim had made prior false allegations. KENTUCKY • Holding: The Kentucky Ct of Appeals failed to accord proper weight to petitioner’s Sixth Amendment right “to be confronted with the witnesses against him. but whether reasonable jurors could find. Proof of Bias  OLDEN v. Past Sexual Behavior with the Accused • B.

COLLINS • Holding: Cross-examination as to bias. had any tendency to make the existence of any fact more or less probable than it would be without the evidence. Did the lower court error in its application of the state rape shield law by denying Appellant his constitutional right to testify in his own defense by preventing him from stating his version of the events? Held. but excluded any reference to individual acts of sexual conduct by the prosecutrix.” o Many are opposed to these rules • LANNON v. a proper balance was struck between the interests of the state and Appellant’s right to testify. or prejudice is constitutionally protected. o 2. III. motive.” is abandoned. STEPHENS v. the conviction is affirmed. BOGGS v. as Appellant was permitted to give his entire version of the facts except for the excluded evidence. the Constitution does not require that a D be given the opportunity to wage a general attack on credibility by pointing to individual instances of past conduct. When applying state rape shield statutes.Downloaded From OutlineDepot. but cross-examination as to general credibility is not. and the essence of Federal Rule of Evidence 404(b) is adopted in Indiana as a result. No matter how central an accuser’s credibility is to a case. either known or believed by the A/t. and widely divergent. MILLER • • • Synopsis of Rule of Law. However. He concluded that neither those individual acts nor her reputation. STATE o Synopsis of Rule of Law. The factfinders received 2 distinct. as 34 . 414 and 415 are 3 of the true exceptions to the propensity evidence ban. Issue. The Indiana common law rule that evidence of various types of prior sexual behavior is admissible (as an exception to the general evidence principle that prior bad acts are inadmissible). These 3 rules permit prosecutors and civil plaintiffs to offer evidence of the D’s other acts of sexual assault or child molestation “on any matter to which they are relevant. No. account of the event which posed a factual issue of   reasonable jury might have received a significantly different impression of the witness’ credibility had defense counsel been permitted to pursue his proposed line of cross-examination. Propensity Evidence in Sexual Assault Cases • 413. Knox • Holding: The TJ admitted some portions of the A/t’s proposed testimony. unfettered by any true possibility of mistake. courts are required to evaluate whether the interests served by the statute’s prohibitions give good reason for any restrictions placed on a defendant’s right to testify. known as the “depraved sexual instinct exception. D’s State of Mind  United States v.

o • the “impact” of the evidence of prior sexual behaviors. intent. GUARDIA o Holding: 403 applies to all evidence admitted in federal court. “subject to the constraints of Rule 403.Yes. except in those rare instances when other rules make an exception to it. o • • UNITED STATES v. No. so long as it is. Courts must apply a Rule 403 test to all evidence offered.” and only allows evidence of prior bad acts to be admitted when it is offered to prove such things as motive.” is constitutional. intent. and/or common plan or scheme? Held.Downloaded From OutlineDepot. Is Federal Rule of Evidence 413 unconstitutional as applied because it allows punishment for past acts not currently at issue? Is Federal Rule of Evidence 413 unconstitutional as applied because it violates Defendant’s equal protection rights? Was it an abuse of discretion for the lower court to admit Defendant’s prior conviction under Federal Rule of Evidence 413. No. Therefore 403 applies to evidence admitted under 413. New Hampshire’s equivalent to Federal Rule of Evidence 404(b) prohibits the admission of evidence of “other crimes. and/or common plan or scheme. US v. the adoption of the new rule does not merit reversal. as it constitutes evidence offered to show Defendant’s propensity to commit sexual assaults and that Defendant acted in conformity therewith. “was not of sufficient weight to require reversal. intent. KIRSCH o Synopsis of Rule of Law. o Issues. the rule should be abandoned and the standard of FRE 404(b) is adopted. following a Rule 403 determination? Is it error to admit items into evidence under Rule 413 when the same evidence would be inadmissible under Rule 404(b)? 35 . in essence. that evidence of uncharged prior bad acts are not admissible? Was the admission into evidence of the testimony of Victim and the other alleged victim reversible error? o Held. as the probable impact on the jury was minimal. . such as 609(a)(2). wrongs. Reversed and remanded. the conviction is affirmed. and Rule 413. o Issue. the testimony concerning the uncharged assaults should not have been admitted. STATE v. Was the testimony from the alleged victims of the uncharged crimes properly admitted under Rule 404(b) as evidence of Defendant’s motive. or a common plan. not evidence of Defendant’s motive. MOUND o Synopsis of Rule of Law. which provides. . in order to show the person acted in conformity therewith. or acts . Should the Indiana common law “depraved sexual instinct exception” be abandoned in favor of the standard set forth by Federal Rule of Evidence 404(b). since other testimony corroborated the testimony of Victim regarding the present charged crime.

