Evidence Outline

I. Relevance

————————GENERAL PRINCIPLES OF RELEVANCE————————

Introduction

 Generally
o NY doesn’t follow the FRE
o FRE are largely trans-substantive – apply to criminal to civil (mostly)
o May = discretionary
o Discretion may also be more subtle in balancing tests
o Evidence presents three things: (1) Catalog, (2) Creed, and (3) Code
 Catalog – answer every conceivable question
 Creed – general principles and standards; open to discretion
 Code – answers many questions but also admits flexibility
 Use code in evidence
o Why need rules of evidence
 Fairness – that parties will be treated equally; certainty of trial
 Truth and Accuracy
 History
 Avoid resorting to self-help
 Jury control

 Tanner v. US (SCOTUS, 1987)

o FACTS: Tanner and Conover had been tried and convicted of fraud and mail fraud; Before sentencing,
defense attorney received a phone call from a juror saying that jurors had consumed alcohol during
lunch breaks and slept through the afternoons; Defense counsel also testified that he observed jurors in
“a sort of giggly mood”; Another juror, Hardy, notified the defense attorney that he too witnesses jurors
using drugs and drinking during breaks
o ISSUE: should the court admit evidence from jurors that would undercut the jury deliberations
o HOLDING: can’t be used to impeach the jury verdict
o Court distinguishes between inside and outside influences, based on Rule 606(b)
o FRE 606(b). Jurors may not testify about things that happened during deliberations if the use of that
information would be used to impeach of undercut the jury’s verdict
 Deliberation broadly defined – includes lunch
 Rule is talking about jurors specifically – so can obtain information about the juror’s behavior from
other witnesses (such as waitress in restaurant, etc.)
 Exceptions:
 (1) Whether extraneous prejudicial information was improperly brought to jury’s attention (i.e.
news articles);
 (2) Whether any outside influence was improperly brought to bear upon any juror (i.e. threats);
and

1
  (3)Whether there was a mistake in entering the verdict onto the verdict form (i.e. clerical
errors)
 What doesn’t fit into the exceptions: candid deliberations, alcohol use, sickness
 Not like a privilege – jurors can’t testify, but they can talk about what happened with anyone else
o Alcohol and drug use is more like getting sick and should not be considered an “outside influence”
o The system would not survive if every juror behavior was investigated
o Three questions to ask:
 Why have Rule 606(b)?
 Finality in litigation
 Protect jurors from harassment
 Protect the deliberative process
 Legitimacy of jury verdicts
o Can’t have perfect decisions, but can make decisions secret
o If worried about what juries are saying, then can fix all the mistakes
 What does this say about our vision of the jury?
 What does this tell us about the big picture of Evidence?
 Tanner is a back-ended case; jury is given almost infinite trust
 Evidence is mostly front-based, and don’t trust jury at all at that point
o Pervasive balance of trust and doubt

 3 Anchor Federal Rules of Evidence Regarding Relevance

o FRE 401: Definition of “Relevant Evidence”
 TEXT: “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 without the evidence.
 Relevant = probative and material
 Probative: any tendency to prove or disprove a particular fact
o Very liberal or pro-evidence; the more information the better
o Also known as Logical Relevance
 Materiality: something that is of consequence – does it matter to this dispute
o Need to look at substantive law
 Ask: Does the evidence have any tendency to prove or disprove something of consequence to
this case
 Problem 1.1 (pp. 21-22) (Probative)
 FACTS: Police arrive to arrest woman’s husband, and she shouts, “Where’s the body, show me
the body”
 Is it relevant: YES – it is probative and material
o This is a chain in line of inferences (or brick in wall) – Not common for someone to react
in this way when someone is arrested for murder – allows us potentially to infer that the
defendant hid the body or killed the victim
 To be relevant, does not need to be completely solid, just needs to be one chain in
the line or one brick in the wall
 Problem 1.2 (p. 22) (Probative)

2
  FACTS: Witness who was prison inmate with ∆, testified that government inmate intended to
falsely implicate ∆; Prosecutor asks the witness if he and the ∆ are part of secret organization
that requires member to lie and kill for one another
 YES – it is probative and material
o Probative: (1) might show the witness is biased, (2) reveals something about the ∆’s
character if he is in a gang
o Doesn’t have to be about underlying robbery to be relevant
 Problem 1.5 (p. 24)
 FACTS: State law says intoxication may not be taken into consideration in determining
existence of a mental state which is an element of a criminal offense
 ISSUE: If ∆ offers evidence of high blood alcohol level to show that he could not have acted
“purposely” or “knowingly” when he shot the victims, should this be excluded
 CONCLUSION: Voluntary intoxication is not material – it doesn’t matter if person was
intoxicated because intoxication cannot be taken into account because of the state law
(although, it is probative, because it tendency to prove that ∆ did not have the mens rea needed
to be convicted)
o If not material, even though probative, evidence cannot be admitted
 United States v. James (9th Circuit, 1999)
 FACTS: ∆ on trial for aiding and abetting manslaughter – her daughter killed Ogden, ∆’s
boyfriend; Victim punched daughter’s boyfriend; daughter asked ∆ for gun; ∆ gave daughter
the gun, which the daughter then used to kill the victim
o ∆’s defense: gave daughter the gun for self-defense in order to scare the victim off because
she believed the victim was the dangerous threat; ∆ claims to fear the victim because she
claims the victim had told her numerous stories about violent acts he had committed
against other people - ∆ was not present during these acts, but the victim allegedly told her
about them; ∆ tells the jury that the victim told her these stories
 ISSUE: Can ∆ introduce extrinsic evidence in support of her testimony that the victim told her
these stories?
o Evidence sought to be introduced: court documents documenting that these events
happened
 HOLDING: Evidence relevant
o Probative and Material because it shows that ∆ wasn’t making up stories – makes ∆ more
believable – shows that the victim likely did tell ∆ and likely also in a convincing way
o Three steps of chain of inference:
 Victim committed acts
 More likely that victim talked about them in convincing way
 More likely that ∆ told truth about her state of mind
o Trying to determine if her fear was reasonable, and this is determined by showing
evidence that the events she alleged the victim told her about actually happened

o FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

 TEXT: All relevant evidence is admissible, except as otherwise provided by the Constitution, by
Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence that is not relevant is not admissible.
 Two Parts:

3
  (1) Relevant evidence is generally admissible
o Where not admissible: Where another rule of evidence says something is not admissible
(see, e.g., FRE 403) or constitutional violations
 (2) Irrelevant evidence is not admissible
 Note 1: Can still prove uncontested things – can’t render evidence irrelevant simply by agreeing to
it
 Note 2: Much of this depends on substantive law

o FRE 403: Exclusion of Relevant Evidence on Ground of Prejudice, Confusion, or Waste of Time
 TEXT: Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
 See Casebook pp. 38-39
 BASIC RULE: Some evidence should be excluded even if it is relevant because of the factors listed
in the rule
 Surprise is not included in this
 Basic mechanism is a balance: probative value, prejudicial value
 Note 1: Exclude only when unfair value substantially outweighs the probative value
 Note 2: Must be unfair prejudice
 All evidence is prejudicial, but this rule is talking about unfair prejudice
 Note 3: Includes both defense and prosecution
 State v. Bocharski (Supreme Court of Arizona, 2001)
 FACTS: ∆ facing death penalty for stabbing old lady in head sixteen times, killing her;
evidence that is cause of dispute: gruesome photographs of the victim’s body; photos are
relevant
 ISSUE: Does unfair prejudice of photographs substantially outweigh probative value
o Probative value is that it shows how the person died, but not as much probative value
because the issue is not contested
o Risk of unfair prejudice: pictures are gruesome, inflammatory, and stir emotions
 HOLDING: prejudice substantially outweigh the probative value – evidence introduced
primarily to inflame jury
 Court does not reverse: the error in admitting the photos didn’t contribute to, or affect the jury
verdict
o Two questions asked on appeal: (1) did trial court make an error (abuse of
discretion), and (2) was the error harmful (see FRE 103)
 Commonwealth v. Serge (Supreme Court of Pennsylvania, 2006)
 FACTS: ∆ convicted of murder; he claims he was acting in self-defense; Prosecution argues
that he was a police officer and would know how to stage scene to look like self-defense;
Prosecution uses computer-generated animation (CGA) to depict their theory of the shooting
 Note: this type of evidence (CGA) is typically demonstrative rather than substantive; if
demonstrative, in theory, then doesn’t need to survive 403
 CGA had no sound, and did not show any blood
 What is probative value of the CGA: it’s fair and accurate and shows that ∆ did not act in self-
defense

4
  What is prejudice: CGA too good – risk of over persuasion, distraction, confusion that this is
not just an opinion; also, ∆ lacks money to respond to CGA in kind
 HOLDING: evidence admissible
o Prejudice does not substantially outweigh probative value
o There are detailed limiting instructions
o Looking for abuse of discretion, and can’t say that it is

 Conditional Relevance – FRE 104(b)

o FRE 104(b): Preliminary Questions: Conditional Relevancy
 When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition
 What this means: if evidence is only relevant if something else is established, then have to establish
this fact before allowing the relevant evidence
o Problem 1.7 (pp. 31-32)
 FACTS: DA arguing that the motive of the alleged killer is that the victim was going to tell her son
that ∆ was not his father
 What DA has: body, access & opportunity (they were married), motive (victim was going to tell son
that ∆ was not biological father)
 Motive is questionable: DA has no proof that the ∆ knew of the victim’s plans to tell the kid – and
if ∆ didn’t know, then he had no motive
 Only if x, then y; and if not x, then not y
o Only if ∆ knew the plan to tell the son, would there be a motive; if ∆ didn’t know, then no
motive
o X is a precondition to “y” being relevant
 Knowledge is precondition to motive being relevant
 Precondition needed to be established: ∆ actually knew what would happen
o Cox v. State (Supreme Court of Indiana, 1998)
 FACTS: ∆ convicted of killing victim – victim was father of girl who was allegedly molested by a
friend of ∆’s; theory is that ∆ killed the victim because he was mad that the friend had an
unsuccessful bond reduction hearing
 CONDITIONAL ISSUE: whether ∆ knew about his friend’s hearing
 ∆’s alleged motive is only plausible if ∆ knew about the denial at the friend’s hearing
 Court admits the evidence
 When conditionally relevant evidence will be admitted under 104(b) – when there is sufficient
evidence to support conclusion that ∆ knew of the bond hearing
 Step 1: Court has to decide if a jury could conclude by preponderance of evidence that condition
existed (court not actually deciding the conditional fact)
 3 problems:
 In theory, 104(b) and 401 have disparate standards – it’s easier to satisfy bare relevance
standard than preponderance of evidence standard
o Not a problem in practice
 Blunder issue: not sure that there is any real difference between 104(b) and 401 as far as
evidence is concerned

5
 o Aren’t all cases of relevancy cases of conditional relevancy? -- There is no separate
problem of conditional relevancy
 Bluff problem: “subject to” in Rule 104(b) allows Court to admit evidence, subject to the later
admittance of the conditional evidence
o Putting the cart before the horse – people can bluff and put forward evidence and then just
say that they will put forward the conditional evidence later even though they may never
present it – jury has already seen it
 Protection is jury limiting instructions, but not clear that juries actually adhere to this
– hard to convince people that they didn’t see something that they already saw

FRE 403 Applied: Flight, Probability/Statistics, and Stipulations

 Evidence of Flight
o Intentional or knowing departure from the scene of crime and/or capture from authorities
o Why would think that evidence of flight is relevant?
 We don’t think people run without a particular reason – tend to think people only run when they
don’t want to get caught
 Think it says something about guilt
o United States v. Myers (5th Circuit, 1977)
 4 Inferences to get from flight to guilt:
 Behavior that could be flight  actual flight
 Flight  consciousness of guilt generally
 Consciousness of guilt generally  consciousness of guilt for this specific crime
 Consciousness of guilt for this particular crime  actual guilt
 FACTS: Bank robbery in Florida – no dispute about how crime was committed, but rather by
whom; ∆ convicted of bank robbery; ∆’s friend Coffie, who looks like ∆, confessed to crime; At
second trial, prosecution introduces evidence of flight - ∆ is convicted a second time, at least in
part, because of this evidence
 Evidence of flight: In Florida: ∆ is at mall and unidentified FBI agents approach him, at which
time he ran away; In California: ∆ and Coffie are run down on their motorcycle by an unmarked
police car, and officer says he thinks ∆ was going to flee, although he was actually arrested on the
scene
 California Incident
 There is some probative value – probative value is from the chain of inferences
 Police officer’s testimony was inconclusive, so not even clear that ∆ was going to flee
 Reasonable to think that if an unmarked car comes after you on the road, your reaction would
be to run away
 Also can’t say that if he did flee, that he felt guilt because of the Florida robbery, and not
because of another robbery he was connected with in Pennsylvania
 Florida Incident
 Also some probative value that comes from the chain of inferences
 Why is the probative value weak here:
o Remoteness in time – the Florida incident happened much later than the robbery (“The
more remote in time the alleged flight is from the commission or accusation of an

6
 offense, the greater the likelihood that it resulted from something other than feelings of
guilt concerning that offense.”)
o Reasonable for someone to run away when approached aggressively by an unidentified
person
 Court says that it was an error to admit the evidence of flight and the error was not harmless
 NOTE: Court doesn’t actually discuss what the unfair prejudice to ∆ is – they only talk about the
weakness of the probative value
 What is the unfair prejudice in this case and about flight evidence generally?
o The explanation the person might have for why they are fleeing might make them look
like a bad person (see Problems 1.9 and 1.10 regarding evidence of prior convictions)
o Problem 1.9 (pp. 59-60)
 FACTS: At ∆’s murder trial, evidence offered that ∆ fled from the scene of the crime (he fled after
“finding” the victim’s body in the laundry room)
 Probative value: inference of flight from guilt
 Unfair Prejudice: if he fled because he feared arrest because of prior convictions, then he could
be unfairly prejudiced because the jury could convict him based on his past misdeeds or a belief
that he is a bad person, rather than based on the current case
 Three Notes:
 Unfair prejudice here is what is implicit in the Myers case
 Prior crime was a long time ago and different from current crime
 (see Problem 1.10)
o Problem 1.10 (p. 60)
 FACTS: ∆ fled from police and dropped a jar of marijuana; even though police approached him in
connection with a shooting, ∆ claims that he ran away because he feared he would be arrested for
the Marijuana; Prosecution admits the evidence of flight, but doesn’t mention the drugs
 ∆ says that he would be unfairly prejudiced because the evidence forced him to admit evidence of
a bad act (possession of marijuana)
o Flight Evidence overview:
 Must be careful about itemizing the risk of unfair prejudice
 Must be careful to walk through the list of inferences
 If information about flight can be admissible as evidence of flight, can evidence of non-flight be
evidence of non-guilt (see Problem 1.11, pp. 60-61)
 Probative Value: Might be weak: everyone is inert – doesn’t eliminate the probative value
though
 Unfair Prejudice: not much if any risk of unfair prejudice to the government by introducing
evidence on non-flight
 In practice, evidence of non-flight is almost always excluded
o Almost too obvious – don’t want to give ∆ any particular benefit for simply not leaving
o Evidence of non-flight is a waste of time
o NON-FLIGHT EVIDENCE NOT TREATED SAME AS FLIGHT EVIDENCE

 Probability Evidence
o Question is when are numbers-based evidence too powerful?
o People v. Collins (Supreme Court of California, 1968)

7
  FACTS: Elderly woman walking home was knocked down from behind and robbed; Woman was
able to give a few details about the woman who attacked her, and a neighbor was able to give some
descriptions of the woman in addition to a getaway car and the car’s driver: Woman described as
white, medium build, with blonde hair in ponytail; description that she fled in a yellow car with
white top driven by a bearded African-American man; Descriptions are not perfect and there are
some disagreements; Prosecutor calls a professor of probability statistics, who goes to the trial and
testifies that there was a very small probability that all of these characteristics could come together
and not be the defendants – Employs the Product Rule – multiply individual and independent
variables to get the probability of the whole (chances of woman, chances of yellow car, etc. – see
footnote on p. 63) – Number came up with is 1 in 12 million
 Problems with stats: Numbers were made up
 Why exclude the evidence, rather than refuting it during the trial
 Math evidence appears differently to jurors than witness testimony
 Average juror is less likely to spot the flaws in this kind of math
 Opposing counsel also might not be able to spot the errors

 Effect of Stipulations
o Stipulations: party agreements or decisions to take a fact or issue effectively out of dispute
 Ex: concede to manner of death, time of incident, who was driving a car
o How interact with FRE 403:
 Creative solution (Jackson)
 Resort to stipulations to try to get out of thorny situations
 Complications – creates problems (Old Chief)
o United States v. Jackson (EDNY, 1975)
 FACTS: ∆ accused of bank robbery in New York, and was arrested in Georgia, after traffic stop
where he used a false name and had no license
 Probative Value of Georgia officer testifying:
 Need for corroborative evidence
 Unfair Prejudice:
 Testimony will acquaint the jury with the fact of ∆’s unrelated arrest and surrounding
uncomplimentary circumstances
 Even if the fact that ∆ and companions were heavily armed and subsequently escaped from
the local jail were concealed, the jury might well infer from the Georgia events that ∆ was
engaged in a nation-wide crime spree - ∆ is not on trial for any other crimes but the NY
robbery
 Here, stipulation is used to get out of a FRE 403 problem
 Notes:
 There is a lot of discretion here, but judges don’t often use it
 Stipulation is a solution to 403 problem, and it is a stipulation of a common type
 Other similar creative devices work as well – “carve outs” (redact documents, court orders,
testimonies, etc.)
o Old Chief v. United States (SCOTUS, 1997)
 General Theory: parties may prove cases in their own ways, and with their own evidence (so long
as relevant) – also put, criminal ∆ may not stipulate or admit his way out of the full evidentiary
force of the case as the government chooses to present it

8
  Why:
o Story – evidence tells a colorful story in way that stipulation never could – “tell much at
once”
o Morals – tugs on moral underpinnings of the law – allows jury to feel that guilt is
morally reasoned
o Expectations – juries expect to hear stories in particular ways, and fear is that they may
punish party bearing burden of proof if the story is told with too many gaps, even if gaps
are filled with stipulations
 Stipulations can factor into both sides of 403 analysis – can affect probative value, and can change
concerns about unfair prejudice
 FACTS: ∆ charged with violating 18 USC 922(g)(1), which prohibits possession of a firearm by
anyone with a prior felony conviction – makes it unlawful for anyone who has been convicted of a
crime punishable by imprisonment for a term of over one year to possess in, or affecting
commerce, any firearm; ∆ offered to stipulate to having a prior conviction without telling the name
and nature of the offense; prosecution refuses offer of stipulation, and DC allows the prosecution
to refuse the stipulation
 Does the stipulation in this case typically work to deprive the prosecutor from proving her case –
No (see general theory, above)
 Contrary to general rule that stipulations don’t deprive parties of ability to present case in their
own way, this stipulation actually works because it so complicates the 403 analysis that it presents
problems to the prosecutor’s analysis
 Why does stipulation work in this case:
 What does stipulation do: It changes the weight of both the probative value and the unfair
prejudice - it discounts the probative value of other means of proof
o Must consider evidence in light of alternatives – probative value is reduced if there is an
alternate way to present the evidence
 Why is this stipulation different
o Prosecutor only needs to prove the status of his prior conviction, not the particulars about
his troubled past – section 922 only cares that ∆ is a felon, it does not distinguish between
types of felonies
o Stipulation tells the jury everything it needs to know in an adequate way
 Is Old Chief right on its own terms?
 Moral question may not be as easy or as quick as Court suggests
o Would it matter to a juror morally that the underlying felony is for a non-violent versus a
violent offense
o Doesn’t statute rest on moral judgment that some people are too dangerous to carry guns?

————————SPECIALIZED RELEVANCE—————————

Generally

 All five of specialized rules deal with instances when 403 type balance is predetermined
 Provide set outcomes in particular situations where 403 would normally be involved
 Why need these rules – why not just use 403?

9
 o Limit judicial discretion in way that will limit biased or arbitrary decisionmaking and inhibit parties
desire to forum shop
o Increases predictability in judicial decisionmaking – in way that hopefully will encourage settlement
o Limit expenditures devoted to trial preparation
o Will speed trial process along
 Rooted in relevance, public policy
o Allows synthesis of civil and criminal practice
 Route of Admissibility (p. 93)
o Is evidence relevant? (FRE 401)
o Is it within the scope of one of the specialized rules?
 If YES, the evidence is out
 If NO/within exception, evidence may come in
 Does evidence satisfy FRE 403?
 4 of the rules follow one type of pattern, and one follows another style
o French style (4) – everything is permitted except that which is specifically forbidden
o German style (1) – everything is forbidden except that which is specifically permitted

FRE 407: Subsequent Remedial Measures

 FRE 407: Subsequent Remedial Measures. When, after injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made the injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a
product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the
exclusion of evidence of subsequent measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

 Notes
o French style – everything is permitted, except when specifically forbidden
o Basic idea is that evidence of subsequent remedial measures are inadmissible to prove liability,
culpable conduct, negligence, defect in product, defect in product design, or need for warning or
instruction
o Could introduce to prove notice, feasibility to use precautionary measures
o Why have a rule when there is some relevance to the evidence
 Relevance Argument: It is weak evidence – change after the fact doesn’t necessarily say anything
helpful about culpability
 Can’t say that “because the world gets wiser as it gets older, therefore it was foolish before”
 Public Policy Argument: don’t want to encourage people not to take steps to fix problems
o Text of rule makes no distinction between fixes by parties in the litigation and fixes by third parties
 As matter of practice, courts do distinguish – often admit fixes by third parties (public policy
concerns are different – third parties are not as concerned with threat of suit)

 Problem 2.1 (Wolf Attack) (pp. 94-95)

10
 o FACTS: ∆ had wolf, and after it escaped and attacked a beagle, ∆ chains the wolf to the fence; after
wolf is chained, a boy walks by the property and is attacked by the wolf; beagle owners sue ∆ and the
boy’s family sue ∆
o ISSUE: Is the evidence admissible in each situation
 Beagle: inadmissible because it happened after the attack and therefore falls within the rule
 Boy: admissible because the measure happened before the attack, so it is not within the rule
 Relevance: now ∆ was on notice
 Policy: don’t want to encourage people to make ineffective changes – want to encourage
effective remedial changes
 403 analysis (since doesn’t fall within specialized rule)
o Probative value outweighs the unfair prejudice – shows awareness and notice, even
though it will prejudice his case (not really unfair though)
o Distinction between the two lawsuits is the timing – rule is about subsequent remedial measures, and
this is a subsequent remedial measure to only the beagle attack

 Tuer v. McDonald (Court of Appeals of Maryland, 1997)

o FACTS: Decedent was to undergo heart surgery and doctors prescribed him Heparin; several hours
before the surgery, doctors took him off the drug because of the risk of having it in his system before
surgery; surgery is delayed, but drug is not restarted; while he waited, decedent died of a heart attack
because he did not have the drug to prevent it; decedent’s wife sues, and the hospital changes its
protocol to require doctors to stop Heparin only after patient enters surgery room (subsequent remedial
measure)
o ISSUE: whether evidence of change in hospital protocol is admissible or inadmissible under Rule 407
o Plaintiff’s arguments for why evidence should be admitted
 Feasibility - show that it was possible to give drug
 Impeachment – impeach testimony by doctor that he was doing the best he could
o Feasibility Argument (exception to Rule 407’s exclusion of SRM evidence)
 Can’t raise feasibility argument unless it is controverted
 Where does plaintiff suggest hospital controvert the ability to give the drug – when the doctor says
that it would have been unsafe to restart the drug
 Does saying action was unsafe effectively mean he is saying it is unfeasible?
 Courts diverge in employing a broad or narrow definition of feasibility
 Narrow: technically or physically or economically impossible
 Broad: it’s possible but not wise
 Court says that saying something is unsafe is not a challenge to feasibility
o Impeachment Argument (exception 2)
 What is ∏’s argument that evidence can be used to impeach – doctor said that procedure was
unsafe, but then changed procedure to do just that action that said was unsafe
 Court does not allow the evidence to impeach
 Court says that ∏ can’t apply so broadly, needs to be applied pragmatically – otherwise this could
be used to contradict any testimony
 Court fears the exception that swallows the rule
 Ask whether doctor honestly believed he was making the right call at the time, which the court
believes he did

11
  NOTE: Court re-characterizes the testimony – doctor said it was unsafe, but Court re-characterizes
it to say that he thought it was the best thing to do at the time
 NOTE: Where would impeachment actually work?
 Ex: when person testifies that product is constructed “perhaps in the best combination of
safety and operation yet devised”

 Problem 2.2 (wood chipper I) (pp. 104-105)

o FACTS: Hint about other purchasers and says they bought ones that were just like the one involved in
this case – actually the purchases were for machines with longer chute, so not the same
o Rule stops being a shield and starts being a sword – normally supposed to protect defendants from
introduction of certain evidence, but in this context it is used to implant an impression in juries’ minds
o Court likely to let the evidence in – exceptions go beyond feasibility and impeachment
o Court not going to let parties make brash statements and then hide behind the rule’s shield

Rule 408: Compromise/Settlement; Rule 409: Medical Expenses

 Rule 409: Payment of Medical Expenses

o TEXT: Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses
occasioned by an injury is not admissible to prove liability for the injury.
o Anything else is outside scope of the rule
o Probative value is weak because offer to pay could represent things like compassion, and not an
admission of guilt
o If it could get past 409, not clear that it would get stopped by 403
o Public policy: want to encourage people to assist others
o Limits of rule:
 Only inadmissible to prove liability, admissible to prove anything else;
 Doesn’t cover incidental statements
o Public policy concerns: should the rule cover incidental statements – is it discouraging apologies (see
article on p. 113 about doctor apologies)
 Argument for it: could diffuse anger and prevent lawsuits
 Arguments against it: want jury to have full information

