Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar

Introduction

3 Words to Remember:
1. Relevance
2. Reliable
3. Social Policy

4 Basic Procedural Issues:

● Should the jury observe the proceedings?
● What party bears the burden of proof?
● What standard of proof applies?
● Do the Rules apply on these preliminary questions? - 104(a)
o Witness qualification – no
o Existence of privilege – yes
o Admissibility of evidence – no

Why Evidence Law:

● Mistrust of juries
● Serve substantive policies relating to the matter being litigated
o i.e., burden of proof & persuasion
● Further substantive policies unrelated to the matter in litigation
o i.e., attorney client privilege
● Ensure accurate fact-finding
● To control the scope & duration of trials

Sources of Evidence Law:

● Common Law
● Wigmore Code of Evidence (1909)
● Morgan Model Code of Evidence
● Uniform Rules of Evidence
o 1953 National Conference of Commissioners on Uniform State Laws
o 1974 Adopted Rules largely tracking the Federal Rules
● Evidence Codes
o i.e., CA Evidence Code (1965)
● Federal Rules of Evidence
o Advisory Committee to Supreme Court to Congress
o Voted on by Congress – deleted the privilege section leaving that area to common law development

What Happens at Trial:

1. Jury Selection
● Voir Dire – A preliminary examination of a prospective juror or lawyer to decide whether the prospect is qualified & suitable to serve on a jury.
● Peremptory Challenges – Entitles a party to exclude a potential juror for any reason at all.

2. Opening Statement
● First opportunity to tell the jury “the story.”
● Usually, the party w/the burden of persuasion speaks first.
● Not an argument, but a summation of the facts the party will later prove.
● Counsel often repeats: “the evidence will show.”

3. Presentation of Proof
● The order of proof goes as follows:
o π (or prosecutor) presents his case-in chief, then rests;
o ∆ presents his case-in-chief, then rests;
o π (or prosecutor) presents his case-in-rebuttal (sometimes called his “case-in-rejoinder”);
o Each side presents further cases-in-rebuttal (sometimes called “cases-in-rejoinder”).
● The order of examination:
o Direct examination by the calling party;
o Cross-examination by the adverse party;
o Re-direct examination by the calling party;

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
o Re-cross by the adverse party;
o Further redirect & re-cross as may be necessary.

4. Trial Motions
● Can make motion for judgment. The court then has the opportunity to take the case from the jury & assess the sufficiency of the proof under a
reasonable person standard.
● Credibility issues are resolved in favor of the opposing party.

5. Closing Arguments
● Judge & lawyers have last say; lawyer argues.
● The party bearing the burden of persuasion has the right to make 2 closing arguments, one before and one after his adversary.

6. Instructions
● Instructs the jury on the law.
● Each party drafts instructions and submit their requests to the court.
● Judge often instructs on evidentiary matters.
● Curative Instruction – A judge's instruction that is intended to correct an erroneous instruction. Ex: tell jury to exclude from their consideration
testimony it heard during trial.
● Limiting Instruction – Advise the jury to consider certain proof only on one point and not others.

7. Deliberations
● Jury selects leader and deliberates the verdict.
● Secrecy is intentional:
o Encourage jurors to share their views with one another.
o Insulate verdicts, both from public scrutiny and from judicial review.

8. The Verdict
● General Verdict
o In civil, the jury just states the winner and the amount of recovery if π wins.
o In criminal, the jury states guilty or not guilty.
● Interrogatories
o Jury answers questions on particular issues.

9. Judgment and Post-Trial Motions

● Last opportunity for the parties at the trial level to obtain the result they have sought.
● Time for appeal begins to run.

10. Appellate Review

● Have to await final judgment to appeal

Making the Record:

Official Record:
● The pleadings
● Filed documents (ex: motions, discovery requests)
● The record of the proceedings (word-for-word transcript)
● The exhibits
● Docket entries (table of contents of the proceedings; docket entry starts some statutes of limitations)

What not to do:

● Echoing (repeating the witness’s answers)
● Overlapping (talking at the same time)
● Numbers, names, & big words (several interruptions & spellings – make sure court reporter gets the right one)
● Exhibits (refer to them in an unambiguous way)
● Nonverbal communication & gestures (should get them on record)

How Evidence is Admitted or Excluded:

Getting Evidence In:

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
● Foundation
● Offer

Types of Evidence:
● Testimonial Proof
● Real Evidence – tangible things involved in the events in litigation
● Demonstrative Evidence – makes graphic the point to be proven
o Diagrams
o Photographs
o Maps
o Models
● Writings

Keeping Evidence Out:

Objection or motion to strike

● Allows offering party to cure problem
o Rephrasing
o Laying a further foundation
o Ask question of another witness
● Timely
● Include grounds: irrelevant, immaterial, prejudicial
Offer of Proof

Waiver
● If you do not object, there is a waiver. When claiming an error, the first thing the judge will do is see if you objected.
● Error + Prejudice = Reversal
● “Substantial right” – See 103 – must be a material error

Error
● Reversible – obvious & golden.
● Harmless Error – most errors; do not affect the outcome.
● Plain – a mistake that is so obvious that the trial judge should have done something.
● Constitutional – requires action whether objected to or not.
103(a) – Error warrants no relief unless a “substantial right of the party is affected.”

611(b) - Scope of Cross-Examination:

“Cross-examination should be limited to the subject matter of the direct examination & matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”
● 2-pronged test:
o Does the cross deal w/scope of direct?
▪ Should not go beyond “subject matter of direct examination”
● Points raised
● Transaction described
● Issue affected
● Proximate cause
o Does the cross deal w/credibility?
▪ The scope of direct doesn’t apply to matters of credibility.
o Court “may allow inquiry into additional matters”
● 611(a) Control by Court – Judge has discretion over the mode & order of interrogating witnesses & presentation of evidence. The judge
decides whether a question is the “subject matter of direct.”
o 403 also talks about the discretion of the judge.
● Cross-examination seeks to set limits or bring out inconsistencies in the direct examination.
● Leading questions are generally allowed on cross &the substance that is conveyed to the jury emerges more from questions than answers.
611(c) Leading questions.

403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
Exclusion of Relevant Evidence IF:
● Probative value is substantially outweighed by a danger:
o Of unfair prejudice

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o Of confusion of the issues
o Of misleading the jury
● Or by consideration of:
o Of undue delay
o Of wasting time
o Of needless presenting of cumulative evidence

Probative
● Evidence which is sufficiently useful to prove something important in a trial.
● Must be weighed by the trial judge against the potential for prejudicing the minds of jurors toward the opposing party.

103 - Rulings on Evidence

● Examine various parts
● “A substantial right of the party”

Objection – objections must be timely & specific. No objection, then waiver of appeal.
Offer of Proof – A presentation to the court of the nature & purpose of an item of evidence that has been objected to or that the court has ruled
inadmissible. W/o offer of proof, may waive appeal. Can do this outside the hearing of the jury.

104(a) - Preliminary Questions in General

● A witness is qualified
● A privilege exists
● Evidence is admissible
● Not bound by evidence rules, except for privilege

Objections – 103
Generally, failure to object waives appellate consideration of any error in the admission of evidence at trial. Objections must state the specific
ground for exclusion of evidence unless the ground for objection is obvious. Objections must be timely – they must be stated as soon as the
objectionable nature of the question or answer becomes apparent.
Where the court makes a definitive ruling in limine to admit or exclude evidence, there’s no need to renew the objection or offer of proof at
trial when the evidence is or would have been offered. However, where the court rules in limine to admit evidence of a prior conviction to impeach
a criminal ∆, failure of the ∆ to testify waives the objection to the admission of the impeaching conviction.

Offers of Proof – 103(a)(2) & (b)

The offer of proof can be made in 1 of 3 ways, all outside the hearing of the jury:
1. Ask the witness to state for the record what the witness’s testimony would have been if the judge hadn’t excluded it; or
2. State the substance of what the witness’s testimony would have been, but for the adverse ruling; or
3. Provide a prepared written statement of the witness’s testimony that would have been given, but for the adverse ruling.
The offer must be made at the time of the sustaining of an objection or it’ll be waived. The theory behind this rule is to provide the trial judge
w/the most informed opportunity to make the proper ruling.

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Judicial Notice:
201 - Judicial Notice of Adjudicative Facts
A process by which an adjudicative fact can be established w/o formal evidentiary proof.

Of only adjudicative facts (not legislative facts).

● A controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding & that
helps the court or agency determine how the law applies to those parties.
● Normal facts in a lawsuit, a fact that goes to the jury.
● Types:
● Facts not subject to reasonable dispute;
● Generally known;
● Can be accurately & readily determined from sources whose accuracy cannot reasonably be questioned;
● Supplied w/the necessary information;
● Opportunity to be heard.

Legislative fact – used by a court or legislature as the basis for making or evaluating law.
● Ex: Can you ask the court to take judicial notice of the fact that “children do better when they have 2 parents? No, this is a legislative fact.
Evaluative fact – include matters of common knowledge that judges & jurors bring to their deliberation.
● Assumed facts that cannot be proved.

Substitutes for evidence:

● Judicial notice.
● Stipulation of fact.

When to take Judicial Notice:

● Court can take Judicial Notice whether requested or not (on its own).
● Must take Judicial Notice…
o If a party requested it, &
o If supplied w/the necessary information
● May be taken at any stage of a proceeding.

Procedural Issues:
● Courts have discretion to take judicial notice whether or not the parties request it.
● 201 requires Judicial Notice:
o When a party requests it.
o Supplied w/the necessary information.
● Timing:
o At any state of the proceeding.
▪ Pretrial & Post-trial hearings.
▪ Appeal.

Effect of Judicial Notice:

● In Civil cases:
o Must accept.
o Instructs the jury to accept the noticed fact as conclusive.
● In Criminal cases:
o Doesn’t bind the jury.
o Serves as a permissible inference or comment on the evidence.
o Jury may or may not accept the noticed fact as conclusive.

Overview of Judicial Notice:

First question to ask:
● Is it an adjudicative fact? (201 only applies to adjudicative facts)
Second question to ask:
● Is it subject to reasonable dispute? (Cannot take judicial notice of facts subject to reasonable dispute)
o How do we determine if it is subject to reasonable dispute?
▪ Ask, is it generally known?
▪ Ask, is it verifiable from an unimpeachable source?

Government of the Virgin Islands v. Gereau

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
Facts:
● ∆s were found guilty of murder.
● The jury was polled individually & each acknowledged the verdict as his own.
o 2 days later, ∆s filed a motion requesting a new trial on the ground that the verdict had not been freely assented to by all the jurors.
● Cappin testified that one of the jury attendants made some comments to her, which she denied.
● The judge found both people to be credible, but chose to believe jury attendant’s statement of denial b/c he knew she was grateful to be a
jury matron.
Rule:
● A judge cannot take judicial notice of personal knowledge.
Issue:
● Whether the trial judge’s reliance on his personal, subjective belief about the needs & motive of the jury attendant was an improper ground
for rejecting the juror’s concededly credible testimony.
Holding:
● Yes.
Reasoning:
● In basing his fact-finding on personal knowledge, the trial judge was, in effect, taking judicial notice of extra-record, adjudicative facts.
● Facts that are properly the subject of judicial notice must be either matters of common knowledge or “capable of immediate & accurate
determination by resort to easily accessible sources of indisputable accuracy.”
o Facts with these characteristics are entitled to be considered by a judge w/o first being proved through the routine processes of
introducing evidence. The necessary cachet is not, however, bestowed merely by a judge’s knowledge of a particular fact.
▪ Judge shouldn’t use that what he knows “only as an individual observer outside of court.”
● Although there was error, it was not prejudicial.
o Juror did not say she was influenced by the statement.
o Juror voted guilty on every ballot from the beginning, &
o Juror didn’t mention the incident to any of the other jurors to influence them.

In Criminal Cases:
United States v. Jones
Facts:
● ∆ was convicted of illegally intercepting phone calls of his estranged wife.
● He was acquitted on post-trial motion arguing that the government failed to prove the phone company’s carrier status as required by law.
Issue:
● May a court take judicial notice in the appeal of a criminal case?
Holding:
Rule:
● In a criminal case, a jury is not required to accept any judicially noticed fact.
Reasoning:

Judicial Notice – 201

Where the court is provided w/authoritative sources that prove the fact, judicial notice, on request, is mandatory. The court may judicially notice
an appropriate fact on its own motion. The opposing party has the right to be heard concerning the propriety of judicial notice.

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Burdens of Proof & Presumptions
Things to keep in mind:
1. The various burdens are functionally related, as are the concerns & policies that underlie them.
2. Every burden raises questions of allocation (who bears it?) & weight or degree (how much must a party do in order to carry it?).
3. The various burdens, despite their similarities, have vastly different consequences in the lawsuit.

Burdens of Proof

Every burden raises 2 questions:

● Allocation: Who bears it?
● Weight: How much must a party do in order to carry it?

Pretrial Burdens: Pleadings, Pretrial Statements

Pleadings should paint a sensible picture.
● Burden of pleading is the least important & least troublesome.
● The purpose of the burden is to help the pleading make sense.
o Examples:
▪ In a suit on a promissory note, usually π must plead non-payment; in a defamation action, π should plead untruth.
▪ In a contract suit, π pleads agreement, consideration, performance by claimant, breach by ∆, resulting damages.
Trial Burdens
● Burdens of production & persuasion are NOT the same thing.
● The term “burden of proof” is ambiguous: it can refer to either.
● Satisfying the burden of production does not ordinarily shift the burden to the other side.
● Burden of proof is a combination of both:
o Burden of production
▪ Usually is the party who bears the burden of persuasion.
▪ Must offer sufficient evidence to enable a reasonable person to find in your favor.
▪ “The requirement that a party produce a sufficient amount of evidence on an issue to permit a reasonable jury to find in
the party’s favor, thus avoiding a directed verdict on that issue.”
o Burden of persuasion
▪ A party can win only if the evidence persuades the trier of fact of the existence of the necessary facts.
▪ “The requirement that a party ultimately persuade the trier of fact w/respect to a particular issue, & according to the
appropriate standard or quantum of proof.”
o The burden of proof is always a matter for the judge; the burden of persuasion is always for the trier of fact.
o The π normally has the burden of production & persuasion, but the ∆ has it if he uses an affirmative defense.

Weight
● Pleading: Must include the necessary allegation in the complaint.
● Production: Produce sufficient evidence to permit a reasonable juror to find the point w/the requisite measure of certainty.
● Persuasion:
o In civil cases, the standard is preponderance - more likely so than not.
o In criminal cases, the standard is beyond all reasonable doubt.

Zones for Consideration:

Zone I  Judge Resolution
Zone II  Jury Resolution
Zone III  Judge Resolution
- If a π doesn’t meet their burden of production, the judge can resolve the case in Zone I.
- To get to Zone II, π must first produce enough evidence to get the case to the jury.
If π carries their burden well, the burden can shift to the ∆.
- This shift in burden takes the decision out of Zone II to Zone III.
∆ must now present rebuttal evidence to put the decision back in Zone II or lose their case.

Presumptions
A special device for shifting & allocating burdens.

A presumption is a device that requires the trier of fact to draw a particular conclusion when the basic facts are established in the absence of
evidence tending to disprove the fact presumed (“counterproof”).
● A presumption unopposed controls the decision regarding the point in question.

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● The rules of presumption are for the court - they tell the judge which side has & has not met the burden of coming forward & which side has
the burden of persuasion.
● Presumption - used to describe a procedural rule that requires the existence of fact B (presumed fact) to be assumed when fact A (basic
fact) is established unless & until a certain specified condition is fulfilled.
o An inference is not a presumption. An inference is deduced by reasoning & logic.
o A presumption is much more than in inference. A presumption is a procedural rule that requires the existence of a presumed fact.
▪ The existence of the presumed fact may be deduced from the basic fact by the ordinary rules of reasoning & logic.
● i.e., negligent if struck a pedestrian in the crosswalk.
o In the case of a presumption, the existence of the presumed fact must initially be assumed b/c of a rule of procedural law.
o The basic fact that invokes a presumed fact must be established.
● A presumption has the procedural consequences of shifting a burden of proof.
● 301 operates only to shift the burden of producing evidence.
o “A presumption automatically shifts the burden of producing evidence w/respect to a presumed fact to the opposing party.”
▪ The burden of persuasion doesn’t shift when a presumption shifts the burden of proof. The burden of persuasion stays
on the party to whom it was originally allocated.
o Doesn’t apply to criminal cases.
● 302 – if the effect of a presumption respecting a fact that goes to the element of a claim which state law supplies, the presumption is
determined according to state law.
o Rule only applicable in a civil action. Criminal proceedings in federal court are always for violations of federal law.

Important (Common) Civil Presumptions

Fact A Fact B
Bailed Goods Bailee was negligent
● Goods delivered to bailee in good condition but damaged when
returned.
Mailed letter Letter was received by addressee
● Letter regularly addressed & mailed
Loaned automobile Employee had owner’s permission & was acting in scope
● Ownership + employer
Death from 7 years Absentee is deceased
● Absence for 7 years w/o explanation or any communication to
family or friends: inquires were unavailing
Lost will Revoked by testator
● Will cannot be found
Struck vehicle Driver of second vehicle is negligent
● Vehicle lawfully stopped is struck from rear by second vehicle

Counterproof (fight the presumption)

● Bailed Goods: Show the good was damaged when delivered or the item was picked up in good condition. Counterproof counters the basic
fact.

Bursting Bubble Theory – Once sufficient evidence has been presented by the opposing party, the presumption disappears, like a burst bubble,
leaving no trace or effect behind. The case is in the posture it was, or would have been, in the absence of any presumption, & the burden of
persuasion is unaffected.

Presumptions – 301 & 302

A fact that is automatically proved by the proof of some other fact. In all federal-question civil cases, the creation of a presumption forces the
opponent to produce sufficient evidence to rebut or meet the presumed fact. The presumption doesn’t, however, shift the original burden of
persuasion. Delivery & receipt of info, once it’s shown to have been put in the mail w/proper address, postage, & return address, is a common
example of a presumption. The opponent then has the ability to offer evidence to rebut the presumption of delivery & receipt.

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Best Evidence Doctrine (Original Document Rule)

When the contents of a writing are being proven, the original writing must be offered or its absence satisfactorily explained.
Has nothing to do w/the “best evidence.” It merely says that when you’re dealing w/the contents of a writing, you cannot use oral testimony
as evidence – only the writing itself.

When the doctrine applies:

● Applicable only when a party seeks to prove “the content” of a writing.
● Circumstance in which the substantive law forces the content of writing in prominence, & in effect, simply requires 1 party or another
to prove that content.
o Parol Evidence Doctrine
o Statute of Frauds
● Circumstance in which a party chooses to prove content, even though she might theoretically present an adequate claim or defense
w/o such proof.