Affirmed. Supreme Court's interpretation of the Sixth Amendment in Crawford v. he United States Supreme Court held that the use of the spouse's recorded statement made during police interrogation violated the defendant's Sixth Amendment right to be confronted with the witnesses against the defendant where the spouse. the Rule bears a rational relation to some legitimate end and Congress’s judgment in enacting the Rule was rational. also. and Rule 413 is essentially an exception to the past practice of excluding evidence of prior bad acts. No. When a defendant is convicted of murder and then has that conviction set aside and a new trial is held. because of the state law marital privilege. WASHINGTON reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. though not made with the intent to preserve evidence. and the court properly applied the Rule 403 test and. No. This decision had an immediate. and the present case is one such situation. No. and the defendant has had a prior opportunity to cross-examine him or her. DAVIS v. Washington. o Chapter 8: Hearsay and the Confrontation Clause MATTOX v. be admitted in court without allowing defendants to crossexamine the person who made the original statements? 36 . a court reporter’s stenographic notes of the testimony of a prosecution witness made at the first trial may be properly read into evidence at the second. may statements made to police during investigation of a crime. unless the declarant is unavailable to testify in court. No. the Confrontation Clause is not violated by disallowing a defendant from introducing evidence offered to impeach a witness that has died since the CRAWFORD v. according to the legislative history of Rule 413.S. so long as the notes are properly • • • • Held. The Court held that cross-examination is required to admit prior testimonial statements of witnesses that have since become unavailable. WASHINGTON Issue: Under the U. did not testify at the trial and so was unavailable. profound effect upon the ability of prosecutors to prove their cases through the use of evidence that had previously been admissible via various exceptions to the hearsay rule. in its discretion. there were two alleged past acts. determined to allow into evidence the prior conviction. Congress has the ultimate power to create exceptions to the Federal Rules of Evidence it creates. the rule was intended to have the effect of allowing certain evidence that would be inadmissible under Rule 404(b). Justice Scalia's opinion explicitly states that any out-of-court statement that is "testimonial" in nature is not admissible. but not allow testimony concerning the uncharged crime. US Issues Was it error for the lower court to allow into evidence the court reporter’s record of the testimony of witnesses who were deceased at the time of Appellant’s trial? Was it error for the lower court to exclude the evidence offered by Appellant for the purpose of impeaching one of the deceased witnesses? Synopsis of Rule of Law.Downloaded From OutlineDepot.