 Rule 408: Compromise Offers

o FRE 408: Compromise and Offers to Compromise
 Prohibited Uses. Evidence of the following is not admissible on behalf of any party, when
offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or
amount, or to impeach through a prior inconsistent statement or contradiction:
 Furnishing or offering or promising to furnish – or accepting or offering or promising to
accept – a valuable consideration in compromising or attempting to compromise the claim;
and
 Conduct or statements made in compromise negotiations regarding the claim, except when
offered in a criminal case and the negotiations related to a claim by a public office or agency
in the exercise of regulatory, investigative, or enforcement authority.
 Permitted Uses. This rule does not require exclusion if the evidence is offered for purposes not
prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias

12
 or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal
investigation or prosecution.
o Notes:
 Talking about civil settlements
 Basic idea: can’t use evidence of settlement offers, ideas, or suggestions to prove liability, amount,
or impeachment
 Why don’t allow impeachment – fear that loophole would be too big – exception would swallow
the rule
 Fear that people wouldn’t engage in settlement negotiations because they would be too
inhibited, which would go against the public policy of promoting settlements
 408(a)(2): exception when dealing with criminal case when negotiating with government party
 408(b) says that anything else is ok
 Notes:
 Rule intentionally uses the word “claim” – means a filed case or a legitimate statement that a
claim is forthcoming
 Must be dispute about liability or damages
 Evidence of settlement in another case is also off-limits unless used for other purpose
 Relevance explanation: compromising doesn’t show guilt or weakness in position, might just show
that want to keep peace, get rid of litigation
 Public policy: encourages open and full disclosure and settlement
o Bankcard America v. Universal Bancard Systems (7th Circuit, 2000)
 FACTS: ∏ is ISO and ∆ is sub-ISO; ISO’s sign up merchants on behalf of the bank; ISO’s employ
sub-ISO’s to do same work
 ISSUE: whether it was harmful error to introduce evidence about particular statements made
during the context of settlement discussions
 Trial judge said yes, but circuit says it was not error to let evidence in
 What was the evidence: statements by ∏ that ∆ could convert accounts despite the non-compete
clause in its contract
 HOLDING: 408 is not absolute – rule shouldn’t be used as a shield to block evidence that a
violation of the contract was invited and then as sword to attack the opponent for breaking the
contract

 FRE 408 vs FRE 409

o 408 covers incidental statements but 409 does not
 Why is there this distinction
 Worried that settlements wouldn’t take place without the protection, but fear is not as great
that offers to pay will not take place if incidental statements are not covered
 No lawyers when offer to pay medical expenses (therefore, person not going to be thinking
about the rule), but with settlement, there will be lawyers present, who will be cognizant of
the rule

Liability Insurance and Pleas

 FRE 411: Liability Insurance (Specialized Relevance Rule)

o TEXT: Evidence that a person was or was not insured against liability is not admissible upon the issue
whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion

13
 of evidence of insurance against liability when offered for another purpose, such as proof of agency,
ownership, or control, or bias or prejudice of a witness.
o BASIC RULE: Evidence of possession or not of liability insurance is not admissible to prove
negligence, culpability, or liability of the holder of the police
o French-style – everything else is allowed
o List in rule is illustrative, not exhaustive
o Problem 2.6 (pp. 120-21)
 FACTS: Malpractice suit; witnesses have same malpractice insurance as the defendant; ∏s want to
introduce evidence of same insurance to jury to show that the witnesses have reason to support the
∆ doctor (because the insurance holders would all have to bear part of loss by increased rates if ∆
loses)
 ∏ using to prove bias, not liability – outside the scope of Rule 411
 Rule 403 analysis: would likely fail
 Probative value is small – everyone assumes that doctors have insurance; rate change
probably won’t be that big; jurors will assume that expert witnesses are biased anyway
because they are hired guns
 What is relevance of prohibition of liability insurance evidence
 Possession of insurance says very little or nothing about liability – in some cases insurance is
mandatory
 Jurors might go after deep pockets
 What is public policy concern
 Trying to encourage people to buy insurance
 Protecting insurers against unfair judgments because of the deep pockets idea
 Jurors might also use insurance in another way beside deep pockets – also might be concerned
with double payments – might not want to award judgment to ∏ if they believe that ∏ has
already been compensated by insurance company
o Williams v. McCoy (Court of Appeals of North Carolina, 2001)
 FACTS: ∏ sued ∆ after automobile accident; ∏ instructed not to say anything about insurance;
during trial, ∆ tries to show that ∏ is litigious by showing that she hired an attorney before she
went to the chiropractor; ∏ wants to show that she actually hired an attorney after she was visited
by ∆’s insurance claims adjustor, but she is prohibited from submitting this evidence
 Analytical structure
 Is evidence of ∆’s insurance within scope of the rule?
o Is it being introduced to show that ∆ is negligent?
 No, being introduced to explain the ∏’s behavior – so outside scope of rule’s
prohibition
 Rule 403 analysis
o Probative Value: the evidence cuts through ∆’s entire strategy of painting ∏ as an
undeserving litigious individual
o Unfair Prejudice: if ∆ is going to present this theory, then it would be unfair not to allow
her to present a response
 No real unfair prejudice to ∆ because everyone will assume the parties in a car
accident have insurance anyway
 Court allows evidence in
o Problem 2.5 (p. 120)

14
 FACTS: ∏ was injured at ∆’s home, and when ∏ was in hospital, ∆ sent an employee of insurance
company to interview her; At trial, ∆ introduced evidence of tape-recorded interview; ∏ wants to
say that the interviewer was from insurance company and therefore was biased
 What the information about the insurance adds is very little
 Is outside the scope of 411 because it is introduced to show witness bias, but it has little or no
relevance under Rule 403, and is therefore excluded
o Problem 2.7 (pp. 121-22)
 FACTS: Day care owner facing criminal charges for failing to report child abuse; she wants to
introduce evidence that the day care center has liability insurance to cover claims by parents of
abuse – wants to introduce to show that she had no motive to cover up the abuse
 Analysis
 Is this within the prohibition of the rule?
o Yes – this is evidence offered to prove or disprove wrongful conduct
 Does this actually fit with the policy goals of the rule
o Turns policy considerations upside down
 Probative value is very high (with no motive to commit offense, then there is no
offense)
 Unfair prejudice: criminal defendant introduces evidence – harder to prove unfair
prejudice against the government
 Part of public policy is to encourage people to get insurance
 Note: rules express implicit or explicit solicitude for criminal defendants
 Could say that not allowing this in runs counter to ∆’s due process rights
 Constitution trumps the FRE

 FRE 410: Pleas (Specialized Relevance Rule)

o RULE: Evidence of the following is not, in any civil or criminal proceeding, admissible against the ∆
who made the plea or was a participant in plea discussions: (1) withdrawn pleas, (2) pleas of no contest,
(3) statements made under context of discussing aforementioned, and (4) statements made in plea
negotiation that don’t end up in plea
 Does not include protection of statements made to people who do not have authority to make plea
negotiations (prosecutors have authority, police do not, unless prosecutor assigns power to the
police)
o German-style: inadmissible for all reasons, unless expressly permitted
 Unless: (1) Fairness; (2) Perjury
o Relevance: Many reasons why person might enter into a plea that do not bear on their guilt
o Public Policy: Want to encourage plea bargaining; protect particularly vulnerable parties
o United States v. Biaggi (2d Cir. 1990)
 FACTS: Case about shady government contracts
 ISSUE: can ∆ introduce evidence that he rejected an immunity plea because he said he did not
have any information about wrongdoing
 Government says that they actually withdrew the offer because they didn’t think the info ∆
would give would be reliable
 Analysis
 Is this within the scope of Rule 410

15
 o Evidence is not being used against the defendant, so this doesn’t fall within the scope of
the rule
 Rule 403 balancing test
o Probative Value: there is an inference that if you reject immunity, you do not have any
guilt since immunity would eliminate all charges
 Probative value would be slightly less in a case where the offer is just a reduced
sentence
o Unfair Prejudice: There is not really a risk of unfair prejudice – it just forces the
government to make their case

————————CHARACTER EVIDENCE————————

Propensity and “Routes Around the Box”

 Character Evidence + FRE 404

o FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
 Character Evidence Generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
 Character of Accused. In a criminal case, evidence of a pertinent trait of character offered
by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of
the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2),
evidence of the same trait of character of the accused offered by the prosecution;
 Character of the Alleged Victim. In a criminal case, and subject to the limitations imposed
by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime
offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait
of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor;
 Character of Witness. Evidence of the character of a witness, as provided by Rules 607,
608, and 609.
 Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that upon request by the accused,
the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
o Fit, Form, and Function
 Fit: part of same batch of rules as specialized relevance rules because still about relevance and all
do similar thing – draw bright lines in particular places where don’t want to have to do a 403
balancing test
 Form: French-style rule – allows everything, unless where prohibited
 Function (or operation): ask whether within prohibition of rule; if yes, then done, if no, apply Rule
403

16
o Evidence of person’s character not generally admissible to prove conduct in conformity therewith (what
you have done before can’t be used to prove what you have done now)
o Notes for understanding rule: 404(b) most commonly cited, but it is technically superfluous - only adds
a notice provision
 Scope of general rule is broad – about both civil and criminal cases
 Some of the exceptions are focused on criminal cases but generally apply to both
 Scope of other acts issue also broad – anything not directly at issue in this case can be considered
another “act” – doesn’t have to be a crime or a conviction; could have occurred before or after the
particular action in question
 List of other permissible purposes is so broad as to be open-ended
 Knowledge
 Motive
 Identity
 Narrative Integrity
 Absence of Mistake
 Doctrine of Chances
o Why do we have this rule?
 It is an unfair prejudice-focused explanation
 It’s not a public policy explanation – not trying to incentivize certain behavior in same way as
other rules
 Character does have some possible and plausible relevance
 What are the types of unfair prejudice that 404 is focused on
 “Wrong reasons” – worries that jury will convict someone for the wrong reasons
o Because they believe that the person is just a bad person
o Because they might convict him for crimes they believe he committed outside of this case
 “Overweight” – worry that juries will overweigh the evidence – find it more probative than it
actually is
o People v. Zackowitz (Court of Appeals of New York, 1930)
 FACTS: Group of men say something unsavory to ∆’s wife; wife tells ∆, who is drunk, who then
threatens the men; ∆ and wife go back to apartment, and ∆ becomes more enraged, grabs a gun,
and returns to scene where the men are; ∆ and victim get into a fight and ∆ shoots and kills the
victim; police can’t find the murder weapon (he threw it in the river), but they find several other
guns in ∆’s apartment; at trial, the prosecutor wants to introduce evidence of ∆’s ownership of the
other guns in order to show that ∆ is of the type of character that would commit this kind of crime
 ISSUE: Was admission of evidence of ownership of other guns an error?
 HOLDING: error to admit the evidence
 ANALYSIS: Is it in prohibition of rule – yes, can’t show evidence of other acts to show propensity
to commit present act – evidence in this case was introduced to show propensity - “tendency of
the whole performance was to characterize the defendant as a man murderously inclined”
 Dissent: Says not propensity evidence at all – it’s about preparation and plan
 Not clear if this would even get past 403 even if one didn’t believe that it falls within 404 – Risk of
unfair prejudice is really high
 This case shows: (1) basic operation of 404: can’t introduce evidence of other acts to show action
in conformity therewith: (2) how parties have to think of ways to articulate the ways to go around
the propensity box

17
 Routes around Propensity Box: Knowledge
o Notes
 Often looking for particularized kind of knowledge – knowledge that shrinks pool of potential
defendants
 Knowledge is an indirect route to identity
 Knowledge might seem similar to M.O., but knowledge is about whether ∆ can do a particular
thing
o Problem 3.1 (p. 155)
 2 similar events: In 1st event, computers were delivered to a fake high school in San Francisco; a
hacker had broken into the computer company’s system and placed an order that bypassed many of
the checks; In 2nd event, another order from same computer company is sent to another fake
location, and a high school student is arrested picking up the delivery at the second location
 ∆ says that he was not involved in the first event, but ∏ wants to introduce other act evidence from
the first event – other act can be either before or after the charged offense
 Is evidence of the other act within the prohibition of 404?
 ∏ says they are offering the evidence to show that the ∆ had knowledge of hacking into
computer systems
o Hacking is a specialized crime that not everyone has the knowledge about
 Does the evidence pass the 403 balancing test?
 Probative Value: Same system and same framework, so the knowledge is even more
specialized – makes evidence even more probative
 Risk of Unfair Prejudice: Worry that jury will punish him for his previous crime or assume
that he committed this one because he committed the other one (specialized instructions might
mitigate the harm here)
o Problem 3.2 (155-56)
 Question is whether knowledge of the drug trade is specialized enough to shrink the pool of ∆ in a
significant way – Knowledge of drug trade is broad
o Problem 3.3 (156-67)
 FACTS: Employee of railroad is injured in train crash; Employee sues the train conductor
(blaming him for crash, saying he was drunk), and RR Company
 ∏ wants to introduce evidence of the train conductor’s past drunkenness
 Logic behind use of evidence: if he was drunk in the past, then he would be drunk now –
purely propensity evidence – would be excluded by rule 404 if used against the train
conductor
 Use against the RR:
o Claim against railroad is negligent supervision - ∏ has to establish that the RR was on
notice of the train conductor’s drunkenness
o Would likely also get in with rule 403
 Since evidence can be used against one defendant but not another, might need to sever the trials
o Knowledge can be used to show (1) notice, or (2) limit the pool of potential ∆

 Routes around Propensity Box: Motive

o Motive = evidence to show that the person had a reason to commit this crime
o Problem 3.4 (157-58)

18
  FACTS: Two FBI agents were following a van in two separate unmarked cars
 When agents stopped behind the van at fork in road, ∆ allegedly fired on and killed the officers; ∆
was also charged with attempted murder in another state - ∏ wants to introduce evidence of
outstanding arrest warrant and evidence that ∆ knew about this warrant
 ∆ would say it is pure propensity evidence – show that ∆ committed bad acts in past to get jury to
think he is guilty this time
 ∏ would argue that since ∆ was aware of his outstanding arrest warrant, he would have motive to
kill FBI agents that were following him (wants to evade capture)
 Low probative value argument: could argue that even if ∆ was aware of warrant, he wasn’t
thinking of it (because it happened a while ago), and furthermore, since unmarked cars, would not
think that these agents were agents or that they were trying to arrest him
 High probative value argument: probative value of the “old” evidence rises as the severity of the
“old” crime increases; also can say that it is important part of telling the story
 Risk of unfair prejudice: the previous charge is a serious crime
 Court admits the evidence

 Routes around Propensity Box: Identity/M.O.

o Problem 3.7 (159-60)
 FACTS: Execution of search warrant police found cocaine in kitchen and lottery numbers; ∏ want
to introduce evidence of the lottery lists to show that the apartment belongs to ∆ because ∆ was
previously convicted of commercial gambling; theory is that since ∆ was involved in gambling in
the past, it is more likely that ∆ was involved in gambling at the time the apartment was searched,
and therefore it is more likely that ∆ was the one who occupied the apartment at time searched
 Evidence goes straight through propensity box because showing that he used to be a gambler and
that therefore he is still a gambler
 Except that the propensity is for something aside from what ∆ was charged with – It doesn’t
matter if propensity trying to establish is one charged with
o Problem 3.8 (160)
 FACTS: Same as previous problem, only in this one, police find bicycling brochures instead of
lottery tickets; ∆ is avid bicycler in past, so evidence to show that he is more likely to be cyclist
now as well, and therefore likely to own apartment
 Even more problematic in this case because if get passed 404, then won’t have any fear of unfair
prejudice under 403 (jury won’t punish the ∆ for being a bicyclist as opposed to a drug dealer or
gambler)
 Where policy and text of rule start to pull apart – the two problems are similar, but the actual
evidence leads to different analysis
 Could say that cycling is not a “character trait” but rather an activity
o Problem 3.6 (159) (part II of Problem 3.4)
 FACTS: Police search motor home and find victim’s firearm in a bag with ∆’s fingerprint as well
as many other weapons belonging to ∆; ∆ objects to admission of evidence of all the weapons as
propensity evidence
 Victim’s gun:
 Identity argument: possession suggests that he was at the scene, which suggests that he
was responsible for the crime itself
 403 Analysis: probative value is extremely high and evidence is prejudicial (jury will draw
negative inferences), but not really unfairly prejudicial

19
  ∆’s High Velocity Gun
 Knowledge argument: could show that he knows how to use these types of guns, but since a
somewhat common weapon, doesn’t narrow pool of potential ∆
 Means argument: ∆ owned the same type of weapon that was used in this crime
 403 argument: much closer – still probative (useful to know that the accused has the particular
gun used in the crime), but there is more concern of unfair prejudice (worried that ∆ will be
convicted of being a gun owner or for driving around in a van filled with weapons)
 Other weapons
 Goes through the propensity box – shows that ∆ is a violent individual
 Routes around propensity box don’t seem to work
 Likely evidence will be out
 403: Unfair prejudice substantially outweighs the probative value of the information
o For M.O. evidence, isn’t enough to show that it is a particular person’s type of crime, but that it could
not be anyone else’s crime
o United States v. Trenkler (1st Circuit, 1995)
 FACTS: ∆ on trial for a bomb that was exploded at a home; ∏ argue that ∆ built the bomb for
Shay, jr. to use against his father; to establish ∆’s identity as the builder of the bomb, ∏ offers
evidence that ∆ had previously constructed a remote-control device, which had exploded in Mass.
years earlier; ∏ seek to introduce evidence to show similarity between two explosions
 QUESTION: What standard do we use to know when acts that look similar are similar enough to
satisfy the route around the propensity box
 Don’t need an exact match, but look at the “totality of the comparison”
o Not enough to merely offer that the incidents are similar (can’t say both are bombs)
o “Sufficiently idiosyncratic”
o Look for the conjunction of several identifying characteristics or the presence of some
highly distinctive quality
 QUESTION: are two bomb incidents similar enough to get around propensity box (is standard
above satisfied here)
 Standard is satisfied here – it is close enough to an exact match to mark it as work of same
person
 Seems like propensity evidence, but is slightly different – not saying that did it before therefore did
it again; saying that identifying ∆ by his particular mark (only ∆ does it in that particular way)
o Reverse 404(b)
 When ∆ submits that evidence of similar crime proves not that he did it, but that someone else did
it, because it shows the mark of another person
 US v. Stevens (3d Cir. 1991)
 ∆ can use this evidence, but not always
 FACTS: ∆ was arrested for robbing two air force police officers and sexually assaulting one
of them; victims both identified ∆ in a wanted poster and a lineup; three days later, there was a
similar crime committed, except victim in that case did not identify ∆ (crimes are similar, and
fruits of both crimes show up in Fort Meade some time after); ∆ wants to introduce evidence
of other crime and ID to show that he is not the one who committed this crime
 Logic: ∆ saying that crimes are so similar that whoever committed first committed second; ∆
can show that he didn’t commit second, and therefore he did not commit first
 Notes:

20
 o Mitchell’s ID of assailant is more reliable because it is not cross-race, which studies show
is less reliable than same-race ID (which happened in that case because Mitchell is black)
o This is not a propensity argument about this ∆ or about the other person, it is an identity
argument about the other assailant
 Still apply 404 analysis even though it is evidence introduced about someone other
than ∆
 What is standard for when ∆ is introducing M.O. evidence – standard is lower – only need to
satisfy 403 (i.e. don’t have to be as close to an exact match as otherwise would under 404(b))
 Why don’t have to show quite as much similarity for reverse 404(b) as for normal M.O.
evidence
o Not putting crime on someone else, just showing that it is not you
 403 balance is different – prejudice is different: normally, targeting a particular
defendant; here not worried about prejudicial effect against anyone
o System evinces solicitude for criminal defendants – gives way for criminal defendants in
ways that it wouldn’t for civil defendants or for the government

 Routes around Propensity Box: Narrative Integrity (Inextricably Intertwined)

o Problem 3.10 (178-88)
 FACTS: ∆ charged with possession of revolver with an obliterated serial number; question of
ownership - ∆ says the gun actually belongs to his cousin; ∏ wants to introduce evidence that ex-
fiancée saw ∆ with that particular gun when he made her play Russian Roulette – says this
happened 4 years prior
 CONCLUSION: Would be ok to merely have witness say she saw him with that gun four years
ago, but problem is that jury will want to know what he was doing with the gun b/c will wonder
why she remembers that specific gun so many years later – Details are what matter because the
horror of the story is what is going to give the witness credibility
 Two types of details:
 Russian Roulette: Court says that this information must be excluded – seems like it goes only
to character and the label itself doesn’t really add much (not much probative value, and risk of
unfair prejudice)
 Pointing gun at face: Substantially more probative value – without that detail, the witness’s
story seems to fall apart; ways to get around the propensity box – narrative integrity – fact is
essential to establish the witness’s integrity
o US v. DeGeorge (9th Circuit, 2004)
 FACTS: ∆ contracted Italian firm to build a yacht; ∆ then signed his rights in construction contract
to Continental Pictures Corp, which in turn sold its interest in the yacht to Polaris Pictures Corp,
which ∆ himself incorporated; ∆ wanted to commit insurance fraud by sinking the boat and
collecting the insurance; ∆ tried to sink the boat on its maiden voyage, but was unsuccessful;
Italian authorities found them on the see and they came up with a story for what happened to the
boat; ∏ wants to introduce evidence that ∆ had been engaged in three other transactions that
looked like this one
 QUESTION: Does the evidence of the other acts take us through the propensity box, or is there a
route around it?
 District Court allowed evidence to show why ∆ distanced himself from boat ownership, but the
court did not permit ∏ to introduce evidence that ∆ collected insurance proceeds on those vessels
or to discuss any further details surrounding those incidents – Evidence goes towards showing why

21
 ∆ distanced himself from ownership, which helps make a more complete story – narrative
integrity
 2 categories of evidence that may be considered “inextricably intertwined”
 If evidence constitutes part of the transaction that serves as the basis for the criminal charge
 When it was necessary to admit evidence in order to permit the prosecutor to offer a coherent
and comprehensible story regarding the commission of the crime
o Evidence in this case falls within second category

 Routes around Propensity Box: Absence of Accident + Doctrine of Chances

o Absence of Accident
 Problem 3.11 (183-84)
 FACTS: ∆ claims that he was cleaning his hunting rifle and it accidently went off and killed
his wife; ∏ wants to introduce evidence that three years prior, ∆’s prior wife was shot, and ∆
said it was an accident while he was cleaning his gun
 Risk of unfair prejudice – ∆ did it before and is likely to do it again
 Absence of accident: same thing happened twice – would think that the same accident would
not happened twice because if it was purely accidental, person would be more careful –
therefore think it was purposeful
 Saying that because something happened before it will happen again is pure propensity, but
perhaps can recast as notice – knowledge-based argument
 If something happens once, then person is much more likely to be careful, take precautions,
and be aware of the risks the second time (person is on notice of the potential downfall of the
action)
 Still not a strong argument around 404, so even if get past 404, then might not pass 403
 For absence of accident to work, need to follow precise steps to avoid it being propensity evidence
o Doctrine of Chances
 Multiple events, if similar and rare enough, suggest human design, not chance or accident, because
of the unlikelihood of innocent coincidence
 Rex v. Smith (1915)
 FACTS: ∆’s wife died in bathtub and ∆ says it was an accident; wife had a will; ∏ wants to
introduce evidence of two other bath deaths of ∆’s previous wives
 Evidence admitted for purpose of helping jury to draw inference as to whether the death of the
wife was accidental or designed by ∆
 Logic that sustains doctrine of chances is that it is not propensity evidence, just evidence about
probabilities
 Notes:
 Compare drowning to the gun cleaning accident – can notice idea also save doctrine of
chances?
o Notice doesn’t work in same way in these two cases
 In gun cleaning case, it is all about whether ∆ took appropriate level of care
 In bathtub case, it is all about the victim’s level of care in the tub; not a question of
notice for ∆ - nothing ∆ could have done
o Logic is all about “phenomenal coincidences” – but has to be more than that to get
around propensity box

22
 Huddleston and Conditional Relevance: Rule 404 Meets 104(b)

 FRE 104(b) – Conditional Relevance

o Relevance Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
 Relevance of some evidence is conditional – some evidence is only relevant if some other facts
exists
 Ex: It only makes sense that ∆ killed victim because friend’s bond denied if he knew about the
bond
 X relevant only if Y
o Can find conditional relevance at every chain of inferences
o Conditionally relevant evidence admissible when a jury can reasonably find by a preponderance
of the evidence that the conditional fact exists

 Huddleston v. United States (SCOTUS, 1988)

o FACTS: ∆ charged with selling stolen goods in interstate commerce and possessing stolen property in
interstate commerce; ∆ was selling stolen Memorex tapes; ∏ introduced evidence at trial that ∆ was
involved in 2 prior acts that are similar to the present one: similar Act 1: B&W TVs – Act 2 (on trial):
Memorex tapes – Similar Act 2: Appliances; ∆ says that he didn’t know that any of the goods were
stolen
o QUESTION: can ∏ introduce evidence of other acts – particularly the first act
o 404 Problem: risk of evidence being propensity evidence - ∆ traded in stolen goods before and
therefore more likely to trade in stolen goods here
o Ways to get around propensity box
 Motive doesn’t work – no particular motive to do this particular thing
 Narrative Integrity doesn’t work because other acts don’t help this story come together
 Absence of Accident/Doctrine of Chance doesn’t work here
 Knowledge would work
 If can show that TVs were stolen, then shows that ∆ is more likely to have known that the
tapes were stolen as well (since same supplier)
 Notice-type argument – experience with this type of shipment and this type of deal should
raise his suspicions about the origins of these goods – to not know that these goods were
stolen would require willful blindness
o Potential problems: if assume that route around propensity box is knowledge, need to prove that ∆
knew at the time the TVs were sold
o ∆ concedes too much with regards to the third event (appliances)
 Has no probative value that he knew goods were stolen
 Fact that happened after no matter to text of 404, but when articulate route around the box,
evidence has to have probative value – therefore, if need to show that ∆ knew that goods were
stolen, then evidence of a later act doesn’t say anything about what he knew at the time of the
earlier event
o Court says that don’t have to be entirely certain that the other acts actually happened as portrayed –
Instead, question of conditional relevance (whether he had knowledge depends on whether other acts
are the way they were presented)