What constitutes a “writing”?

● 1001(1) – Writings & Recordings
o Letters, words, numbers, or their equivalent, set down by handwriting, typewriting, printing, photographing, magnetic impulse,
mechanical or electronic recording, or other form of data compilation
● 1001(2) – Photographs
o Still photographs, X-ray films, videotapes, & motion pictures.

What constitutes an “original”?

● 1001(3) – An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a
person executing or issuing it.
o Does not necessarily mean chronologically first in time.
▪ Can qualify as the “original” if it is the writing or recording of significance in the litigation.
● If a copy gave rise to the charge, claim, or defense, production of that copy satisfies 1002 & reliance on 1003 is
unnecessary.
o An original of a photograph includes the negative or any print therefrom.
o If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data
accurately, is an original.
● 1002 – The original is required unless otherwise provided in FRE or by Congress.

What constitutes a “duplicate”?

● 1001(4) – A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography,
including enlargements & miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by any other equivalent
technique that accurately reproduces the original.
o Essentially a machine made copy, NOT handmade.
● 1003 – A duplicate is admissible to the extent an original is unless:
o A genuine question is raised as to the authenticity of the original, or
o It would be unfair to admit the duplicate in lieu of the original.
o 1003 permits the use in evidence of duplicates w/o need to make excuses for nonproduction of the original under 1004.

When is an original not required?

● 1004 – Original not required & other evidence of the content of a writing, recording, or photograph is admissible if:
o All the originals are lost or destroyed, & not by the proponent acting in bad faith.
▪ Proponent must show that a reasonable & diligent search has been made for the original w/o success.
o An original cannot be obtained by any available judicial process;
o The party against whom the original would be offered had control of the original; was at that time put on notice that the original
would be a subject of proof at the trial or hearing; & fails to produce it at the trial or hearing.
o The writing, recording, or photograph is not closely related to a controlling issue.

Other evidence to prove content:

● 1005 – Copies of Public Records – Proponent may use copy to prove the content of an official record if these conditions are met:
o The record or document is otherwise admissible; &
o The copy is certified as correct or is testified to be correct by a witness who’s compared it w/the original.
● 1006 – Summaries – Proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or
photographs that can’t be conveniently examined in court.
o Evidence being summarized must be admissible & the other party should be given notice that the originals are available for viewing.

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● 1007 – Testimony or Statement of a Party
o Production is unnecessary where the party against whom it’s offered has admitted its contents.
o Oral admissions, other than those made as part of giving testimony, don’t satisfy the requirements of 1007.

Practical effect is not so much about documents as it is testimony.

● When a writing is in issue, the writing & not the testimony should be used.

The key to understanding the original document rule is that it applies where the facts contained in the document are directly in issue in the case &
the facts do not exist independent of the document.
● Typical documents that fall w/in the rule are written contracts, leases, or wills when the lawsuit is about the existence or interpretation of
those documents.

Question for the Judge to Decide:

● Whether it’s admissible

1008 - Questions for the Jury to Decide:

● Whether the content is accurate
● Whether it existed
● Whether it is the original

Watch out for business records – implicate 3 sets of rules:

● Best Evidence Doctrine
● Business Records Exception to Hearsay
● Foundation Requirements

Factors to consider in determining whether the best evidence rule applies:

● Relative importance of the content
● Simplicity or complexity of the content
● Strength of proffered evidence: consider corroborative witnesses
● Risk of error in testimonial account
● Presence or absence of an actual dispute as to content
● Ease or difficulty of producing the object
● Reason why the object itself isn’t being offered

How to get around an FRE rule:

● Using words in the statute,
● Because it’s prejudicial in 403, &
● Constitution trumps evidence.

Meyers v. US
Facts:
● Trial for perjury. Gov’t sought to prove ∆ had lied in his testimony before a senate committee.
o Gov’t called chief counsel to the committee to prove what ∆ said, & also introduced into evidence a stenographic transcript of ∆’s
testimony.
Issue:
● Whether the best evidence doctrine applies.
o Is prior testimony a writing?
Holding:
● No. The doctrine doesn’t apply because prior testimony is not a writing.
Reasoning:
● There was no issue as to the contents of the transcript, & the gov’t wasn’t attempting to prove what it contained; the issue was what ∆
actually had said.
o Rogers wasn’t asked what the transcript contained, but what ∆’s testimony had been.

Sylvania Electric Products v. Flanagan

Facts:
● ∆ hired π to haul gravel away from the construction site. When π sent the bill, ∆ refused to pay.
● Evidence introduced included invoices & bills, but the tally sheets that showed the actual work done weren’t introduced.
● Π told the court that he would look to see if he had any at home & would bring them to court buy never did.
Rule:

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● Secondary evidence isn’t admissible unless the proponent of the testimony shows that a reasonable & diligent search has been made for the
original w/o success.
o The extent of search required for the original is a matter to be determined by the trial judge.
o Key element is not that the original is lost or destroyed, but that it was through no fault of the proponent.
Reasoning:
● In order to permit proof by secondary evidence of the allegedly lost or otherwise unavailable original writing, the trial judge must make
preliminary findings that the original had become unavailable, otherwise than though the fault of the proponent of the testimony & that
reasonable search had been made for it.
● § 1006 couldn’t be used in this case b/c that rule requires originals to be produced.
o If you’re going to use this rule, usually you write a letter to the other side & say “I’m going to use the summaries provision, this is
what my witness is going to say, & you can come to my office & view the originals.”
o

Original Document Rule (Best Evidence Rule) – 1001, 1002, 1003, 1004, 1005, 1006, 1007, & 1008
The key to understanding the best evidence rule is that this rule applies where the facts contained in the document are directly in issue in the case
& the facts don’t exist independent of the document. Typical documents that fall w/in the rule are written Ks, leases, or wills when the lawsuit is
about the existence or interpretation of those documents.

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Foundational Evidence & Authentication
An offering must be authenticated before admission into evidence.
The authentication requirement is satisfied by the offering of “evidence sufficient to
support a finding that the matter in question is what the proponent claims.”

Parts of Laying a Foundation

● Authentication
o Rules do not expressly state an authentication requirement. It’s implied.
● Qualifying an Expert
● Hearsay Exception is Satisfied

2 Parts to Authentication
1. Basis for Identification
● What is it?
● How is it relevant to this case?
2. Chain of Custody
● Object appears to be in the same condition.

Traditional Steps
1. Mark for identification.
2. Authenticate.
3. Offer the exhibit into evidence.
4. Permit adverse counsel to examine it.
5. Allow adverse counsel the opportunity to object.
6. Submit to the court for examination.
7. Ruling.
8. Request permission to present to the jury.

Authentication is nothing more than a subset of relevancy.

If an exhibit isn’t supported by evidence sufficient to support a finding that it is “what its proponent claims,” it lacks relevance under 401 & is
subject to exclusion as confusing & misleading.

401 – Evidence is relevant when having any tendency to make the existence of any fact more or less probable.
● 2 Parts:
1. Is it logically relevant?
2. Is it legally irrelevant?

402 – Relevant evidence is admissible.

403 – Even if the evidence is relevant, it should be excluded if the probative value is substantially outweighed by danger of:
● Unfair prejudice
o Everything is prejudicial, but only concerned w/improper prejudice.
● Confusion
● Misleading the jury
● Undue delay
● Waste of time
● Cumulative evidence

901 – Authenticating or Identifying Evidence

(a) – Identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b) – Illustrations:
a. Testimony of a Witness w/Knowledge
i. Testimony that an item is what it’s claimed to be.
b. Distinctive Characteristics & the Like
i. Appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together w/all f the
circumstances.

Role of Judge & Jury:

104(b) – Relevance that Depends on a Fact
● Authentication deals only w/the foundation required for admitting evidence.
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o Adequacy of foundation is determined by the trial judge: he performs a screening function.
o Whether the evidence is in fact authenticated is a question for the jury.
▪ Jury doesn’t have to accept the authentication or give it the significance the proponent suggests.
o Evidence that has been sufficiently authenticated is subject to counterproof.

Stipulations to authenticate are frequently used.

● They do not guarantee admissibility.
o E.g., a writing can be genuine but still be hearsay.
● Qualify a stipulation.
o E.g., stipulating that a writing is genuine doesn’t mean the contents are true.

Criminal v. Civil
Authentication is much more important in criminal cases than in civil cases.
● Civil Cases – FRCP
o 10(c) – Attach a relevant document to the pleading as an exhibit & allege its genuineness.
o 36 & 37(c) – Authorizes a party to submit a written request for admission of facts, including the genuineness of documents.
o Can seek admissions of genuineness from an opponent by interrogatory or deposition.
o Authentication matters are often resolved in pretrial conferences.
● Criminal
o Authentication is more restricted b/c of Constitutional consideration.
o Criminals are less inclined to stipulate.

Tangible Objects
Remember: 2 Parts of Authentication
● Basis for identification:
o What is it?
o How is it relevant to the case?
● Chain of Custody – object appears to be in the same condition.
Standard of Review: Abuse of Discretion.

Witness Testimony – Personal Identification

Authentication can apply to live testimony at least if the testimony is describing something such as a writing or telephone conversation that must
itself be authenticated.
● Must satisfy the personal knowledge requirement of 602.
● Most courts don’t allow a witness to simply pronounce a matter authentic.
o Must explain how such an identification is made.
o Usually personally known to the witness.

Chain of Custody
Technique is a combination of:
● 901(b)(1) – First hand knowledge
● 901(b)(4) – Appearance or characteristics
It’s not necessary to eliminate all possibility of altercation or tampering.
● A showing of reasonable safeguards is all that’s necessary.
o Like chain of custody documents to log who handled it.
● You don’t have to produce everyone, but must convince the judge that the evidence is in the same condition & hasn’t been tampered with, &
that there’s substantial chain of custody.
Test: Whether the authentication testimony was sufficiently complete so as to convince the court that it’s improbable that the original item had
been exchanged w/another or otherwise tampered with.
o Precision is not an iron clad requirement.
o Must be sufficient to show:
o What it purports to be.
o That it hasn’t been altered.
o Discretion of the trial judge.

Writings:
Just like anything else, it helps to establish some connection between the writing & the issues in the case in which it’s offered.
Rule: Authentication doesn’t require that the writing be proven genuine to the satisfaction of the judge or by a preponderance of the evidence. It
need only create a sufficient likelihood of the writing’s authenticity that the jury could (but need not) ultimately find it genuine.

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Tape Recordings:
Criteria:
o Proper Equipment: Standard & Reliable
o Competent Operator
o Recording Authentic & Correct
o Not Altered
o Appropriately Preserved
o Speakers Identified
o Appropriateness of Underlying Conversation
o Voluntary, in good faith, w/no inducement

X-Rays:
Suggested Authentication Method – describe the process, 901(b)(9):
1. The operator was a qualified x-ray technician.
2. The operator filmed a certain part of a person’s body at a certain time & place.
3. The operator used certain equipment.
4. Equipment was in good working condition.
5. The operator used the correct procedures.
6. The operator used an identification assembly on the cassette.
7. The operator accounts for the cassette’s custody between filming & trial.
a. Chain of custody includes proof of the proper development of the cassette.
8. The witness recognizes the exhibit as the cassette.
Might have to call the librarian, technician, attendant, etc. depending on how complicated it is.

Computer Printout
Suggested Authentication Method – describe the process, 901(b)(9):
1. Competent computer operators were employed.
2. The computer equipment employed is accepted in the field as standard, reliable equipment.
3. Careful procedures, including reasonable controls, tests, & checks for accuracy, were followed w/respect to the input & output of info.
4. The machine was operated & programmed properly.
5. B/c of the above factors & any other relevant factors, the output has the significance claimed by the proponent.
6. Identification of this printout & the data it contains as being relevant to the litigation.

Telephone Calls
Incoming:
● Voice Identification – 901(b)(5)
o Must have personal knowledge.
● Contents (Reply Doctrine) – 901(b)(4)
o Code terms or distinctive names.
o Response to an earlier call.
● Circumstantial Evidence
o Records of the phone company.
o Admission of the party that he was the one who called.
Outgoing: Evidence About a Telephone Conversation –901(b)(6)
● To a person:
o Call to person at number assigned by telephone company.
o Person who answered identified himself as the person called.
o Other circumstantial evidence.
● To a business:
o Call to number assigned to business.
o Conversation related to business that could reasonably be transacted over the phone.
Reply Doctrine – common law doctrine, incorporated in 901(b)(4) that authenticates a communication from a particular person by showing that it
replies to some earlier conduct w/that person.

FRE 902 – Self-Authentication

“Self-authenticating” evidence doesn’t require extrinsic evidence of authenticity as a condition precedent to admissibility.
● Does not bar counterproof by the opponent.

US v. Johnson

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US v. Howard-Arias
Facts:
● ∆ was rescued from a wrecked ship. When the coast guard came they found a lot of weed on the ship. While towing the ship to shore, the ship
sank but lots of weed was salvaged from the wreckage. Upon port, the weed was turned over to the DEA for testing & storage.
● The following testified at trial: the officer who seized the weed, the officer who surrendered it, the DEA custodian on shore, & the DEA
chemist.
o The DEA officer who received it from the coast guard for transit didn’t testify.
Issue:
● Whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item had
been exchanged w/another or otherwise tampered with.
Holding:
Rule:
● A tangible object can meet the authentication requirement even though there’s a missing link in the chain of custody, at least if there is
sufficient proof that the evidence is what it purports to be & hasn’t been altered in any material aspect.
Reasoning:
● Establishing chain of custody shows that the evidence is in the same condition, that the evidence is what the proponent claims it to be.
● A break in the chain isn’t necessarily fatal to the admissibility but goes to the weight of the evidence.
● The purpose of this requirement is to make sure the item introduced is what it purports to be, i.e., the weed seized.

US v. Bagaric
Facts:
Issue:
Holding:
Reasoning:

US v. Oslund
Facts:
Issue:
Holding:
Reasoning:

US v. Pool
Facts:
Issue:
Holding:
Reasoning:

Hypos:

1. Can you get in a copy of the NY Times?

a. Yes, in 902(6)
2. What about Webster’s Dictionary?
a. NO – it’s not official & it’s privately published.
b. There has to be some sort of government endorsement.
3. What about a document from the West Reporter System?
a. Maybe a periodical.
b. Need to know if it’s the official publication issued by public authority: 902(5).
4. What about a Sears Catalogue?
a. Maybe, it’s a periodical: 902(6).
b. Maybe a trade inscription & the like.
5. What about a Baby Ruth Wrapper?
a. Trade inscriptions: 902(7).
6. Map published by the government?
a. Official Publication: 902(5).
7. Signed & sealed minutes of a city?
a. Certified copies of public records
b. 902(4) or maybe (11)
8. Census report from France?
a. Maybe 902(3) or (5) – official docs aren’t restricted to the US.

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Authentication of Instruments – 901
Before an instrument can be admitted into evidence, the proponent must establish its identity by stipulation, circumstantial evidence, the
testimony of a witness w/knowledge of its identity & authorship, or self-authentication or certification pursuant to 902.

Authentication of Telephone Conversation & Voices – 901

Authentication of telephone conversations & voices is the process of proving the identity of the persons involved in the conversation. Before
testimony can be heard that a telephone conversation occurred, testimony must be elicited to prove the identity of the participants in the
conversation.

Exhibits:
Demonstrative – Typically photographs & to-scale models. The requirement of authentication is satisfied by evidence sufficient to support a
finding that the exhibit is a fair & accurate depiction or representation of something that’s at issue in a case.

Illustrative - Those that help a witness give testimony. Examples are diagrams, charts, & graphs. The requirement of authentication is satisfied by
testimony that the exhibit will aid in illustrating or explaining testimony.

Tangible Objects - To introduce into evidence, the proponent must show that it can be identified by a witness who had knowledge of the tangible
object at a relevant time & who can testify that it is in the same or substantially the same condition as it was at a relevant time.

Writings - To introduce a writing into evidence, 4 foundational requirements must be met. The writing must be shown to:
1. Be relevant,
2. Be authentic,
3. Meet the requirements of the original document rule, &
4. Either qualify as non-hearsay or meet an exception to the hearsay rule.

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Relevancy
Rule: If evidence isn’t relevant, it’s not admissible.
Relevancy is thus the primary threshold determination that must be made for each item of proffered evidence.

General Points
● Modern relevance includes both:
o Relevant – Does it tend to establish the point for which it was offered?
o Material – Does the point bear on issues in the case?
● Relevance is a relational concept which must be understood in context:
o Tends to prove or disprove a proposition of fact.
o Must be “of consequence” – i.e., “material.”
● The problem of relevance is tied up w/the problem of evaluating circumstantial proof. (Direct evidence poses no relevancy problems.)
● Relevance in legal contemplation turns upon logic, as opposed to emotion.

FRE 401 – 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 probable or less probable than it would be w/o the evidence.

FRE 402 – All Relevant Evidence is Admissible

● Except otherwise provided for by:
o The Constitution,
o Act of Congress,
o FRE,
o Other Supreme Court Rules.

FRE 403 Balancing Test

● If probative value is substantially outweighed by:
o Unfair prejudice,
o Confusion of the issues,
o Misleading the jury,
o Considerations of undue delay,
o Waste of time, or
o Needless presentation of cumulative evidence.

FRE 104(b) – Conditional Relevance (Relevance that depends on a fact)

● Test for relevancy is less stringent than evidence sufficient to justify a finding.
● The existence of one fact (A) conditions (is necessary for) the relevance of evidence of an allied fact (B).
● Example:
o Offers a page from a diary alleged to be the diary of X. The diary reflects that the writer was mentally depressed (fact B).
o Mental depression is probative of suicide.
o Must first find that X made the diary entry (fact A).
● Example:
o Issue: Whether X drove negligently.
▪ Black sedan of American manufacture was traveling at a high rate of speed ½ miles from the site of the accident (fact B).
▪ Increased likelihood that the car was speeding at the time of the accident.
▪ Trier of fact must first find that X was the driver of the black sedan (fact A).

Relevancy is different from weight & sufficiency.

● Relevancy – the primary question for admissibility.
● Weight – describes the persuasive force assigned to the evidence by the trier of fact once the evidence is admitted.
● Sufficiency – the quantum & persuasive force of evidence necessary to take an issue to the jury.

Remember – relevancy is not sufficiency.

Issues of relevance are not scrutinized to ensure that each item of proof meets the standard of persuasion that applies.
o The evidence as a whole must satisfy the applicable standard for each element of a claim, defense, or charged crime, but each
item need only increase the probability that some consequential point is true.

Direct – describes evidence that, if accepted as genuine or believed true, necessarily establishes the point for which it is offered.