Washington. to enable police assistance to meet an ongoing emergency. as interpreted in Crawford v. as interpreted in Crawford v. . At the time of her questioning. the Court reasoned that the lab reports constitute affidavits which fall within the "core class of testimonial statements" covered by the Confrontation Clause." Instead." Therefore. INDIANA Issue: Under the U. The Supreme Court reversed and remanded the lower court decision in a majority opinion by Justice Sonia Sotomayor. Supreme Court's interpretation of the Sixth Amendment in Crawford v. Washington? Yes.Diaz was not allowed to confront the persons who created the lab reports used in testimony at his trial. The court held that the identification and description of the shooter and the location of the shooting were "not testimonial statements because they had a 'primary purpose . Holding: Yes." 37 . Washington? Held: Yes. may statements made to police during investigation of a crime. does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. thus. when Mr. McCottry was not acting as a "witness. be admitted in court without allowing defendants to crossexamine the person who made the original statements? Held: Yes.examined. BRYANT Question: Are inquiries of wounded victims concerning the perpetrator non-testimonial if they objectively indicate that the purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Hammon and the officer made it "formal enough" to qualify as a "testimonial" statement intended as evidence of the past crime. the Court ruled that the Confrontation Clause of the Sixth Amendment. his Sixth Amendment right was violated. MICHIGAN V. the Court ruled that the Confrontation Clause of the Sixth Amendment. not afforded heightened protection under Crawford v." and the 911 transcript was not "testimony. The Supreme Court held that a state forensic analyst's lab report that is prepared for use in a criminal prosecution is subject to the demands of the Sixth Amendment's Confrontation Clause. the Sixth Amendment did not require her to appear at trial and be cross. MELENDEZ-DIAZ v. MASSACHUSETTS Question: Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. however. she provided the information intending to help the police resolve an "ongoing emergency. does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial.S. Although McCottry identified her attacker to the 911 operator. Therefore.Downloaded From OutlineDepot. In Hammon's case. In a 9-0 decision authored by Justice Antonin Scalia. Hammon's statements to the police were testimonial. Melendez. Washington. the relative safety of the conversation between Mrs. though not made with the intent to preserve evidence. Hammon faced "no emergency in progress" and "no immediate threat to her person. . Washington.' Therefore. their admission at Bryant's trial did not violate the Confrontation Clause." not to testify to a past crime. HAMMON v. The Court reasoned that under the circumstances. In an 8-1 decision authored by Justice Antonin Scalia. the Court ruled that Mrs.

No.? Held. United States The F.E. and the prosecution must be given sufficient notice of Defendant’s intention to use the test and a reasonable opportunity to administer its own test. the evidence is admissible under Federal Rule of Evidence 702 as scientific evidence. This Court’s decision is clearly limited to the facts of this case .” and therefore the test results were properly excluded by the lower court. evidence that he took and passed a polygraph examination. Blackmun”) delivered the opinion of the Supreme Court of the United States (”Supreme Court”) holding that the F. Was it error for the lower court to have excluded the expert testimony regarding the systolic blood pressure deception test at Appellant’s criminal trial? Held. When a test (such as a systolic blood pressure deception test) has not gained scientific recognition from psychological and physiological authorities. MERELL DOW PHARMACEUTICALS Synopsis of Rule of Law. The court notes that its holding (that polygraph evidence is admissible) is limited to impeachment evidence. provide the standard for admitting expert scientific testimony.R. [and] the Court has limited the potential prejudicial effects of the polygraph evidence by restricting the purposes for which it may be introduced 38 .Downloaded From OutlineDepot. Cross examination. presentation of contrary evidence. the criminal Defendant may introduce. . Are the results of the polygraph test to which Defendant submitted admissible at Defendant’s criminal trial for bank robbery and aid and abet? Held. but the use of the evidence must be narrowly tailored to the circumstances for which it is relevant. Yes. When the prosecution has impeached a criminal Defendant’s credibility and also impeached the criminal Defendant’s testimony by contradiction. US Synopsis of Rule of Law. DAUBERT v.E.). not the general acceptance standard. CRUMBY Synopsis of Rule of Law. the court does not address the issue of the general admissibility of all polygraph evidence. Justice Harry Blackmun (”J.E. . to support his own testimony. expert testimony regarding the results of such a test is inadmissible. Issue. 704. and careful instruction on the burden of proof are the appropriate means to challenge evidence based on valid principles. 703. place appropriate limits on the admissibility of scientific evidence by assigning the trial judge the task of ensuring that an expert’s testimony is reliable and relevant. US v.R. The trial judge is required to make a preliminary assessment of whether the underlying reasoning or methodology of the testimony is scientifically valid and can be properly applied to the facts. Issue.R. 702. the test results Appellant attempted to introduce into evidence did not meet the requirement that such evidence be “sufficiently established to have gained general acceptance in the particular field in which it belongs. not Frye v. 705 FRYE Chapter 9 – Expert Testimony Rules: 701.R. The common law does not trump the legislatively enacted Federal Rules of Evidence (F.E. Was the Frye test superseded by the adoption of the F. Issue.