23
  Applying the 104(b) standard: Have to introduce sufficient evidence that jury could find by
preponderance of evidence that a fact exists
 Court rejects that the Court is required to make preliminary finding by preponderance of
evidence that condition fulfilled – says it would go against the text of 404
o Two step process:
 Court finds whether jury could find by preponderance of evidence
 Jury finds by preponderance of evidence
o Test gives determination of conditional fact to the jury – court only screens out those cases where
reasonable jury couldn’t possible find conditional fact exists
o Here, there is enough evidence for jury to reasonably conclude that the televisions were stolen, and trial
court therefore properly allowed evidence to go to the jury
o Two lessons
 404(b) and 104(b) connect – all other acts thinking of are conditional relevance questions
 Don’t forget 104(b) standard – puts question on jury

 Problem 3.13 (196-97)

o FACTS: ∆ on trial for an armed robbery of bank by person wearing ski mask; ∏ wants to introduce
evidence at trial of witness to testify that man entered her house wearing a ski mask with another
person and robbed her – in ensuing struggle, person is unmasked and it is ∆
o Two reasons to use this evidence:
 Identity – same size gun, same mask, same area
 Link to other person who robbed the witness
o ∆ was acquitted in the home robbery case
o ∏ can introduce other act evidence even though he was acquitted of any criminal wrongdoing –
Allowed b/c not trying to prove that he was guilty of other crime, just showing that other act occurred –
standard that reasonable jury could find by preponderance of evidence
o Since previous trial had “beyond reasonable doubt” standard, then only shows that jury didn’t think
∏ met this standard of proof – but here, just need Huddleston standard, which is only preponderance of
evidence
o Identity as route around propensity box is kind of weak – not really a signature offense to rob someone
at gunpoint with a mask

 Analytical structure: If want to introduce other acts evidence, need to articulate route around propensity
box, and satisfy that reasonable jury could conclude by preponderance of evidence that other acts occurred,
even if person is acquitted of those other acts

Routes through the Propensity Box

 Propensity in Sexual Assault (Rules 413, 414, 415)

o FRE 413: Evidence of Similar Crimes in Sexual Assault Cases
 In a criminal case in which the ∆ is accused of an offense of sexual assault, evidence of the ∆’s
commission of another offense or offenses of sexual assault is admissible, and may be considered
for its bearing on any matter to which it is relevant.
 In a case in which the Government intends to offer evidence under this rule, the attorney for the
Government shall disclose the evidence to the ∆, including statements of witnesses or a summary of

24
 the substance of any testimony that is expected to be offered, at least 15 days before the scheduled
date of trial or at such later time as the court may allow for good cause.
 This rule shall not be construed to limit admission or consideration of evidence under any other
rule.
 For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law
or the law of a state that involved –
 Any conduct proscribed by Chapter 109A of title 18 of the USC;
 Contact, without consent, between any part of ∆’s body or an object and the genitals or anus of
another person;
 Contact, without consent, between the genitals or anus of ∆ and any part of another person’s
body;
 Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on another person; or
 An attempt or conspiracy to engage in conduct described above.
o FRE 414: Evidence of Similar Crimes in Child Molestation Cases
 In a criminal case in which the ∆ is accused of an offense of child molestation, evidence of the ∆’s
commission of another offense or offense of child molestation is admissible, and may be considered
for its bearing on any matter to which it is relevant.
 In a case in which the Government intends to offer evidence under this rule, the attorney for the
government shall disclose the evidence to the ∆, including statements of witness or a summary of
the substance of any testimony that is expected to be offered, at least 15 days before the scheduled
date of trial or at such later time as the court may allow for good cause.
 This rule shall not be construed to limit the admission or consideration of evidence under any other
rule.
 For purposes of this rule and Rule 415, “child” means a person below the age of 14, and “offense of
child molestation” means a crime under Federal law or the law of a state that involved –
 Any conduct proscribed by chapter 109A of title 18 USC that was committed in relation to a
child;
 Any conduct proscribed by chapter 110 of 18 USC;
 Conduct between any part of ∆’s body or an object and the genitals or anus of a child;
 Contact between the genitals or anus of the ∆ and any part of the body of a child;
 Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on a child; or
 An attempt or conspiracy to engage in conduct described above.

o FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
 In a civil case in which a claim for damages or other relief is predicated on a party’s alleged
commission of conduct constituting an offense of sexual assault or child molestation, evidence of
that party’s commission of another offense or offenses of sexual assault or child molestation is
admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
 A party who intends to offer evidence under this rule shall disclose the evidence to the party against
whom it will be offered, including statements of witnesses or a summary of the substance of any
testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such
later time as the court may allow for good cause.

25
  This rule shall not be construed to limit the admission or consideration of evidence under any other
rule.
o What does “other offense” mean?
 Includes both other convictions and other arrests and acts
 SCOTUS has not answered this question, but courts go with this broader interpretation
 Why know broader meaning applies – (1) Legislative history suggests; (2) Policy reasons: bolster
victim’s credibility
o What standard do we use to determine whether other acts can be presented to jury?
 Huddleston – if it is an other act that is conviction, then let it in, but if there is no conviction, have
to show that there is sufficient evidence for reasonable juror to determine by preponderance of
evidence that the act actually occurred
o Can you use other acts to show any matter at all, so long as its relevant – including as propensity
evidence (can go through the propensity box)
o RULE for 413, 414, and 415: allow evidence of other acts by ∆ to be introduced at trial for any
pertinent reason, so long as those other acts pass the Huddleston standard
o Why do we have these three rules?
 Social and cultural repulsion to these types of crimes – perhaps not the nature of the crime (since
murder also bad), but nature of the victim
 Trial can boil down to a credibility contest – so want to bolster/corroborate the victim
 Victim is the only witness – only evidence you might be able to find
 Victims are particularly vulnerable, especially in child molestation cases
 “Knowledge that the ∆ has committed rapes on other occasions is frequently critical in
assessing the relative plausibility of these claims and accurately deciding cases that would
otherwise become un-resolvable swearing matches. The practical effect of the new rules is to
put evidence of unchanged offenses in sexual assault and child molestation cases on the same
footing as other types of relevant evidence that are not subject to a special exclusionary rule.”
 Problems with this justification for the rule:
o Doesn’t resolve propensity box problem at all – rules almost play on the fears that drive
the exclusion of this type of evidence to begin with
o Moral decay – don’t disbelieve these stories in the same way we did in the past (judge
example)
o Distribution idea – people with histories in the system (primarily minority men) will
disproportionately bear this because they are already in the system
 Will perpetuate stereotypes of the chronic rapist
 Society believes there are different levels of recidivism – belief that criminals of this type are more
likely to recommit their offenses
 See Lannan v. State (p. 199) – Assumption that sexual offenders repeat their crimes more often
than other criminals
 Problem with this argument – empirics are flawed
o See Baker article, p. 213 – Rape is actually the second lowest percent for criminal
recidivism, but it is really difficult to accurately understand this issue with statistics
(perhaps rape is less likely to be reported than other crimes, etc)
 Judicial conference was almost unanimous in wanting to reject these three rules (only DOJ was in
favor)
 Not all jurisdictions have rules like these three rules

26
  Most of these types of crimes are dealt with in state court anyway, so these rules are not
applied in many cases
o What would the world look like without these rules?
 Lannan v. State (Supreme Court of Indiana, 1992)
 FACTS: ∆ convicted of molesting a young child; prosecutor wants to introduce evidence of
past acts; at time, Indiana had “depraved sexual instinct” exception under which evidence
about these uncharged acts was admitted (equivalent of FRE 413 and 414)
 ISSUE: Whether or not to keep the “depraved sexual instinct” exception
o NO – advantages of rule are outweighed by the mischief they cause – made a policy
choice
 Notes: If Indiana had kept the rule, the evidence would have been admitted easily; Indiana is
pulling away from admitting this kind of evidence just as the federal rules are deciding to add
these rules
 State v. Kirsh (Supreme Court of New Hampshire, 1995)
 FACTS: ∆ convicted of sexually assaulting three young girls – led pre-teen church group
 ISSUE: whether prosecutor could introduce testimony of other acts committed against other
girls
 Analytical structure used in this case:
o Step one: Does evidence come in by virtue of the state equivalents of 413-415? – Since
there is no 413-415 equivalent in NH, then skip step one of analytical process, and go to
step two
o Step two: If no, then does it come in by one of the other ways to come in by going around
the propensity box (404)?
 Court looks at motive, intent, and common plan: none of these work – really just
going through the propensity box
 Motive – arguing that ∆ had motive to commit these crimes because he has a desire
for sexual activity with a certain type of victim – pure propensity evidence
 Intent – same argument just relabeled
 Common Plan – Court says a pattern is insufficient to establish a plan – must be
constituent part of an overall scheme - broader plan
o Step three: Does the evidence pass the 403 test: don’t even have to do this because it is
pure propensity and cannot be let in
o Rules 413-415 must still pass 403!
o Rules are true exceptions to propensity rule – go through propensity box, not around

 Defendant and Victim Character

o FRE 404(a)(1) and (2)
 Character of Accused. In a criminal case, evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged
victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the
same trait of character of the accused offered by the prosecution;
 Character of Alleged Victim. In a criminal case, and subject to the limitations imposed by Rule
412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an
accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of

27
 the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged
victim was the first aggressor
o Limits
 Substantive limits - have to be pertinent to the substance of the case
 Criminal cases only
 Only criminal because of serious punishment possibilities
 Everyone is negligent, but not everyone is criminal – so if allowed in civil cases, there would
be a lot more evidence of previous acts
 Typically only the criminal defendant can use this kind of evidence (can use trait about him/herself
or about the victim)
 Solicitude for criminal defendants, and likely impact of this evidence
 Prosecutor can introduce this kind of evidence if ∆ opens the door (prosecutor can rebut w/
character evidence about that same trait or can talk about ∆’s character if ∆ introduces evidence
about witness’s character)
o If ∆ introduces evidence of his own character, ∏ can rebut with character of the defendant (about same
trait already brought up by ∆)
o If ∆ introduces evidence of the victim’s character, ∏ can rebut with character of the victim evidence
o If ∆ introduces evidence of the victim’s character, ∏ can also rebut with ∆’s character for the same trait
o If ∆ says that victim was the first aggressor in a homicide case only, ∏ can adduce character evidence
that the victim was peaceful

 Through Box Applied

o FRE 405: Methods of Proving Character
 Reputation or Opinion. In all cases in which evidence of character or a trait of character of a
person is admissible, proof may be made by testimony as to reputation or by testimony in the form
of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of
conduct.
 Specific Instances of Conduct. In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be made of specific instances of
that person’s conduct.
o Things that can be done on direct examination (initiated by ∆):
 FRE 405(a): Reputation or Opinion only – not specific acts
 Don’t want to spiral off into a trial within a trial
 What is opinion?
o A person’s own impression about something
 What is reputation? Summary (reporter) of community sentiment – witness not reporting what
he or she thinks, but what community thinks – hearsay
o Things that can be done on cross examination:
 FRE 405(b): Specific instances of conduct (specific acts) – if they are relevant
 Allow because shows that if they didn’t know about the previous acts, then the testimony isn’t
really that helpful
o Michelson v. United States (SCOTUS, 1948)
 FACTS: ∆ convicted of bribing IRS agent - ∆ said that the agent threatened him (entrapment); ∆’s
counsel brought up prior criminal conviction; ∆ called 5 witnesses to prove good reputation; On
cross examination, ∏ asked witnesses if they had heard about a time when ∆ was arrested for stolen

28
 goods – asked to cast doubt on the legitimacy of the witness’s knowledge of ∆; judge issued a
limiting instruction (footnote 3, p. 224)
 Court affirms
 The system is full of concessions and balances, but it is perhaps the best the court can do, plus it is
not really for the federal courts to become too involved in changing it
 ∆ took the risk by opening up the door to character evidence
 Lots of discretion for trial court here – appellate review is abuse of discretion
 Entrapment
 405(b) – if essential element of claim against you is character, then don’t have to wait until
cross-examination to introduce other acts
o When is it an “essential element”
 Entrapment defense (see p. 237)
 Rebutting a defense f truth in a libel or slander action
 Resolving a parental custody dispute
o Problem 3.15 (p. 238)
 FACTS: ∆ charged with killing someone in drive by shooting – she says that she only did it because
she was ordered to do it by driver and she was afraid of him; During direct, ∆ testified that if she
had to do it again, she would not want to shoot anyone, but if forced, she would prefer to shoot the
driver, not the victim
 ISSUE: Whether prosecutor, on cross-examination, can ask ∆ about whether she had shot at other
people in the past – Core question is whether or not when ∆ said “I wouldn’t shoot anyone,” she
was just making a factual assertion, or whether she was trying to bolster her character (so did she
open the door or not – did she raise character issues)
 If she did open the door, then prosecutor’s question would be allowed
o Problem 3.16 (p. 239)
 FACTS: ∆ accused o shooting and paralyzing victim; during break in trial, victim sees ∆’s brother
in hallway, and shouts to his friends, “Remember his face.”
 ISSUE: Can ∆’s lawyer introduce evidence to show the victim’s violent nature
 OUTCOME: If ∆ calls his brother to testify, that would be direct examination, and therefore the
brother cannot testify about the specific act that happened in the hallway – he would be limited to
reputation and opinion
o Problem 3.17 (p. 239)
 FACTS: James case – mother gave daughter gun, claims self defense because the victim allegedly
bragged about previous bad acts
 If talking about this on direct, could not talk about the other acts, but would be limited to the
victim’s reputation
 Court says she didn’t talk about other acts to show character but to show that she was reasonably
afraid – so outside the scope of the rule
o Problem 3.18 (pp. 239-40)
 FACTS: ∆ wants to introduce evidence of toxicologist to show that victim had a lot of drugs and
alcohol in system
 This evidence is not really about the character of the victim, but rather that the drugs in this
particular instance led to the behavior – so outside scope of the rule
 Even if gets past 404, still have to go through 403 – might be excluded because risk of unfair
prejudice is extremely high and probative value is questionable because the nature of the report is
speculative

29
 Habit
o FRE 406: Habit; Routine Practice
 Evidence of the habit of a person or of the routine practice of an organization, whether corroborated
or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the
person or organization on a particular occasion was in conformity with the habit or routine practice
 Advisory Notes
 Things that are not considered habitual:
o Violence
o Alcohol use
 Some courts relax this exclusion of alcohol-related evidence if you can show
especially persistent and heavy drinking, but can’t really rely on that
o Religion – doesn’t comport with lack of volition
o Halloran v. Virginia Chemicals Inc. (Court of Appeals of New York, 1977)
 FACTS: ∏ services and charges automobile air-conditioning units; ∏ has been a mechanic for 15
years; on one job, ∏ has problem getting Freon to flow out of can, so he puts the can in a empty
coffee can filled with warm water (temp between 90-100 degrees); if can gets too hot, then it will
just explode – in this case the can did explode; ∏ is injured and sues the chemical company; ∆ tries
to argue that it was ∏’s usage and practice to use immersion coil and that this happened in the
instant case and led to the accident; ∆ wants to introduce evidence that it was ∏’s habit to use
immersion coil to heat the water – trial court excludes it
 OUTCOME: This is adequate evidence of habit – if he had done it countless times before, then it is
likely that he did it here
 TAKEAWAY: Habit evidence is occasionally admissible, even to show conduct in conformity
therewith
o How do we define a habit?
 More than frequent but un-patterned conduct
 Involves a repetitive pattern of conduct and therefore predictable and predictive conduct
 4 factors that define a habit:
 Regularity
 Numerosity- if it happens more than 3 times mention possibility
 Lack of volition
 Otherwise innocuous
o Last two factors often folded into a 403 analysis by courts – REMEMBER that even if you
get past FRE 406, still have to get past 403
o Why create this quasi-exception to propensity box bar (policy behind rule)?
 Belief that habit is more predictive than other acts
 Risk of unfair prejudice is lighter in the context of habit evidence
o Problem 3.19 – Steroids (p. 244)
 FACTS: Weil dies at 54 – it turns out he had been taking steroids for twenty years when he thought
he was taking antihistamine; ∏ wants to introduce evidence of 8 others who were given steroids by
the doctor but were told they were being given antihistamines

30
  ISSUE: Are 8 other steroid incidences evidence of habit?
 ASK: Is the contact sufficiently regular and numerous to constitute a habit
o It is regular with regard to the particular patient, but in general, eight is not enough to
constitute a habit
 Would be helpful to know how long ∆ has been a doctor and how many patients he
regularly sees; how many patients ∏ tried to track down (8 out of 10 versus 8 out of
1000)
o Lack of volition
 Seems like a conscious choice to proscribe steroids instead of antihistamines – doing
it intentionally
 Other patients are likely to show malice, malpractice, etc, but not habit
o Otherwise innocuous? Opposite of innocuous – shows that the ∆ is a bad guy and that his
actions are less instinctive
 This is not habit
 If routes through the box don’t work, don’t forget to try the routes around the box as well (404(b))
 Motive – no
 Knowledge – not specialized enough
 Absence of accident – no
 Plan – no
 Identity –
 M.O. – gets close – question is whether pattern is distinctive enough to mark it as his
fingerprint
o But must consider 403 – high risk of unfair prejudice – risk that jury will punish ∆ for the
wrong reasons

Witness Character and Impeachment

 Witness Impeachment – Character Ideas

o FRE 403(a)(3): Refers to evidence of the character of a witness, as provided in Rules 607, 608, 609
o Consider ways generally in which you can impeach a witness – you’re mistaken, you are lying or you
are a liar
o Witness character for truthfulness or untruthfulness
o Ways in which we can impeach a witness:
 Witness is wrong or mistaken
 Not about character, just saying that witness is wrong – so you can prove in any way you want
– not governed by any rule
 Not an attack on character for truthfulness, so other side can’t introduce evidence in support of
witness’s character for truthfulness
 Witness is lying
 Saying that witness is lying in this instance, even if not a habitual liar
o Perhaps because of bias, for example
 Also free of character implications, so not limited by the rules
 Opponent can’t rebut because haven’t really opened the door
 Can show by prior inconsistent statements – witness says different things at different times to
different people, and therefore jury should not believe the witness

31
  Witness is a liar
 This is a claim of character
 Idea behind 404(a)(3) and 607
 If you show prior inconsistent statements multiple times, then it moves from “witness is lying”
to “witness is a liar”

 Character for Truth – FRE 404(a)(3); FRE 607, 608

o FRE 607: Who May Impeach
 The credibility of a witness may be attacked by any party, including the party calling the witness
o FRE 608: Evidence of Character and Conduct of Witness
 Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
 Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ character for truthfulness, other than conviction of crime as
provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness,
or (2) concerning the character for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined testified.
 The giving of testimony, whether by an accused or by any other witness, does not operate as a
waiver of the accused or the witness’ privilege against self-incrimination when examined with
respect to matters that relate only to character for truthfulness.
o Notes:
 This is straight through the propensity box
 While 404(a)(1) and (2) limited to criminal cases, 404(a)(3) applies to both criminal and civil cases
 Evidence has to be about character for truthfulness or untruthfulness, not character generally
o Questions:
 Who can impeach witness in this way?
 Either party (FRE 607), including the party that is calling the witness
 How to do they do it?
 What you can do on direct
o Reputation or Opinion only – Rule 608(a):
 Limits to reputation or opinion
 Limited to character evidence of truthfulness or untruthfulness only
 Can only rehabilitate a witness’s credibility after it has been attacked
 What you can do on cross
o Can also use reputation and opinion, but can also now introduce evidence of specific acts
o Limits on what basis these specific acts must have
 Must be pertinent to truthfulness
 Must have good faith reasonable basis for asking about those acts (don’t have to
prove that there was conviction, but need a good-faith or reasonable basis)

32
  Can’t be proved by extrinsic evidence – you are stuck with what the witness says
(ex: say witness lied about suspension of driver’s license, and you have documents
proving that this is the case – if witness says his license was not suspended, then you
cannot introduce the documents to prove the witness is wrong)
 Why do we have this rule?
 Witness’s value is completely dependent on their truthfulness
 But no real support for treating this kind of propensity evidence differently
 No support that community can accurately gauge a defendant’s character
 But need to have some insight into who these people actually are
 How does it work in practice?
 United States v. Whitmore (D.C. Circuit 2004)
o FACTS: ∆ flees from police and allegedly tosses a gun while he was fleeing; ∆ claims that
officer is fabricating story that ∆ had a gun at his side while he was fleeing from the
police; officer is the only witness who actually saw the evens
o Kinds of evidence ∆ wants to bring to impeach the officer’s testimony
 Three character witnesses to speak about opinion and reputation
 Specific Acts to ask about on cross-examination – about suspended license, failure to
report suspension to employers, and failure to pay child support
o OUTCOME: Court says that trial court did not abuse its discretion in excluding the
evidence because witnesses are too remote – all three lack sufficient knowledge and
acquaintance with the officer
o OUTCOME: Specific Acts Evidence on Cross-Examination
 Court says evidence should have been admitted
 ∆ had a reasonable basis for evidence, and therefore district court got it wrong when
it excluded the evidence
 Court says DC got underlying standard wrong because they required a higher level
of proof than is actually needed
 Irony associated with 608(b) impeachment – it works only when the witness is honest enough
to acknowledge the prior impeaching acts

Witness Character and Past Convictions

 FRE 609: Impeachment by Evidence of Conviction of Crime

o General Rule. For the purpose of attacking the character for truthfulness of a witness,
 Evidence that a witness other than an accused has been convicted of a crime shall be admitted,
subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and evidence that an accused has been
convicted of such a crime shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused; and
 Evidence that any witness has been convicted of a crime shall be admitted regardless of the
punishment if it readily can be determined that establishing the elements of the crime required proof
or admission of an act of dishonesty or false statement by the witness.
o Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10
years has elapsed since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court determines, in the interests of

33
 justice, that the probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old
as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse party with a fair opportunity to
contest the use of such evidence.
o Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not
admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent crime that was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment,
or other equivalent procedure based on a finding of innocence.
o Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule.
The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other
than the accused if conviction of the offense would be admissible to attack the credibility of an adult and
the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt
or innocence.
o Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible.

 General Idea: Can impeach a witness’s character for truthfulness for introducing evidence of a past
conviction – path through the propensity box
 What is the explanation for the rule?
o Idea is that people with criminal past are more likely to lie
 Problems with logic:
 This isn’t always or necessarily true – most studies show that lies are contextual, that it is not a
general trait
 While 404(b) logic says that an old act is not predictive of a new act, 609 logic says that an old
act is predictive of a new lie
 Hobsons Choices
o (a) Trial: don’t testify and risk that jury infers guilt from silence, or testify and risk having
past acts introduced
o (b) Appeal: ∆ may not appeal unless ∆ testifies at trial and the prosecutor introduced
evidence of the contested conviction

 What are the exceptions and how do they work?

o Six rules in 609 (six categories)
 Crimes not punishable by a year or more/crimes not about deceit – evidence not admissible
 Juvenile Adjudications – can only come in if it is a criminal case, the witness is not the defendant,
and admission is necessary for a fair determination of the issue of guilt or innocence
 Old Crimes (more than 10 years old – later of two dates, either conviction or release) – not
admissible unless probative value substantially outweighs the prejudicial effect (reverse 403)
 Defendant as Witness (609(a)(1)) – evidence admissible if within 10 year window, not about
deceit if probative value of admitting that evidence outweighs its prejudicial effect of the accused
 Factors that courts consider to determine whether probative value outweighs its prejudicial
effect (p. 276)
o The nature of the crime;

34
 o The time of conviction and the witness’ subsequent history;
o Similarity between the past crime and the charged crime;
o Importance of the ∆’s testimony; and
o The centrality of the credibility issue
 More protection for defendant witnesses because there is more at stake for the defendant
 Non-Defendant Witness – admissible subject to Rule 403
 Crimin falsi (crimes of deceit or falsity) – within 10 years, regardless of the punishment, evidence
shall be admitted no matter what – don’t have to consider Rule 403 (still subject to other rules of
evidence though)
 What fits in this category: perjury, false statement, fraud, embezzlement
 Don’t fit: murder, arson, robbery
 Where do we look if we are not sure what fits
o Must be readily determined that the crime is one of dishonesty
o Things to look at: (p. 281)
 Statutory elements of the charged crime;
 The face of the trial court’s judgment;
 The indictment;
 A statement of admitted facts (if any); or
 Jury instructions (if any)
 Problem 4.5 (p. 286)
o FACTS: ∏ sues employer for wrongful termination (609 applies in both civil and criminal
contexts); at trial, prosecutor asks ∏ about meter tampering act in the past, which has a
maximum penalty of six months’ confinement
o Can’t get in under 609(a)(1) because the punishment isn’t greater than 1 year
o Only way prior conviction can get in is under (a)(2) – crimin falsi
o Under the statute, one way can prove elements of crime is to show that ∆ acted
deceptively
o However, this is not a required element – we don’t know if the person was actually
deceptive
o What did this defendant do: tampered with meters – purpose was deceit

Rape Shield

 Historical Background
o Before rule, evidence of victim’s past sexual acts was used to show that she was more likely to have
consented in this particular instance
 Without Rule 412, this evidence might come in through one of two rules:
 404(a)(2): Character of the alleged victim – criminal ∆ can initiate an attack on witness
character (not limited to credibility)
 608: Witnesses character for truthfulness – deceitful conduct of acting unfaithfully in the past
is evidence that person is lying in the instant case
 Would be let in via these other rules so long as passes 403 balancing test

 FRE 412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual
Predisposition

35
 o Evidence Generally Inadmissible. The following evidence is not admissible in any civil or criminal
proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
 Evidence offered to prove that any alleged victim engaged in other sexual behavior.
 Evidence offered to prove any alleged victim’s sexual predisposition.
o Exceptions
 In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
 Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a
person other than the accused was the source of semen, injury, or other physical evidence;
 Evidence of specific instances of sexual behavior by the alleged victim with respect to the
person accused of the sexual misconduct offered by the accused to prove consent or by the
prosecution; and
 Evidence the exclusion of which would violate the constitutional rights of the defendant.
 In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any
alleged victim is admissible if it is otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy
by the alleged victim.
o Procedure to Determine Admissibility
 A party intending to offer evidence under subdivision (b) must –
 File a written motion at least 14 days before trial specifically describing the evidence and
stating the purpose for which it is offered unless the court, for good cause requires a different
time for filing or permits filing during trial; and
 Serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged
victim’s guardian or representative.
 Before admitting evidence under this rule the court must conduct a hearing in camera and afford
the victim and parties a right to attend and be heard. The motion, related papers, and the record of
the hearing must be sealed and remain under seal unless the court orders otherwise.