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Circumstantial – evidence that, even if fully credited, may nevertheless fail to support, let alone establish, the point in question, simply b/c an
alternative explanation seems as probable or more so.

Limited Admissibility – Confining the Impact of Proof

● FRE 105 authorizes an approach alternative to FRE 403: Admit the evidence, on the point for which or against the parties as to whom it is
competent, but give limiting instructions to prevent misuse on other issues or against other parties.
● What a party says is usually admissible against her under the admissions doctrine in 801(d)(2)(A).

Completeness – Providing Context

Problem: A bit of evidence that might be competent on a point is so connected w/other evidence that it would be a distortion to consider one w/o
the other.
● FRE 403 permits 1 approach: Balance & admit, or exclude the whole accordingly.
● FRE 106 authorizes another: The adverse party may require introduction of any other part of the statement that ought in fairness be
considered at the same time as the part already offered.
o “Rule of Completeness” – essentially a rule of fairness.
▪ Does not apply to conversations.
o “Interruption Rule” – authorizes adverse parties to answer an incomplete presentation later in trial.
o Can sometimes trump hearsay & other objections when necessary to prove context.

“The Shortness of Life”

● FRE 403 – undue delay, wasting time, & needless presentation of cumulative evidence
o Courts may limit the number of witnesses called to prove any particular point.
o Judges may exclude, as cumulative, evidence that is duplicative of that already presented.
o Judges may insist that a trial continue once it has begun & deny requests for time to locate new evidence or witnesses.

The Functions of Judge & Jury

● Simple Relevance
o FRE 104(a) - the judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or
refute, is consequential under FRE 403.
● Conditional Relevance
o FRE 104(b) contemplates that the judge performs only a screening function.
o When different answers are reasonable on the basis of proof, the jury decides.
o The judge may decide the order in which these matters are resolved:
▪ When the relevance of evidence depends on whether a fact exists, the court may admit the evidence at the outset, on
condition that proof of the critical fact is introduced later.
● Weight & Sufficiency Distinguished
o As a matter of timing, the judge decides whether evidence is relevant when it’s offered.
o As a matter of function, a judge assesses relevancy in deciding whether to admit or exclude.
o In contrast, the fact finder assesses the evidence at the end of the case, performing this function for the purpose of deciding the
case on the merits.

Old Chief v. US
Facts:
Issue:
● Whether the name of the crimes of which Old Chief had been convicted is relevant.
Holding:
● Yes, proof of a felony assault conviction is relevant when the point to be proved is a felony conviction.
Rule:
Reasoning:
● An offer to stipulate doesn’t make relevant evidence irrelevant.
o “If relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must not rest on the ground
that the other evidence has rendered it ‘irrelevant,’ but on its character as unfairly prejudicial, cumulative or the like, its
relevance notwithstanding.”

Shannon v. US

Relevance – Generally – 401 & 402

Often, relevance & materiality are used interchangeably. This is incorrect. Materiality has a more precise meaning than relevance & can be seen as
being a term that is w/in the meaning of relevance. Materiality is the relationship between the proposition for which the evidence is offered & the

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issues in the case. If the evidence is offered to prove a proposition that isn’t a matter in issue, the evidence is said to be immaterial. Relevancy
includes both the test of materiality & something more – it is the tendency of the evidence in question to establish a material proposition.

Conditional Admissibility – 104(b)

The judge is given a great deal of discretion in making the preliminary findings necessary to determining the admissibility of evidence.

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – 403

The balancing tests of 401 & 403 is tilted heavily in favor of the admissibility of logically relevant evidence or evidence w/probative value b/c the
prejudice must substantially outweigh the probative value in order to require exclusion.

Limited Admissibility – 105

It’s incumbent upon opposing counsel to seek limitation of the evidence to its proper admissible purpose & to request a limiting instruction by the
judge. Failure to do so will allow consideration of the evidence for all purposes.

Rule of Completeness – 106

Essentially a rule of fairness. B/c the appearance of unfairness can seriously damage the credibility of the proponent, the rule of completeness
should be anticipated by proffering counsel & every effort should be made to fairly show the appropriate context in which an offered statement or
recording was made.

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Direct & Cross-Examination

General Matters
● FRE 611(b) – Scope of Cross-Examination
o Limited to the subject matter of the direct examination, &
o Matters affecting the witness’s credibility.
● FRE 611(c) – Leading Questions
o One that suggests the desired answer to the witness so that it puts the desired answer in the witness’s mouth, or is one that makes it
unclear whether the witness or the lawyer is testifying.
▪ Not allowed on direct except to develop witness’s testimony.
▪ Ordinarily allowed on cross.
▪ May be used w/adverse witness or party.
▪ Aim is to bring out what the witness has to say, & the attorney shouldn’t put words in his mouth or testify for him.
● Watch:
o What a witness takes to the stand.
o How you prepare your witnesses.

Exceptions – Leading Questions Allowed During Direct (Judge’s Discretion):

1. When necessary to develop testimony.
● Used when witness is:
o Very young, hence apprehensive, uncomprehending, or confused.
o Timid, reticent, reluctant, or frightened.
o Ignorant, uncomprehending, or unresponsive.
o Infirm.

2. When witness is uncooperative.

● Hostile, an adverse party, or identified w/an adverse party.
● Idea is that when a witness refuses to cooperate, a trial lawyer may need a little coercive power to get at what the witness knows.
o Leading questions enable the lawyer to press & may be the only way to bring out what the witness knows.

3. When the Rule is more trouble that it’s worth.

● Save time on preliminary matters.
● Matters that are not contested.
● Expert witnesses.

4. When memory seems exhausted.

● When questioning is stymied by the inability of the witness to recollect the matters at hand, the lawyer is generally permitted to attempt to
refresh his recollection.
o Usually about something witness previously said.

FRE 805 – Past Recollection Recorded

o The record was made by or adopted by the witness at a time when the witness did have a recollection of the event.
o The witness can presently vouch for the fact that when the record was made or adopted, he knew that it was inaccurate.
▪ The piece of paper itself speaks to the jury.
▪ The piece of paper must pass muster in terms of its evidentiary competence.
▪ If attempt to refresh memory fails, the document itself may be admitted.

FRE 612 – Present Recollection Revived

o Witness knows the facts, but has a memory lapse on the stand & knows his report or other writing will jog his memory.
▪ All that is required is that it “ignite the flash of accurate recall.”
o Witness is given & reads the pertinent part of his report or other writing.
o Witness states his memory has now been refreshed.
o Witness now testifies as to what he knows – w/o further aid of the report or other writing.
▪ The stimulus itself is never evidence – only an aid in the giving of evidence.
● The only source of evidence is the testimony of the witness himself.
▪ The witness then testifies on the basis of the now-refreshed memory.
▪ The opposing party has the right to inspect the memory aid to test whether the witness’s memory has in truth been refreshed.

Difference:
▪ In PRR, witness stakes his oath on his present memory.

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▪ In RPR, witness stakes his oath upon his written recital of things remembered in the past.

Prior inconsistent statement as substantive evidence

▪ Attempt to refresh recollection may succeed too well, reviving a memory of events at odds w/what witness said before. If prior
statement was given under oath in proceedings, & if the witness is now cross-examinable about the statement, then the
examining lawyer may be allowed to use the statement as substantive evidence. FRE 801(d)(1)(A)
▪ Even if witness does not regain memory of events, his seeming forgetfulness may persuade the court that his prior statement is
inconsistent w/his present position.
Prior inconsistent statement as impeaching proof
▪ Attempt to refresh memory may succeed only in bringing a story that conflicts w/what the witness said earlier, or it may fail,
but the persistent forgetfulness may seem evasive & inconsistent w/what was said earlier.
▪ Even if the prior statement doesn’t fit a hearsay exception, it may be used to impeach.

Cross-Examining on Witness Preparation Material

Witness preparation begins before trial, & almost invariably the cross-examiner tries to show that this process affected the testimony.
● James Julian reads FRE 612 as authorizing judges to require production of material review by a W before testifying, even if covered by work
product protection.
● Neither MO nor KS is a Rules state – both deny production of material covered by attorney-client privilege & reviewed by client prior to
testifying.

Cross-Examination as an Entitlement
In both civil & criminal cases, each party has the right to cross-examine witnesses called by the other side.
● In criminal cases, the 6th Amendment entitles the accused to “confront the witnesses against him.”
Cross-examination is the most critical aspect of this constitutional right.
● Absence of cross is the main reason why the hearsay doctrine so often requires exclusion of out-of-court statements.
● Where cross is cut short by the death or illness of the witness, this curtailment of the right is viewed as so serious that the direct testimony
must often be stricken, & sometimes a mistrial is required.

FRE 615 – Exclusion of a Witness – “Invoking the Rule”

● At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, & it may make
the order on its own motion.
● Courts routinely exclude (“sequester”) witnesses, telling them to stay outside the courtroom before testifying, to minimize the risk that they
will “shape” their testimony to agree w/(or supplement or refute) what others have to say.
o Sequestration orders must be implemented by instructions directing excluded witnesses not to confer w/others.
● Does not authorize exclusion during opening statements.
● Violating a sequestration order doesn’t automatically call for excluding the testimony of the witness.
● 615 could be read as (a) requiring a showing of prejudice, (b) requiring automatic reversal, or (c) raising a presumption of prejudice.
o Courts interpret this differently.
● This rule does not authorized the exclusion of:
o Natural Persons – a party who is a natural person, like a ∆ or π.
o Representatives of Other Parties – an officer or employee of a party which is not a natural person designated as its representatives by
its attorney, like the police officer or corporate representatives.
o Persons Necessary to the Presentation of a Case – A person whose presence is shown by a party to be essential to the presentation of a
party’s case, like an expert or agent that handled or committed the act being litigated.
o Certain Others – A person authorized by statute to be present, like crime victim statutes that allow victims to be in the courtroom.
▪ The Special Case of Crime Victims:
● Victims are not parties – not covered by 615’s exemption for “parties.”
● Nor are victims normally categorized as persons “essential to the presentation of a case.”
● Federal Laws:
o Victim Compensation & Assistance Act – includes a provision entitling victims “to be present at all public
court proceedings related to the offense” unless the court determines their testimony “would be materially
affected” by other testimony.
o 18 USC §3510 – provides that federal courts shall not exclude “any victim of an offense” from a trial merely
b/c he may testify during sentencing.

Baker v. State
Facts:

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
● En route to the hospital, officer took victim to where another officer was holding Appellant. In cross, Appellant wanted officer to state that
victim confronted Appellant & stated she was not one of the people who attacked & robbed him.
● To stimulate officer’s present memory, counsel attempted to show him the police report (not written by W) relating to that confrontation.
Issue:
● Whether the trial court erroneously refused her the opportunity to refresh the present recollection of a police witness by showing him a
report written by a fellow officer.
Holding:
● Yes – judge erroneously measured the legitimacy of the effort to revive present recollection against the more rigorous standards for
recordation of past memory.
Rule:
● When jogging the memory of a witness (present recollection revived), it is not necessary that the writing be used as a stimuli be his own.
Reasoning:
● FRE 803 – When a party seeks to introduce a record of past recollection, he must establish:
o That the record was made by or adopted by the witness at a time when the witness did have a recollection of the event; &
o That the witness can presently vouch for the fact that when the record was made or adopted by him, he knew that it was accurate.
● FRE 612 – Present Recollection Revived
o Stimuli or memory prods are not evidence, but only aids in the giving of evidence.
▪ Only source of evidence is the testimony of the witness.
o Usually the instrument used contains a prior statement by the witness himself – this is an exceptional case.

James Julian, Inc. v. Raytheon Co.

Facts:
● In the course of preparing witnesses for depositions, π’s counsel assembled a binder which was reviewed by witnesses who were being
deposed by ’s counsel.
● πs do not object to s obtaining the documents in the binder, but to the binder itself, arguing that the documents constitute privileged work
product reflecting counsel’s opinions, mental impressions, conclusions, & legal theories.
● s argue that production of the binder would reveal the thought processes of π’s counsel, & that even if the binder was at one time entitled
to special protection, π waived that entitlement by using the binder to prepare witnesses for deposition.
Issue:
● Whether π waived work product protection by using the binder to prepare witnesses for depositions.
Holding:
● Yes. The binders should have been disclosed & any privileges were lost.
Rule:
● Work product privilege is waived at least if the attorney uses materials to refresh (prepare) witness’ memory before a deposition or
testimony.
Reasoning:
● This issue should be decided on a case-by-case basis.
● FRE 612 – Use of protected documents to refresh a witness’s memory prior to testifying constitutes a waiver of the protection.
● In this instance, π chose to use the binder & documents w/in to educate the witnesses for deposition.  was entitled to receive those
documents to determine if witnesses were influenced by counsel’s presentation of the fact.

Cross-Examination Generally
For every witness presented by a party, the adverse party has the right to a full & fair cross-examination. The remedy for the denial of such right is
to have the testimony stricken from the record.

Cross-Examination – Scope – 611(b)

The rule limiting cross to those matters on direct doesn’t limit questioning on cross to the answers elicited on direct, but rather to the subject
matter raised or implicated by the direct. It also allows inquiry into matters affecting the credibility of the witness. Cross that exceeds the scope of
direct must be conducted as if it were a direct examination.

Leading Questions – 611(c)

A leading question is one that suggests the desired answer to the witness so that it puts the desired answer in the witness’s mouth or is one that
makes it unclear whether the witness or the lawyer is testifying.

Refreshing Present Recollection – 612

The steps in refreshing a witness’s memory are as follows:
1. Establish the witness’s failure of memory (full or partial).
2. Mark the refreshing document for ID.
3. Show the witness the refreshing document, & ask the witness to read it silently.
4. Ask if the witness has read it.
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5. Ask if

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Character Evidence

General
● We are NOT talking about the character of the witness.
● Character as evidence of conduct.
o Not only descriptive, but predictive.
o Probable patterns of behavior - traits shape his natural tendencies.
● Propensity argument: character evidence can be powerful substantive evidence of conduct on a particular occasion.
o Propensity – an inclination or natural tendency to behave in a particular way.
o Probative worth of such proof cannot be measured w/precision. Weight turns in part on the inclination & the point to be proved.
▪ i.e., if we have in 1 case evidence of a fair & honest disposition & in another evidence of treachery & dishonesty, the former
seems more persuasive as proof that the person did not utter the falsehood in issue than the latter in proving that he did.
● Reason is that fairness & honesty seem to lessen the likelihood that a person uttered any falsehood (hence necessarily
the one at issue), while treachery & dishonesty seem only to increase the likelihood that the person utters falsehoods
(but not necessarily the one at issue).
● Forms of evidence: testimony from “character witnesses.”
o Opinion
▪ One person’s thoughts that a person has the trait in question.
o Reputation
▪ Community’s thoughts
● “The shadow his daily life has cast in his neighborhood.”
o Common law Rule: only reputation testimony was allowed when the purpose was to prove character as circumstantial evidence of
conduct on a particular occasion.
● Regulating Scheme
o FRE 404 & 405
▪ Complicated & full of compromises

FRE 404 - Character Evidence; Crimes or Other Acts

(a)(1): Prohibited Uses - “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person
acted in accordance w/the character or trait.”
● Basically not admissible to prove that someone did something.
(b): Crimes, Wrongs, or Other Acts – Prohibition repeated – “Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance w/the character.”
● Cannot be used for character but can use for:
o Motive
o Opportunity
▪ Skill or capacity to do criminal acts.
o Intent
▪ Entrapment defense – that gov’t action induced a crime the ∆ wouldn’t otherwise commit, & the prosecutor’s usual response is
to prove that ∆ committed similar crimes before.
o Preparation
o Plan, Design
▪ Plan cases involve a single, overall grand design that encompasses both the charged & uncharged offenses.
▪ Design is “overarching” & crimes are “integral components” of the plan so each amounts to a step or stage in executing it.
● In contrast are spurious or unlinked plans where prosecutor shows only that charged offense & prior acts are similar &
temporally proximate w/o showing common objective.
▪ In sexual assault cases, proof that ∆ also abused victim’s sibling is sometimes offered as evidence of plan or design.
o Knowledge
o Identity
▪ Modus Operandi – a particular way or method of doing something, especially one that is characteristic or well-established.
o “Doctrine of Chances” – Distinctive nature of prior & charged misdeeds makes it more likely that they committed the
crime.
● Prior act must bear singular strong resemblance to charged offense, & similarities must be sufficiently
idiosyncratic to permit inference of pattern.
o Underlying thesis between general & specific propensity.
● General – Robs banks
● Specific – Robs banks in a particular way
o Reverse 404(b) Evidence
● Typically,  argues that offenses by another so strikingly resemble the charged crime that the proof suggests
that the other must be guilty of the offense charged to the , too.

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
o Absence of Mistake
o Lack of Accident (non-exclusive list)

Proving the Prior Act

Evidence offered for a permissible purpose under 404(b) is subject to possible exclusion under 403.
● When the proponent (usually prosecutor) offers proof of such acts, the court must decide whether it is relevant in some permissible way &
whether probative worth is outweighed by the risk of unfair prejudice.
o Relevant in some permissible way – relevant in some way other than proving character.
o Too prejudicial under 403 if jury will become angry at , or concludes that  should go to jail for whatever else he has done, regardless
of whether he committed the charged crime.
o Forbidden Propensity Inference – Character evidence that is only relevant if the jury interprets the prior act as proof that  is guilty of
the charged offense.
● Rules do not require the court to make a “preliminary finding” that  committed the prior crime.
o Question for the jury under 104(b).
o Court can still perform a “screening function,” which entails simply insuring that the prosecutor has offered evidence sufficient
(preponderance standard) to support a jury finding that  committed the crime.
● Risk of prejudice to . Courts must analyze probative worth & risks of unfair prejudice & confusion of issues, & often the proof is excludable
under 403 even though it is marginally relevant on some point.
● 4 part test in under which the judge:
o decides whether the evidence is offered for a proper purpose,
o decides whether it is relevant for that purpose,
o decides whether its probative worth is outweighed by the risk of unfair prejudice, &
o gives a limiting instruction on request.
▪ Narrow bar against the propensity inference:
● Prior offense evidence may be admitted in criminal cases on any issue to which it is relevant unless probative value is
substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a
propensity on the part of the accused.
● Prosecutor must give notice, before trial if the defense requests (which should be routine) or during trial if the court excuses pretrial notice for
good cause, of the general nature of evidence of prior acts or wrongs that it intends to introduce.