Downloaded From OutlineDepot.” Proof of a “perfect” chain of custody consists of testimony by each person who had custody of the item from the moment it was seized from D until its delivery to the courtroom. just applies 901(b)(8) to the facts to authenticate some documents. Newspapers and other self-authenticating docs are therefore admitted as prima facie genuine.E. AND THE BEST EVIDENCE RULE Rules: 901. Federal Rules of Evidence (”F.”) Rule 702 gives a district judge discretion to determine reliability of evidence in regards the circumstances and facts of a particular case Stop Here: CHAPTER 10 – AUTHENTICATION.R. 104 I.  KUMHO TIRE v.  Normally a chain of custody is good enough if it supports a finding that the item in question is the same item and that it is in substantially the same condition. LYNES 39 . relying heavily on testimony. IDENTIFICATION. o 902 designates several categories of docs as “self-authenticating. however. STELMOKAS  Nothing really profound. • A. Documents o UNITED STATES v. o In addition.”  The rule therefore embraces the same standard applied by 104(b) when the relevance of a piece of evidence turns on some other condition of fact.”  rests on the theory that when a doc meets the conditions of one of these categories. Authentication is in fact a matter of conditional relevance. o Proof of Chain of Custody  The most common authentication technique when drugs or other fungible evidence are involved is to prove “chain of custody. practical considerations reduce the possibility of unauthenticity to a very small dimension. a chain of custody need not be perfect. Authentication and Identification • 901 and 902 • The problem of authentication reduces to a simple question: Is this exhibit what its proponent says it is? • By what standard must the proponent prove that the exhibit is what she says it is? o 901(a): “The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (the same standard as applied to 104(b) in HUDDLESTON) o 901(b) supplies a helpful list of authentication techniques that “conform with the requirements of this rule. • B. 902. 901(a) just demands that the chain of custody be good enough to support a finding that the matter in question is what its proponent claims.”  these are illustrations only and do not limit the litigant’s options. proper authentication demands that the proponent produce sufficient evidence that the jury could reasonably find by a preponderance of the evidence that the exhibit is what its proponent claims. CARMICHAEL Synopsis of Rule of Law. Phone Calls o PEOPLE v.

the caller called the detective hours after the detective requested that he call. o WAGNER v. and verified by such a witness on personal knowledge as a correct representation of these facts. and security of the equipment used to produce the photographic product. or if the caller recognizes the other’s voice. testing. The operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product. Photographs and Videos o SIMMS v. the issue is one to be judged upon its own peculiar facts and decided whether the proffered proof permits the drawing of inferences which make it improbable that the caller’s voice belongs to anyone other than the purported caller. coupled with an unforced acknowledgment by the one answering that he or she is the one so listed. has been held to constitute an adequate showing. STATE  “Silent Witness” Theory of Authentication for Videos/Photos: Relevant photographic evidence may be admitted into evidence on the “silent witness” theory when the TJ determines it to be reliable. the scene or the object. In each case. Testimony identifying the relevant participants depicted in the photographic evidence.Downloaded From OutlineDepot. Evidence establishing the time and date of the photographic • Question: The issue in this case is whether the proof was such that a jury could find that d was indeed the caller? – Yes  Holding: In some instances. C. The witness who thus lays the foundation need not be the photographer nor need the witness know anything of the time or conditions of the taking. the placing of a call to a number listed in a directory or other similarly responsible index of subscribers. DIXON  Admissibility of Photographs: The prime condition on admissibility is that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue. There was enough proof for the jury to decide. including the security of the product itself. In other cases. that he must know about. It is the facts represented. and when this knowledge is shown. • 4. Any evidence of editing of tampering • 3. • 2. the substance of the conversation itself has furnished confirmation of the caller’s identity. operation. Here.  40 . • 5. he stated his name. and asked for the detective by name. after having considered the following: • 1. he can say whether the photograph correctly portrays these facts…The photographer need not be at trial. The procedure employed as it relates to the preparation.

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