 Notes:
o Policy of rule: safeguard victim; encourage people to step forward
o All jurisdictions, both federal and state, have some form of a rape shield law
o Relatively bright line rule – not much court discretion built in

 Basic Rule: No evidence of the victim’s sexual behavior or sexual disposition in any civil or criminal
proceeding involving sexual misconduct
o “Sexual misconduct” broader than just rape or sexual assault (includes sexual harassment and attempts)
o “Sexual behavior” connotes all activities that involve actual physical conduct, i.e. sexual intercourse or
sexual contact, as well as activities of the mind, such as fantasies or dreams
o “Sexual predisposition” defined broadly: sexual practices and proclivities, including victim’s mode of
dress, speech, or life-style all not admissible

 Exceptions
o Criminal Exceptions
 412(b)(1)(A): physical evidence when offered to prove that source is other than the defendant
(exculpatory in a particular way)

36
  Has to be a specific instance – needs to be specific to avoid a free-wheeling attack on victim
 412(b)(1)(B): past with the accused to show consent (see Problem 5.2)
 Has to be a specific instance
 412(b)(1)(C): exclusion of evidence would violate the constitutional rights of the defendant
o Civil Exceptions
 412(2): Has to be otherwise permissible, and only if probative value of evidence substantially
outweighs the potential harm to victim (reverse 403)
 Evidence of an alleged victim’s reputation is admissible only if it has been placed in
controversy by the alleged victim

 Applications:
o Analysis:
 Is it within scope of Rule 412?
 Does it fall within one of 412 exceptions?
 Does it get past 403 balancing test?
o Problem 5.1 (p. 319)
 FACTS: ∆ and victim had email correspondence before alleged incidence; ∆ admits act, but says
that the victim consented – to establish this defense, ∆ wants to introduce evidence of the email
exchange between ∆ and the victim
 Assume procedural requirements of 412(c) are satisfied
 Evidence would not be let in because it falls under sexual predisposition (if define broadly)
 Exceptions?
 Are the emails evidence of past sexual behavior with the accused?
 Does sexual behavior include an exchange of sexually explicit emails?
o See p. 88 of advisory committee notes: sexual behavior includes “activities of the mind”
such as fantasies or dreams
o So would argue that by exchanging the emails, it is a kind of sexual behavior with the
accused (prospective sex partners, or have sexual relationship that is real but not
physical) – can then say that this can be let in under 412(b)(1)(B) as evidence of specific
instances of sexual behavior by the alleged victim with respect to the person accused to
prove consent
 Even if it came in under an exception, still have to get through 403: probative value: shows that the
victim actually consented; informs what the defendant believed was consent
o Problem 5.2
 FACTS: Victim says that ∆, her accountant, came over to her home to drop off papers and then
raped her – she says he was never there before attack; ∆’s fingerprints were found inside
apartment; ∆ says he was not there that night, but that he had been there before and had consensual
sex with the victim
 Within scope of the rule? Yes – it is part of the victim’s past sexual behavior
 Does it fit within an exception?
 (b)(1)(B): ∆ not alleging consent in this instance – he is alleging that he was not even there in
that particular instance, but rather in an earlier instance, so doesn’t fit
 (b)(1)(A): Problem is that ∆’s argument is not that there was some other guy but that he was
there at some other time, so doesn’t fit
 (b)(1)(C): could say that exclusion is preventing ∆ from mounting a full defense

37
 o Stephens v. Miller (1994)
 FACTS: ∆ was dropped by victim’s trailer – they were acquaintances
 Victim’s story: ∆ entered trailer while she was asleep on couch; he tries to rape her; she
pushes him off, and then he leaves
 ∆’s story: they were having consensual sex until he said something to her that made her angry
and he made her stop; he claims he mentioned to her something about her previous sexual acts
with another man
 Trial judge let ∆ say only that the victim got angry about something he said, but did not let him
give the specifics of the comments
 Reasoning:
 ∆’s constitutional right to testify is not absolute
 Court says that ∆ was still able to testify enough of his full story, and therefore his
constitutional right was not infringed
 Bad consequences: if say that the story in this case is shielded by constitution, then a ∆ in any
case could say that they said something inflammatory about the victim’s sexual past during
the act
 Potential flaws
 It is true that ∆ could make up story and circumvent rape shield, but doesn’t mean we should
punish honest ∆s
 Here the details are the important thing in ∆’s defense – redacted version is pretty hollow
 Res gestae might be overblown, but narrative integrity is a valid way around the propensity
box

 Review: Rape Shield Law

o No admission of evidence of sexual behavior or sexual disposition in any case, civil or criminal,
involving sexual misconduct
 Each phrase defined broadly
o Criminal exceptions:
 (b)(1)(A) – Physical evidence that points to someone other than ∆
 (b)(1)(B) – Past acts with ∆ to prove consent in this particular context
 (b)(1)(C) – If the Constitution says otherwise (applies to all evidence rules)
o Civil exceptions
 Reverse 403: probative value substantially outweighs risk of unfair prejudice

 Quasi Exception: False Allegations (not in text of 412)

o Not about past acts but about past claims
o Advisory Committee Notes: Evidence relating to false allegations are outside the scope of rule 412, but
must still go through 404 (can’t be propensity evidence) and must pass 403 balancing test
o State v. Smith (Supreme Court of Louisiana, 1999)
 FACTS: Alleged victim, 12 years old, says that her grandmother’s husband had inappropriately
touched her for many years - ∆ is convicted; trial court excludes evidence that victim had accused
a cousin of sexual molestation and then immediately recants at least to some people; ∆ wants
evidence to come in in two ways: cross-examine witness and in way where he could allow the
cousin to testify

38
  HOLDING: evidence not of past sexual behavior of the victim but rather impeachment evidence
used to attack the victim’s credibility
 ∆ sought to prove for impeachment purposes that the victim had, in the past, made false
allegations regarding sexual activity
 Prior false allegations of sexual assault by the victim do not constitute “past sexual behavior” for
purposes of our rape shield statute – 412 is therefore inapplicable
o Problem 5.3 – Smith on Remand
 Even if you get outside the rape shield law, still have to consider other rules of evidence
 608 and 609 – look at 608 here
 Can introduce evidence to show witness’s propensity for lying
 Form of evidence:
o If bring in cousin to testify, then on direct can only ask about reputation and opinion, but
on cross, can bring up specific instances
o If ∆ asks victim if she lied and she says no, ∆ has to rely on this answer – no extrinsic
evidence
 If going to impeach a witness for character of truthfulness under 608, what standard do we apply:
must have good faith or reasonable basis for asking the question
o Problem 5.4 (p. 325)
 Distinction between old things that didn’t happen and having a different take on things that did
happen
 FACTS: ∆ accused of rape, wants to introduce evidence that four years prior, victim alleged rape
after consensual intercourse
 Evidence would not be admissible as to form, even if could get out of 412 box
 But question is whether 412 even applies?
 Can argue that this is an allegation of an event that didn’t occur
 Different here from Smith though because in this case there is a prior sexual act whereas in
Smith, the argument was that there was no prior sexual conduct, just an allegation
o This is much closer to core of rule 412 – no evidence of sexual behavior or sexual
predisposition
o When does 412 yield to the constitution
 ∆’s constitutional rights are not absolute, but must be balanced against the interests captured by the
rape shield law itself
 Although not absolute, does help ∆s do certain things
 Proof of Bias: Olden v. Kentucky (SCOTUS, 1988)
o FACTS: Victim dropped off at Russell’s house and said to Russell that ∆ had raped her;
∆ says that victim and Russell are in relationship, and therefore victim had reason to lie to
Russell because didn’t want him to be mad – motive to lie, bias idea
o Trial court excluded evidence that there was cohabitation between Russell and victim –
evidence is past sexual behavior with someone other than ∆ - “past sexual behavior”
defined broadly and therefore trial court believes cohabitation falls within it
o ∆ should have been allowed to submit the evidence because a reasonable jury might have
received a significantly different impression of the witness’s credibility had ∆ been
permitted to pursue his proposed line of cross-examination
o HOLDING: Exclusion of evidence was violation of confrontation clause of constitution
because ∆ has to be able to establish motive to lie – this evidence was the whole case

39
 o Notes:
 German v. French distinction – doesn’t matter in this case whether think of it as
404(b) exception (motive to lie in this particular case) or 412
 Pretty much every court allows attacks on witness credibility with or without 412
o Problem 5.5 – Kobe Bryant (p. 331)
 FACTS: ∆ wants to offer evidence that victim had sex with someone else right after the alleged
rape; how ∆ trying to use the evidence: (1) sexual activity with others show M.O.; (2) that sexual
activity with two of prosecutor’s witnesses suggest that this wasn’t rape; (3) evidence of sex soon
after rape rebuts claim of post traumatic stress disorder
 Applied
 Doesn’t fall within exception (A) because not showing that ∆ was not the person, just that she
had sex with other people as well
 Doesn’t fall within exception (B) because not showing that she had sex with ∆ in the past
 Doesn’t fall within exception (C) because, unlike Olden, not able to show that victim has a
motive to lie, but just that she is promiscuous, which is exactly what 412 wants to keep out of
trials
o Also not at all clear that this particular information is necessary to prove what they want
to prove – have to still get through 403 even if you get through 412 – if you can show
bias by less inflammatory means (example: can say that victim and witnesses are friends
and therefore witnesses have reason to lie)
 Few jurisdictions allow post traumatic stress in the offensive sense
o Problem 5.6 – Jones v. Clinton
 Not a two-way street – treat victim past and defendant past quite differently
 Some evidence might fit within the civil exception (reverse 403)
 Victim did raise her reputation, but to bring in evidence on ∆’s side, have to show reverse 403 –
probative value substantially outweighs risk of unfair prejudice

 Rape Shield Law: More Exceptions and Policy

o Why shield victim’s past
 Reporting – if protect victim’s past, then it encourages victims to come forward
 Privacy – victims might have greater interest in keeping past sexual activities private than ∆s have
to keep their prior offenses private
 Probative Value of one type of past acts are more or less than the other
 Redress – tipping balance back in way that tries to redress victims of sexual assault – in the past
women were just presumed to be wrong
 ∆s have presumption of innocence that victims don’t have

————————RELEVANCE REVIEW: BIG PICTURE————————

 So far, evidence has been all about relevance

 Rules mostly in 400s, and 607-609
 Basic RULE: relevant evidence generally admissible; irrelevant evidence never admissible
 Relevant evidence means: any tendency to prove or disprove something of consequence to the case
(Probative + Material)
o Probative – tendency to prove or disprove

40
 o Material – it is of consequence in the dispute
 Relevance standard does not stand alone – also has to pass 403
o 403 applies to almost everything – except 609(a)(2) – crimin falsi

 Conditional Relevance – 104(b) and Huddleston Standard

o Some things are relevant only if a particular condition is satisfied
o Huddleston standard: 104(b) is satisfied if proponents of evidence could convince reasonable jury by
preponderance of evidence that things occurred or existed
o Can find conditional relevance anywhere – can find links in a chain of inferences in any case

 1st Category of Specialized Relevance Rules: FRE 407-411

o Rule 407: Subsequent Remedial Measures
 Inadmissible to prove negligence, culpability, or defect, but admissible for anything else (French-
style rule – prohibits certain things, and allows everything else)
 SRM not particularly relevant + public policy concern (want to encourage people to take safety
measures)
 Shield for good-faith fix-its, not a sword that can be used by ∆s on the stand (wood-chipper case)
o Rule 408: Compromise (settlement, particularly in civil context)
 Want to encourage settlement, so protect evidence of people talking in settlement negotiations
 Also not very relevant, because evidence of compromise talks does not necessarily mean that ∆ is
guilty
 Covers collateral conduct – things that are said during settlement conferences that don’t
necessarily go to the heart of the compromise
o Rule 409: Can use evidence of collateral conduct, including apologies (ex: after car accident, offer to
pay and apologize)
o Rule 410: Pleas (criminal version of 408, with differences)
 Evidence of please not admissible
 German-style – everything is off-limits unless it is specifically allowed by rule
 Public Policy – encourage people to plea
 Relevance – don’t necessarily saying that ∆ is guilty
o Rule 411: Liability Insurance
 French-style: inadmissible to show negligence or liability but admissible to show all else
 Public Policy: want people to buy insurance, but many times required to have it anyway;
concerned that jury will misuse knowledge of insurance – want ∆ to pay because they have money;
but also jurors might think that ∏ already got paid by insurance company and therefore won’t want
to award ∏ now

o 2nd Category of Specialized Relevancy Rules: Character Evidence

 Basic character rule: evidence of a person’s character generally inadmissible to show that the
person acted in conformity therewith
 Grows from ideas of unfair prejudice
 Worried that jury would give excessive weight to the evidence (think it is more predictive and
probative than it actually is), and that jury will want to punish the ∆ for his/her past crimes instead
of the current one (Zachowitcz)
 Ways around the propensity box

41
  Anchor Rule – 404(b) – rule in list is not exhaustive, but courts like to find something that is
textually listed in rule, even if they don’t have to
o Knowledge - ∆ is one of small subset of people who know how to do the act (shrinks
pool of potential ∆s)
o Motive - ∆ had particular reason to do this act based on something else (Peltier – warrant
gave ∆ motive to shoot FBI agents)
o Identity or M.O. - ∆ only one who could have committed crime because of defining
characteristics of crime (fingerprint)
 Spectrum: prosaic commonalities ------------------- exact match (don’t need exact
match, but somewhere in between)
 Bomb case
 ∆s can use M.O. evidence (robbery at bus stop) – reverse 404(b)
 Standard: tendency to prove guilt (just has to pass 403)
o Narrative Integrity (res gestae) – allows story to be told in a way that makes sense
(Russian roulette case – want to know why the witness would remember the incident so
many years later)
o Absence of Accident – thing happened before, therefore should have changed level of
care, and therefore suggests that it was not accidental (Case where ∆’s two wives died
while he was cleaning his gun; bath drowning case) – but isn’t this just pure propensity?
o Standards for other acts:
 Don’t need to show beyond reasonable doubt, just that the other acts pass the
Huddleston standard – that reasonable jury could find by preponderance of evidence
that other acts happened
 Habit – Rule 406
o Regularity, Numerosity, Lack of Volition, Otherwise innocuous
 Ways through the propensity box
 Victims: 404(a)(2) – can go through box with regards to victim character in criminal cases
only, when ∆ raises it only, or when ∏ raises it for peacefulness
o Notes: (1) 405 covers form: reputation & opinion only on direct; specific acts on cross;
(2) this is where 412 comes in (rape shield)
 Defendant: (1) Can talk about ∆’s character, but ∆ has to raise it; 405 also governs form;
includes 413, 414, and 415 with regard to prior sexual offenses, child molestation, and civil
settings
 Witnesses: Not witness character generally, but character for truthfulness; 607-609; Three
ways can impeach: mistaken, lying in this case, witness is liar (p. 249)
o Rule 607: any party can attack credibility of witness, whether they called the witness or
not
o Rule 608: looks like 405, about form – on direct, reputation and opinion only; on cross,
specific instances – can’t supply with extrinsic evidence
o Can only rehabilitate credibility for truthfulness after it has been attacked
o Rule 609: Six rules; Flow chart
 First Question: whether there was a conviction
 If no  Rule 609 not applicable
 If yes  Is conviction old (more than 10 years)?

42
 o If yes  Apply 609(b) – old convictions are presumptively off limits
unless give notice and satisfy reverse 403
o If juvenile  609(d) – inadmissible unless against non-defendant, not
criminal, and necessary for fair adjudication
o If no  Ask whether crime was crimin falsi
 If yes  evidence is admissible
 If no  Ask whether the crime is susceptible to one -year punishment?
If no  then evidence is out
If yes  then evidence typically in
If non-∆ witness, then 403
If ∆ witness, then 50/50 balancing

II. Reliability

————————COMPETENCY AND HEARSAY————————

Witness Competency: A Quick Look

 Can you use hypnosis: Rock v. Arkansas (there is no categorical bar to using hypnosis)
 Kids as witnesses: Jurisdictions vary as to whether they are allowed to serve as witness – question is
whether child is old enough to tell difference between truth and untruth

Hearsay: Basics

 Four Testimonial Capacities (inform reliability of witness on stand)

o Perception: did the witness perceive the event clearly enough that you can rely on them in the context
of trial
 Ex: The witness saw Tom pull the trigger, but mistook him for John
o Memory: does the witness recall well enough
 Ex: The witness saw and recognized Tom, but now thinks it was John
o Narration: can witness articulate belief accurately enough
 Ex: The witness means to say Tom, but says John
o Sincerity: does the witness mean to deceive
 Three mechanisms that use to ensure that all four testimonial capacities are sound enough that
witness can be heard
o Oath: Witness must swear or affirm that they will tell the truth
 Might improve sincerity, sharpen accuracy
o Demeanor Evidence: Jurors scrutinize faces and mannerisms, watch for signs of stress, and judge
intellect, precision, and trustworthiness
 Studies show that jurors are not very good at determining whether witness is lying based on
demeanor, but the system presumes that the juror can do this
o Cross-Examination: The opposing lawyer probes for deficiencies in perception, memory, narration,
and sincerity
 Why bar hearsay?

43
 o When the witness is not actually testifying, the jury must rely on all four testimonial capacities of both
parties (declarant and the witness)
o Certain statements that capture perception are un-testable
 Definition of Hearsay: FRE 801(c). An out of court statement made by the declarant offered in evidence
by a litigant to prove the truth of the matter asserted by the declarant
o 801(a): statements = things people say, things people write down, and gestures made to communicate
 Problem 7.2 (Gestures) – declarant made motion with his hand that symbolized “money” – this is a
statement because it is a gesture equivalent to a verbal assertion
o Only hearsay if trying to prove the truth of the assertion – not hearsay if the evidence is introduced for
some other purpose
 Non-hearsay 1: Words Offered to Prove Their Effect on the Listener
 Evidence offered to prove that ∆ had reason to fear person at the time of attack
 Non-hearsay 2: Legally Operative Words (Verbal Acts)
 Words that have meaning regardless of what the declarant meant
 Ex: Saying “I do” at a wedding or “I declare”
 Non-hearsay 3: Inconsistent Statements Offered to Impeach
 Truth of out-of-court statement is irrelevant, just want to show that statements are different
and therefore current testimony can’t be trusted
 FRE 802: If evidence fits the definition of hearsay, then it is generally inadmissible
o German-style rule: generally prohibited unless specifically permitted
 Hearsay Test:
o Was it made out of court?
o Was it offered as an assertion?
o Is it being offered to establish the truth of the statement?
 Why is the party offering the evidence bringing this up
 Problem 7.1 (Affidavit)
o FACTS: Class action brought against car company after SUVs rolled over; chief witness makes
affidavit that says that tire blowouts are the cause of the rollovers – witness dies before the trial begins
o Are the affidavits hearsay - YES : Out-of-court statement; assertion about the cause of the accidents;
admitted for the truth of the matter asserted – proponents want the jury to believe the statement
o Rules are completely indifferent to the difference between oral and written statements – but should they
be?
 Should we be more accepting of written statements? Less concerned about the testimonial
capacities when something is written down
 Problem 7.3 (Quoting Herself)
o FACTS: Declarant is also the witness; on witness stand, Alice is asked what she said to detective at a
lineup, and she responded that she said “he’s number three”
o HEARSAY: Still an out of court statement, is an assertion, and offered for the truth of the matter
asserted – so seems like hearsay even if it is the witness’s own prior statement
o 801(d)(1)(C): exception - prior statement by witness which is one of identification of a person made
after perceiving the person
o This is admissible hearsay because it falls within the above exception, although out of court statements
by witnesses on the stand can be hearsay
 Essential to know why the evidence is being offered before determining whether it is hearsay – otherwise
can’t answer the third question

44
 Problem 7.5 (p. 372)
o Out of court statement that acts as an assertion, but evidence is brought up to show that the declarant’s
boasts gave the defendant reasonable fear – offered to prove the effect on the listener
 Problem 7.6 (p. 372)
o FACTS: ∆ charged with theft after selling two horses, but ∆ argues that she was under impression that
horses belonged to someone else; evidence offered was ∆’s testimony that Patton told her he had
purchased the two horses
o Evidence offered to prove that ∆ believed horses belonged to Patton – it was about the effect on the
listener – not hearsay
 Problem 7.7 (p. 373)
o Evidence might be used to establish notice and jury prejudice
o If about notice, not about truth of the statement, but about effect on the listener – only matters that she
said it and the other person heard it
 There is a presumption in favor of admissibility – If you want jury to use evidence for one purpose and not
another, can have a limiting instruction – FRE 105
 Problem 7.8 (Declarations)
o FACTS: Two people traveling back into country; at immigration booth, they declare some things, but
then a search finds firearms in excess of $2,000; ∆ wants to testify that he said “I have more to declare”
during the inspection
o If officer testified that ∆ said he had nothing else to declare, would not be hearsay because not offered
to show truth of matter asserted, but rather to prove falsity of matter asserted (show that ∆ is lying
about fact that he says he had more to declare)
o Is ∆’s testimony hearsay? Not hearsay because “I declare” is a legally operative word (exception) – it
has legal significance whether person means the words or not

————————HEARSAY AND ASSERTIONS————————

Assertions Applied

 Defining assertions: A statement, verbal, written, or gesture, made with an intent to communicate
 Note: always ask if the speaker meant to be heard – i.e. wanted to communicate something to an audience
 Hearsay covers assertions and only assertions
 When deciding between assertions and non-assertions, most concerned with sincerity
 If something is not an assertion, then it is not hearsay

 Problem 7.9 (Ship Inspection)

o FACTS: Evidence that captain inspected the ship and then brought his whole family on board – ship
sank – offered to show that the ship was seaworthy
o CONCLUSION: Not hearsay because it is not an assertion – captain taking his family on the ship was
not meant to assert anything – at least as far as we know
 He was not trying to assert anything at the time – taking family on ship is not a substitution to
saying “I think the boat is safe”

 Problem 7.10 (Amchitka Holiday)

45
 o FACTS: Chair of AEC tells the press that the site of a nuclear test is safe, and that he would take his
family there – he then takes his family there
o CONCLUSION: Evidence that chairman took his family there is hearsay because his actions were
meant to be an assertion – trying to communicate by taking his family to site that the base is safe
o Context matters!
o Key here is whether declarant meant to communicate to anyone other than herself

 A few good men clip

o FACTS: Evidence offered to show that Santiago received no notice of the transfer and thus there was
no transfer
o Does depend on whether Santiago knew about the transfer
o ISSUE/CONCLUSION: Is Santiago’s failure to pack hearsay – No
 It is an out of court statement, but it is not an assertion because Santiago’s failure to pack is not
indicative of an intention to communicate anything
 What can assertions be?
o Words
 Implied Assertions
 Speakers does not expressly assert, “There is a stop sign ahead,” but the speaker intends to
communicate the fact by implication when she says “Don’t run that stop sign”
 Ask: If declarant said what she meant to communicate in the most simplest, straightforward
way, what would she say?
 Indirect Assertions
 Matter asserted is just one link in a chain of inferences leading to the ultimate fact to be
proved
o Conduct and Gestures, so long as there is communicative intent (context matters – taking family aboard
ship when no one watching is different from doing so when the press is watching)

 Nonhearsay Uses of Out-of-Court Statements

o Nonassertive words
o Words Offered to Prove Something Other Than What They Assert
o Assertions Offered as Circumstantial Proof of Knowledge
 Not offered as truth of matter asserted, but to show that the person is right – offered to establish the
witness’s knowledge
 Bridges case – girl accurately describes the place where she alleges ∆ brought her and sexually
assaulted her

 Defining Assertions: Problems (p. 386)

o Problem 1: Mad Cow
 FACTS: Fear of mad cow; in front of press, the Agriculture Minister ate a hamburger with his
daughter; evidence of him eating burger offered to show that beef was then safe to eat
 CONCLUSION: This is an assertion – like chairman (nuclear site) because minister intends to
communicate that the hamburger meat was safe
o Problem 2: Laci Peterson

46
  FACTS: Prosecutor trying to prove that ∆ had bought boat shortly before killing wife and that he
had kept this fact from his wife – to show that it was part of his plan – offers testimony from
facialist and sister that Laci never said anything about a boat
 CONCLUSION: Not hearsay b/c not assertion – Laci’s failure to talk about the boat is not
indicative of her intention to communicate that she didn’t know about the boat – silence doesn’t
communicate anything at all in this case
o Problem 3: Drug Recipes
 FACTS: Agents found recipes to make drugs in ∆’s briefcase in his home; Prosecutor wants to
introduce evidence of the recipes to show that ∆ knew how to prepare the drugs
 CONCLUSION: Not hearsay – about circumstantial evidence of knowledge – not offered to show
that this recipe is the correct way to cook meth
 Also not being asserted to prove truth of matter asserted – doesn’t need to be the actual way to
cook meth – just that ∆ had knowledge
o Problem 4: Officer shooting
 FACTS: Officer who didn’t observe shooting testified that before the officer died, he fired down
an alley and hit ∆
 Why would the officer fire the shots?
 Stop his killer
 Disable person who he thinks shot at him so that he won’t harm others
 Revenge
 Mark the guy that shot him as the shooter for later identification – this is the only one that has
communicative intent
 It isn’t clear why the officer took the shot, or that the reasons would be mutually exclusive
 CONCLUSION: In ambiguous cases, then resolve against the assertion – which would mean it is
not hearsay and therefore it is admissible
 Look ahead: may be exception of dying declaration
o Problem 5: Gambling bet
 FACTS: Police inspecting suspected gambling operation, and received a phone call from someone
trying to place a bet – prosecutor tries to offer this into evidence to show that the place is a
gambling operation
 CONCLUSION: Not hearsay because the caller is not intending to assert that the place is a
gambling den – his statement only meant to place a bet – not to be a surrogate for saying that place
is a gambling den
 Caller is acting on belief that place is a gambling den, but not concerned with this – just
concerned with his assertions, which in this case are not there
o Problem 6: Crown Heights stabbing death
 FACTS: To prove that ∆ committed offense, prosecutor introduced evidence that victim was taken
to lineup and said to ∆, “Why did you stab me?”
 Victim’s statement is equivalent to him saying “You stabbed me”
 ISSUE: whether there was an audience – did victim intend for his statement to be heard by others?
 If yes, then there is communicative intent and it is an assertion
 If it is just victim to defendant, with no one around to hear, then there is no communicative
intent – non assertive influence
o Problem 7: Postal inspection
 FACTS: ∆ caught trying to cash stolen check; while waiting outside, another person walked by
∆ and ∆ whispered to him “I didn’t tell them anything about you”
47
 CONCLUSION: Not assertion because ∆ didn’t intend to communicate anything to an audience –
he probably didn’t intend to be overheard
o Problem 8: Madeleine Smith
 FACTS: ∆ accused of poisoning her lover, although she said she did not see him before he died;
Prosecution seeks to introduce evidence of victim’s diary, which document his deteriorating
condition at the same time as mentioning that he saw ∆
 Context is key: victim might not have intended to implicate ∆, or to communicate anything to an
audience

————————HEARSAY EXCEPTIONS————————

Hearsay Exceptions Generally

 Big Categories
o 801(d)(1) – Prior Statements by Witnesses
o 801(d)(2) – Statements by Party-Opponents
o 803 – Exceptions in Which the Availability of the Declarant is Immaterial
o 804 – Exceptions Applicable Only When the Declarant is Unavailable
o 807 – Residual (catchall) Exception
 Exceptions traditionally justified by two values:
o Necessity
o Trustworthiness (or reliability)

Hearsay Exceptions: 801(d)(2)(A) – (E)

 FRE 801(d)(2): Statements Which Are Not Hearsay: Admission by Party-Opponent. A statement is
not hearsay if the statement is offered against a party and is (A) the party’s own statement in either an
individual or a representative capacity or (B) a statement of which the party has manifested an adoption or
belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the
subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy. The contents of the statements shall be
considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the
agency or employment relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against whom the statement is offered
under subdivision (E).