Character to Prove Conduct on a Particular Occasion

Exceptions in Criminal Law
● ’s pertinent trait
o “Pertinent” depends largely on the nature of the charges.
▪ i.e., in a battery prosecution, a court would likely exclude evidence that  is “honest” but admit proof that he is “peaceable” or
“nonviolent.”
o Level of specificity required
▪ 404(a)(1)&(2) speak of a pertinent “trait” of character, & the CAN speaks of limiting the evidence to such traits rather than
proving “character generally.”
▪ But general proof that  is “law abiding” seems at least marginally relevant in all contexts, & courts seem disposed to admit it.
o By prosecution – barred by 404(a)(1) – “Evidence of a person’s character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance w/the character or trait.”
o By defense – admissible under 404(a)(2) – exceptions for a  or victim in a criminal case.
● Victim’s pertinent trait
o Put in issue by the : can be rebutted; use ’s own trait
o Homicide case: character trait of peacefulness by Prosecution only to rebut evidence that victim was first aggressor.
o Evidence of threats to harm  are not excludable as character evidence; admissible b/c they shed direct light on victim’s state of mind.

How: FRE 405 – Methods of Proving Character

If character evidence is admissible
● Reputation
● Opinion
Cross-examination – specific instances of misconduct.
● Witness is cross-examinable on any pertinent instance of conduct by the  that casts doubt on the testimonial.
o Must have good faith basis for the question.
o Can’t make stuff up.
Note: If character is an essential element – proof of specific instances allowed.

Civil Cases
Character evidence, when offered to prove behavior in a particular instance, is never admissible in civil cases.
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● 404(a)’s exceptions only apply to criminal cases.
● Except in cases where a claimant seeks damages for sexual assault or child molestation.
i. Under FRE 415, such a claimant can prove that  committed similar offenses.

Character as an Element of a Charge, Claim, or Defense

Criminal Cases
● 404 does not bar evidence of character when it is offered for other reasons than to prove conduct on a particular occasion.
● 405(b) provides that proof of “specific instances” of conduct is admissible whenever character is an “essential element” of a charge or
defense.
o When is character an “element” of a charge or defense?
▪ In criminal cases – almost never.
● We don’t (or shouldn’t) convict a person b/c he’s “bad” (unless it also happens that he committed the offense)
or acquit him b/c he’s “good” (unless it also happens that he didn’t commit the offense).
Civil Cases
● Several common situations in which character is an ultimate issue. Evidence is not offered as a predicate fact supporting an inference of
behavior on a particular occasion, but as an end in itself.
o Defamation
● Truth raised as a defense.
● Defense evidence that in fact π did the act would be admissible.
o Negligent Entrustment
● Π alleges that  was negligent in permitting another to operate his equipment, & that the other negligently injured π. Π must
prove that the latter was by disposition careless, in order to prevail that  shouldn’t have entrusted the equipment to him.
● Evidence of specific instances of prior negligence w/such equipment may be proved.
o Child Custody
● Relative parental fitness of mother & father is assessed in order to serve the best interests of the child.
● Character, in the sense of being a good parent, is the ultimate issue in the case.
o Wrongful Death
● The amount of recoverable damages may turn on the “worth” of the decedent to the π.
● In theory the bereaved π should recover less if it can be shown that the deceased was an alcoholic or compulsive gambler than
would be recoverable if the deceased was a hardworking, dedicated, & loving spouse, parent, or child.

Character in Sex Offense Cases

412 – qualifies 404(a)(2) by restricting the use of evidence relating to the sexual history of a sex crime victim.
● Essential insight of rape shield statute is that sexual activity by a woman on specific occasions doesn’t provide appreciable support for an
inference that she consented to engage in this activity with the .
● Generally,  is constitutionally entitled to introduce evidence of victim’s sexual history to show a motive for making a false charge against .
● Where lawyer for  asks the complaining witness whether she brought prior false charges of sexual assault, FRE doesn’t apply to evidence of
“allegedly false claims.”
o It seems, however, that 412 is implicated where false charges suggest sexual conduct, as can happen if they describe “date rape” (if such
charges are false, they may suggest sexual behavior).
● Complicated b/c the defense is not trying to prove sexual acts, but lies that may relate to sexual acts. Focus is on the statement
& its falsity, & not on whatever underlying acts led to the statement.
● Critical question is whether  has shown that prior charges were indeed false. Not enough that prosecution was declined or the
charges dismissed, but recantation of charges is sufficient to establish falsity.
o In general, questioners who challenge witnesses by asking about false statements must have a good faith basis, but it is up to the jury to
decide whether the witness spoke falsely as the question suggests.
● Most courts observe rule that judges decide under 104(a) whether prior charges were false, & require the questioner to have
more than a good faith basis.
o When male  is charged w/sexual assault against another male, most states hold that rape shield legislation blocks proof that
complainant is homosexual, which is offered in support of the claim of consent.

Evidence of Complainant’s Prior Sexual Conduct in Civil Cases

412 prohibits evidence of sexual behavior & sexual predisposition in civil cases EXCEPT if its probative value substantially outweighs the danger of
harm to any victim & of unfair prejudice to any party.
● Court may admit evidence of victim’s reputation ONLY if the victim has placed it in controversy.
● Most courts extend the reach of the protective provisions much further.
● Steps:
▪ Is proof covered by FRE 412?
▪ Prohibits evidence of other sexual behavior & sexual predisposition.
▪ Must be relevant (402) & admissible under other rules.
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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
▪ Whether relevance substantially outweighs the danger of unfair prejudice or harm.
▪ (More probative than judicial or harmful)
NOTE:
▪ 403 –evidence comes in unless prejudice substantially outweighs probativity.
▪ 412 – evidence is excluded unless probative worth substantially outweighs prejudice or harm.
▪ THEREFORE: 412 evidence has a higher entry barrier.

Sexual Harassment
● Claimant must show that she personally found the conduct to be hostile, abusive, or offensive, & that a reasonable person in her position
would react that way.
● Proof that claimant made sexually suggestive remarks in the work place bears on whether she was offended by “unwanted sexual innuendo
directed at her personally.”

Prior Offenses by s in Sex Crime Trials

413 - in sexual assault trials the court “may admit” evidence that  committed other “sexual assault” offenses.
o Incorporates a “lustful disposition” doctrine allowing proof of specific acts to show sexual disposition.
o Doesn’t require convictions.
414 - in trials for child molestation the court “may admit” evidence that  committed other “child molestation” offenses.
415 - extends 413 & 414 to civil cases raising issues of sexual assault or child molestation.

Character Evidence Generally

The evidence of a person’s character is generally inadmissible as irrelevant when offered on the issue of that person’s propensity to act in
accordance w/such character trait. When a criminal  puts in issue his own character, or the character of the alleged victim, or where the
character of a party is an essential element of a claim, charge, or defense in either the criminal or civil context, character evidence is admissible to
show propensity.

Other Acts, Crimes, or Wrongs

404(b) is not an exception to the general rule forbidding the use of character evidence to show propensity. Rather, the rule admits character
evidence where it involves specific crimes, wrongs, or acts, other than those involved in the case at bar, for any relevant, non-propensity purpose,
including the common, enumerated purposes illustrated in the rule. Assuming that the prior act is otherwise admissible, the quantum of proof
necessary for its admission must meet the 104 standard of sufficient evidence that the jury could find that the specific instance of conduct
occurred. In a criminal case, the prosecution must give reasonable notice as to any evidence that it intends to offer pursuant 404(b).

Prior Sexual Activity of Alleged Victim (The Rape Shield) – FREs 412, 404, 405, & 406
412 makes a distinction between civil & criminal cases:
● In a civil case, opinion evidence concerning sexual behavior or predisposition of the victim of sexual misconduct is never admissible,
while reputation evidence concerning the very same character matters may be admissible if it is first raised by the victim. In civil cases, specific
instances of conduct offered to prove the sexual behavior or predisposition of a victim of sexual assault are admissible if otherwise admissible
under the rules of evidence & the judge determines that the probative value of the evidence outweighs the harm to the victim or the unfair
prejudice to any party.
● In criminal cases, opinion or reputation evidence concerning the sexual behavior or predisposition of a victim of sexual misconduct is
never admissible. Specific instances of conduct showing sexual behavior on the part of the victim of sexual misconduct are admissible if offered
to prove that someone other than the  is the source of semen, physical injury, or other physical condition, or if the sexual conduct was w/the 
& offered on the issue of consent. Evidence of specific instances of conduct on the part of the victim of sexual misconduct is admissible if it
shows either sexual behavior or predisposition & the exclusion of such evidence would violate constitutional rights of the .

Similar Crimes or Acts in Civil or Criminal Sexual Assault or Child Molestation Cases - FREs 413, 414, & 415
404(a) generally excludes evidence of similar acts when offered to prove the propensity of the civil or criminal  to commit the act that is
charged. 413, 414, & 415 create an exception for such offers in cases involving sexual assault or child molestation. Of course, under 403 the
admission of such evidence remains subject to exclusion if it is prejudicial or confusing or involves an undue waste of time. However, it is
unavailing to argue that the evidence of similar crimes will prejudice the jury by inviting the inference that the  committed the crime or act
alleged b/c he committed a similar crime on an earlier occasion. After all, the inference is the very basis for admitting the similar crime evidence
pursuant to 413, 414, & 415. Finally, note that in both civil & criminal cases, the proponent of an offer of similar acts evidence pursuant to 413,
414, & 415 must disclose such evidence to the party against whom it is offered 15 days before trial.

Accused or Victim in a Criminal Case – FREs 404 & 405

Where the accused in a criminal case opens the door to her own good character pursuant to 404(a)(2)(A) or to the victim’s character pursuant to
404(a)(2)(B), then the prosecution may rebut that evidence w/contrary evidence. 404(a)(2)(A) permits a criminal ∆ to offer reputation or opinion
evidence, through a character witness, to show lack of propensity to commit the crime charged. 404(a)(2)(B) allows the criminal ∆ to offer
evidence of the victim’s relevant character trait to show the propensity of the victim to act in a certain way where pertinent. Note that after the
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criminal ∆ offers bad character evidence of the victim pursuant to 404(a)(2)(B), the gov’t may offer bad character evidence of the ∆ on the same
trait whether or not the ∆ offered good character evidence of himself. 404(a)(2)(A) & (B) character evidence may only be proved by reputation or
opinion evidence. If the character of the ∆ is an essential element of the charge or defense, that character may be proved by specific instances of
conduct by the ∆ in addition to by way of reputation & opinion evidence.

Guilty Pleas (Offers of Pleas & Related Statements) – FRE 410

Evidence of the plea & statements connected w/it are admissible against a criminal ∆ only if she is charged w/perjury or making false statements
& the statement is on the record, under oath, & in the presence of counsel.

Reputation as to Character (Hearsay Exception) – FRE 803(21)

Reputation is a collection of hearsay. Reputation of a person’s character that is found among her associates in some community is admissible as
a hearsay exception, subject to the relevance requirements of 404, 405, & 608.

Reputation Concerning Boundaries or General History (Hearsay Exception) – FRE 803(20)

Involves a collection of hearsay drawn from a community regarding events of general import or knowledge in that community. The exception
gains reliability from the force of general community knowledge.

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Habit & Routine Practice

406 admits proof of habit of a person or routine practice of an organization w/o limits.
● Doesn’t have to be corroborated.
● Doesn’t require an eyewitness.
● Relevant because it proves conduct on a particular occasion is in conformity.
● Distinguishing between character & habit:
o Character is a generalized description of one’s disposition in respect to a general trait such as honesty, temperance, or carefulness.
o Habit is more specific – designates a regular practice of meeting a particular kind of situation w/a certain type of conduct, or a reflex
behavior in a specific set of circumstances. Evidence of habit or custom is relevant to an issue of behavior on a specific occasion b/c it
tends to prove that the behavior on such occasion conformed to the habit or custom.

Habit & Routine Practice – 406

Evidence of a personal habit or of the routine practice of an organization is admissible if it is relevant to show that on a specific occasion, such
person or organization acted in accordance w/the proffered habit or practice. By its nature, habit, or routine practice testimony is circumstantial
proof that certain conduct, or an act consistent w/it, occurred. Admissible even where there’s firsthand evidence of the conduct in question.

Subsequent Remedial Measures

407 - After injury or harm, measures taken that would have made an earlier injury less likely to occur not admissible to prove: negligence, culpable
conduct, defect in product or product’s design, or need for warning or instruction.
● Rests on policy, relevance, & confusion of issues.
o As a matter of policy – it is thought wise to avoid discouraging efforts to make things better or safer. Also unfair to introduce against
a person, over his objection, evidence that he behaved responsibly after the fact.
o Concerns over relevancy arise b/c efforts to prevent future accidents may not show or even indicate that past practice or conditions
amounted to negligence or fault.
o Concerns over confusion of issues arise partly b/c of the relevancy problem & partly b/c it may be impossible even to show that
changes that follow an accident were made b/c of the accident.
● Major issues that arise in the application of 407:
o Does the Erie doctrine require federal courts to follow state practice on subsequent measures?
▪ Most modern authority says no.
o When may subsequent measures be shown to prove “feasibility” (the state or degree of being easily or conveniently done)?
▪ 407 so permits if that point is disputed.

Subsequent Remedial Measures – 407

The reason for the evidentiary prohibition against subsequent remedial measures is to create an incentive for correction of defective conditions.
Per se inadmissible only on the issues of negligence or culpable conduct. The rule makes it clear that it applies to products liability causes of action.

Settlement Negotiations (Civil Settlements)

408 - Compromise: Offers & Negotiations

Evidence is not admissible to prove or disprove:
● Validity
● Amount of a disputed claim
Evidence is not admissible to impeach by:
● Prior inconsistent statement
● Contradiction
Furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in
● Compromising
● Attempting to Compromise
A claim

This exclusionary principle rests on relevancy:

● Payment of a small sum (or willingness to do so) does not tend strongly to prove liability.
● Acceptance of a large sum (or willingness to do so) does not tend strongly to prove a claim is weak.
Main reason for the rule is public policy:
● The system would grind to a halt if every filed case were tried, yet lawyers would not be able to risk negotiating if what they said or did in
trying to settle were later provable if the attempt to settle failed.

Compromise Offers & Negotiations –408

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
Evidence of settlement or of settlement negotiations in a disputed civil claim is inadmissible to prove liability or the amount of the claim. Evidence
of settlement, offers to settle, or statements made during the course of settlement negotiations may be admissible for another relevant purpose –
for example, to show bias, to negate allegations of undue delay, or to show an effort to subvert a criminal investigation or prosecution.

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 Evidence Outline – Fall 2014 – Eckhardt – Courtney Viar
Competence of Witnesses
Goes to credibility, not admissibility.

Most grounds of incompetency have been transformed into grounds for impeachment.
● Mental incapacity
● Criminal conviction
● Infancy
● Parties
● Spouses
● Accomplices

Competency
● Ability to carry out the task of being a witness
o Ability to perceive a fact
o Ability to recall that fact at trial
o Ability to present the fact in an understandable manner
● Oath
● Voir Dire

Testing Witnesses
● Oath
● Demeanor
● Cross-Examination

601 - Every person can be a witness if:

a. Has personal knowledge to impart (FRE 602)
b. Willing to take the oath (FRE 603)
c. Except in extreme cases: lack of relevancy (401) & waste of time (403)

U.S. v. Lightly (Modern view)

Facts:
Issue:
Holding:
Reasoning:

U.S. v. Fowler (Oath requirement)

Facts:
Issue:
Holding:
Reasoning:

Ricketts v. Delaware (Child witness)

Facts:
Issue:
Holding:
Reasoning:

Rock v. Arkansas (Previously hypnotized witness)

Facts:
Issue:
Holding:
Reasoning:

Tanner v. U.S. (Jurors as witnesses)

Facts:
Issue:
Holding:

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Reasoning:

Competence to Testify - FREs 601, 602, 603, 604, 605, & 606
A person is competent to testify if she possesses the ability to perceive the events about which testimony will be given & further possesses the
abilities to remember, to communicate intelligibly, & to appreciate the obligation to tell the truth, which is imposed by oath or affirmation.

Firsthand Knowledge – FRE 602

A witness may testify only as to the matters about which he has personal or firsthand knowledge. Lack of personal knowledge makes the witness
incompetent to testify about particular facts. Generally, the proponent of the witness must lay a foundation on the issue of personal knowledge by
offering evidence sufficient to support a finding that the witness had firsthand knowledge of the subject matter about which testimony will be
given.

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Hearsay
Inadmissible unless it falls within one of many exceptions.

Policy – clear preference for live testimony over out-of-court statements.

● Reasons to exclude Hearsay:
o Absence of cross-examination.
o Absence of demeanor evidence.
o Absence of oath.
● Risks associated w/out-of-court statements that are substantially reduced by hearsay exclusion:
o Misperception
▪ Hard for jury to determine if the declarant had an adequate opportunity to perceive or learn about the subject of the
out-of-court statement.
o Faulty memory.
▪ Hard for jury to determine if declarant had a clear memory of the subject of the out-of-court statement.
o Misstatement/ambiguity/faulty narration.
▪ Hard for jury to determine if declarant meant to tell the truth (not under oath).
o Distortion (whether conscious or unconscious) & outright lying or deception, or insincerity.
▪ Hard for jury to determine if declarant understood the typical meaning of the words he or she used.

801 Definitions
(a) Statement – A person’s
● Oral assertion,
● Written assertion, or
● Nonverbal conduct, if the person intended it as an assertion.
o Assertive Conduct
▪ Use of a nonverbal clue to communicate something.
▪ Inadmissible
o Non-assertive Conduct
▪ Offered for the 2-step inference – to prove the actor’s belief in a fact, hence the fact itself – is not hearsay.
▪ Includes the visible, psychological, physical, & emotional reaction of a person which may suggest something about what
happened.
● Ex: ∆ was charged w/kidnapping & sexually assaulting a woman. On first seeing his likeness in a mug book at the
police station, the woman screamed & started crying.
o Her emotional reaction amounts to nonassertive conduct & was viewed as non-hearsay.
▪ 801 also says “nonassertive verbal conduct” is excluded from the definition of hearsay.
● Ex: involuntary verbal behavior like screaming “ouch” when struck unexpectedly, which seems more reflexive
than reflective & is closer in nature to the kind of emotional reactions described ^^ than to most verbal
behavior.
▪ Admissible
(c) Declarant – the person who made the statement that is being offered.
● Person – the typical hearsay situation: a person testified at trial & seeks to repeat the declarant’s words.
● Writing – a litigant seeks to bring the out of court words into trial by introducing the document that contains them.
(c) Hearsay – a statement that:
● The declarant does not make while testifying at the current trial or hearing, &
● Offered in evidence to prove the truth of the matter asserted in the statement.

Exceptions to exclusion (these are NOT hearsay):

(d)(1) A Declarant-Witness’s Prior Statement
● That is inconsistent w/declarant’s testimony & was given under penalty of perjury;
o At a trial, proceeding, or other proceeding
● That is consistent w/the declarant’s testimony & is offered to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
● Identifies a person as someone the declarant perceived earlier.
(d)(2) An Opposing Party’s Statement
● Statement is offered against an opposing party &:
o Was made by the party in an individual or representative capacity;
o Is one the party manifested that it adopted or believed to be true;
o Was made by a person whom the party authorized to make a statement on the subject;
o Was made by the party’s agent or employee on a matter w/in the scope of that relationship & while it existed; or
o Was made by the party’s co-conspirator during & in furtherance of the conspiracy.

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803 “Unrestricted” – Regardless of whether the declarant is available as a witness – Exceptions:
● 23 exceptions
804 Declarant is “Unavailable as a Witness”
● 5 exceptions
807 Residual Exception

Methodology
● Think carefully about the problem!
o “Statement” or “assertive” act (conduct) or wordless statement.
o Inference & Goal
o Legal Context

“Statement”
● Almost all human verbal expressions – oral & written.
● Expressive nonverbal behavior.
o Action or conduct – wordless statement – nonverbal cues that amount to word substitutes.
● Focus
o Declarant
o His/her intent
o The assertion
● “Statement” must be assertive.
o Yes: Conduct – Wordless statements
▪ Substitute for speech
▪ Direct answer to a question
o No
▪ Involuntary behavior
▪ Verbal act – In totality, is it more non-assertive?
● Does it have a performance quality?
● Were words acted upon?
Truth
● No
i. Introduced statement to show false
ii. Evidence of state of mind
iii. Effect of listener
iv. Verbal marker
1. To identify, not assert.
Beyond Hearsay
b. Knowledge
c. A non-complaint
d. “Inference” confirmed by in-court testimony

When is a Statement Non-Hearsay?

e. Impeachment
f. Verbal Acts
g. Proof of effect on reader or listener
h. Verbal object
i. Circumstantial evidence of state of mind
j. Circumstantial evidence of memory or belief

A proponent, by carefully identifying the limited purpose for which evidence is offered, can avoid application of the hearsay rule.
k. Classes of statements that fall outside the hearsay rule – when is a statement non-hearsay?
i. The act of speaking certain words has an independent legal significance (or consequence) quite aside from the truth or falsity of
the assertion.
1. E.g. acceptance of a contract
ii. The words spoken are offered for their probable effect upon the mind of the listener.
1. E.g. circumstantial evidence of knowledge.
iii. Assertions by a declarant that exhibit has knowledge of a fact or condition in a case where this knowledge is consequential.
1. E.g. circumstantial evidence of knowledge.
iv. A declarant’s statement disclosing his state of mind. (Falls on the borderline between hearsay & non-hearsay.)

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Hearsay Generally – FRE 801
The foolproof hearsay test: Ask whether the relevant purpose for offering the out-of-court statement is its truth.
● If yes, the out-of-court statement is hearsay.
● If not clearly yes, ask: must the content of the out-of-court statement be believed to be relevant?
o If yes, the evidence is hearsay.

Hearsay Within Hearsay – FRE 805

To admit hearsay w/in hearsay, the proponent must account for both out-of-court statements w/either a hearsay exception or an argument that
the out-of-court statement is offered for a relevant, non-hearsay purpose.

Hearsay Quiz – page 151

1. Not hearsay – issue isn’t whether he’s Woody Allen, it’s offered to prove his state of mind.
2. Not hearsay –
3. Yes hearsay – offered to prove agency.
4. Yes hearsay – verbal act to show falsity.
5. Not hearsay – no statement asserting something.
6. Not hearsay – verbal marker used to mark an event in time.
7. Yes hearsay (but allowable) – “statement not made at the current trial” (exception for identification).
8. Yes hearsay –
9. Not hearsay –
10. Not hearsay – circumstantial evidence of state of mind, offered as proof of duress.
11. Not hearsay – non-assertive.
12. Yes hearsay – non-verbal act used to assert something.
13. Yes hearsay – oblique – inference is necessary but the inference of guilt is not clear.
14. Not hearsay – proof of effect on a listener. Reasonableness.
15. Not hearsay – offered to prove the truth of the matter asserted.
16. Yes hearsay – out of court statement, offered to assert that he did go to New Orleans.
17. Yes hearsay –
18. Yes hearsay –
19. Not hearsay –
20. Not hearsay –
21. Yes hearsay –
22. Not hearsay –
23. Not hearsay – verbal act.
24. Not hearsay –
25. Not hearsay – more than truth, knowledge. Not what she says, but the fact that she could even say it.
26. Not hearsay – verbal marker. Words of assertion vs. words of identity.
27. Not hearsay – verbal part of an act – accompanying words.
28. Yes hearsay – assertive statement about a historical fact.
29. Not hearsay – close call. Out of fear, so circumstantial evidence of her state of mind.
30. Not hearsay – her pointing was an assertive act, but his testimony makes it not hearsay.
31. Yes hearsay – offered to prove truth of them being a bad credit risk.
32. Not hearsay – shows that they acted reasonably, not that HiTechCorp was actually a bad credit risk.
33. Not hearsay – mixture of action & words.
34. Not hearsay – words are almost a label for his actions.
35. Yes hearsay (but admissible under 803) – opinion of what others believe.

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Hearsay Exceptions – Part I

Is it hearsay?
1. 801 hocus pocus not hearsay exceptions
2. 803 exceptions
3. 804 exceptions
4. 807 exceptions

The FRE 801 NOT HEARSAY Exceptions

(Can be used as substantive evidence)

Overview: FRE 801(d)(1) – Declarant-Witness’s Prior Statement

● 3 Exceptions:
o Inconsistent Statements
o Consistent Statements
o Identification
● With Inconsistent & Consistent Statements:
o Not so much to let in otherwise inadmissible evidence but to permit fuller use of such statements – Idea is to be more than
impeachment or rehabilitation & to let such statements become substantive law.
● With Identification:
o Not really connected w/impeachment or rehabilitation.
o Paves the way for statements that might not get in otherwise.

FRE 801(d)(1)(A) - Prior Inconsistent Statements

● Should prior statements by a testifying witness even be considered hearsay?
o Preference for live testimony
o There will be pressure to obtain such statements & rely on them.
o “Deferred” cross-examination is inferior.
● FRE 801(d)(1) is a compromise
o A prior statement by a witness is “not hearsay” if:
▪ Declarant testifies at trial,
▪ Subject to cross-examination about a prior statement,
▪ Statement is in-fact inconsistent,
▪ Under Oath
▪ Trial, hearing, other proceeding, or deposition
● All conditions must be met.
● Removes doubt that statement was made; minimal guarantees of truthfulness.

FRE 801(d)(1)(B) - Prior Consistent Statements

● General
o Comes into play only after an impeaching attack.
o Elements:
▪ Declarant testifies at trial
▪ Subject to cross-examination about a prior statement
▪ Statement is in-fact consistent w/his testimony
▪ Use to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or
motive
o Permits substantive use of a prior consistent statement.
▪ May be taken as proof of what it asserts.
● Problems
o What kinds of attack?
▪ Express
▪ Implied – are difficult
o What consistent statement?
▪ Prior consistency tends to rebut an attack only if uttered before the supposed “influence or motive” came into play

FRE 801(d)(1)(C) - Prior Statement of Identification

Elements
● Declarant testifies at trial
● Subject to cross-examination about a prior statement

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● Identification
● Someone the declarant perceived earlier
General
● A hearsay exception for previous statement of ID b/c they may be more trustworthy.
● Constitutional Issues:
o Per se rule
▪ Must exclude a post-indictment statement of ID obtained in violation of a ∆’s right of counsel.
o Vague constitutional constraint
▪ Must watch the receipt of other pretrial IDs in unnecessarily suggestive circumstances.
● The prior statement of ID need not be either consistent or inconsistent w/the witness/declarant’s present testimony.
o Prior ID may be more trustworthy.
▪ Closer in time to event that in-court ID, & in court, ∆ is obviously the person the W is supposed to ID, & the only one from
whom to choose.

FRE 801(d)(2)(A)-(E) - An Opposing Party’s Statement (Admission)

Admissions – Statements “against interest” are admissible against a party when inconsistent w/his position at trial.
● Can range from an all-encompassing confession of guilt to a simple statement that later turns out to be beneficial to an issue in an opponent’s
case.

Rules:
● An admission need not have been against the declarant’s interest at the time it was made.
● An admission need not be based on personal knowledge & the declarant need not be unavailable.
● The declarant of an admission must be an opposing party.
● The declarant is the only opposing party against whom the admission is admissible.

Admission by party – opponent – offered against a party

5 Subdivisions:
1. Own
o Almost no limits.
▪ Occasional statutes restrict use.
▪ Constitution protects the accused against the use of some things he says in some circumstances.
▪ Important principles bar or regulate certain lines of circumstantial evidence.
● Like proof of character & safety measures taken after an accident.
2. Adopted
o The heart of an admission by X need not be the words he speaks or writes: It may be a statement spoken or written by another.
▪ If X manifests his adoption or belief in its truth, then X becomes the “declarant” & the statement becomes his own.
o A statement is not hearsay when offered against a party who “manifested his adoption or belief in its truth.”
3. Authorized Admissions by Speaking Agents
o Agency law defines conditions under which one person may act for another.
4. Employee in Scope
5. Co-conspirator
o Admissible if:
▪ Declarant & ∆ conspired, &
● Coventurer requirement
▪ The statement was made during the course of the venture, &
● Pedency requirement
▪ In furtherance of a conspiracy.
● Furtherance requirement
o Problem: The goal of the statement is to prove conspiracy, but you need to establish conspiracy to get the statement in court under this
hearsay exception.

Class notes:
o During the course
o In furtherance
o Of a conspiracy
o Of which declarant is a member.
o Bourjaily
▪ The judge decides whether a statement is w/in the exception under 104(a).

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State v. Smith (prior inconsistent statements)
Facts:
● Rachael Conlin was attacked & severely beaten. Shortly thereafter she identified her attacker, but likely out of fear, during trial she changed
her testimony & identified another man as her assailant.
Issue:
● Was the out of court statement by Conlin sufficiently reliable to allow it to be admitted?
Rule:
● Prior inconsistent statements may be used as substantive evidence if it is a reliable statement.
Holding:
● Yes, it was reliable & should have been admitted.
Reasoning:
● In looking to determine reliability, the court noted that the witness-victim voluntarily wrote the statement herself, swore to it under oath
w/penalty of perjury before a notary, admitted at trial she had made the statement, & gave an inconsistent statement at trial subject to cross
examination.

Tome v. U.S. (prior consistent statements)

Facts:
● Tome was convicted for sexually abusing his 4-year old daughter, AT. When AT was on the stand she only responded in 1 or 2 words.
Defense’s cross suggested that she was motivated by her desire to live w/her mother. In response, the gov’t offered testimony from
babysitter, social worker, & pediatricians. All of them testified to the statement AT made indicating she was abused (statements about where
she was touched & that she said “he gets drunk & thinks I’m his wife.”)
Issue:
● Whether prior consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are
admissible under 801(d)(1)(B).
Rule:
● Prior consistent statements can only be used if the statement was made before the motive or decision to lie arose.
Holding:
● No, the statements were inadmissible.
Reasoning:
● The Rule permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper
influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive.
o The conditions of admissibility were not established here.

State v. Motta (prior statements of identification)

Facts:
● Iwashita was a cashier that got robbed at gunpoint. She gave a description of the robber shortly after. About 8 days later, Joe Argon made a
police composite sketch based on Iwashita’s description. A month after that, Iwashita picked ∆’s photograph out from 25 others. ∆ claims he
was at a nightclub at the time of the robbery. ∆ also argues that the sketch was inadmissible hearsay under FRE 802.
Issue:
● Did the trial court improperly allow the admission of the sketch?
Rule:
● A composite sketch is admissible hearsay b/c it is an exception of prior ID as long as the declarant testifies at trial & is available for cross.
Holding:
● No. The sketch fell into a hearsay exception.
Reasoning:
● The primary reason for excluding hearsay is the danger of declarant not being available to testify. Both the eyewitness & the police artist who
made the sketch were available to testify, & the jury was allowed to judge their credibility.
● A composite sketch is hearsay. Just b/c the sketch is in picture form doesn’t change the fact that it is being offered as a statement made out-
of-court to prove what the suspect looked like.
● Studies show that the most reliable IDs are the ones made reasonably soon after the offense.
● Since the artist drew it, it’s double hearsay: her words & the artist are needed to satisfy part (C) of the rule.

Bruton v. U.S. (opposing party’s statement (admission))

Facts:
● Π & Evans were co-∆s on trial for armed robbery. After interrogation, Evans made a confession, “π & I committed the robbery.”
● The trial judge instructed the jury that Evans’ confession was admitted into evidence against Evans but it could not be considered against π
b/c it was inadmissible hearsay.
● The 8th Circuit decided that the confession should not have been used against Evans (apparently coerced) but it said that π’s conviction was
okay b/c the jury was told not to consider the confession against π.

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Issue:
● Was it reversible error for the trial court to allow co-∆’s confession into evidence at the joint trial & instruct the jury to not consider the
evidence in determining π’s guilt?
Rule:
● A confession that also implicates the declarant’s co-∆ cannot be admitted against the latter if the declarant is not subject to cross-
examinations.
Holding:
● Yes. Π’s rights under the Confrontation clause were violated by the admission of the evidence, despite the judge’s instructions, b/c there was
substantial risk that the jury looked to the evidence in determining π’s guilt in contradiction of the instructions.
Reasoning:
● Even though the jury was instructed by the trial judge not to consider the alleged confession of co-∆ in determining π’s guilt, the jury would
likely nonetheless at least bear it in mind in deciding π’s fate.
● Such a limiting instruction “ is a recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody
else’s…”
● It was not possible to unequivocally know whether the jury considered the statement in deciding the guilt of π, but the risk was so substantial
that the jury did.
● π’s Confrontation Clause rights were violated by allowing the jury to physically hear the statements & to only protect π through an impossible
to follow limiting instruction.

US v. Hoosier
Facts:
● A witness testified that, in an incident prior to the bank robbery that was the subject of the prosecution, he had seen the accused & his gf, &
that the accused was dressed nicely & wearing diamond rings.
● He testified that the accused’s gf then made statements about the fact that there were sacks of money in the hotel room.
Issue:
● Whether a statement made in the presence of a party, which the party does not comment on or deny, may be admitted as the admission of a
party opponent, indicating that the party had adopted belief in the truth of the statement.
Rule:
● When a party acquiesces by saying nothing to a statement made in his presence, that statement may be admissible as an admission by a party
opponent under FRE 801(d)(2)(B).
Holding:
● Yes. If a party didn’t agree w/the statement, it is reasonable to believe that he would have said something to deny the truth of the statement.
As he did not, it is admissible as the admission of a party opponent.
Reasoning:
● The 3 people present when the accused’s gf made the statements about there being sacks of money in the hotel room were only herself, the
accused, & a party w/whom the accused had confided his plans to rob a bank in the future.
o For this reason, the fact of the accused’s silence wouldn’t have been explainable by the advice of his counsel or his desire not to have
the statements used against him in court.
● Factors greater than pure presence & silence: context & that ∆ heard it. Must establish that the ∆ heard the statement & therefore should
have responded.

Notes:
Tacit Admissions Doctrine
● At a minimum, it should be made to appear that:
o The party heard the statement,
o The matter asserted was w/in his knowledge, &
o The occasion & nature of the statement were such that he would likely have replied if he didn’t mean to accept what was said.
● Even if these conditions are satisfied, the statement should be excluded if it appears that:
o The party didn’t understand the statement or its significance,
o Some physical or psychological factor explains the lack of reply,
o The speaker was someone whom the party would likely ignore, or
o The silence came in response to questioning or comments by a law enforcement officer during custodial interrogation after Miranda
warnings have been (or should have been) given.

Doyle v. Ohio
Facts:
● Bonnell was a well-known street person who became an informant for the police. He set up a meeting where he was going to buy weed from
∆s, Doyle & Wood. When the exchange took place, police were watching. ∆s were found w/the money when arrested. Later, ∆s claimed that
police couldn’t see what was really happening. They claimed Bonnell framed them & he was really selling to them. When Bonnell came to

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their car, he had the package & when Doyle explained to him that the ∆s changed their mind, Bonnell got mad & just tossed the money in
their car.
● At trial during prosecution’s cross, for impeachment purposes, he asked ∆s why they didn’t tell the frame story to the arresting officers.
Defense counsel objected to the prosecutors’ questions.
Issue:
● Whether a prosecutor may seek to impeach a ∆’s exculpatory story, told for the first time at trial, by cross-examining the ∆ about his failure to
have told the story after receiving Miranda warnings at the time of his arrest.
Rule:
● The use for impeachment purposes of ∆s’ silence, at the time of arrest & after receiving Miranda warnings, violated the Due Process Clause of
the 14th Amendment.
Holding:
● No, use of ∆’s post-arrest silence in this manner violates due process.
Reasoning:
● Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of his Miranda Rights. Thus, every post-arrest silence
is insolubly ambiguous b/c of what the State is required to advise the person arrested.
● While it is true that Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person
who receives the warnings. In such circumstances, it would be fundamentally unfair & a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation subsequently offered at trial.
● This case demonstrates the interaction between the due process clause & the rules of evidence.

Notes:
● 2 inferences can be drawn from the silence:
o that this is a made up story & they’re lying, or
o ∆s were complying w/Miranda rights.
● The inference is unclear so you cannot go there.
● Other factors to consider:
o If the silence was before the Miranda warnings,
▪ Does not apply to pre-arrest silence.
o If the ∆s waived Miranda by chattering like canaries,
o If ∆s were responsive on some points but not on others,
o If ∆s were talking to each other about law enforcement.

Mahlandt v. Wild Canid Survival & Research Center

Facts:
● A boy was allegedly attacked by the neighbors wolf-dog. Mr. Poos worked for the WCS & kept the wolf at his house for work convenience. No
eyewitnesses & all other evidence, besides the hearsay statements, infer non-liability.
● ∆s were both Mr. Poos & the company – both found not liable.
● Π appeals the courts decision to exclude 3 statements from evidence:
o Mr. Poos left a note to Owens, the company’s president, which said “Sophie bit a child that came in our backyard.”
o Later that day, Mr. Poos told Owens that “Sophie bit a child that day.”
o In a meeting where Mr. Poos was not present, the minutes suggest conversation about the legal effects of Sophie biting the child.
Issue:
● Whether the note that Mr. Poos left & the statement he later made to his superior were inadmissible as hearsay.
● Whether the statement in the BOD’s meeting minutes was inadmissible hearsay.
Rule:
● A statement made against a party that is the party’s own statement is admissible under FRE 801(d)(2)(B) as an admission by a party opponent,
& it is not necessary for the party to have had personal knowledge about the events described in his statement.
Holding:
● No. The note left by Mr. Poos & the statement that he later made were admissible under the statement of a party opponent exception to the
hearsay rule. Moreover, they are admissible against the corporate ∆ b/c Mr. Poos was an agent of the corporate ∆ at the time.
o Must be in the scope of his employment & during his employment.
● The minutes were admissible against the corporate ∆, but not against Mr. Poos b/c he was not there.
Reasoning:
● It isn’t necessary that the declarant have personal knowledge of the things about which he makes statements, as it is up to the jury to give
appropriate weight to those statements.
o This goes to weight, not admissibility.