 Statements by Party-Opponents – 801(d)(2)(A)

o BASIC RULE: A party’s own words are “not hearsay” when offered against her at trial
o Rationale 1: Although people often lie to advance their interests, people rarely lie in ways that hurt
themselves. As a general matter, then, a statement that harms the speaker’s interests is more likely to be
truthful than is ordinary hearsay.
 Problem 7.11 (p. 396)
 FACTS: Associate at large firm sues airline because she claims she has diminished capacity to
do her job after a rough plain landing; at trial, ∆ offers records signed by associate during the

48
 six week period after the flight that say she billed an average of 104 hours per week – offered
to prove her capacity for work was not in fact diminished
 Checklist
o Out of court
o Assertions
o Offered to prove truth of fact
 Does it fit within an exception – 801(d)(2)(A)
o It is ∏’s own statement offered against her at trial
o Statement was made in her interest at the time, but is now being used against her – fits
within rationale 1
o Rationale 2: Ability to cross-examine when the declarant is the witness
o Rationale 3: Adversarial system – any statement that a party makes – or that otherwise may be attributed
to her under this rule – may come in against her because she said it. She will not be heard to complain
that her own statement may be unreliable
o Questions to ask:
 Is it a statement by the party-opponent?
 Is it being offered against the party-opponent?
o Problem 7.12 (O.J. Simpson trial)
 Defense attorney wants to ask an LAPD detective what OJ said when he was asked for blood
 Is what OJ said to the LAPD detective hearsay?
 Yes – out of court statement, assertion, and offered to prove truth of matter (that OJ’s
willingness to undergo test goes towards his innocence)
 Does it come in under an exception
 No because OJ is trying to use the evidence in support of his defense – a statement by the party
for the party, not a statement by the party offered against the party
 Ambiguous contexts favor admissibility – but this situation is not ambiguous

 Adoptive Admissions – 801(d)(2)(B)

o A statement of which the party manifested an adoption or belief in its truth (of someone else)
o Person has done something or hasn’t done something that shows that you are agreeing with someone
else has said – adopting what someone else says as your own words
 Ex: say “I agree” or nod your head yes
 Harder where the party is (1) silent or (2) acts in question are ambiguous
o 4 Preconditions to using silence as evidence of an adoptive admission
 The statement was heard and understood by the party against whom it is offered;
 The party was at liberty to respond;
 The circumstances naturally called for a response; and
 The party failed to respond (and by failing to respond, adopted it)
o Rationale for using silence as admission: Assume that if something is a lie, the person would protest
o Problem 7.13 (p. 397)
 Is statement that Monroe said “I only had one, but you can get another from my buddy” hearsay?
 Can construe that ∆’s actions in moving towards the bag after Monroe made this state means that
∆ heard and understood what Monroe said, was at liberty to respond, and circumstances would have
naturally called for a response, and not only did ∆ fail to respond, but in a way he actually acted
upon the statement

49
  ∆ didn’t just sit there – if he had, there would be greater ambiguity – but in this case, he got up and
took out the drugs
o Problem 7.14 (p. 398)
 FACTS: ∆ on trial for killing a young girl many years prior; ∆’s daughter was friend of girl and
allegedly saw what happened; ∆’s daughter goes to visit ∆ at jail and says that she knows he did it;
in response, ∆ points to the security camera
 Questions:
 ∆ heard and understood
 Not clear whether he was at liberty to respond
o ∆’s lawyer probably warned him not to say anything
 Courts seem to be split in cases like this where ∆ has been warned not to say things that could be
self-incriminating

 Statements of Agents – 801(d)(2)(C) & (D)

o (C): A statement by a person authorized by the party to make a statement concerning the subject
o (D): A statement by the party’s agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of that relationship
o Three pieces of evidence in dispute
 Note left on door saying that wolf bit child
 Statement made to director saying that wolf bit somebody
 Director meeting minutes
o All three pieces of evidence are hearsay because they are out of court statements asserted and offered to
prove the truth of the matter asserted – that the wolf bit the child
o (C) and (D) don’t care if the declarant had personal knowledge – concerned with what witness said, not
necessarily what witness knew
o Minutes come in against the center, but do not come in against ∆ - agent’s statements are admissible
against the principle, but the principle’s statements are not necessarily admissible against the agent
o Must know that ∆ has been authorized to speak, that ∆ was really an agent

 Coconspirator’s Statements – 801(d)(2)(E)

o 3 things that are required
 That a conspiracy existed at the time the out-of-court statements were made;
 Conspiracy included both the declarant and the party against whom the statement is offered; and
 That the declarant spoke during the course of and in furtherance of the conspiracy
o Judge decides by a preponderance of the evidence whether aforementioned three conditions are satisfied
(not like conditional relevancy, which goes to the jury)
o Can bootstrap – can use the statement itself to show that there was a conspiracy, although can’t use this
alone
o My brother’s keeper video:
 Statements between the brothers where Daubert talks about killing the brother would be hearsay,
but Daubert’s statements could come in under (A) because offered against ∆, and also could come
in under the coconspirator exception
 Doesn’t matter whether there has been any indictments for conspiracy to use this exception
 Hearsay within Hearsay: ∆ talks to brother who talks to cop who then tells court

50
  Hearsay within hearsay is admissible when each chain of the statements is admissible on
its own
 In this case – break down each part:
o ∆ statements to brother – admissible under (d)(2)(A)
o Brother’s statements to the police – hearsay, and doesn’t fit any exceptions
 Not conspiracy because the conspiracy between the brothers is over by the time he
talks to police plus it wouldn’t be determined that such statements to police are in
furtherance of the conspiracy
 Different from Problem 7.16 because all three parties are involved in the drug
sale, and statements are made in the course of and in furtherance of the
conspiracy – Courts can use the statement itself to determine its own
admissibility, but they need corroborating evidence, which in this case the
judge had (way the exchange went down – passport, flight, etc.)

Hearsay Exceptions: 801(d)(1)(A) + 613: Past Inconsistent Statements

 FRE 801(d)(1): Statements Which Are Not Hearsay: Prior Statement By Witness. A statement is not
hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath
subject to the penalty of perjury at the trial, hearing, or other proceeding, or in a deposition, or (B)
consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made
after perceiving the person

 FRE 613: Prior Statements of Witnesses

o Examining Witness Concerning Prior Statement. In examining a witness concerning a prior
statement made by the witness, whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing
counsel.
o Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require. This provision does not apply to admission of a
party-opponent as defined in Rule 801(d)(2).

 Generally
o TEST to determine whether prior inconsistent statements of witness can be used for substantive
purposes
 Declarant has to testify and be subject to cross-examination
 Prior statement was under oath and penalty of perjury
 Prior statement uttered at a hearing or hearing-like context (deposition, etc.)
o Reminder: key distinction to keep in mind is how past inconsistent statements are being used:
 Impeachment (you are lying now)
 Character purposes (you are a liar)
 For truth of what they assert – as substantive (or truth) evidence – 801(d)(1)(A)
o 801(d)(1) also about consistent statements offered to rebut an express or implied charge as well as ID

51
 Why introduce past inconsistent statements?

o Est. character for untruthfulness (propensity evidence) (key rules: 607, 608, 609)
o Impeachment – not saying that witness is a liar, but just that witness is lying in this context (key rule:
613)
 Disclosure of the past statements that you will introduce to the witness beforehand is not required
 Extrinsic evidence is ok so long as the witness gets an opportunity to oppose and deny it
o Introduce them substantively – for the truth of the matter asserted – this is hearsay
 Key Rule: 801(d)(1)(A)
 Although hearsay, can still admit under exception if under 801(d)(1)(A), which requires (TEST):
 That declarant testifies at trial or hearing and is subject to cross-examination;
 Statement is inconsistent with the declarant’s testimony;
 Statement was made under oath and under penalty of perjury; and
 Statement was made at a trial, hearing, or other proceeding, or in a deposition

 Problem 7.17 (p. 424)

o Raymond says one thing to police and then when on trial retracts it
o Evidence introduced to impeach
o If prosecutor rests without producing any other evidence, then there is no substantive evidence to
establish the shooter, so judge should direct verdict of acquittal

 United States v. Barrett (1st Circuit 1976)

o FACTS: ∆ convicted of theft and sale of postage stamps; prosecution has two witnesses that say ∆ did it;
∆ has two other witnesses that have prior inconsistent knowledge of the prosecution’s witnesses
(extrinsic evidence is the other witnesses and ok under 613)
o Court says that the evidence from ∆’s witnesses should be admissible
 United States v. Ince (4th Circuit, 1994)
o FACTS: Shooting at military base concert by someone in orange jacket; Neumann is witness and rode in
van with ∆ - signed unsworn statement beforehand saying that ∆ admitted to being the shooter; when
called at trial, Neumann says that she can’t recall what happened; prosecution calls officer to testify that
Neumann did give her the statement – used for impeachment purposes; first trial was deadlocked; at
second trial, prosecution calls Neumann again, even though they know that she will testify that she
didn’t remember what happened; in the second trial, the prosecutor purposefully put Neumann on stand
in order to get her to say that she didn’t remember, as they expected, so that they could then introduce
the officer’s testimony
o Court recognizes the prosecutor’s tactics as subterfuge to get in the evidence substantively but under the
guise of impeachment evidence
o Hearsay within hearsay
 ∆  Neumann  Officer
 Probably not coming in under other exceptions, but could, as prosecutors did in this case, say that
offering evidence to impeach
o CONCLUSION: Although the evidence fits within the text of the rule, the court says that the evidence is
inadmissible because the prosecution is trying to game the system

52
  If otherwise admissible under 613, then have to use 403 – court says that there is no probative value
while the risk of unfair prejudice is very high (because the jury is going to be presented with
impeachment evidence that they will surely use as substantive evidence)

 Problem 7.19 (Domestic Violence, p. 438)

o FACTS: Woman is in hospital for injury to eye; during grand jury, under oath, she says that her
boyfriend punished her in the eye – at trial, however, she says that the boyfriend opened the door and it
hit her eye accidentally
o Is grand jury evidence hearsay? YES, but can be used for impeachment purposes and can use extrinsic
evidence of grand jury statements
o There would be no substantive evidence of the boyfriend actually hitting her, so ∆ will probably still get
a directed verdict since there is no substantive evidence identifying him as the cause of the injury
o Can it be offered to prove the truth of her identification of the boyfriend
 She was under oath and in a trial setting previously, and her statement was inconsistent with current
statement, so yes
o Can introduce grand jury testimony as substantive evidence

 Problem 7.20 (Domestic Violence II, p. 438)

o Same problem as before, only this time witness says that she doesn’t recall
o Are “hit” versus “I forgot” sufficiently incompatible to allow them in?
 Probably not, but the judge decides under 104(a)
 This is a conditional admissibility issue – by preponderance of the evidence
 Would look at whether memory loss is legitimate, if it looks feigned

Hearsay Exceptions: 801(d)(1)(B) + (C)

 Prior Consistent Statements – 801(d)(1)(B)

o TEXT: A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is consistent with the declarant’s testimony and
is offered to rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive
o TEST:
 Declarant must testify and be subject to cross-examination
 Prior statement (doesn’t require that it was at a trial or hearing)
 See Tome for interpretation of what “prior statement” must mean
 Consistent statement – what said out of court is consistent with what said in court
 Offered to rebut an express or implied charge against the declarant of a recent fabrication or
improper influence or motive
o Note: can’t bring past consistent statements just to bolster witness’s credibility
o Tome v. United States (SCOTUS, 1995)
 FACTS: ∆ charged with sexual abuse of 4 year-old daughter; there is an ongoing custody dispute
between ∆ and the mother; daughter does take the stand, but it is difficult to question her because
she was only 6 at the time; ∆ argues that daughter lied because she wants to live with her mother; ∏
submits testimony of six other witnesses – babysitter, mother, social worker, and three
pediatricians; trial court admits statements under 801(d)(1)(B), accepting ∏’s argument that they

53
 rebutted the implicit charge that daughter’s testimony was motivated by desire to live with her
mother
 Statements by daughter were all made before the trial but after the custody dispute started –
important because this is after the point at which the alleged motive to lie started
 Ask: (1) when did motive emerge; (2) when were statements made – timing matters!
 RULE: Rule 801(d)(1)(B) 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
 Prior = before motive to lie arose
 Is this case wrong – is this even hearsay – evidence not really offered for truth of matter asserted –
offered to rebut charge of fabrication

 Statements of Identification – 801(d)(1)(C)

o TEXT: A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is one of identification of a person made after
perceiving the person.
o TEST:
 Declarant on stand and subject to cross examination
 Prior statement of identification
o Doesn’t require consistency between the out-of-court statement and the in-court testimony
o Questions:
 Why have (C) at all? – Memory fades in time
 Why limit to identification?
 Memories fade but faces fade faster
 Appearances can change easily
 Setting – out of court IDs are different than in court IDs (in court, only dealing with ∆ and
often dressed in prison clothes; might be in-court intimidation)
o US v. Owens
 FACTS: Victim badly beaten – suffers memory loss – first time interviewed, can’t remember
anything; second time – describes attack and IDs ∆ as attacker); in trial, victim said he remembered
IDing ∆, but said that he couldn’t remember seeing assailant
 Evidence ok – doesn’t violate Confrontation Clause because the clause guarantees only an
opportunity for effective cross, not cross that is effective in whatever way, and to whatever extent,
the defense might wish
 Memory loss did not prevent witness from being subject to cross-examination because a witness is
subject to “cross-examination” when he is placed on the stand, under oath, and responds willingly
to questions
 ∆ argues that court’s reading is impermissible because it creations an internal consistency in the
Rules since the forgetful witness who is deemed “subject to cross-examination” under 801(d)(1)(C)
is simultaneously deemed “unavailable” under 804(a)(3)
 Court says that the weird status the witness occupies is perhaps a logical concern but not a
legal one
o “Unavailable” is just a legal term of art – shouldn’t think of it in way that you would be
unavailable in the real world
o Commonwealth v. Weichell

54
  If statements that led to the creation of the composite are admissible, then the composite itself ought
to be admissible as well
 Admissible either because: (1) the composite retains the character of the statements that led to
its creation; or (2) because the composite is not a statement within the meaning of the hearsay
rule
Hearsay Exceptions: 804: Declarant Unavailable

 FRE 804: Hearsay Exceptions; Declarant Unavailable

o Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant –
 Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of the declarant’s statement; or
 Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an
order of the court to do so; or
 Testifies to a lack of memory of the subject matter of the declarant’s statement; or
 Is unable to be present or to testify at the hearing because of death or then existing physical or
mental illness or infirmity; or
 Is absent from the hearing and the proponent of a statement has been unable to procure the
declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the
declarant’s attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability,
or absence is due to the procurement or wrongdoing of the proponent of a statement

o Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable
as a witness:
 Former Testimony. Testimony given as a witness at another hearing of the same or a different
proceeding, or in a deposition taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
 Statement Under Belief of Impending Death. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarant’s death was
imminent, concerning the cause or circumstances of what the declarant believed to be impending
death.
 Statement Against Interest. A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a reasonable
person in the declarant’s position would not have made the statement unless believing it to be true.
A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of
the statement.
 Statement of Personal or Family History. (A) A statement concerning the declarant’s own birth,
adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or
other similar fact of personal or family history, even though declarant had no means of acquiring
personal knowledge of the matter stated; or (B) a statement concerning the forgoing matters, and
death also, of another person, if the declarant was related to the other by blood, adoption, or

55
 marriage or was so intimately associated with the other’s family as to be likely to have accurate
information concerning the matter declared.
 Forfeiture By Wrongdoing. A statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

 Basics
o 804(a): Definition of unavailability as matter of law
 Privilege
 Witness refuses to testify despite a court order to do so
 Lack of memory
 Death, physical or mental illness or infirmity
 Otherwise absent from hearing – people have been unable to procure witness through reasonable
means
 Note: declarant not unavailable as a witness if someone makes you unavailable
o Two-part test for 804
 Is declarant legitimately unavailable?
 If yes, then go on to 804(b)

 804: (b)(1) – Former Testimony

o Don’t get to this part unless the declarant is really unavailable
o TEST:
 Testimony given as witness
 At another or this hearing/deposition/on stand
 Party against whom the old testimony is now offered had an opportunity and similar motive to
develop the old testimony by direct, cross, or direct examination the first time
o Why allow this testimony in:
 It is necessary because declarant is unavailable – the rule expresses preferences: prefers real
testimony in this case to hearsay, but prefers hearsay to nothing
o Problem 7.22 (p. 457)
 FACTS: Victim previously said boyfriend hit her but now refuses to testify; Prosecutor wants to
introduce evidence from grand jury testimony where victim said that her boyfriend hit her
 Not prior inconsistent statement (801(d)(1)(A)) because witness is not subject to cross-examination
here because she won’t take the stand, and also because it is not clear that saying “hit” in the past
and saying nothing now is inconsistent
 Step 1: Victim in this case is unavailable – falls under 804(a) – witness refuses to testify despite
court order to do so
 Step 2: Does not satisfy the (b)(1) test: party against whom this hearsay is being offered did not
have opportunity to cross-examine because only the prosecutor was present at the grand jury (so
since there was not even an opportunity, can’t talk about motive)
o US v. DiNapoli (2d Cir. 1993)
 FACTS: Alleged conspiracy to rig bids on building projects; 2 witnesses are called before grand
jury under grant of immunity, but still deny any knowledge about the bid-rigging scheme; at trial
for ∆s charged with bid-rigging, the two witnesses refuse to testify and invoke privilege against
self-incrimination; ∆s want to offer testimony of the two witnesses from grand jury where they
denied having any knowledge of the bid-rigging schemes (as 804(b)(1))
 Test:

56
  Witnesses are unavailable – 804(a)(1) – privilege
 Grand jury satisfies the former hearing requirement of 804(b)(1)
 Prosecutor is the party against whom the evidence is being offered, and he did have the
opportunity at the grand jury, since he was the only party present
 Court says that prosecutor did not have the same motive, however
o Grand jury is different because not trying to prove anything, just trying to determine if an
indictment is warranted; standards are different
 Doesn’t mean that there is a categorical rule against grand jury testimony – very
fact-specific
 In this case, Court says that prosecutor didn’t have same motive because the defendants have
already been indicted, and furthermore, the grand jury already said they didn’t believe the
witnesses’ testimony; also didn’t reveal all information about case because investigation was
ongoing
 Note: Don’t mistake this for a categorical rule! Often grand jury testimony is sufficient,
but analysis has to be fact specific
o Problem 7.23 (p. 457)
 FACTS: Car accident – Crewing charged with DUI; Morgan sues Crewing; in civil suit, Morgan
testified about accident and was cross-examined; later, Morgan suffers serious head injury and
unable to attend criminal trial; prosecutor sought to read into the record Morgan’s testimony at the
earlier trial
 Does it pass the test
 Testimony as witness
 At another proceeding
 Was there similar motive?
o Might be different motive depending on the potentially different outcomes between civil
and criminal trials
 Need to know what the punishments are
o Might be same because trying to prove liability in both cases
 Notes:
 Context is key
 Not just a criminal law rule
o 804(b)(1) mention of civil context: if a predecessor in interest had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect
 In criminal cases, the party against whom the evidence is used has to be the same party – no
substitution allowed
 In civil cases, can be same party or can be a “predecessor in interest” – more flexible in civil
context
 Lloyd v. American Export Lines, Inc.
 FACTS: Fight between two crew members on ship – L sues the ship company (E) and E joins
A as third-party ∆ and A, in turn, counterclaims against E; L fails to appear, despite best
efforts of everyone involved, so his claims are dismissed, leaving A v. E; on the side, there is
a cost-guard proceeding to decide whether L’s mariner’s license should be revoked or
suspended – L appears and testifies at this proceeding
 ISSUE: Can E introduce evidence of L’s testimony at Coast Guard proceeding against A
 Test:

57
 o L is unavailable under 804(a)(5) – unable to procure attendance despite reasonable efforts
o Is it within scope of 804(b)(1)
 Other testimony of witness
 At another hearing – court notes that coast guard proceeding had professional
examiner, documentary evidence, testimony under oath, and direct/cross-
examination
 Who is the party against whom old testimony is being used?
 Alvarez – he personally did not have opportunity to participate in coast guard
proceeding
 Coast guard was party who had opportunity to question and cross-examine L at
proceeding
 Is Alvarez and Coast Guard similarly situated enough to let the Coast Guard stand in
A’s shoes to satisfy the requirement – i.e. is the coast guard A’s “predecessor in
interest”
 Court says yes: there was sufficient community of interest shared by Coast
Guard and Alvarez
o Same basic interest: determining culpability and exacting penalty if
appropriate
o Court prefers hearsay to nothing at all
 Concurrence: doesn’t agree with court’s construction of “predecessor in interest” – too broad
o Should instead refer only to privity – applies, for example, when buy property
o Concurrence is correct as matter of common law, but court disagrees with this applying
now
o Way court reads “predecessor in interest” makes it superfluous or redundant – its
interpretation seems more like similarity in motive, which is a separate prerequisite in the
rule
 Notes:
o Courts can and do differ on this issue – how broadly or narrowly to construe predecessor
in interest
o Advisory committee notes are not helpful here
o Prof disagrees with how court came out in this case

 Rule 804(b)(6): Forfeiture by wrongdoing

o RULE: A statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness
o If party makes the witness unavailable, the witness’s statements can come in against the party
o What you have to show to get in evidence under 804(b)(6) (judge decides by preponderance of
evidence -104(a))
 The party against whom the hearsay is to be used engaged or acquiesced in wrongdoing
 That was intended to render the declarant unavailable as a witness and
 That did, in fact, render the declarant unavailable as a witness
o United States v. Gray (4th Circuit, 2005)
 FACTS: ∆ told Wilson (witness) that she killed both of her husbands as well as her
cousin/boyfriend; ∆ collected insurance from the life insurance policies that the husbands took; 2nd
husband, Gray, was suspicious of ∆ and took steps against her – filed complaints, changed