Notes:
● Corporate meeting minutes are admissible against WCS under 801(d)(2)(C) b/c the directors are authorized to speak on behalf of the
company.

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● Poos is both an individual & an agent for the corporation in this case.

Nonhearsay Prior Statements - FRE 801(d)(1)(A)-(C)

Out of court statements made by a declarant who is testifying in trial are not hearsay if the declarant is subject to cross-examination, if the
statement is inconsistent w/previous trial testimony & given under oath subject to penalty of perjury, if the statement is consistent w/prior
testimony & is offered for the purpose of rebutting an express or implied charge of recent fabrication or improper influence or motive, or if the
statement is one of identification of a person based on perception.

Nonhearsay Opposing Party’s Statements - FRE 801(d)(2)

The FRE defines as nonhearsay any statement of an opposing party. An opposing party’s statement is an out-of-court statement made by a party or
attributable to a party & offered for its truth by the opponent in the lawsuit. For purposes of proving the existence of a conspiracy w/co-
conspirator statements, the proponent may offer the alleged co-conspirator statement itself. The content of the statement shall be considered, but
alone it is not sufficient to establish agency, employment, or scope of employment required by 801(d)(2)(C) or (D). The statement is also
insufficient to establish the existence of the conspiracy or the participation of the declarant or party in the conspiracy required by 801(d)(2)(E).

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Hearsay Exceptions – Part II
Regardless of whether the declarant is available as a witness

Present Sense Impressions & Excited Utterances

● Big Picture
o Common Law: Res gestae – “things that happen”
▪ The relationship between event & statement was so close that the happening impelled the words out of the declarant.
▪ The connection was close enough to suggest that declarant had no time to lie or forget & that he focused his attention on
what he described.
● 803(1) Present Sense Impression – Immediacy
o Declarant observes & speaks, describing what he sees as he sees it or IMMEDIATELY afterward.
▪ Time – Contemporaneity
▪ Perception – Observe as well as participate.
▪ Subject matter – “Describing or explaining the event or condition.”
▪ Res Gestae
● 803(2) Excited Utterances – Excitement – FRE 803(2)
o Startling event or condition
o Statement made by declarant while under stress from (in reaction to) the event.
o Spontaneous, excited, impulsive
o Not the product of reflection & deliberation
o Watch: time: demeanor: prompting

803(3) Then Existing Mental, Emotional, or Physical Condition

● Statement of the declarant’s THEN EXISTING:
o State of mind
▪ E.g. intent, plan, motive, design
▪ Must be an unusually relevant element to come in.
o Emotion
▪ E.g. mental feeling
o Sensation
▪ E.g. pain
o Physical Condition
▪ E.g. bodily health
● NOT INCLUDING:
o Memory or belief to prove the fact remembered or believed EXCEPT when relating to the validity or terms of the declarant’s will.

803(4) Statement for Purposes of Medical Diagnosis or Treatment

● Must relate to treatment
o Made for & “reasonably pertinent” to medical diagnosis or treatment.
o A fact reasonably relied upon by experts in forming an opinion.
o Describes:
▪ Medical History
▪ Past or Present Symptoms or Sensations
▪ Their Inception
▪ Their General Cause
● Key:
o Motivation – diagnosis or treatment
▪ Treatment v. Testimony (normally not fault or identity)
o Content – Necessary for treatment

Nuttall v. Reading Co. (present sense impressions)

Facts:
● Widow claimed that her husband’s employer forced him to go to work even though her husband told them he was sick & they knew or
should have known of his illness.
● In the 2nd trial, statements were excluded & she’s appealing that decision.
o One of the statements excluded was her own testimony of the telephone conversation she heard her husband have w/employer
when he tried to call in sick.
Issue:
● Whether the employee’s statements during & immediately following the telephone conversation should be admitted to prove that he was
being compelled to come to work.

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Rule:
●
Holding:
● Yes, this exclusion is grounds for a reversal b/c it goes to the heart of the case: whether husband was at work only because of pressure
placed on him by his employer.
Reasoning:
● 2 steps are important: pressure & that the pressure came from externally from an employer, not internally.
● One statement by coworker (he didn’t feel well) was only admissible to show compulsion & not to prove that employer created the
compulsion.

U.S. v. Arnold (excited utterances)

Facts:

Issue:
Rule:
Holding:
Reasoning:

Mutual Life Insurance Co. v. Hillmon (then existing mental, emotional, or physical condition)
Facts:
● Wife was suing for insurance proceeds from the death of her husband, Hillmon.
● Insurance company claimed that the dead body was not her husband’s, but Adolph Walters, & that her husband killed Walters as a part of a
scheme to defraud the insurance company.
● Defense sought to admit letters written by Walters.
o The letters were written to family members stating that he was leaving w/Mr. Hillmon for CO & that Hillmon promised him a sheep
ranch job in addition to his leaving for CO.
Issue:
Rule:
● Evidence of intent is admissible at least if the intent had bearing on the question in controversy.
● The statement of one person proves the behavior of another.
Holding:
Reasoning:
Notes from Eckhardt:
● The letter shows Walters intended to go, therefore Walters went & Walters was there (circumstantial evidence that he was there).
● The problem w/Hillmon is we are going to take the intent of Walter to assume the intent of Hillmon, assume Hillmon’s intent was the same,
& that they were together. Flawed.
o It’s clear that the SC put these 2 together – that not only Walter intended to go, but also that Hillmon intended to be there as well.

U.S. v. Pheaster
Facts:
● The day after Larry’s disappearance, his father was phoned w/ransom demands.
● Δ was charged w/conspiracy to kidnap & using the mail to demand money & convey threats.
● As proof that Δ is guilty, gov’t seeks to introduce the testimony of 2 of Larry’s friends who last saw him.
o The friends & Larry were at a table when Larry got up & left (never to be seen again).
o Francine testifies that when Larry picked her up that evening he told her that “he was going to meet Angelo at 9:30 in order to pick up
some free marijuana he promised him.”
o Doug testifies that Larry made similar statements in the afternoon, early evening, & upon leaving the table, “I’m going to the parking
lot,” & that he would be right back after meeting Angelo.
Issue:
●
Rule:
● “State of mind exception” – hearsay evidence is admissible if it bears on the state of mind of the declarant & if that state of mind is an issue
in the case.
o Hillmon is different b/c it doesn’t require the state of mind of the declarant to be an actual issue in the case.
Holding:
●
Reasoning:
● Prudential consideration – e.g. Alcalde
o Declarant should be dead or otherwise unavailable.
o The testimony concerning the statements should be relevant.

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o High degree of trustworthiness.
o Other evidence of ∆’s guilt.

Blake v. State (statement for purposes of medical diagnosis or treatment)

Facts:
●
Issue:
Holding:
Reasoning:

Present Sense Impression - FRE 803(1)

An out-of-court statement that describes or explains an occurrence or condition made at the time that the declarant was perceiving the occurrence
or condition, or immediately thereafter. The event described in the statement need not be exciting or startling. The guarantee of reliability for this
hearsay exception is spontaneity or contemporaneity.

Excited Utterance - FRE 803(2)

When the declarant is sufficiently startled into making a spontaneous utterance, the assumption is there was neither sufficient time nor presence
of mind to fabricate. The event that gives rise to the statement relating to it must be sufficiently startling, & the statement must be made under
the stress of the event in order to remove the likelihood of self-serving reflection in the making of the statement.

Then-Existing Mental or Emotional Condition - FRE 803(3)

It is critical to note that only statements regarding a present mental or emotional condition which fit w/in this exception. A statement regarding a
past mental or emotional condition will not be admissible b/c there is no substantial guarantee of reliability, except when the statement relates to
the declarant’s will.

Then-Existing Physical Condition - FRE 803(3)

A statement of a then-existing physical condition gains its reliability from the contemporaneity of the statement & the existence of the physical
condition described by the declarant. It is critical to note that only statements regarding present physical condition come w/in this exception. A
statement regarding a past condition will not be admissible b/c there is no substantial guarantee of reliability.

Statements for Purposes of Medical Diagnosis or Treatment - FRE 803(4)

Statements made to persons other than those immediately able to render medical assistance can qualify for this hearsay exception if made for
purposes of obtaining medical diagnosis or treatment. However, statements of causation or the external source of the physical condition
mentioned in the out-of-court statement will only be admissible if pertinent to the medical diagnosis or treatment of a medical patient. Where and
how an injury occurs is usually relevant; who caused the injury usually is not.

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Hearsay Exceptions – Part III

803(5) - Recorded Recollection

A. The W lacks present recollection of the matter.
a. Once knew, but cannot recall well enough to testify fully & accurately.
B. “Made” or “adopted” the statement while the matter was “fresh” in the W’s memory.
C. The statement accurately reflects knowledge they once had.
D. Procedure:
a. Read into evidence.
b. May not itself be received as an exhibit unless offered by adverse party.

803(6) - Records of Regularly Conducted Activity (Business Records)

A. Record of:
a. Act
b. Event
c. Condition
d. Opinion
e. Diagnosis
B. Record made at or near the time information transmitted by someone w/knowledge.
C. Record made in the course of a regularly conducted business activity.
a. Business Calling
b. Organization Whether or not for profit
c. Occupation
D. Making the record was a regular practice.
E. Foundation - Conditions shown by:
a. Testimony of custodian or other qualified witness
b. Certification
i. 902(11) Certified Domestic Records…
ii. 902(12) Certified Foreign Records
iii. Statute
F. Neither source nor method nor circumstances of preparation indicate a lack of trustworthiness.
G. Motivation & Trustworthiness (ON HANDOUT)
a. Procedure:
i. Proponent satisfies his burden by showing that the record satisfies the requirements of the exception.
ii. Adversary bears the burden of showing that the record though w/in the exception is untrustworthy.
b. Factors:
i. Data are important to the business outside the context of litigation.
ii. The reporter & recorder could not have had a motive to misrepresent or amend.

803(8) - Public Records

Public offices or agencies
i. It sets out:
a. The office’s activities
b. Matters observed
i. Pursuant to duty to report.
ii. Matters must be w/in duty.
1. Not including:
a. Matters observed by “law enforcement personnel”
c. Civil Cases OR
d. Against the government in a criminal case
i. Factual findings from a legally authorized investigation.

804 – Hearsay Exceptions; Declarant Unavailable

a) Criteria for being unavailable:
a. A privilege applies
b. Refuses to testify despite court order
c. Testifies to not remembering the subject matter
d. Cannot be present
i. Death
ii. Then-existing infirmity: physical illness: mental illness

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e. Absent beyond process or “other reasonable means” to procure
b) Exceptions:
a. Former testimony
b. Statement under belief of impending death
c. Statement against interest
d. Statement of personal or family history
e. Removed (see 807)
f. Forfeiture by wrongdoing
i. Statement offered against a party that wrongfully caused the Declarant’s unavailability.

804(b)(1) – Former Testimony

An exception by someone who is unavailable at trial where 2 conditions are satisfied:
1. Testimony must be given in a proceeding, whether current proceeding or a different one IF
a. Encompasses depositions & testimony given in preliminary hearings in criminal cases.
2. Party against whom it is offered had
a. Opportunity
b. Similar motive
3. To “develop” the testimony by
a. Direct
b. Cross
c. Redirect
4. In civil cases – “predecessor in interest.”
5. Main limit: cross-examination requirement.
6. Lloyd v. American Export Lines

804(b)(3) – Statement against Interest

● Unavailable declarant makes a statement against interest.

805(6) – Statement Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability (Forfeiture by Wrongdoing)
● Statement offered against a party that:
o Wrongfully caused or
o Acquiesced in wrongfully causing
● The declarant’s unavailability as a witness, &
● Intended the result.

805 – Hearsay w/in Hearsay (*guaranteed to be on exam/bar)

Admissible IF each part conforms to an exception.

807 – Residual Exception (Catchall Exceptions)

Hearsay statement is not excluded if not covered by 803 or 804.
In general:
1. Equivalent circumstantial guarantees of trustworthiness.
a. Factors in determining trustworthiness:
i. Declarant’s propensity to tell the truth
ii. Whether made under oath
iii. Personal knowledge
iv. Time lapse between event & statement
v. Declarant’s possible motives
vi. Corroboration, reaffirming or recanting the statement by the declarant
vii. Credibility of the witness
viii. Availability of the declarant for cross
2. Material fact
3. More probative on the point for which it is offered than any other evidence that can reasonably be obtained.
4. Admitting it will best serve:
a. Purposes of these rules &
b. Interest of justice.
5. Reasonable notice must be given to adverse party:
a. Intent to offer
b. Particulars
6. State v. Weaver

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The Confrontation Clause

6th Amendment of the Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted w/the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, & to have the assistance of counsel for his defense.”
These 3 clauses protect the right of the accused to defend against criminal charges.
o The 1st (Confrontation Clause) bears directly on using hearsay against the accused.

Roberts
● Adequate indicia of reliability
o Firmly rooted hearsay exception, or
o Particularized guarantees of trustworthiness.

Crawford
● Redefined the central focus of the Confrontation Clause
o Shifting away from reliability in Roberts to manner in which a statement was gathered.
o Either testimonial or not.
▪ Confrontation Clause bars “testimonial” statements in criminal trials.
● “ex parte in-court testimony or its functional equivalent.”
o “affidavits, custodial examination”
o “prior testimony” that wasn’t cross-examined
o “similar pre-trial statements that declarants would reasonably expect” to be used in prosecuting crime
▪ especially statements “taken by police officers in the course of interrogation

The Emergency Doctrine

● Police Interrogation
● Objectively indicating
● Primary purpose – meet an ongoing emergency
● “Contextual-dependent inquiry”
● Informality
● Intent
o Official
o Statement Maker

Davis v. Washington Notes from Class:

● The “Emergency Doctrine”
● When statements made to law enforcement personnel during a 911 call or at a crime scene are “testimonial.”
● Non-testimonial – “when made in the course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
● Davis Statement: Differences from Crawford:
o Events that were actually happening.
o Declarant was facing an emergency.
o Questions asked & answered to resolve an emergency.
o Frantic answers.
● Hammon’s Statements:
o Fine when officer arrived.
o Asked what had happened.

Ohio v. Scott (past recollection recorded)

Facts:
● ∆ was convicted of shooting at another w/intent to kill & shooting 2 other officers.
● Tackett had been a friend of ∆ & had a conversation w/∆ at the theater just prior to his arrest.
● She gave a handwritten, signed statement to the police: “…He had told me he wrecked a car & he shot a guy…”
● At trial, Tackett didn’t remember clearly the facts of that evening & her handwritten statement was admitted into evidence under FRE
803(5).
Issue:
● Whether the signed statement meets the requirements of past recollection recorded.
Holding:
● Yes, the statement meets the requirements of past recollection recorded.
Reasoning:

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● The statement consisted of facts of which the witness had firsthand knowledge;
● The written statement was the original memorandum made near the time of the event while the witness had a clear & accurate memory of
it;
● The witness lacked a present recollection of the words used by ∆ in the conversation; &
● The witness stated that the memorandum was accurate.

Petrocelli v. Gallison (business records)

Facts:
● π is alleging medical malpractice (that the doctor severed his ilio nerve). π lost at trial.
● π claims trial court erred in excluding 2 statements made in records by other subsequent treating physicians under FRE 803(6).
o The 1st doctor said in his report, “During the course of that surgical procedure, the left ilioinguinal nerve was severed.”
o The 2nd doctor noted, “Hernia well healed but very worried about pain from transected ilio femoral nerve.”
Issue:
●
Rule:
● If possible jury confusion, then not an admissible business record.
Holding:
● A hearsay statement is not admissible under 803(6) at least if it’s a conclusory sentence that the court would have no way of knowing if it
reflected the doctor’s own determination or opinion.
Reasoning:
● If admitted as patient history under 803(4), it would have a jury instruction that these statements are only for the truth of the matters relayed
by the patient, not opinion of the doctor.

Norcon, Inc. v. Kotowski

Facts:
● ∆ worked for Norcon on the clean up for the Exxon Valdez oil spill. It was against the rules to drink alcohol.
● Her supervisor started sexually harassing her. She reported it & they charged her to gather information on alcohol & drug abuse on the ship.
● She went to a party her supervisor invited her to & there was a bunch of “sexual banter” & alcohol.
● When propositioned to stay the night by her supervisor, she left.
● She was later fired for drinking, but her supervisor was fired for a sexual relationship w/another employee.
o Norcon was found liable for sexual harassment, & negligent & IIED.
▪ They appealed the admission of a memo from their security company that had statements by other crew members saying that
the supervisor did have a lot of female visitors & there was drinking… & that he would do favors in exchange for sex.
Issue:
● Whether the trial court erred by allowing admission of the memo.
Holding:
● No.
Reasoning:
● The content of the memo satisfied the admissions of party-opponent exception to the hearsay rule. The subjects of the memo were agents of
∆ regarding matters which their job required them to report.

Baker v. Elcona Homes Corp.

Facts:
● Joseph Slabach was returning home after making a delivery for ∆, his employer. Slabach’s truck struck a vehicle carrying 6 people, killing 5 &
seriously injuring 1. Slabach was not seriously injured.
● The estates of the passengers of the car & the injured occupant filed suit against Slabach & Elcona Homes.
o At issue was who had the right of way at the signal.
▪ Slabach testified that he couldn’t see the light b/c he was blinded by the sun.
▪ The sole surviving occupant of the vehicle had no recollection of the accident.
● The jury held for the ∆s.
Issue:
● Whether the police accident report properly allowed to be admitted into evidence.
Rule:
● Public records are admissible as an exception to hearsay when they are “factual findings resulting from an investigation made pursuant to
authority granted by law.”
Holding:
● Yes, the accident report was admissible as a public record. Affirmed the judgment for ∆s.
Reasoning:
● The accident report was admissible as an exception to hearsay under the public record exception.