58
 insurance beneficiary; prosecutor wants to introduce evidence of some of Gray’s complaints
against ∆
 ISSUE: whether Gray’s statements, which are hearsay, are admissible
 They are hearsay because they are being introduced to prove the truth of the statements
asserted – that ∆ did attack Gray
 Questions:
 Is the declarant unavailable?
o Yes – 804(a)(4) – Gray is dead
 Can we find an exception under (b) to the general ban on hearsay?
o Yes – 804(b)(6)
 804(b)(6) TEST
 Statements against whom the statements are to be used - ∆
 Did ∆ engage in any wrongdoing?
o Yes, she killed Gray
 Was action intended to render Gray unavailable as a witness?
o Court says yes – doesn’t matter whether ∆ had he eye on a particular trial, so long as she
had her eye on some kind of legal proceeding
o Also doesn’t matter whether this intention is only part of ∆’s plan – “defendant need only
intend ‘in part’ to procure the declarant’s unavailability”
 It did in fact render Gray unavailable
o Notes:
 Broad sweep of rule:
 Only requires part of intent
 Only requires eye on some legal proceeding, not necessarily on this one
 Can acquiesce in wrongdoing and still fit – don’t have to be the one who actually commits the
acts
 Significant interference is enough – don’t have to kill; can intimidate them and convince them
not to take the stand (see: domestic abuse cases)
 This is rule that is supposed to stop people from doing bad things, but also to punish people for
their wrongdoing
 These statements bear no particular relationship to trustworthiness – not about reliability or
necessity – about reluctance to let people or parties to manipulate the evidence rules to benefit
themselves and make the system look bad

 Rule 804(b)(3): Statements Against Interest

o Fatal Attraction Example: Husband’s confession to wife that he had an affair
 If wife on trial for mistress’s murder, if husband took the stand, then would not be hearsay for him
to testify to his confession – doesn’t matter whether he actually had affair, only matter that the
wife heard it – establishes motive
 If husband on trial, if wife took stand it would be hearsay, but would be allowed in as party-
opponent because offered against the person who said it
 If husband was dead, and mistress on stand
 Declarant is unavailable – he is dead
 Is this covered by 804(b)(3)

59
 o Was statement contrary to pecuniary interest or subject the husband to civil/criminal
liability
 Could – divorce is costly, could be subject to criminal liability
o A reasonable person is unlikely to confess an affair if didn’t actually have one
o Idea behind rule is that hearsay admitted if the personal costs associated with making statement are so
high that reasonable person would only say it if they were true (and probably not even say it then
either)
 Certain statements are so personally damning that most people would not say them if they were not
true
o TEST:
 Statement is so far contrary to declarant’s general livelihood or so far tended to subject declarant to
civil or criminal liability
 A reasonable person in declarant’s position would not have made the statement unless it was true
o If hearsay implicates declarant and exonerates the accused, then evidence not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement
o Williamson v. United States (1994)
 Rule 804(b)(3) only includes those statements which are self-inculpatory
 When have a long narrative that includes both self-inculpatory and non-self-inculpatory parts,
must separate the statements into discrete parts
 Only the statements that are self-inculpatory are admissible under 804(b)(3)
o Problem 7.24 (p. 469)
 FACTS: Truck robbed by man and woman; police go to Barton’s house – Barton is suspect;
Barton’s mom asked him if he robbed the truck and said not to lie; Barton said “Ask Magnolia. It
was her idea”; at joint trial of Magnolia and Barton, Magnolia objects against introduction of the
evidence against her
 Is evidence admissible against Barton? This is a statement by party-opponent
 Is evidence admissible against Magnolia to show proof of matter asserted (that it was her idea)?
 Not co-conspirator statement because not in furtherance of conspiracy
 804(b)(3)
o Barton is unavailable because he has invoked privilege
o Was Barton’s statement made against interest?
 Taking the statements apart don’t work because they will not make sense separately
 If recast the statements so that “Ask Magnolia” meant “I did it” then it would come
in as self-inculpatory, while the “It was her idea” is self-exonerating, so wouldn’t
come in

 Rule 804(b)(2): Dying Declaration

o TEST:
 Has to be homicide case or civil action
 Declarant has to believe that death is imminent (even if she is wrong) – settled hopelessness
 Statement has to be about the causes or the circumstances of the death
o Policy behind the exception: Reliability argument – don’t want to die lying and wouldn’t waste last
moments lying; Necessity argument – declarant unavailable
o Shepard v. United States (SCOTUS, 1933)

60
  FACTS: ∆ convicted of killing his wife – poison with mercury; evidence was conversation
between ∆’s wife and nurse where wife said that ∆ poisoned her
 In order to fall within “dying declaration,” must have spoken without hope of recovery – swift and
certain doom
 HOLDING: There was no indication that ∆’s wife would certainly die - fear or belief in death not
enough – need “settled hopeless expectation” – spoken with consciousness of swift and certain
doom
 Judge decides whether this is satisfied by preponderance of evidence
 Need to know whether declaration based on conjecture or actual facts

Hearsay Exception: 803: Hearsay Exceptions; Availability of Declarant Immaterial

 803(1) + (2): Present Sense Impression and Excited Utterances

o FRE 803(1): Present Sense Impressions. A statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately thereafter.
o FRE 803(2): Excited Utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
o TEST for 803(1)
 Statement describes or explains an event or condition
 Made while declarant was perceiving the event or condition, or immediately thereafter
o TEST for 803(2)
 Statement relating to a startling event or condition
 Made while declarant was under the stress of excitement caused by the event or condition
 Subjective standard – assessing whether the person as the person was under the stress – not a
reasonable person standard
 Declarant must have personal knowledge of situation
o Theory of exception (1): circumstances may produce a condition of excitement which temporarily stills
the capacity of reflection and produces utterances free of conscious fabrication
o Theory of exception (2): you are captured by startling event and don’t have time to fabricate
o Problem 7.29 – Dog Mauling (p. 492)
 FACTS: Dogs maul a woman in hallway – one leads to bite, the second leads to death; victim calls
her partner after the first attack to tell her that she was bitten; at the end of the day, victim relayed
more details to her partner
 Is there any way to get the conversation to partner in
 Could argue that phone call was much closer to event
 Question is whether she was still under the stress of the situation when she made the call
 Conversation later on is harder to say that she was under the stress of the situation – longer you
get from event, more time you have for reflection and therefore might skew facts in your favor
o Problem 7.30
 Same underlying facts, but here dealing with evidence of neighbor calling 911 at the time that the
attack is taking place
 ∆ offering the evidence to show that she made an effort to control the dogs
 911 calls are a huge issue under 803 (1) and (2)
 Is it hearsay if offered to show that ∆ was doing her best – yes
 Does it fit either 803(1) or (2)
 803(1)
61
 o Describing an event
o As it is happening
 803(2)
o It is a startling event
o Still under stress of situation – says that she is a wreck
o But has to testify from personal knowledge – hard to know here because she said she
didn’t open the door, therefore don’t know if she actually saw anything
o Problem 7.31 (p. 493)
 FACTS: Wife tells officer that her husband beat her, but at trial she denied that husband hit or
pushed
 If officer testified, would be hearsay if offered to show what happened
 Could offer evidence to impeach the witness – but it can’t come in substantively, leaving the jury
with nothing for jury to rely upon when determining guilt or innocence (if that is the only evidence)
– so prosecutor has to get it in substantively
 Prior inconsistent statement doesn’t work because wasn’t a proceeding and wasn’t under oath
 Prior testimony doesn’t work because she is not unavailable and because ∆ didn’t have opportunity
to develop her testimony through cross
 804(b)(6) (forfeiture by wrongdoing) – don’t know if ∆ rendered the witness unavailable
 803(2) – excited utterance
 It was a startling event
 Can argue that she was still under stress (still rubbing head), but could also argue that she was
not under stress

 Rule 803(3): Statements of Then-Existing Condition

o TEXT: A statement of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed unless it relates to
the execution, revocation, identification, or terms of declarant’s will.
o Murder trial clip – wife talking about being pregnant with another man’s child
 Evidence is hearsay
 803(3) – statement from wife about needing to disappear is a statement of future plans
 Would not fall under 803(3) if offered to show that wife had sex with other men, and wouldn’t fall
under rape shield law because the case is not about sexual misconduct
o Rule allows evidence of people’s plans – has to be a prospective statement (about what you are going
to do in the future, not the past)
o Idea behind rule is that person less likely to lie about things happening in the future
 Critics say that it is easier to lie about one’s intentions than about nearly anything else
o Eliminate two testimonial capacities when talking about future things – No faulty memory or faulty
perception because talking about how things are now
o Problem 7.33
 FACTS: Boy disappeared, and evidence sought to be introduced from friends who said he told
them he was going to meet someone in parking lot to get pot – boy disappeared after walking into
parking lot
 Prosecutor wants to introduce testimony from friends to show:
 That disappearance was not voluntary

62
  That defendant was involved in the involuntary disappearance

Under Hillmon, testimony would be let in because it shows what victim was planning on doing

Under 803(3), would not get the same result
 Some would come in, and some would not (look at last sentence of 803(3))
o Have to divide statement: “I’m going” from “with Angelo”
 “I’m going” is prospective and admissible
 “With Angelo” not admissible because not allowed to let things in based on past
facts or facts recalled – depends on victim’s memory – the fact that he was going to
meet Angelo
 Anything that requires us to believe the recollection of the declarant is not
admissible
 “I’m going to parking lot and then I’ll be back” – all admissible under 803(3)
 “I went to the parking lot yesterday” – inadmissible under 803(3) because it is backward-looking
 “I remember seeing Angelo in the parking lot yesterday” – recollection-focused so inadmissible
under 803(3)
 “I am going to the parking lot to meet Angelo and get a pound of pot”
 All in under Hillmon, but “I am going” only part in under 803(3)
o Mutual Life Insurance Co. v. Hillmon (1892)
 Hillmon rule not identical to 803(3) – more expansive
 Allows both evidence of Walters’s plans as well as the fact that Walters was planning on going
with Hillmon
 Why concerned about keeping out past events – if allow people to talk about things they recall
about then-existing conditions, then the hearsay rule effectively doesn’t exist
 Under 803(3), latter part not admissible because to say that Walters is going with Hillmon, must
rely on Walters’s memory of past agreement with Hillmon

 803(4): Medical Statements

o TEXT: Statements made for purposes of medical diagnosis or treatment and describing medical history,
or past or present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.
o TEST: Three types of statements that rule covers (disjunctive – only need one):
 Medical history
 Past/present symptoms
 Inception or cause
 Statement is reasonably pertinent to diagnosis or treatment
o Policy behind rule:
 Reliability
 Patient motive – patients have strong incentives to tell truth when seeking medical services
 Professional deference to doctors – if it is good enough for doctors, then it is good enough for
courts
 Necessity: Some people are more comfortable talking to doctor than in court – setting matters
o How does policy shape application (two-part policy test)
 (1) Is the declarant’s motive consistent with the purpose of the rule;
 (2) Is it reasonable for the physician to rely on the information in diagnosis or treatment
 How to combine policy test with rule’s test

63
  Statements about medical history ok if it fits within the rule – so long as treatment sought and
statement given in order to receive treatment
 Reasonably pertinent to treatment – would a doctor reasonably rely on the information in
diagnosis or treatment
o Problem 7.37 (p. 520)
 FACTS: Wife arrives home and finds husband sick in bed; he says he thinks he ate some bad meat
and points to takeout food carton from Downtown deli; husband later dies of arsenic poisoning;
suit brought against deli for negligent supervision of employee who was poisoning food
 Following evidence admissible?
 Wife’s testimony about her husband’s statements and gesture – offered to prove that he had
eaten food from Downtown Deli
o Compatible with rule – he is describing his symptoms, reasonably pertinent to allow
physician to diagnosis
o Notes:
 Have to assume that husband is speaking from personal knowledge of what he ate
 Have to assume that implicit assertion is true – he was fine until he ate the food
 Seems like it might be an assertion of fault or cause – line between the two is
difficult – cause is permissible, but fault is not
 Ex: Patient’s statement that he was struck by automobile would qualify but not
his statement that the car was driven through a red light
 Not allowed unless clear that it will help with diagnosis
 Doesn’t matter that husband said it to wife instead of physician
 A nurse’s testimony that when wife called the doctor’s office, she said that the husband told
her he ate bad meat from deli – offered to prove that wife’s husband had eaten food from the
Downtown Deli
o Hearsay within hearsay – each prong of hearsay must be admissible on its own
 Husband to Wife: admissible under 803(4)
 Wife to Nurse: admissible under 803(4) because still fits test – wife is relaying
symptoms in order to obtain medical treatment for her husband
 Rule’s text does not require that the patient be the speaker
 Generally, courts allow family members statements too, so long as it fits the test
 If it didn’t work with this, could also try to admit it under excited utterance –
wife would have to have heard the statements, and would still be under the
stress of the situation
 Wife’s testimony that when doctor arrived he said that all signs point to arsenic poisoning and
that hospitalization would be needed immediately
o It is hearsay
o Exception?
 Doesn’t seem to obviously fit 803(4) because it is not the patient talking, or someone
talking to the doctor on behalf of the patient – this is the doctor talking
 Some courts permit such statements from doctor to patient, but others allow them
 Although statement does seem to fit the test, some courts strain to apply the rule
to statements made by doctors
 Could also fit as present sense impression – 803(1)
o United States v. Iron Shell (8th Circuit, 1981)

64
  FACTS: ∆ convicted of assault with attempt to rape a nine-year-old; girl told her doctor that ∆
tried to rape her
 ISSUE: whether statements she made to doctor are admissible hearsay under 803(4), specifically
whether the statements are reasonably pertinent to providing medical care
 HOLDING: statements are admissible because they are reasonably pertinent to providing diagnosis
 Is what girl says an assertion of fault (or criminal wrongdoing)
 Yes, because she says that he tried to rape her
 Why did court allow statement even though it is assertion of fault?
 The statements are going to help the doctor, so court allows them
 803(4) treats doctors as doctors, regardless of the reason why they were retained – doctors retained
for diagnosis are usually retained only in order to testify as a witness
 Incentive to be truthful might be reduced in these cases; therefore hard to justify treating all
doctors as doctors because it seems to go against the policy considerations of 803(4)
o Problem 7.35 (p. 516)
 FACTS: Child has broken arm, goes to doctor, who sees what appears to be slap marks on his face
and mark on chest; ∆ says that he slapped his child, and then he fell off the porch; at trial,
prosecutor calls doctor to say that child told him that he was playing with his father’s records, they
got dirty, and the father got mad and twisted his arm
 If evidence offered to prove that dad was guilty of assault and battery – hearsay (want to show that
father actually twisted the kid’s arm)
 Exceptions? – 803(4)
 Child was talking about the inception or cause of the injury
 Was it reasonably pertinent for provision of medical care?
o Don’t know if cause actually matters in situation where arm is broken, but it might matter
whether arm was twisted or whether he fell from high distance
 Complications with exception fit
 Statements of fault – statements of fault are admissible when they are helpful to provision of
medical care – so evidence will likely come in if the doctor testifies that the statement was
helpful to him in medical diagnosis
o What’s helpful here is the twist, what is fault is that the father did it
 Court in this case allows in statement that arm was twisted, and excluded the
statement that the father did it
 Other courts might allow it all because the latter evidence is important for the
psychological treatment of the child
 Age of declarant: children may not know not to lie to doctors, or they might respect them as
authority figures – but it might be good to remind them not to lie
o Problem 7.36 (p. 517)
 FACTS: Prosecution wants to offer 5-year-old’s hearsay account of alleged sexual abuse made to
doctors; ∆ argues that the doctors never talked to the child about the importance of the child’s
truthfulness
 Questions
 Does this argument generally work? – Most courts allow doctor-child communications
o Not a uniform or blanket rule that it doesn’t matter that declarant is a child, but it is rare
that the evidence is excluded
o NOTE: federal courts don’t recognize a doctor-patient privilege

65
 803(5): Recorded Recollection
o TEXT: A memorandum or record concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect
that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may
not itself be received as an exhibit unless offered by an adverse party.
o Recorded recollection may be used to refresh a now-forgetful witness’s memory
o TEST (conjunctive test – must satisfy all steps):
 Forgetful witness must be on the stand
 Witness must have firsthand knowledge of event
 Record has to have been made at or near time of event
 Witness lacks recollection now
 Witness vouches for the accuracy of the recorded recollection
o Notes
 Witness must actually say a bunch of things while testifying
 Knew then, but now lacks ability to recall
 There’s no requirement that witness herself had made the record
 Witness can have recollection refreshed by record someone else made
o Why have rule
 Necessity – if witness forgets, then either have the recorded recollection, or nothing at all – court
prefers to have something over nothing at all
 Reliability – if it is made right at time of event, then it more likely that recollection is accurate
o Two rules that dictate mechanics
 803(5) – record may be read into evidence, but may not be received as an exhibit, unless offered
by an adverse party
 612 – must notify opponent, must redact info not related, and party must not cheat
o Johnson v. State (Criminal Appeals of Texas, 1998)
 FACTS: ∆ on trial for ordering execution of Frank Johnson Jr.; Taylor makes detailed statement to
police after murder that describes what he saw; at trial, Taylor takes stand and won’t cooperate
 Statement is hearsay if offered to prove that ∆ ordered hit
 Does it fit under 803(5): fits in most ways except witness doesn’t vouch for accuracy of the
recorded statement
 Court says that witness must acknowledge accuracy of statement at trial – statement cannot verify
itself – 803(5) not met
 What can prosecutors do when a witness is uncooperative?
 Try to get that statement in a different kind of testimonial posture – testify at grand jury and
then suggest that this is a prior inconsistent statement under 801(d)(1)(A); get them at a
preliminary hearing where they would be subject to cross-examination – can rely on 804(b)(1)
for former testimony
 Hard to develop another route because prosecutor would have to anticipate that witness will
be uncooperative years down the road
o Problem 7.38 (p. 521)
 FACTS: Hit and run – bystander (Menandier) sees the license plate number, yells it out, and then
another bystander (Sullivan) goes into house and writes down plate number on envelope; Sullivan
testifies that she never saw the plate number, and that although she remembers writing the number
down, she no longer remembered it
66
  Hearsay within hearsay
 Menandier to Sullivan: admissible under 803(1) or (2) – likely excited utterance
 Sullivan to Envelope: 803(5) – Sullivan on stand, had first-hand knowledge of what
Menandier yelled, record made, Sullivan lacks recollection now, and Sullivan vouches for
envelope
 Procedural problem is that the Rathburn wants to offer the envelope itself, which is not admissible
– can’t be received as exhibit because ∏ is not the adverse party
 Menandier then testifies that he memorized the plate number, but now forgot it – envelope used to
refresh, and now he remembers it
 M on stand, had firsthand knowledge, there is record, M now lacks knowledge, and he
vouches for the envelope

 803(6) & (7): Business Records

o FRE 806(6): Records of Regularly Conducted Activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the course of regularly
conducted business activity, and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or
other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute
permitting certification, unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness. The term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether or not conducted for
profit.
o FRE 803(7): Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph
(6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in
any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data
compilation was regularly made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
o 803(6) TEST:
 Records had to have been made at or near the time of the relevant statement
 By or from a person with personal knowledge of the statements
 Records kept in the course of regular business activity
 The business had regular practice of keeping this kind of practice
o Notes:
 Live witness must attest to all of the test (need not be one who made record) – that records made in
regular course of business and business had regular practice of keeping this kind of practice
 Beware of records made in anticipation of litigation – Palmer
 Dubious of these records because party may have a motive to be untrustworthy – “dripping
with motivations to misrepresent”
 Evidence not admissible when made by an outsider – don’t have same safeguards of regularity or
business checks – one way to get in outsider statements is if have evidence that business verified
the info
o Why allow admission of these kinds of business records
 Necessity – there are too many people involved in maintaining records to allow live testimony;
might not remember details; hard to track down the actual employee who made the record

67
  Reliability – If it is standard practice, there is less motive to lie
o Video clip
 Evidence not offered to prove truth of matter (not offered to prove that victim actually had meal an
hour ago, but instead to show that doctor was on notice)
 Assuming that it was offered for truth of matter, then it is hearsay and must look for exception
 Exception – 803(4) – statement made for purpose of medical treatment
 What if offering the record itself (no nurse testifying)
 It’s hearsay within hearsay – patient tells nurse, and nurse tells record
o Patient to nurse – 803(4)
o Nurse to record – 803(6)
 Test:
 Statement was made at time when she heard from patient
 Nurse had personal knowledge of what patient said
 It is regular course of business to make these kinds of records
 Regular course of business was followed in this case
 803(6) is satisfied

 803(8) + (10): Public Records

o TEXT: Records, reports, statements, or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed
by law as to which matters there was a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
o 803(8): certain public records are admissible despite being hearsay
 Three categories of public records (maintained by government entities)
 (A): activities of the office or agency itself
 (B): matters observed pursuant to duty, BUT not police reports used against criminal ∆s
 (C): in civil actions and against the government in criminal cases, factual findings resulting
from investigation made pursuant to authority granted by law, unless the sources of
information or other circumstances lack of trustworthiness
o What is policy behind allowing in these public records:
 Reliability – no incentive to lie; system has incentive to catch errors
 Necessity – too many people involved, no one will remember any particular data point
o Beech Aircraft Corp. v. Rainey (SCOTUS, 1988)
 FACTS: Navy training aircraft crashes; ∏’s theory is that crash was caused by defect in plane –
bring products liability claim; ∆ says that crash was due to pilot maneuvering
 ISSUE: whether ∆’s expert’s “JAG Report” can be admitted – had three parts: findings of fact,
opinions, and recommendations
 Can all of it be brought in, or just the findings of fact?
 Report is hearsay because admitted to prove the truth of the matter asserted – that plane crashed
because of pilot error
 Make sure to check that this is a public record
 This falls within 803(C) – investigative or evaluative report in a civil case

68
 Question is how broadly to interpret the category of 803(C)
 Should it be interpreted broadly – include whole report, so long as it contains facts
 Should it be interpreted narrowly – include only the facts
 Court says 803(C) should be interpreted broadly
 NOTE: Beech is altogether rule – allows evidence to be brought in together – don’t have to
separate the parts (like self-inculpating and non-self-inculpating evidence)
 Court’s discussion
 Text: Rule’s Language
o Court doesn’t agree with distinction in language between fact and opinion
 Not apparent that fact-finding limited only to facts
 Language of rule does not state that fact-finding are admissible, but “reports setting
forth fact-finding” are admissible
 Legislative History
o Contradictory – Senate says broad, House says narrow – so a draw
o Court puts weight on Advisory Committee since the House and Senate cancel each other
out
 Court says Advisory Committee only concerned with evaluative reports and that AC
and Senate are in accord with the wording of the Rule
 Practical Implications
o Analytical difficult of drawing line between fact and opinion – distinction between
statements of fact and opinion is, at best, one of degree
o Rule itself has an escape hatch built in – requirement that reports contain factual findings
bars the admission of statements not based on factual investigation – also still has to pass
403 – also has trustworthy provision
o Oates, Hayes, and Weiland
 Weiland tries to split difference between other two cases
 Question about admission against criminal defendant of item in penitentiary packet
 Can’t circumvent 803(8) by using 803(6)
 If not admissible under 803(6), are they admissible under another exception – they can come
in under 803(8)(B) because they are of routine and non-adversarial matters
o A Few Good Men clip
 Evidence is not hearsay at all (Lacy Peterson example) – lack of info about Code Red in book is
not an assertion about anything

Hearsay Exceptions: 807: Residual Exception

 Evidence that might seem to be admissible, but doesn’t fall within any of the other exceptions
 Some hearsay good enough for admissibility, even if doesn’t fall w/n another exception
 Courts can, but rarely do, use 807 – can only use in particular and narrow context
o Have to provide notice that you are using 807
o Has to be a statement about a material fact
o Statement has to be more probative than anything else reasonably available
o Has to fit general purpose of the rule

 Dallas County v. Commercial Union Assurance Co. (5th Cir. 1961)

69
 o FACTS: Clock tower on courthouse fell into courtroom; insurance company denied liability because
claimed that previous fire caused damage, causing current structural weakness – seek to introduce
evidence of a newspaper article from 1901 about a fire in the dome of the courthouse
o Is the newspaper hearsay: YES - Want to use article to prove that there was arson in the dome – prove
the truth of the matter asserted
o Exceptions to allow evidence in anyway
 Hearsay within hearsay
 Person to reporter – don’t know if there is anything (might be excited utterance or present
sense impression, but don’t know – don’t even know if person had personal knowledge)
 Reporter to newspaper – ancient documents – 803(16)
 News to court
 Only part of the hearsay chain is covered, so not covered by any exceptions
 Use 807
 Doesn’t fit under other exceptions
 Should still be admitted because most probative evidence available, about a material fact, and
it is necessary (maybe could find other witnesses, but their recollections are likely less
reliable); sufficiently trustworthy and accurate
o Two requisites to admit evidence under 807
 Necessity
 Trustworthiness
 Three sets of circumstances when hearsay is trustworthy
o Natural utterance
o Danger of detention/fear of punishment assures accuracy
o Made under conditions of publicity
 Draw link between allowing this statement and other types of evidence allowed – pull in other arguments
from other exceptions to strengthen argument for admissibility

Hearsay: Big Picture and Review

 STEPS:
o Is it hearsay?
 Definition of hearsay: out of court assertion offered for the truth of what it asserts
 Out of court means out of this court
 Assertion – Ask whether it is a statement, gesture, writing that has communicative intent
o Umbrella example
 For truth of matter asserted - Ask whether the jury is asked to believe whether the assertion is
true, or is it enough only that the person heard it
o Nothing is hearsay in some absolute sense – they are only offered because of why they
are offered
o Is there an exception?
o Is it admissible hearsay?
 Party-opponent
 Contexts where statements by party-opponent being used against party
 More likely to be reliable because they are more harmful to person’s case – not likely to same
something against your own interest

70
  Pre-reqs of admissibility - types of statements (judge determines these prerequisites of
admissibility – in federal court by preponderance of evidence – 804(a))
o Adoptions (including silence)
o Co-conspirators
 Test: …
 Court determines 104(a) question
o Agent/Authorization
 Part of protection is that in theory you can cross-examine the maker because the maker is a
party
 Another reason is that litigation is war – can use all available weapons against someone
 Prior statements by witnesses (D)(1)

 If they come in, they come in as evidence of substantive truth
o Note: If offered for impeachment only, then it is not hearsay (see 613 non-charater- not
for substantive truth ); also think about character use (607, 608- character , 609)
 Three categories
o Prior inconsistent statement
 Testified and subject to cross
 Under oath
 Trial or hearing
o Consistent statements
 Time requirement - Tomie rule – not just sufficient that made prior to this case, must
have been made prior to motive to fabricate arose
 Must be on stand
o Statements of identification
 Declarant unavailable 804
 Stepts
o 1) unavailable
o 2) does it fall in exception
 5 ways person can be unavailable
o rule focuses not only on reliability but also necessity
 Can’t use rule to make someone unavailable and benefit from rule
 Exceptions
o Former testimony
 Criminal – party has to have opportunity and similar movie- same party
o Dying declarations
o Statements against the declarant’s interest (not against the party necessarily)
 Statements by third parties that exculpate ∆ and inculpate the declarant – admissible
if and only if there is other corroborating evidence
 Not an all-together rule – have to separate the parts of the statement and take out the
parts that are not self-inculpating
 Contexts in which availability of declarant immaterial
 Announces a preference: live testimony to hearsay, but hearsay to nothing

71
  Declarant must speak from personal knowledge – only goes one step back: declarant must
speak from personal knowledge about event, and witness must speak from personal
knowledge about what declarant said (not about event)
 803(5) recorded recollection - works differently than others – need witness on stand
o read into record or introduced into the record by other party
o introduce the recollection of the live witness on the box
o Rule is based on the witness vouching for things he cant remember
 Witness can stonewall prosecition
 Public and private records – test must be satisfied – determined by judge by preponderance of
evidence
o 803(6) – big in context of police reports- is it a safety net?
 807
 Don’t consider it as a catchall – intended that the residual hearsay exception will be used very
rarely
 Courts are split on what 807 does – some say it covers the margins that the other exceptions
miss (near miss theory), while others say that it actually covers new terrain that the exceptions
didn’t contemplate

————————THE CONFRONTATION CLAUSE————————

Confrontation Clause: Then and Now

 Sixth Amendment’s Confrontation Clause provides that “in all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.”
 Idea is that evidence will prove itself more reliable when it is run through a procedural crucible – face-to-
face confrontation
 Core guarantee is procedural, not substantive – allow criminal ∆s to confront witnesses against them – more
specifically, to cross-examine them
 Scope of the Confrontation Clause
o Applies to criminal cases, where evidence is being introduced against criminal defendants – a right only
for criminal defendants
o Doesn’t apply to government or in civil cases
 TWO-PART TEST
o Whether or not particular piece of out-of-court assertion satisfies hearsay rules
 Does it satisfy definition of hearsay (i.e. is it hearsay – if not, then go straight to 403)
 If so, does it fit within any exceptions
o Whether admission of evidence would also raise problems under the Confrontation Clause
 The Roberts Era
o Ohio v. Roberts
o Drained Confrontation Clause analysis of independent meaning
 Crawford v. Washington (SCOTUS, 2004)
o Court doesn’t like old test because it was too unreliable
o All older cases are dead, except Maryland v. Craig
o Is what Crawford creates any better than the old rule?