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Melendez-Diaz v. Massachusetts
Facts:
● ∆ was arrested while making a cocaine sale in a parking lot in MA.
● At trial, bags of cocaine alleged to have distributed by ∆ were introduced into evidence along w/drug analysis certificates prepared by the lab
technician who analyzed the drugs & identified them as cocaine.
● A jury convicted ∆ of distributing & trafficking cocaine in violation of MA law.
o ∆ appealed, arguing that the State’s introduction of the drug analysis certificates violated his 6th Amendment right to confront
witnesses against him under the Court’s ruling in Crawford v. Washington.
▪ Crawford held that so-called “testimonial” evidence cannot be introduced at trial unless the ∆ has a chance to cross-
examine the witness providing the evidence.
● ∆ characterized the lab analysis as testimonial & argued that Crawford required the lab technician to testify on
the results.
● The State argued that MA had previously held that lab reports were not testimonial.
Issue:
● Whether a state forensic analyst’s lab report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of
the 6th Amendment’s Confrontation Clause as set forth in Crawford.
Holding:
● Yes, it is subject to the Confrontation Clause.
Reasoning:
● Lab reports constitute affidavits which fall w/in the “core class of testimonial statements” covered by the confrontation clause.
o Therefore, when ∆ was not allowed to confront the persons who created the lab reports used in testimony at his trial, his 6 th
Amendment right was violated.

Barber v. Page (declarant unavailable)

Facts:
● Barber & Woods were tried for armed robbery in OK state court.
● A lawyer named Park represented both ∆s during a preliminary hearing.
● Woods waived his privilege against self-incrimination during the hearing.
● Parks withdrew as his attorney but continued to represent Barber.
● Wood incriminated Barber but Parks didn’t cross-examine him, but a lawyer for a different ∆ did.
● Barber was tried 7 months later while Woods was in a TX federal prison 225 miles away.
● The State introduced a transcript of the Woods testimony at the preliminary hearing over Barber’s objection.
Issue:
● Whether Barber waived his right to confront Woods at trial by not cross-examining him at the preliminary hearing.
Rule:
● A witness is not unavailable for the purposes of an exception to the confrontation clause requirement unless the prosecution makes a good-
faith effort to obtain his presence at trial.
Holding:
● No, Barber didn’t waive his right to confront Woods by not cross-examining him during the preliminary hearing.
● Further, the court found the exception to the confrontation clause when a witness is unavailable cannot be established unless the
prosecution, at a minimum, makes a good-faith effort to obtain his presence at trial.
Reasoning:
● The right to confrontation is a trial right, & examining a witness during a preliminary doesn’t cause one to lose that right.
● The right to confront at trial not only is an opportunity to cross examine, but is also an opportunity for the jury to see & hear the witness &
weigh their testimony accordingly.

Lloyd v. American Export Lines, Inc. (former testimony exception)

Facts:
● π & Alvarez worked on a ship owned by the ∆. π & Alvarez got in an altercation. Everybody sued everybody.
● In the final suit, it was Alvarez v. ∆, if π started the fight than ∆ loses, but if Alvarez started the fight then he loses.
● π was unavailable at trial even though extensive efforts were made, so ∆ sought to introduce a transcript of π’s testimony from a Coast Guard
hearing to show that Alvarez had initiated the fight.
● Lower court excluded the evidence, holding that the requirements of 804(b)(1) were not met.
Issue:
● Whether π’s testimony from the prior hearing regarding the revocation of his license should have been admitted in Alvarez’s claim under FRE
804(b)(1)’s exception to the hearsay rule for prior testimony.
Rule:
● Under FRE 804(b)(1), if the previous party has a like motive to develop the testimony about the same material facts then they are a
“predecessor in interest” to the present party.
Holding:

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● Yes, the testimony was admissible under 804(b)(1), as the Coast Guard & Alvarez shared a sufficient “community of interest” to meet the
Rule’s “predecessor in interest” requirement, & b/c both the Coast Guard & Alvarez had a “similar motive” to develop π’s prior testimony.
Reasoning:
● Congress, in drafting the FRE, didn’t define “predecessor,” & although testimony given on the stand under an oath is preferred to hearsay,
hearsay is preferred to no evidence at all. As the interest advanced by both parties was the same, the Coast Guard & Alvarez are properly
categorized as “predecessors in interest,” & the evidence should have been admitted.

Giles v. California (statement against interest)

Facts:
● ∆ was convicted of 1st degree murder after the victim’s prior out-of-court statements were admitted.
● The CA SC affirmed the conviction on the ground that petitioner had forfeited his right to confront the victim b/c he had committed the
murder for which he was on trial & b/c his intentional criminal act made the victim unavailable to testify.
Issue:
● Whether ∆ forfeited his 6th Amendment right to confront a witness against him when a judge determined that a wrongful act by the ∆ made
the witness unavailable to testify at trial.
Rule:
Holding:
● For testimonial statements to be admissible under the forfeiture exception to hearsay, ∆ must have intended to make the witness unavailable
for trial.
Reasoning:

State v. Weaver (residual exceptions)

Facts:
● ∆ picked up 11-month old Melissa at her home. An hour later, ∆ called 911 & reported that she wasn’t breathing – Melissa died the following
day.
o She had old & new injuries consistent w/shaken baby syndrome.
● ∆ was charged w/1st degree murder & child endangerment.
● Her first trial resulted in a hung jury, but she was convicted after she requested a court trial.
● After her conviction, she moved for a new trial based on affidavits by Robin McElroy & Misty Lovig.
o Both affidavits said that Melissa’s mother had said that ∆ didn’t hurt Melissa, but Melissa had hit her head on a coffee table at the
Mathes home on the morning in question.
o The court denied the motion concluding that the affidavits were inadmissible hearsay.
▪ Court of Appeals confirmed the conviction, but the IA SC remanded for the trial court to consider a 2 nd new trial based on
affidavits by 3 other women. At the hearing of the motion, ∆ offered live testimony by all 5 women, but SC limits the
consideration to 3 of the 5 affidavits.
● All 3 affidavits illustrate that Melissa’s mother indicated that Melissa hit her head that morning & became
unconscious.
Issue:
● Whether it was an abuse of discretion by the trial court to admit the statements by the 3 women regarding conversations w/victim’s mother.
Rule:
● Hearsay statements may be admissible if such statements are found to be sufficiently trustworthy to warrant admissibility.
Holding:
● No. The statements were admissible hearsay b/c they were sufficiently trustworthy.
Reasoning:
● Court looked at various factors to determine the trustworthiness, including ∆’s propensity to tell the truth, whether the statements were
made under oath, personal knowledge of the declarant, time lapse between the statements & the event, & the motivations to make the
alleged statements.
o Court noted that the witnesses were credible, that declarant was able to testify, the statement was made shortly after the incident &
was made to more than one person, & the declarant had 1st hand knowledge.

Crawford v. Washington
Facts:
● ∆ & his wife confronted Kenneth Lee over an allegation that Lee had attempted to rape Mrs. Crawford. ∆ stabbed Lee in the torso.
o Claimed that he had acted in self-defense when he believed Lee had picked up a weapon.
o Lee denied doing anything that might make ∆ believe he was trying to attack him.
● Both ∆ & wife were questioned by police after receiving a Miranda warning.
o ∆ said to police that he wasn’t sure if Lee had a weapon, but that he believed at the time that Lee did.
o Mrs. Crawford, being interrogated separately, at first said she had not seen the attack, but upon further questioning said that she had
seen the attack & that Lee wasn’t holding a weapon.
● A trial, Mrs. Crawford couldn’t testify, since under WA’s spousal privilege law, a spouse can’t testify in court w/o the ∆ spouse’s consent.

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● The prosecutor sought to introduce her statement to police as evidence that ∆ had no reasonable belief that he was in danger from Lee.
o Generally, out-of-court statements by persons other than the accused are excluded as hearsay.
▪ Here, the court allowed the statement to be admitted on the basis that the statement was reliable, as it was partially
corroborated by ∆’s statement to police.
● ∆ was convicted.
● The appellate court overturned the decision of the trial court after applying a 9-factor test to determine whether the statement was reliable,
and therefore admissible under Roberts. They determined that it was not.
o However, the WA SC reinstated the conviction, ruling that the witness’s statement was reliable under Roberts.
▪ In particular, the court noted that ∆ & wife’s statements interlocked, & therefore concluded that wife’s statements were
admissible.
Issue:
● Whether the State’s use of Mrs. Crawford’s statement violated the Confrontation Clause.
Holding:
● Yes.
Rule:
● Testimonial statement cannot be used against a ∆ who isn’t given the opportunity to confront the witness giving the statement.
Reasoning:
● Court expressed concern over the inconsistent results reached by courts under Ohio v. Roberts.
o The results of the Crawford decisions at the various levels of WA state courts exemplified this problem.
● The history of the Confrontation Clause clearly shows that the clause was directed at keeping ex parte examinations out of the evidentiary
record.
o Specifically, the clause applies to “witnesses” against the accused, meaning “those who bear testimony”.
● A prior opportunity for cross-examination is mandatory, & dispositive of whether or not testimonial statements of an unavailable witness are
admissible.
o “Testimonial statements” – formal declarations, i.e., those made to law enforcement or government personnel.
▪ “Dispensing w/confrontation b/c testimony is obviously reliable is akin to dispensing w/jury trial b/c a ∆ is obviously guilty.”
● Where non-testimonial statements are involved, the clause allows a court to use its discretion to determine the reliability of the statements.
● Where testimonial evidence is at issue, however, the 6th Amendment demands what the common law required: unavailability & a prior
opportunity fro cross-examination.
o The only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.

Davis v. Washington (emergency doctrine)

Facts:
● Davis – 911 call from Michelle McCottry who was in the middle of a domestic disturbance w/her boyfriend - ∆.
o Operator questioned McCottry & gathered info about ∆, & told her that police were coming & would check the area for him first &
would then talk w/her.
o ∆ was charged w/felony violation of a domestic no-contact order.
o Only state witnesses were officers who responded to the call.
o Court admitted the recorded 911 call over an objection based on the Confrontation Clause.
o ∆ convicted, SC affirmed, concluding that McCottry’s ID of ∆ was non-testimonial.
● Hammon – police responded to reported domestic disturbance at home of Amy & ∆. Amy was on front porch & ∆ was in the kitchen when
police arrived.
o Officers questioned them separately about the events, & after hearing Amy’s account, asked her to fill out & sign a battery affidavit.
o Amy didn’t show up at ∆’s bench trial for domestic battery & violating probation although she was subpoenaed.
o Over ∆’s objections, the officer testified to what Amy had said.
o ∆ found guilty & state courts affirmed.
Issues:
● Davis – whether the interrogation that took place in the course of the 911 call produced testimonial statements.
● Hammon – whether the statements that were the product of the interrogation were testimonial.
Holdings:
● Davis – No. The primary purpose of her interrogation was to enable police assistance to meet an ongoing emergency.
● Hammon – Yes. The primary purpose of the interrogation was part of an investigation into possible criminal past conduct.
Rules:
● Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
● Statements are testimonial when the circumstances objectively indicate that there’s no such ongoing emergency & that the primary purpose
of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Reasonings:
● Differences between Davis & Crawford:

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o Davis - was speaking about events as they were actually happening. Crawford – describing past events.
o Davis – facing an ongoing emergency. Crawford – interrogation took place hors after the events described had occurred.

Michigan v. Bryant
Facts:
●
Issue:
Holding:
Rule:
Reasoning:

Records of Regularly Conducted Activity (Business Records) – FRE 803(6)

A record of regularly conducted activity, known in the common law as a business record, is a writing that records activities or happenings, including
opinions, made in the course of regularly conducted activity kept in the course of such activity, & created by & from a person w/personal
knowledge of the contents of the record at or near the time of the event recorded. The exception covers records of regularly conducted activities
on the part of all entities, whether or not they are formed for the purpose of making a profit. The foundation for the 803(6) record may be laid
either through the testimony of a live witness or through the certification process described in 902(11) & (12).

Absence of Entry in Business Records – FRE 803(6) & (7)

If the proponent is able to lay a foundation for a record of regularly conducted activity pursuant to 803(6), testimony or the offer of the record to
demonstrate that a particular entry doesn’t appear in the record is permitted to prove that the event, about which the record would have been
made had it occurred, did not occur.

Public Records & Statements – FRE 803(8)

Such public records & statements are admissible unless the source of information or other circumstances indicate a lack of trustworthiness in the
making or keeping of such records or statements. The records or statements gain their reliability from the public duty or the duty imposed by law
that accompanies the maker’s obligation to observe & record events. Conclusions reached by the agency preparing the record are admissible
where accompanied by the factual findings on which the conclusions are based. Records otherwise qualifying for admission pursuant to this
exception are not admissible in a criminal case against the ∆ when they are matters reported by law enforcement authorities.

Absence of Public Records – FRE 803(10)

The absence of a public record or entry concerning an event that would normally be the subject of a public record is admissible to prove that the
event did not occur.

Forfeiture by Wrongdoing – 803(b)(6)

A party forfeits the right to object on hearsay grounds to any statement made by a person whose unavailability has been procured by the
wrongdoing of the party. Forfeiture also applies if the party acquiesced in the wrongful conduct that procured the unavailability of the hearsay
declarant. The purpose of this exception is to provide a disincentive to procuring the unavailability by any wrongdoing. The exception is based on
the notion that a party who procures or acquiesces in the procuring of the unavailability of a witness by wrongdoing should not be allowed to
benefit from that wrongdoing.

Former Testimony – FRE 804

Former testimony is any testimony given under oath in an earlier proceeding. It’s admissible at a later hearing if the declarant is unavailable & the
party against whom it’s offered had the opportunity & a similar motive to develop, by questioning of the declarant, the earlier testimony when it
was given. The reliability of these statements is gained from the fact that they were given under oath & could be tested by examination by the
party against whom they are now offered.

Requirement of Unavailability for Rule 804 Hearsay Exceptions – FRE 804(a) & (b)
Unavailability of a hearsay declarant doesn’t, in & of itself, create an exception to the hearsay rule. Unavailability is merely the 1st requirement for
all 804 exceptions to the hearsay rule. The types of unavailability listed in 804(a) are not the exclusive circumstances of unavailability. Rather, this
rule lists circumstances that per se amount to unavailability, but doesn’t exclude any other legitimate showing of unavailability that the trial judge
determines acceptable pursuant to 804.

Residual Exception – FRE 807

The residual exceptions to the hearsay rule provide identical catch-all provisions that permit the admission of hearsay where, although not fitting
any of the enumerated exceptions, the proffered hearsay possesses guarantees of trustworthiness equivalent to that of the enumerated
exceptions & is more probative of the fact for which it’s offered than any other available, admissible evidence.

Statement Against Interest – FRE 804(b)(3)

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The rule imposes a special requirement when the declarant’s proffered statement is contrary to the declarant’s penal interest. When such a
statement is offered by any party (including the gov’t), the statement cannot be admitted unless it’s supported by corroborating circumstances
that clearly indicate its trustworthiness.

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Impeachment
Introduction of evidence aimed at discrediting the testimony of a witness.

Most Commonly Used Techniques:

- A Revelation of Bad Character or Dishonesty
- A criminal conviction
- A prior dishonest act
- Bad character for truthfulness
- A Showing of Bias
- Hostility
- Favoritism
- A Demonstration of Self-Contradiction
- Prior inconsistent statements
- Discrediting a Witness by Calling Other Witnesses

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

● Reputation or Opinion Evidence
o “A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is
admissible only after the witness’s character for truthfulness has been attacked.”
● Specific Instances of Conduct
o Specific instances of a witness’s conduct may not be proved by extrinsic evidence.

FRE 609 – Impeachment by Evidence of a Criminal Conviction

● In general – focus is credibility: Character for truthfulness by evidence of a criminal conviction.
● Where witness is not a defendant:
o Must be a felony – death – imprisonment for a year.
o Subject to 403 Balancing (“substantially outweighs” – normal test for admissibility).
● Where witness is the defendant:
o Probative value outweighs (NOT “substantially outweighs”) its prejudicial effect.
▪ Less likely admissible.
● Any witness (a per se rule):
o Must be admitted if it involves a crime of dishonesty or false statement.

FRE 613 – Witness’s Prior Statement

● Statement need not be shown to witness, but on request, must be shown to counsel.
● Cannot use extrinsic evidence unless:
o Witness is afforded an opportunity to explain or deny.
o Opposite party can interrogate witness.

FRE 607 – Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.

Bias Impeachment Rests on 2 Assumptions:

1. Certain relationships & circumstances impair the impartiality of a witness.
2. An impartial witness may (intentionally or unintentionally) shade his/her testimony.

Nonspecific Impeachment
1. Bias & Motivation
2. Sensory & Mental Capacity
3. Character for “Truth & Veracity”
a. Cross-examine the target witness about non-conviction misconduct – 608(b).
b. Cross-examine about prior convictions – 609.
c. Testimony by a character witness that the target witness is untruthful.

Specific Impeachment
1. Showing that the witness has made a prior inconsistent statement.
2. Contradicting the witness (e.g. w/other witnesses).

Contradiction

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Counterproof: Extrinsic Evidence
1. Undermines credibility
2. Involves a substantial point
3. Bias
4. A telltale point: witness deception
Must have dual relevancy to be admitted.
● A tendency to illuminate a substantive issue: Admit
● A tendency to illuminate a credibility issue: Admit
● Just contradict - & is collateral: Exclude
Impeaching a witness by contradiction entails a showing that something he said in his testimony is not so.

Repairing Credibility
FRE 608(a)(2) – A party cannot attempt to repair credibility before the attack.
Exceptions: it’s permissible on direct:
● For any party to adduce testimony by his expert to the effect that she’s being paid for her services,
● For the prosecution or the defense to bring out that its witness has been convicted of crimes,
● For the prosecutor to bring out that its witness has entered into a plea bargain, &
● For the calling party to bring out any connection or affinity that she has w/the witness.
o (Obvious grounds for bias that the other side would raise.)
The repair should be made at the point of attack.

US v. Abel
Facts:
Issue:
Holding:
Reasoning:

US v. Manske
Facts:
Issue:
Holding:
Reasoning:

US v. Lipscomb
Facts:
Issue:
Holding:
Reasoning:

Luce v. US
Facts:
● ∆ was indicted on charges of conspiracy & possession of cocaine w/intent to distribute in violation of a federal statute.
● During his trial, ∆ moved for a ruling to preclude the gov’t from using a prior state conviction to impeach him if he testified.
o There was no commitment by the petitioner that he would testify, nor did he make a proffer to the court as to what his
testimony would be.
● The district court ruled that if the ∆ testified & denied any prior involvement w/drugs, he could be impeached by the 1974 conviction.
o ∆ did not testify, & the jury returned guilty verdicts.
● The court of appeals decision, which didn’t consider the petitioner’s contentions & held that when the ∆ doesn’t testify that the court will
not review the district court’s in limine ruling, was affirmed.
o Court reasoned that when a court is directed under Rule 609(a)(1) to weigh the probative value of a prior conviction against the
prejudicial effect to the ∆, the court must know the precise nature of ∆’s testimony, which is unknowable when the ∆ does not
testify.
Issue:
● Whether the ∆, who did not testify at trial, is entitled to review of the trial court’s ruling that denied his motion to forbid the use of a
prior conviction to impeach his credibility.
Holding:
● No. To raise & preserve for review the claim of improper impeachment w/a prior conviction, a ∆ must testify.
o When the ∆ does not testify, the reviewing court also has no way of knowing whether the gov’t would have sought to impeach
w/prior conviction.
Rule:

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● The denial of a motion to exclude a prior conviction offered for impeachment isn’t reviewable on appeal if the ∆ fails to testify.
Reasoning:
● Requiring a ∆ to testify to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous
impeachment may have in light of the record as a whole, & will discourage making such motions for the sole purpose of obtaining a
reversal of a conviction.
● The preferred method for raising claims such as ∆’s would be for the ∆ to take the stand & appeal a subsequent conviction… only in this
way may the claim be presented to a reviewing court in a concrete factual context.

US v. Webster
Facts:
Issue:
Holding:
Reasoning:

Harris v. NY
Facts:
Issue:
Holding;
Reasoning:

Jenkins v. Anderson
Facts:
● ∆ stabbed & killed Redding. ∆ claims it was self-defense but didn’t report it to police or turn himself in for 2 weeks.
● At his trial, the gov’t commented on his 2 week silence.
● The inference is that a person who killed in self-defense wouldn’t have waited 2 weeks to report it – silence = guilt.
Issue:
Holding:
Reasoning:

US v. Havens (contradiction)
Facts:
● ∆ was convicted of importing, conspiracy, & possession of cocaine. McLeroth was found w/cocaine sewed into his t-shirt with makeshift
pockets. No cocaine was found on ∆, but McLeroth implicated him. ∆’s luggage was seized w/o a warrant & a t-shirt was found w/cut-outs
that matched the pockets on McLeroth’s shirt.
● On direct, ∆ testified that he didn’t engage in any taping of drugs w/McLeroth.
● On cross, prosecutor reiterated the answer given on direct & asked if ∆ had anything to do w/the t-shirt pockets.
o ∆ denied any involvement & denied having a shirt in his suitcase.
▪ Gov’t introduced in evidence the shirt w/cut-outs & had a police officer testify that it was found in his suitcase & that ∆
told him the shirt belonged to McLeroth.
● Problem: gov’t isn’t allowed to use illegally seized evidence in its case-in-chief. Here, gov’t waited until ∆ was on
the stand & introduced the evidence for the first time during cross.
Issue:
● Whether gov’t may introduce illegally seized evidence for the first time during cross.
Holding:
● Yes. If a ∆ chooses to testify, he must testify truthfully & cannot use constitutional shields as a license to use perjury.
Rule:
● Evidence suppressed as the fruit of an unlawful search & seizure may be used to impeach a ∆’s false trial testimony if ∆’s direct examination
reasonably suggests a contradiction.
Reasoning:
● Standard – Reasonably suggested on direct.

US v. Medical Therapy Sciences (repairing credibility – evidence of good character)

Facts:
● ∆ was convicted of filing a false claim for Medicare payments by devising a scheme to obtain payments for the same patient twice, to charge
more for equipment provided, & so on.
● Russel was the gov’t key witness.
o Gov’t was first to introduce the fact that Russell had 2 prior convictions & that ∆ accused her of embezzling from the Medical
Therapy. They brought up impeaching evidence on direct, ∆ cross-examined, then gov’t used character witness to repair credibility.
▪ ∆ argues that the gov’t shouldn’t have been allowed to call character witnesses to bolster Russell’s credibility since her
character for truthfulness hadn’t been attacked w/in the meaning of 608(a).

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▪ The contradiction is that gov’t witness stole from Medical therapy & filed false claims to disguise her embezzlement.
Issue:
Holding:
Rule:
● The calling party may expose some discrediting qualities of their witness & repair credibility based on that at least if cross can be
characterized as an attack on veracity.
Reasoning:
● 608 – character evidence may be used only to show truthful character & only after it has been attacked. By definition, the attack must
have come from ∆.
● If a party is going to call a disreputable witness, the jury will more likely listen to them if they are presented as such. The gov’t had the
right to proceed as it did.
● Here, the cross was characterized as an attack b/c the ∆ questioned the gov’t witness sharply.

Eckhardt Notes:
● FRE 608(a)
● Attack: How is rule triggered?
o Was one made?
o By whom?
● Revealing the witness’ background vs. putting a witness’ veracity in issue

Judgment of Previous Conviction (Hearsay Exception) – FRE 803(22)

In a criminal case, this exception only allows admissibility of the judgment as proof of the conviction concerning non-∆ witnesses & for
impeachment purposes.

Bias, Prejudice, Interest, & Improper Motive

Probably the most typical areas of impeachment w/most witnesses. They all depend on the relationship of the witness w/one of the parties or the
subject of the litigation.

Character Evidence – FRE 608(a) & (b)

A witness may be impeached by opinion or reputation testimony that the witness has bad character for honesty. Once a witness has been
impeached by evidence of dishonest character, such witness may be rehabilitated by calling a character witness who will testify about the witness’s
character for honesty or truthfulness by way of opinion or reputation evidence.

Prior Convictions (Civil Cases) – FRE 609(a)-(e)

(a)(1) provides, unequivocally, that the admission of evidence of convictions that carry a potential sentence of death or imprisonment > 1 year
shall be determined in civil cases by the 403 consideration of the balance between prejudicial effect & probative value. Trial judge has discretion to
exclude otherwise admissible (a)(1) convictions if the prejudicial effect of the conviction substantially outweighs the probative value of the
conviction on the issue of the credibility of witnesses.
(a)(2) unequivocally mandates the admission of prior conviction evidence for impeachment purposes where the conviction is for a crime of
dishonesty or false statement. Dishonesty crimes (crimes in the nature of crimen falsi) typically includes any theft crime & excludes any crime of
violence. There’s no discretion in the trial judge to exclude evidence of (a)(2) convictions.

Prior Convictions (Criminal Cases) – FRE 609(a)-(e)

As w/the use of convictions for impeachment in civil cases, 609 in criminal cases dispenses w/any balancing of probative value against
prejudice in the offer of a conviction for a crime of dishonesty or false statement. Thus, such convictions must be admitted against any witness,
including ∆. Where, however, a ∆ would be impeached w/a conviction for a crime that carries a penalty of > 1 year in prison that doesn’t involve
dishonesty or false statement, (a)(1)(B) requires the court to perform a balance that is different from 403 balance & tilts away from admissibility.
Such conviction will only be admitted against a ∆ where the court finds that the probative value of the conviction on the ∆’s credibility outweighs
the prejudice to the ∆. The obvious prejudice to a ∆ lies in the jury’s inclination to find a ∆ guilty of the crime charged b/c of his prior record.
Arguably, the similarity between the charged offense & the prior conviction magnifies the prejudicial impact of the prior conviction b/c of the jury’s
almost inevitable sense that one who once committed a particular sort of offense is likely to commit a similar offense again. Whatever the
common-sense likelihood of such a notion, it’s an impermissible inference for a fact finder to make.
“Dishonest act or false statement” includes crimes that required proof or admission of an act of dishonesty or false statement to establish the
elements of the crime by the witness who is being impeached. According to the advisory note, “ordinarily, the statutory elements of the crime will
indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime isn’t apparent from the statute & the face of
judgment,… a proponent may offer info such as an indictment, a statement of admitted facts, or jury instructions” in order to demonstrate that
proof of an act of dishonesty or false statement was required for conviction.
A witness in a criminal case, other than the ∆, is treated like a witness in a civil case for purposes of 609(a), & impeachment of witnesses may
be excluded on 403 grounds.

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Prior Inconsistent Statements – FRE 613(a) & (b)
The Rules don’t require a formal foundation for impeachment by prior inconsistent statement. Good tactics dictate, however, that counsel show,
by way of foundation, the time, place, & circumstances of the inconsistent statement for maximum effect. In addition, it’s tactically advisable to
give a copy of written inconsistent statements to the witness who’s about to be impeached. This is especially important when the prior statement
is inconsistent by omission.

Specific Instances of Misconduct – FRE 608(b)

Specific instances of conduct that show, w/o reference to the subject matter of the suit, that a witness isn’t a truth-teller are admissible pursuant
to 608(b). Extrinsic evidence of instances of misconduct relating to honesty is not admissible.

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Opinion & Expert Testimony
701 - Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert – Testimony in the form of opinion is limited to:
(a) Rationally based on the witness’s perception, &
(b) Helpful
To clearly understand the witness’s testimony
Or
To determine a fact in issue, &
(c) Not based on scientific, technical, or other specialized knowledge within scope of 702.
There is no bright line between fact and opinion.
● Lay witnesses may give their opinions.
Prefers lay witnesses be specific rather than general; concrete rather than conclusory
● Administering this rule of preference may be difficult.
● Witnesses must have some latitude.
Common experience in life suggests many standard points on which lay witnesses should be permitted to be fairly general & conclusory:
● Mental or physical condition of a person
● Character or reputation
● Emotions manifested by acts
● Speed of a moving object
● Size, heights, odors, flavors, colors, heat
Requires lay testimony to be “rationally based on the witness’s perceptions.”
● Opinion testimony cannot be uninformed testimony.
● Remember 702 requires that every lay witness have personal knowledge.
Lay opinion testimony may clearly be rejected if it seems to amount to speculation or guesswork rather than an informed estimate or appraisal.

702 - Testimony by Expert Witnesses

Witness who is qualified as an expert by:

● Knowledge
● Skill
● Training
● Education
● Experience
May testify in the form of opinion or otherwise if:
Scientific, technical, other specialized knowledge.
(a) Testimony will assist the trier of fact: be helpful
(b) Testimony is based on sufficient facts or data: reliable
(c) Testimony is the product of reliable principles & methods: reliable
(d) Testimony reliably applies principles & methods to the facts: fit’s w/in the fact pattern

703 – Basis of an Expert’s Opinion Testimony

● Matters made aware of or personally observed.
● May rely upon facts or date “experts in the particular field would reasonably rely on.”
o Such facts or data need not be admissible.
● If the facts or data would otherwise be inadmissible, may disclose such facts & data only if their probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial effect.

Traditional Presentation of Expert Testimony

But see 705 for modern approach.
● Establish that the matter at hand could benefit from expertise.
● Foundation:
o Education
o Experience
o Familiarity with the subject of the suit.
● Use of hypothetical question.

104 – Role of the Judge in Expert Testimony – The Gatekeeper

● Does the person qualify as an expert?
● Is there an adequate basis for giving an opinion?

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704 – Opinion on an Ultimate Issue

● “Testimony… is not objectionable b/c it embraces an ultimate issue.”
o Exception: Mental state of ∆s in criminal cases.
● At common law, all witnesses – lay as well as experts – could not testify to ultimate issues in cases, lest they “invade the province of the jury.”

705 – Disclosing the Facts or Data Underlying an Expert’s Opinion

● Allows the proponent to go straight to the point.
● Is anything gained in hiding the extensive foundation.
● Be careful b/c it may be disallowed on re-direct.
● Although it’s unnecessary to resort to hypothetical questions, they may still be useful when an expert hasn’t conducted the necessary
investigation beforehand.

Scientific Evidence
702 & 703
1. Witness is qualified
2. Can assist the trier of fact
3. Outside data is of the sort “reasonably relied upon” by similar experts
IF
Based on sufficient facts & data
Product of reliable principles & methods
Applied principles & methods reliably to facts.

Frye Standard: “General Acceptance in the particular field to which it belongs.”

Daubert:
● Science must be valid: Reliable – Trustworthy
● Derived by scientific method: Tested – Appropriate Validation
o Whether the theory or technique can be & has been tested: Testing
o Whether it has been subjected to peer review &, if possible, publication: Peer Review/Publication
o Error rate: Error Rates
o Existence of standards governing the operation or application of the technique in question: Standards
o Degree of acceptance in the scientific community: Acceptability
o Other possibilities (Downing)
▪ Types of error experienced
▪ Existence or absence of a body of professional literature
▪ Nonjudicial uses for the process or technique
▪ Novelty & its relation to other processes or techniques
▪ Qualification or professional status of witness
● Must fit the case
o Aid the jury
● Subject to scrutiny under 403 (mislead jury) & 703 (hearsay)
o Hearsay & Mislead Jury

Other Relevant Factors in Determining Reliability

● Whether experts are “proposing to testify about matters growing naturally & directly out of research they have conducted independent
of the litigation, or whether they have developed their opinions expressly for purposes of testifying.”
● Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.
● Whether the expert has adequately accounted for obvious alternative explanations.
● Whether the expert “is being careful as he would be in his regular professional work outside his paid litigation consulting.”
● Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

1. Do we need an expert? Would it be helpful?

2. Qualify the expert. Judge is the gatekeeper & qualifies the expert.
3. Is the expert reliable? Are the techniques used in sorting out that data, in fact, reliable?

Daubert v. Merrel Dow Pharmaceuticals

Kumho Tire Co., Ltd. V. Carmichael

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State v. Moore

Expert Opinion – FREs 702, 703, 704, 705, & 706

Where the proponent seeks to offer opinions, conclusions, or inferences to help the fact finder determine a fact in issue, & such opinions are
beyond the ability of the fact finder, the proponent may offer such opinions, conclusions, or inferences from a witness qualified as an expert in the
relevant field. The proponent of the expert opinion bears the burden of laying a foundation demonstrating the expertise of the purported expert &
the reliability of the methodology, principle, or process the expert uses to reach a conclusion. Though an expert is permitted to rely on otherwise
inadmissible but reliable data to form the opinion, the expert may not disclose the substance of the inadmissible data to the jury unless the court
finds that its probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs its prejudice.

Lay Opinion Evidence – FREs 701 & 704

Lay opinion is generally allowed where its admission makes the jury’s fact-finding easier & more accurate. A typical admissible lay opinion occurs
where a witness provides an inference to the jury that takes the place of describing a series of perceptions that in common experience add up to a
rather ordinary inference or characterization (e.g., testimony that someone looked happy, sad, confused, or angry).

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Privileges

Introduction
Privileges rest upon a different rationale than most other rules of evidence,
● Intended to protect certain societal relationships & values.
● Their effect may be to impede the search for the truth – you construe privileges narrowly.
● Their goal is to encourage the free flow of communication in various relationships.

Note the distinction between ethical duties of confidentiality & evidentiary privileges.
● Ethical – Professional duty of confidentiality:
o Imposed by Conscience: Professional Standards: Licensing Laws
o Often extended to matters outside the evidentiary privilege.
● Evidentiary Privilege
o Imposed by evidence law.
o Only asserted in judicial, legislative, or administrative proceedings.

Note that privileges remain the most significant area of evidence law not codified by the FRE.

Understand the debate on application of state privilege law in diversity suits.

● Drafters thought that deferral to state privilege law was not required under Erie – even when state law provided the rule of decision.
● Congress concluded as a matter of policy that there should be deferral to state privilege law in any case where state law provided the rule
of decision.
● B/c a state-created privilege won’t apply in federal criminal cases or in federal civil litigation where federal law supplies the rule of
decision, state citizens must necessarily be cautious in relying upon any privilege recognized only by their state law.

Rules Not Enacted – Important as Articulate Statement of Law

● 503 – Lawyer-Client Privilege
● 504 – Psychotherapist-Patient Privilege
● 505 – Husband-Wife Privilege
● 506 – Communications to Clergymen
● 507 – Political Vote
● 508 – Trade Secrets
● 509 – Secrets of State & Other Official Information
● 510 – Identity of Informer

Attorney-Client Privilege
Definitions:
● Client
● Lawyer
● Representative of the Lawyer
● Confidential
o Not intended to be disclosed to 3rd persons.

General Rule of Privilege

● Client has privilege
o To refuse from disclosing “confidential.”
o To prevent communications made for purpose of rendering legal services.
● Between
o Himself & Lawyer
o Lawyer & Lawyer’s Rep.
o Him & Lawyer representing another Lawyer in a matter of common interest
o Reps. Of client
▪ Client & Rep. of client
o Lawyers representing Client

Who May Claim the Privilege:

● Most legal representatives.
● Lawyer – but only on behalf of client: authority presumed.

Exceptions:

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● Furtherance of crime of fraud.
● Claimants through same deceased client.
● Breach of duty by lawyer or client.
● Document attested by lawyer.
● Joint Clients.

The Corporate Client

Prior to enactment of the rules, it could be said that the attorney-client privilege extended to corporations, but it wasn’t clear how many people in
the corporate organization were w/in the charmed circle.

4 Approaches:
1. A confidential statement to counsel by any officer or employee of the corporation might be privileged.
2. The attorney-client privilege was historically & fundamentally personal in nature & that very idea of confidentiality couldn’t apply in the
corporate setting. Hence, corporate clients held no attorney-client privilege.
3. Control Group Test – The privilege would apply to corporate clients but would cover only communications to counsel by persons in the
“control group.”
a. Advisory Committee initially adopted this rule: Dropped as “too hot to handle.”
4. Subject Matter Test:
a. Where the employee makes the communication at the direction of his superiors.
b. Where the subject matter is w/in the performance by the employee of his corporate duties.
5. Factors given the greatest weight:
a. The communications were part of a corporate purpose to secure legal advice for the corporation.
b. The communications concerned matters w/in the scope of the employee’s corporate duties.
c. The employees know that the communications were to be considered confidential as part of a corporate purpose to obtain
legal advice.
d. The communications were kept confidential by the corporation.

Attorney-Client Privilege vs. Work Product Doctrine

Attorney-Client Work Product

Hickman v. Taylor
FRCP 26(b)(3)
Holder Client Client or Attorney
Subject Confidential Communications to or from
Any material prepared for litigation
Matter client
Qualified:
1. Substantial need for information
Applicability Absolute
2. An inability to obtain the substantial equivalent of the material by other
means
Use Discovery or trial Usually discovery

Spousal Privilege
Basis – Common Law
● Rule making parties incompetent
● Fiction that husband & wife were one.
Came to be viewed as privilege based on marital harmony & privacy.

2 Distinct Privileges:
1. Testimonial Privilege
a. More broad
b. Blocks all testimony by one spouse against another.
2. Spousal Confidence Privilege
a. More narrow
i. Applies only if the spouses are married when the testimony is sought.
b. Excludes only testimony concerning private communications between spouses.

Self-Incrimination
This rule allows natural persons to prohibit the introduction in a criminal proceeding of self-incriminating disclosures that were obtained through
compulsion by the state and that are testimonial in nature.

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