72
 o FACTS: ∏ stabbed man who allegedly raped his wife after he and his wife go to man’s apartment to
confront him about the incident; Afterwards, both give their statements to police officers – their
statements are largely compatible, except about whether man had a knife when ∏ stabbed him (∏ says
that man had a knife when he went to stab him, but the wife says that he didn’t have a weapon; ∏
charged with assault and attempted murder; prosecution wants to use wife’s statement to police as truth
of what it asserts (that man didn’t have weapon at time)
o Statement is hearsay, but does it fit within exception – wife is unavailable (because of marital
privilege), so fits under 804(b)(3) for statements against penal interest
 But does this really fit under this exception (even though court says yes) – because the statements
have to be against wife’s interest, and it is not clear that this is the case – would only work if it was
about accomplice liability
o HOLDING: The Confrontation clause is violated because ∏ didn’t have a chance to cross-examine the
wife
o Court overrules Roberts
 Roberts is too broad (overinclusive) – covers evidence about which the 6th amendment is
completely indifferent – non-testimonial statements
 Roberts is too narrow (under-inclusive) – allows some things in that are within the principle focus
of the sixth amendment – like ex parte confessions against the accused
 Roberts assumes that sixth amendment is a substantive guarantee, when it is actually a procedural
rule – doesn’t matter whether evidence is reliable if it doesn’t come in through the proper
procedure (cross-examination)
 Reliability is a subjective concept – “inadequate anchor” for a constitutional guarantee
 Fact that courts were using a nine factor balancing test guarantees that different courts would
reach different results with no predictability
o 6th amendment only concerned with testimonial statements
o Test for Confrontation Clause
 Is statement being used against a criminal ∆?
 If against government or civil party, then sixth amendment not implicated
 Is statement testimonial?
 If not testimonial, then sixth amendment is not concerned with it
 If statement is testimonial, the statement is out unless . . . it fits within one of six exceptions
o Confrontation clause prohibits the introduction of testimonial evidence against criminal defendants
unless: (1) Green exception – if declarant is available at trial and is subject to cross-examination;
(2) non-hearsay exception – not using for truth of matter asserted;
(3) dying declarations;
(4) forfeiture by wrongdoing;
(5) Mattox exception – declarant unavailable but ∆ had opportunity to cross at some other point;
(6) if the statement is non testimonial **All on chart on page 609**
o Questions:
 How does that apply in this case: statement wife gives to cop was testimonial, so therefore it is
excluded under Confrontation Clause
 Are there any exceptions to this rule: yes, there are six of them
 What do Crawford’s key terms really mean: court does not resolve what “testimonial” means
 Notes:
o Fit – hearsay and Confrontation Clause fit together

73
 o Focus – confrontation protection only helps criminal ∆s
o Form – confrontation clause governed by test in Crawford – prohibits use of testimonial statements
made elsewhere against criminal defendants

Open Terms: Testimonial vs. Non-Testimonial

 Testimonial:
o Ex parte in-court testimony or its functional equivalent – materials such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecutorially
o Statements to police with an eye towards trial
o Solemn declarations for purpose of proving a fact
 Non Testimonial:
o Some business records, statements in furtherance of conspiracy, offhand remarks, statements made to
avoid emergency
o Statements made during emergency- reporting
 No firm definition of testimonial

Davis and Primary Purposes

 Davis v. Washington and Hammon v. Indiana (SCOTUS, 2006)

o Davis: 911 call from domestic violence victim and reports battery; after fact the defendant runs, but
operator continues to collect information about the defendant (tells victim to stop talking and listen to
questions)
o Hammon: another domestic disturbance call – police arrive and wife is on porch and husband is inside
– police obtain the wife’s story (this is after the alleged incident occurred)
o Is Davis 911 call hearsay if offered to prove that husband hit wife – Yes; does it fit within exception to
hearsay rule – present sense impression and/or excited utterance
 Are there confrontation clause concerns: (some yes, some no)
 Statement being used against defendant
 Is it testimonial?
o Are Hammon statements from wife hearsay – Yes; exception: could be present sense impression or
excited utterance (so long as wife is still in state of excitement) – would need to know more facts
 Sixth amendment concerns: fails – court says use of evidence is barred by sixth amendment
o Why is one of the statements classified as testimonial, and therefore prohibited (unless fit into
exception), while the other is largely non-testimonial?
 Has to do with purpose of the statements at the time they were made – “primary purpose” test
o To determine whether evidence is testimonial, consider:
 Whether it fits within established categories (see p. 579)
 Primary Purpose test
o What part of 911 call is testimonial?
 Prosecutor would want entire 911 call to be considered non-testimonial
 Argument that it is all non-testimonial because declarant is very fearful, even after the
boyfriend leaves
 Problem is that there is a change at some point –

74
  Defense attorney would want it all testimonial – argument would be that there was no ongoing
emergency and at time of call, ∆ was either leaving the scene or gone; furthermore, 911 operator
was mining the declarant for facts
 When the statements are both testimonial and non-testimonial, need to ask what the person is
primarily focused on? - it seems like, at least up to a particular point, the operator is addressing an
emergency
 More realistic attorney would say that it was ongoing emergency until point where ∆ leaves the
house (and certainly after point where operator tells victim to stop talking and answer questions,
this is testimonial)
 What about the statements in between these two points
o In suspect-at-large cases, courts seem to be focusing on:
 Immediacy of declarations or statements to the point when the person leaves the house
 Magnitude of the danger (are there weapons, etc.)
 Particularity of the risk to that particular victim
 Primary Purpose test
o Statements are non-testimonial when made in the course of police interrogation under circumstances
objectively indicating that he primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency
o Statements are testimonial when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution
 Notes:
o This is an objective, not a subjective test – doesn’t matter what actual purpose was, but what the
circumstances suggest
o Still unclear where we are focusing the inquiry – on the cop or the declarant? - Answer seems to be
what a reasonable police officer would do if an officer is involved, and seems to be what a reasonable
declarant would perceive purpose if there is no officer involved
o What about mixed purposes – if there is anything that suggests that it is not testimonial, courts are
inclined to keep in rather than keep out
 Problem 8.1 (p. 616)
o FACTS: Wife delivers letter to neighbor because she fears that husband is trying to poison her
o ISSUE: is this letter admissible?
o Full test:
 Is letter hearsay if offered to prove that husband poisoned wife – yes
 Is there an exception – 803(3) then existing condition (that wife is not planning on committing
suicide, and therefore if she dies, it is from some other reason)
 Sixth amendment questions
 Used against criminal defendant
 Is it testimonial?
o Seems testimonial by categorical approach – purpose was to create a factual record
o Also seems testimonial by primary purpose approach – primary purpose of letter is for
use in later criminal prosecution
 If it is testimonial, then it is excluded unless it fits into an exception
 NOTE: can make testimonial statements to non-law enforcement

75
  NOTE: What if in letter, instead of saying that husband was trying to poison, it said that if wife
went missing, to look for her in a particular location
 Then it would be a request for help in the context of an ongoing emergency – therefore
nontestimonial
 Problem 8.2 (p. 617)
o FACTS: Woman found strangled and burned in her home; two men break into victim’s home and
Glanville tells story to his nephew, Carballo
o Is it hearsay – yes
o Exception – maybe – might be statements against the declarant’s interest 804(b)(3)
o Confrontation Clause
 Used against criminal ∆
 Are statements testimonial?
 Could be casual remarks made between acquaintances (categorical approach)
 Primary purpose approach – primary purpose of statement was not to be used in criminal
prosecution
o Not dispositive, but important that Glanville not talking to police and is just talking to his
nephew

Confrontation So Far

 TEST:
o Hearsay
o If it’s admissible hearsay, does Confrontation Clause prohibit admission of the evidence
 Is statement being used against criminal ∆?
 Is statement testimonial?
 How know whether statement is testimonial?
o Whether it fits into a category outlined in Crawford
o Primary purpose test – whether statement is part of ongoing emergency
 Exception
 Out-of-court declarant appears in court
 Declarant unavailable now, but ∆ could have cross-examined declarant at some point
 Dying declarations
 Forfeiture
 If not being used for truth of matter asserted (it’s not hearsay)
 If it’s not testimonial

Additional Questions: “Non-Testimonial,” Kids, Forfeiture, and Melendez

 Non-Testimonial Statements
o There is no sixth amendment protection for non-testimonial statements and permits their admission
even if they lack indicia of reliability
o New law is only retroactive when:
 The case decriminalizes something
 Bedrock rule of fundamental fairness – if it is likely to make outcomes of trials more accurate

76
 o Crawford not retroactive – Crawford not designed to make outcomes more accurate, just to fulfill goals
of the sixth amendment

 Statements from Child Victims

o General rule is that it doesn’t matter if these are child statements are not – at least in federal court –
focus on the questioner when determining primary purpose
o Problem 8.4 (p. 625)
 FACTS: 4 year old screamed, woke babysitter, saw ∏ leave girl’s room; Babysitter questioned her
immediately after scream; Mother questioned her 30 minutes later; Officer questions her 45
minutes later; Nurse and doctor questions her 4 hours later; At trial, child didn’t testify, but no
finding of unavailability
 Can group these statements:
 Babysitter and mother – similar role to child and similar time
 Officer
 Nurse and doctor
 TEST for mother and babysitter statements
 Hearsay if offered to prove that the guy did the things the girl says she did
 Exception: excited utterance – even when mother questions her
 Being used against criminal ∆
 Are statements testimonial to mother and babysitter
o No – responsive to ongoing or recently passed emergency - not within the category of
testimony that is testimonial, so need to think about primary purpose – this was not
designed to elicit facts for later trial
o Therefore statements to mother and babysitter are admissible
 TEST for police officer statements
 Still hearsay
 Exception – may or may not still be excited utterance (it’s subjective, so would have to know
more about the girl’s state of mind at the time)
 If it is admissible hearsay:
o Still against criminal ∆
o Is it testimonial – categorically, like an interrogation or examination (look at
circumstances was kid calm, is it recorded, no immediate danger); under primary purpose
can go both ways – since haven’t caught guy, officer can try to be addressing continuing
emergency (at-large problem), or can say that mother and babysitter already addressed
the emergency and therefore the officer is just gathering information for future trial
 TEST for nurse and doctor statements
 Still hearsay
 Exception – 803(4) – statements pertinent to medical treatment or diagnosis (raises concern
about whether children know whether or not they should be honest to doctors)
 Against criminal ∆
 Testimonial? – non-testimonial: primary purpose of questions asked by doctor/nurse is for
treatment

 Forfeiture

77
 o Should the defendant get to invoke the protections of the Confrontation Clause when the declarant is
unavailable because of the defendant’s actions?
 Broad notion of forfeiture - ∆ forfeits anytime he or she makes the declarant unavailable, no matter
what the reason
 Problem is that there is near circularity – what you are on trial for is exactly what is being
determined for the issue of forfeiture
o Jury would have to find by beyond reasonable doubt, but judge only needs to find by
preponderance of evidence
o Court concerned that if adopt broad definition, will have judge apply preponderance of
evidence standard and then have it bootstrapped into beyond reasonable doubt
determination for same exact crime
 Narrow notion of forfeiture – applies only when you can show that ∆ intended to render the
declarant unavailable (can be part of reason, doesn’t have to be entire reason)
o Problem 8.5: Forfeiture Motion (p. 626)
 FACTS: ∆ charged with violating domestic protective order, but closer to trial the victim backed
out and said she would drop charges; she refuses to testify, and says that if she is forced to testify,
then she will say she lied; ∆ says that the victim is the abuser and that she is lying; prosecutor
wants to introduce grand jury testimony (categorically testimonial)
 ISSUE: whether the declarant is unavailable
 TEST:
 Hearsay
 Admissible hearsay if determine that there is forfeiture (note: this is all happening pre-trial, so
it is procedurally odd because don’t know for sure whether or not she is going to show up
 Used against criminal ∆
 Statement is testimonial (categorically)
 Exception?
o Forfeiture – argument that it is forfeiture is that the cycle of domestic abuse is making her
too scared to testify;
o the argument against it being forfeiture is that the couple is really trying to make up – the
court will have to decide by preponderance of evidence – Must also ask whether conduct
was designed to keep her from testifying
o Giles: All nine justices announced their readiness in many domestic-violence cases to evade the
apparent outcome of Giles by attributing to the defendant’s history of abuse and ultimate murder the
purpose of ridding the victim as a witness against him
 Therefore, seems like in domestic violence cases, won’t need to ask whether it was ∆’s purpose to
render declarant unavailable – it will just be assumed

 Forensic Reports – Melendez-Diaz

o ISSUE: Whether affidavits are “testimonial” rendering the affiants “witnesses” subject to ∆’s right of
confrontation under the sixth amendment
o FACTS: ∆s arrested and found substance – lab report determines that it was cocaine; at trial, report
admitted but no technician or forensic person took the stand
o HOLDING: These reports are testimonial under the sixth amendment and are therefore inadmissible
o Although called “certificates,” they are clearly affidavits (categorical)
o TEST:

78
 Hearsay
Exception – business record or public record
Sixth amendment:
 Being used against criminal ∆s
 Testimonial – yes – court says they are categorically testimonial (does not use primary
purpose test) – But even if apply primary purpose test, still testimonial, because this
information is prepared for the sole purpose of use at trial
 Exception: putting the technician on the stand
o Notes:
 Court merges and adopts all ideas of “testimonial” – all things listed in categorical approach
 What are the practical consequences of having to put technician on the stand
 Could be hard the right person, and have to pay them to show up for court – financial
consequences are immense
 States came up with “notice-and-demand” statutes to get around the negative implications of the
decision: Idea is that prosecution needs to notify criminal ∆ about any way that reports are going to
be used, and someone will testify in court only if the defendant requests it
 Court says that the simplest form of this notice-and-demand statute is constitutional

————————BRUTON————————

Co-Defendants and Bruton

 Bruton doctrine concerns out-of-court admission made by accomplice during joint trial – admissible against
accomplice as statement of party-opponent, but inadmissible against ∆ because of Confrontation Clause
 Bruton v. United States (1968) (Pre-FRE)
o FACTS: ∆ and Evans tried together for armed robbery; Evans confessed to postal inspector that Evans
and ∆ committed armed robbery
o ISSUE: whether admission of Evan’s confession violates Bruton’s confrontation clause protection even
if it is admitted only against Evans
o RULE: violates CC of co-defendant (Bruton) to introduce Evan’s confession, even if that evidence is
admitted only against Evans
o This rule applies even when there are jury instructions – it is likely that jury would believe all parts of
confession, including the parts implicating Bruton (court doesn’t trust jury to follow even very clear
jury instructions)
o Apply normal steps for each defendant separately
 Either: admissible against both (don’t need jury instruction); (2) admissible against neither (also
don’t need J.I.); or (3) comes in against one and not another (not admissible at all)
o Subtext: (1) Stakes of game too high to rely on jury instruction (naïve assumption that prejudicial
effects can be overcome by jury instructions is an unmitigated fiction); (2) Might be convenient to have
joint trials, but convenience does not trump the constitution
 How to you get out of the Bruton problem?
o Sever the trials (more costly)
o Separate juries
o Bench trials

79
 o Have confessor take the stand
o Redactions
Bruton Applied

 Problem 8.6: Dog O’War (p. 649)

o FACTS: Dog owners have been corresponding with members of Aryan Brotherhood in prison – in one
letter, Noel says that Knoller refers to scheme of raising aggressive dogs as “Dog O’War” operation;
prosecutor wants to introduce Noel’s statements to show that they had notice of the dogs’
aggressiveness
o TEST:
 It is hearsay
 Is it admissible hearsay against Noel – yes (statement by party opponent)
 Is it admissible hearsay against Knoller – possibly statements in context of conspiracy (but not
clear that anything illegal going on here, but that doesn’t matter – don’t have to be charged with
actual conspiracy); maybe could be a statement against interest (but not necessarily against
economic or pecuniary interest)
 Statement issued against Noel but it is his own statement, so no CC problem
 Statement issued against Knoller is against criminal ∆
 Is the statement as issued against Knoller testimonial – no, more like casual conversation between
friends (not categorical), and primary purpose not to establish facts for future trial
 Therefore, if not testimonial, the sixth amendment is not implicated
 Evidence is therefore admissible independently against both parties – Bruton does not apply
 Bruton does not apply whenever there are two defendants – only applies when you run
through the analysis for both parties and it ends up different – admissible for one and
inadmissible for another – here, it is admissible against both

 Interlocking Confessions – Cruz v. New York (SCOTUS, 1987)

o FACTS: When police were investigating J.C.’s murder, brother N.C. told police about visit from ∏ and
brother when ∏ told N.C. that ∏ and brother went to rob gas station, ∏ was shot by attendant, and then
∏’s brother killed the attendant; brother confessed crime to police; at trial, brother’s taped confession
against brother only – also N.C. testimony against ∏ (only evidence against ∏ directly linking him to
crime)
o ∏ has a strong Bruton claim with his brother’s confession, except here there is added element of N.C.’s
testimony (interlocking confession)
o Can’t introduce evidence of interlocking confession to eliminate the Bruton problem – it makes not
difference
o Own confession is irrelevant – Bruton applies regardless, even if own confession is devastating
o RULE: Interlocking confessions are never pertinent – never change Bruton analysis
o Question:
 Was this sweeping and broad rule – no, court could have just used a factual determination – since
N.C.’s statements are suspect
 Why sweep so broadly
 Administrability – if make case-by-case factual analysis, makes each case contingent on lots
of factors, which is difficult for courts to deal with; prosecutors also in hard spot because
don’t know if they can rely on other confession or not

80
  Timing – have to guess about effect of statement before know what that effect is

 Redactions – Gray v. Maryland (SCOTUS, 1998)

o FACTS: Beating death – AB confessed and said he, ∏, and others beat her - ∏ and AB tried together
o Try to avoid Bruton problem by taking the statement that implicates both of them and taking out ∏’s
name and inserting “deleted”
o Redaction is sometimes a permissible way to solve Bruton problem, but using “deleted” or “__” or
other symbol is not permissible (see Richardson v. Marsh – ok if redaction eliminates all traces of the
co-defendant’s presence; although don’t need to go as far as Richardson necessarily)
o Redaction in this case is inadequate because redaction doesn’t do any work – inference between ∆ and
deletion is too obvious and too short, especially when there are follow-up questions
 Court says that deletion might even underscore the fact that the person is ∆ and not someone else
o Better alternative? – Rather than “Me, “deleted” and others,” use “Me and others”
o Note: This is delicate – can’t make it so obvious that deletion is ∆, but don’t want to scrub statement in
way that over-implicates the confessor (sometimes if you remove the other person you are just left with
the confessor, which is different to say that person acted alone rather than with others)
 Redactions – Pronouns (Problem 8.7)
o Fire at construction site killed 6 firefighters; DE gave tape-recorded statement that BS and RB made
her take them to gas station, where they told her they would start a fire at construction site so they could
rob it – she says she would not take part but she drops them off
o At trial, the defendants’ names were replaced with pronouns: him, they, etc.
o Tries to go precisely between Richardson and Gray
o Is it too obvious about the codefendants?
 Have to assume that if they are all on trial together, that there is other testimony that talks about
this situation and who was in the car, etc. – pool of “they” is so narrow that it probably doesn’t
deflect away from the other defendants
 Inference is too tight
 Either makes her look too culpable or too evasive – might make gap between real and perceived
distribution of fault so weird that jury would disregard it
o 8th circuit allows it, but it is a close call

Evidence and the Confrontation Clause: Quick Look

 Step one: Hearsay (doctrinal question)

 Step two: Confrontation Clause (6th amendment question)
o Question 1: who the out-of-court statement is being used against – 6th amendment only concerned with
statements used against criminal defendants
o Question 2: Is out of court statement testimonial (2 approaches – both used by courts)
 Categorically testimonial/nontestimonial
 Testimonial: solemn declarations or affidavits, custodial exams, ex parte statements, prior
testimony, confessions to law enforcement – declarant thinks they will be used in subsequent
proceedings
 Nontestimonial: statements to acquaintances, statements for other functions, casual remarks
 Primary Purpose Test (often looking at primary purpose of questioner, but not always clear)

81
  Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating 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 is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecutions
 Things to consider:
o Police involvement
o Formality of circumstances
o Expectation of the speaker
o
o Question 3: Does it fit within any of the exceptions
 Green exception – declarant appears and is available for cross at trial
 Maddox/Crawford exception – past opportunity to cross
 Nontestimonial
 Nonhearsay use
 Dying declarations
 Defendant forfeiture (Giles)
 ∆ engaged or acquiesced in wrongdoing
 At least part of ∆’s intent to render declarant unavailable
o With domestic violence it is presumptively assumed to render the declarant unavailable
 Declarant was in fact rendered unavailable
 Other things to think about with confrontation clause
o What is testimonial – lab tests (how far can states go to encourage ∆s to waive right to have lab
technician testify)
o Joint trials
 Problem 8.3 (DOVE Interview) (p. 618)
o FACTS: Officer recorded statement of victim’s rape for purpose of filing charges – then took victim to
hospital; at hospital, victim signed form for exam that put victim on notice that the info might be used
in later prosecution; nurse practitioner conducted questioning – officer was present but couldn’t ask
questions
o Is the evidence hearsay if used to prove ∆ committed rape - Yes
o Exceptions? – 803(4) statements made for the purpose of medical diagnosis or treatment
o Sixth amendment analysis
 Being used against criminal ∆
 Are the statements testimonial
 Primary purpose – not quite an emergency, but still trying to find the person so there are some
conditions similar to emergency situation
o Notes:
 Fact that there is no clear answer is cost and consequence of court’s flexible approach – questions
are hard at the margins
 If it’s testimonial, then it is excluded
 Can separate evidence into testimonial and nontestimonial parts
 Same analysis applies to multiple defendants
 Steps:

82
 o Conduct Hearsay/Confrontation clause analysis for each ∆
o Consider the outcomes
 Admissible against both – then admissible
 Inadmissible against both – then inadmissible
 Admissible against one and inadmissible against other for reasons of hearsay
 Brothers murdered parents video:
 Admissible against one brother as statement against interest, but not against
other brother – in that situation, limiting instruction is not sufficient
 Options: separate juries, separate trials, redaction, bench trial, have confessor
take stand and allow cross-examination
 Redaction: courts trying to avoid so obvious a connection that jury knows who
it is anyway, but also trying to avoid scrubbing the confession of all other
involvements so that all the blame ends up on ∆

————————CHAMBERS AND COMPULSORY PROCESS————————

Chambers v. Mississippi (SCOTUS, 1973)

 BASIC RULE: the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense
 FACTS: two cops went to execute an arrest warrant and a crowd gathered to help prevent the arrest; riot
ensues and one of the officers is shot with a .22 caliber weapon – before the officer dies, he fires two shots:
one is erratic, but the other, taken with “more deliberate aim,” hits ∆; the police think that ∆ is dead so they
do not pursue him in the alley to see if he has a weapon
 At trial, ∆ has two defenses: (1) ∆ didn’t shoot Liberty (officer), and (2) McDonald shot Liberty
o McDonald confessed (sworn and signed) to police that he shot the officer, but later recants
o Testimony of three witnesses that say McDonald told them he shot Liberty
 Allowed in:
 One witness allowed to testify about McDonald’s confession, but jury is told to ignore it by
way of limiting instruction
 A gun dealer also testified that McDonald bought a .22 about a year prior to the shooting and
then another .22 three weeks after Liberty’s death
 Another witness allowed to testify that he did not have drinks with McDonald at the time of
the shooting, as McDonald claims
 Excluded:
 Some witnesses statements are not allowed (pertaining to McDonald’s confession)
 ∆ could not cross examine McDonald
o State had voucher rule: party may not impeach his own witness
 Under state law, were the exclusions appropriate?
o Statements of witnesses were excluded because they were hearsay and didn’t fall within any exception
– ok according to state law because under state law, statements are hearsay and statement against
speaker’s interest exception doesn’t apply because the state only allows this exception for statements
made against one’s own pecuniary interest, not penal interest
o Prohibition on ∆’s ability to cross-examine his own witness – ok under state law because ∆ called the
witness and the state has the voucher rule, which prohibits a party from impeaching his own witness

83
 Problem is that even if the state applied their own laws correctly, the combination of these laws created a
Constitutional violation – dismantled the ∆’s case too much
 Not clear that then-existing federal law would have been much different about these problems
o Voucher rule would not be controlling in federal court – any party can impeach any witness, regardless
of whether the party called the witness
o Statements against declarant’s interest also not available because declarant has to be unavailable, but
here, the declarant was available
 Court focuses on three things:
o Voucher rule is archaic and arbitrary
o Voucher rule, coupled with facts of case and operation of hearsay rule, lead to troubling result
(conviction of murder for someone who appears to have not done it)
o Not just troubling, but also a violation of due process
 TEST: Must show that
o (1) Evidence is trustworthy
o (2) Critical to ∆’s defense
 In narrow context in which declarant inculpates himself and exculpates ∆, the evidence will only be
admitted if there is corroborating evidence that demonstrates the testimony’s reliability
 Three lessons:
o Chambers is a difficult case legally
o The Constitution trumps inconsistent state or federal laws
o Chambers’ narrow holding has grown well beyond its facts

Holmes and Chambers Applied

 Holmes v. South Carolina (Unanimous opinion)

o FACTS: ∆ accused of sodomizing and murdering Stewart; the prosecution has a lot of forensic
evidence that implicates ∆, as well as witnesses who saw ∆ near the scene
o ∆ wants to introduce evidence from other witnesses who saw another man (White) at the scene (third
party guilt) or who heard White confess to the crime. Would be allowed in federal court:
 Testimony of what the witnesses saw would get in so long as pass 403
 Testimony about White’s confession might get in if White is unavailable
o State excludes the evidence under the state’s third-party guilt rule: this kind of evidence only admitted
if it raises a reasonable inference or presumption as to ∆’s own innocence – but not if it merely casts a
bare suspicion upon another or raise a conjectural inference as to the commission of the crime by
another
o Court says the state’s third-party guild rule arbitrarily and unconstitutionally limits a defendant’s ability
to present evidence in his defense
 Arbitrary= does not rationally serve the end that the rule and other similar rules were designed to
furhter
o It is not ok to look at the prosecution’s evidence and deem it so compelling that ∆ can’t present
evidence that someone else committed the crime
 The type of evidence matters: juries tend to over-weigh witness testimony and confessions, but under-weigh
expert testimony

84
 ————————LAY OPINIONS AND EXPERT TESTIMONY————————

Lay Witnesses: Rule and Applied

 FRE 701: Opinion Testimony By Lay Witnesses

o If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact
in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of
Rule 702
 Who gets to be a lay witnesses – Anyone who isn’t an expert
 What can they testify about
o Facts (implicit in 701, but explicit in 602)
o Opinions and inferences in particular contexts:
 Rationally based on perception of the witness (first-hand knowledge)
 Helpful to the jury
 Ask: if the jurors could judge the issue for themselves, and does the witness’s testimony add
facts above and beyond what the jury already has that is helpful
 Not based on scientific, technical, or other specialized knowledge (can’t be expert testimony)
 Problem 9.1 (p. 680)
o FACTS: Insurance claims investigator accuses ∆ of setting his truck on fire; investigator testifies that ∆
said “look mister, I’m just a poor man” and when asked how ∆ sounded, investigator answered that ∆
sounded depressed
o ISSUE: whether saying that ∆ sounded depressed is admissible
o Statement is an opinion
 Is it based on first hand knowledge: yes
 Helpful to jury: yes – jury would not be able to assess for themselves because the jury did not hear
∆ say it, and it adds something to the jury’s existing knowledge
o Investigator probably doesn’t have to lay a foundation before saying that ∆ sounded depressed –
ordinary language is appropriate
 Prototypical things that let lay witnesses opine about include appearances, identity, manner of
conduct, competency of person, degrees of light or darkness, sound, size, weight, distance, and
other things that can’t be described factually in words apart from inferences
 Problem 9.2 (p. 681)
o FACTS: Y charged with selling cigarettes to someone underage and wants to raise affirmative defense
that he reasonably believed the buyer to be of age; Y seeks to offer testimony of witness who says the
buyer appeared to be around 20 years old
o This is an opinion
 First hand knowledge: yes because the witnesses were familiar with the buyer
 Don’t necessarily have to lay a foundation, but it might be helpful to know why the person
thought the buyer was of age
 Helpful to jury?
 Jury can’t do it on their own because, even if the buyer is present in court, time might have
changed and the buyer’s appearance might have changed
85
  Added facts
 Don’t need any specialized knowledge – not expert testimony
 Can break testimony up into parts to see what is admissible and what is not
 Particularized vs. specialized knowledge
o Particularized to a trade the person is involved in – define the business very narrowly
 A witness’s “particularized knowledge” may be exclusive to that witness and et not be the sort of
“specialized knowledge” that falls “within the scope of Rule 702”
 Problem 9.3 (p. 684)
o FACTS: Witness testified that found bag of white powder belonging to ∆ and she tasted it and knew it
was cocaine
o First-hand knowledge: yes tasted it
o Testimony helpful to jury: yes, can’t try the powder themselves, and adds something over and above
what the jury has already
o Expert 702? – not really – particularized knowledge because she can identify the cocaine, but not
specialized
 Adv. Com. Notes- permitted witness to testify that a substance appeared to eb a narcotic, so long
as foundation of familiarity with the substance is established
 *this wouldn’t work if testified on how narcotic was made
 Ganier
o FACTS: ∆ tired to purge information from computer after a criminal investigation was started. ∆ said
he didn’t delete them and emails can be found by easy search.
o Federal Rule 16- in order to present him as an expert witness needed to give notice
 Government did not follow criminal procedure to make their witness an expert witness, so try to
make him lay witness
o Analysis
 Opinion
 First hand- yes
 Helpful yes-
 Expert 702? Yes
o Notes:
 Line between expert and lay witness not always clear
 (c) was added to prevent having “expert witness in lay witness clothing”
 Text of rules makes us draw distinction between lay and expert witnesses
 Type of testimony permitted to expert witnesses is different from allowed by lay witnesses (lay can
offer only generalized opinions)
 Expert can do more- generalized opinion not based on first hand knowledge (lay can’t do that)
 Weight that jury is likely to assign witness depends largely on the label on the witness – likely to
give more weight to experts
 Problem 9.4:
o FACTS:
o Don’t need expert because it is a really easy code to decipher
 no specialized knowledge there was nothing sophisticated
don’t’ be fooled by fancy words

Expert Witnesses

86
 Generally
o
o FRE 702: Testimony by Experts
 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.
o Expert Witnesses Generally
 702 Rule:
 Specialized scientific, technical, knowledge will help the jury
o Don’t need formal education
 Witness qualified as an expert by knowledge, skill, experience, training, or education
 Testimony is based on sufficient facts or data
 Testimony is product of reliable principles and methods
 Witness has applied the principles and methods reliably to the fats of the case
 Ask Five Questions:
 Qualification – is expert qualified to be expert in this case
 Topic – is expert addressing topic appropriately
 Basis – is there sufficient basis for testimony
 Methods – are they employing methods that are adequate
 403 – would it be permitted under 403

 Qualifications
o Problem 9.6
 FACTS: detective called to testify. Was qualified absed upon his experience and training.
o Problem 9.5 and US v. Johnson
 FACTS: Witness said he could identify Columbian pot because he had smoked it more than 1000
times, identified it over 100 times, and sold it more than 20 times
 Not a lay witness – not like woman who identified the cocaine – this person was identifying where
the pot comes from – difference between saying “this is pot” and “this is Columbian pot” (see
supplement p. 180)
 More intricate elements
 Could he qualify as expert?
 Skill and experience – its had to say whether smoking pot leads to botonical expertise of
marijuana.
 This is a narrow question of only qualification
 Not credibility question- can be discredited since he smoked pot a million times
 Jury doesn’t have to believe the testimony –
 in Johnson there is another expert who says cannot tell the origin of pot – can have dueling
experts and have jury decide who to believe or whether to believe either at all
o United States v. Jinro

87
  FACTS: international frozen chicken contract dispute. Want to bring expert to say that this is
Korean business practice. Qualifications: trained as investigator in Korea, served 5 tours in Korea,
marries a Korean woman.
 Should qualification have excluded him?
 He may have been qualified through his expertise – but that doesn’t mean that testimony
should have come in
 Remember to keep the qualification question separate from the other 702 questions

 Topics and Conclusions

o FRE 704: Opinion on Ultimate Issue
 Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.
 No expert witness testifying with respect to the mental state or condition of a defendant in a
criminal case may state an opinion or inference as to whether the defendant did or did not have the
mental state or condition constituting an element of the crime charged or of a defense thereto.
Such ultimate issues are matters for the trier of fact alone.
o Notes:
 Expert witness can talk about anything that will help the jury and is beyond common sense realm
of jury
 Expert witnesses can’t testify about things that a jury could easily and sensically figure out on their
own –has to assist jury

Matters of Common Knowledge

o Problem 9.7 (p. 700)

 FACTS: Libby accused of lying and he says that he had faulty memory – has expert witness to
testify about memory errors
 Will this info help the jury learn something they wouldn’t know on their own or is this within the
realm of jury common sense
 Expert uses the most basic example that a jury would likely know without the expert telling
them about it –life happens and you forget things everyone knows this!
 Just uses fancy vocabulary
 Court says that average juror understands the frailty of the human memory
 Ask: would a reasonable juror have known this?
 Why do we care whether expert witnesses talk about things that are common sense matters
 Relevance – waste of time concern – 403 problems
 Concerned with the sway of expert witnesses –even if go off tangent and talk about irrelevant
things will still be powerful
o Problem 9.8 (p. 701)
 FACTS: Two companies register trademarks: match and matcho – expert witness (English
professor) testified that sounds and spellings of “match” and “macho” are similar enough to be
confusing
 Don’t need an expert to tell the jury that the sound and spelling of two words are similar – question
is whether an average person would be able to figure this out on their own (even a child would
know this)

88
  Common sense-
o Problem 9.9 (p. 702) (Racially exclusive ads)
 FACTS: Marketing for housing area only has white people in the ads; ∏s want to introduce
evidence of expert witness on the effect of the ads – that having only whites in ads has adverse
effect on African Americans (makes them feel less welcome and feel like they are not as able to
apply for housing in that area)
 ISSUE: Is this a proper topic? – Does it add anything to lay person’s assessment
 District crt- Could say that it is just common knowledge that racially charged ads have effect
on people
 7th cir. - Could also say that such evidence contextualizes conventional wisdom – conventional
wisdom might be wrong in whole or in part – expert information exceeds everyday
information
o Doesn’t have to be perfectly helpful – just aid jurors
o i.e. if talks about particular effects of advertisments in certain markets- the more detailed
it is the more it’s possible to me specific topic
o NOTES:
 Expert witnesses must talk about proper topics – can’t just talk about common topics wrapped in
complicated words—must aid jury in some way
 Reason for topic requirement:
 Jury is likely to overweigh because the person is an expert

Opinions On Law and Opinion on Ultimate Issues

o Question: what if topic is not too obvious or too peripheral, but too legal?
o Rule 704(a): Can discuss ultimate issues
 Limitations
 Needs to be helpful to jury
 Can’t usurp the role of the jury – can’t tell them what conclusion to reach
 Can’t usurp the courts(judge) rule
o Rule 704(b): Experts can’t testify about mental state of criminal defendant if mental state is an element
of the defense or the crime – “Hinkley exception”
 Hinkley was acquitted by reasons of insanity – public outcry
o Problem 9.10
 FACTS: ∆ goes to several stores and purchases items that are all used in making
methamphetamines – also went to store with his wife, who made similar purchases, but paid
separately; expert witness testifies that the combined purchases were made with the intent to make
drugs
 Analysis
 Qualified as expert- beyond knowledge
 Topic- manufacture of drugs
 Would be ok, and probably necessary, to have expert talk about how to make methamphetamines
 Problem is that he uses the word “intent” and this is a legal term with particularized legal meaning,
especially when charged with intent in crime – chemist is not allowed to tell the jury what “intent”
means, that is for the judge
 Experts can’t compete with judges on matters that are within the court’s expertise

89
  This expert steps on the judge’s and the jury’s toes
o Ask: is the expert just telling the jury what to do
o RULES:
 (1) Law is up to the judge
 (2) Expert witnesses may speak to and opine on ultimate issues so long as not stepping on judges
toes or telling the jury what to think
 Ex: Did T have capacity to make a will (impermissible because just telling jury what to think)
vs. Did T have sufficient mental capacity to know the nature and extent of his property and
the natural objects of his bounty and to formulate a rational scheme of distribution (ok)
 A lot of this is packaging
o Hygh v. Jacobs
 FACTS: ∆ got drunk and got into a fight with gf. Jacobs(cop) comes and gets in a confrontation
with Hygh,; hits him with flashlight. Expert said it was excessive force.
 Paradigm example of the expert telling the jury what to do
 Expert defines “deadly physical force”; makes conclusory condemnations
 Don’t actually reverse though because it was determined to be harmless error – there was enough
other evidence to prove this.
o Problem 9.11 (p. 707)
 FACTS: At trial, there is a question whether person was shot in the back or while facing the officer
- officer says that he was facing officer with gun and thus self defense; victim says he was running
away when shot; expert testifies that the person could have been turning towards the officer and
pulling out a gun, and that the officer was credible because he could have easily been mistaken
 Expert was asked if ∆ was lying? Said no because all cops know that forensics will find out how
person was shot thus cops wouldn’t lie
 Could have been ok if didn’t talk about officer’s credibility but rather relied on the underlying
facts and forensic evidence
 Break it up
o State v. Batangan
 FACTS: ∆ accused of having sexual contact with daughter – daughter waited some time, reported
abuse, recanted, reported sexual abuse, recanted, but then testified at trial to abuse
 Clinical psychiatrist testifies about
 child sexual abuse victims and
 concludes that the witness is credible and
 that she was abused
 Kids behavior is different, especially in sexual abuse cases – so a normal person’s conceptions
about lying might be totally off in these circumstances
 But you can’t just say this person is believable or truthful
 Problem is that witness takes over the role of the jury
 Expert testimony assists the trier of fact by proving “a resource for ascertaining truth in relevant
areas outside the ken of ordinary laity”
 Jury does not need expert to explain that the victim’s behavior is consistent or inconsistent with the
crime having occurred
o United States v. Hines
 FACTS: ∆ charged with bank robbery – witness had questionable identification – expert brought in
to talk about cross-racial identifications

90
  CONCLUSION: Testimony is allowed because does not usurp role of juries, just refocuses the
jury’s analysis – provides the jury with more info
 Never tells jury what to do- indirect way
 This once again looks like we are just playing with semantics –but we have to leave the jury to
draw the inference and define the terms themselves

 FRE 403
o Notes:
 (1) 403 does apply to expert witness testimony, just as it applies to most everything else;
 (2) expert witnesses present real risks of things that 403 seeks to prohibit:
 jury confusion, delay, and overreliance in particular

 Basis
o FRE 703: Bases of Opinion Testimony by Experts
 The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing. If or a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence in order for the opinion or inference to be
admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their probative value in
assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
o FRE 705: Disclosure of Facts or Data Underlying Expert Opinion
 The expert may testify in terms of opinion or inference and give reasons therefore without first
testifying to the underlying facts or data, unless the court requires otherwise. The expert may in
any event be required to disclose the underlying facts or data on cross-examination.
o Core question: On what things (evidence, information, facts) may an expert witness base her opinions
and testimony? (703 answers)
 (1) Facts perceived by the expert before the hearing (firsthand knowledge);
 counterpoint- lay witness MAY have personal knowledge
 (2) Facts made known at the hearing or the trial (NOTE: typically where hypos are most used –
must have good faith basis for asking a question or hypothetical);
 why do use hypos? You don’t want to pay expert to listen and sit through entire trial
 need to have a good faith basis
 (3) Facts made known to the expert before the trial (this is hearsay evidence)
 If expert bases testimony on admissible hearsay, no problem
 If expert bases testimony on inadmissible hearsay, ok to rely on so long as of the type
reasonably relied on by experts in the field
o Only makes the evidence admissible for evaluative purposes, not substantive purposes –
“the fact that expert relies on inadmissible evidence 703 does not automatically transform
the inadmissible hearsay into admissible hearsay”
 Exceptions:
 Reasonable reliance: learned treatise—only read in (not physical)
 Reverse 403- only come in if probative value outweighs risk of undue prejudice.
 705- opposing counsel can get it on cross- examination
 Disjunctive list – expert can base knowledge on any or all of these things

91
o Brother’s Keeper Video
 Accusing expert of forming opinion in certain way because he was told that ∆ confessed to
murdering his brother – challenging the basis of the expert’s opinion – saying that it was a
combination of personal knowledge (examination of the body) and facts made known to the expert
before trial (∆’s confession)
 Analysis
 Basis- not facts before trial, not facts during trial, police report (hearsay)
 Determining whether the expert can rely on ∆’s confession
o Delbert confession  cop  report  court: hearsay within hearsay
o First layer (∆ to cop): statement by party opponent – admissible 801(d)(2)(A)
o Second layer (cop to report):
 803(8) although may think it is public record, rule excludes criminal matters
observed by the police, so it is inadmissible
 803(6) not business record
 Even though evidence is inadmissible, still must ask whether this is the kind of fact that an
expert in that field would reasonably rely on
o Not bad to rely on all available information- should be attentive to all info
o On other hand, confession may not be particularly helpful to a medical examiner
 Report will not come in, except as a basis for the expert’s testimony –
o IF the otherwise inadmissible information is admitted under the balancing test, the trial
judge must give a limiting instruction upon request, informing the jury that the
underlying information must not be used for substantive purposes
o Problem 9.12 – Stashing Guns (p. 721)
 Expert to testify that people typically store weapons in engine compartment in order to deny
knowledge of the guns presence
 Expert says that qualification is rooted in experience – LAPD
 Expert says that testimony is based on interviewing 50 to 60 criminals per day in the county
jail (facts made known to him before trial)
 Would be inadmissible hearsay (basis) – so question is whether it would be reasonable for expert
in this field to rely on this information
 Do other experts do this (empirical question): Yes
 Is it reasonable for them to do this: Yes – might be no other way to gather this information
o might doubt this person’s story (because 50 to 60 per day seems like a lot), but it would
likely come in anyway
o Problem 9.13 – Doctor’s Note (p. 721)
 ∏ wants to introduce note that suggests negligence during his surgery – but person who wrote it
says he cannot recall what he relied on to write this note
 Basis:
 1) Expert basing testimony on facts made known to him before trial
 2) Would this information be admissible hearsay?
o Hearsay within hearsay: person  doctor  chart  court
 803(5) Might think recorded recollection (doctor to chart), but still doesn’t solve
person to doctor step;
 803(6) could also be business records, but note is not type recorded regularly during
course of business

92
  803(4)- statement for medical diagnosis – maybe?
 801(d)(2)(D) Statements by party opponents? – by agent of party? – so might be
admissible against the hospital, but would likely be inadmissible against other
defendants
 court didn’t go here but (d)(2)(D) does not require personal knowledge
 3) Would it be reasonable for experts to rely on this information?
o No – note is characterized as “bizarre” and therefore it would not be reasonable to rely on
such a note
 Bloom things 1st cir. got it wrong b/c expert said that it was “bizarre” that doctor
would admit to liability not the info in the chart.
o On other hand, not unreasonable for expert to rely on a person’s medical chart to form
opinion
 Judge decides this question – 104(a) standard: preponderance of the evidence

 Method and Daubert

o Whether the expert used reliable and relevant method in forming opinion
o Old rule: general acceptance (Frye) – must be sufficiently established to have gained general
acceptance in the particular field in which it belongs
 Notes:
 Benefits of general acceptance test – predictable, relatively easily administrable
 Costs of this test: once a method is accepted, it is hard to undo; tilts against new science
because sometimes it takes a while to gain general acceptance
 Although dead in federal courts, it is still alive in many states, including New York
o Daubert v. Merrell Dow Pharmaceuticals, Inc. (SCOTUS, 1993)
 FACTS: parents sue on behalf of children that drug cause birth defects.
 ISSUE: whether expert’s methods are reliable
 Three points:
 Frye has been superseded by FRE 702;
 Frye is incompatible with the Federal Rule’s liberal thrust; and
 District Court judges are gatekeepers
 TEST: How does a District Court go about determining whether method is sufficient:
 Reliability Question-
o Factors: (illustrative not exhaustive)
 (1) Whether or not method is testable (can it be falsified)
 if it’s testable its more likely to be reliable—meet the rigors of scientific
analysis
 (2) Peer Review
 not automatically good science- could be a community of charletons
 scientific community research can make it more reliable
 (3) Error Rate
 (4) Existence and maintenance of standards controlling the technique’s operation
 (5) General Acceptance
 (Frye)
 (6) (From 9th Circuit) Whether research was independent or performed for litigation
only

93
  was it generate before the dispute arose or after?
 This fact is not from SCOTUS but this list was not mean to be exhaustive
o Factors are flexible- list not exhaustive
 Relevance Question
o Method has to fit with what you are trying to learn
o Even if you cant define fit- - we know that it demands more than mere relevance
o Requires more than just basic relevance (more than the kind found in 401 or 402 test):
“Federal judges must exclude proffered scientific evidence under rules 702 and 403
unless thy are convinced that it speaks clearly and directly to an issue in dispute in the
case, and that it will not mislead the jury
 if all that you can prove is chance –not enough
 Notes:
 District Court judge is a gatekeeper – it casts judge as scientific evaluator about topics that
judges don’t know about – outside of judges’ expertise
 Daubert purports to be more generous than Frye, but that is not necessarily true – as a matter
of text, Daubert is more (looser) permissive about new things, but might be more restrictive
(stricter) of older science
 As matter of empirics, very little difference between Daubert and Frye
o Brother’s Keeper
 Conflicting expert testimony about asphyxiation
o Dueling experts
 If Daubert applies
 Judge makes the call
 Courts call pre-trial Daubert hearing to see if expert is good enough
 Judge is not asking if expert is correct by preponderance of evidence he is asking if he is
reliable
 If have dueling experts and are qualified both are admissible and jury decides
 All the science here is brand new
o 706- court can appoint their own experts- where court needs guidance
 this is expensive

o Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th 1995)

 Π did not satisfy 1st prong
 Made no showing of reliability as above
 Relied entirely on the experts’ unadorned assertions –presented only experts’ qualification,
conclusions and their assurances of reliability—under Daubert not enough
 did not satisfy 2nd prong
 Causation is pertinent inquiry –“whether will assist trier of fact”
 Π’s must prove that not that Bendectin caused some birth defects but that it cause THEIR
birth defects
o Experts would have to testify that either it actually caused π’s injuries (which they could
not say) or that Bendactin more than double the likelihood of the birth defects
o How far does Daubert’s text go?
 Scope of Daubert – specifically tied to scientific expert testimony
 Question is whether Daubert reaches non-scientific expert testimony - Yes

94
 Kumho Tire Company v. Carmichael (SCOTUS, 1999)
 FACTS: ∆ and others are injured when a tire blows out; ∆ offers tire expert to testify that tire
separation was due to defect, not overuse. District court excludes under Daubert b/c 11th cir.
said that Daubert doesn’t apply to scientific experts..
 HOLDING: Daubert applies to all expert testimony
 Why do we treat science different- arguments for : (they loose)
o The word science has more meaning
o Juror abilities and intuition makes it more likely to fool jurors even if its junk
 Reasons for holding:
o Text: 702 doesn’t make any distinction between science and non-science (rule lumps all
types of knowledge together)
o Practically speaking, there would be a huge line-drawing problem for determining
scientific from non-scientific expert knowledge
 No clear distinction between the two; invite squabbles when you don’t have to:
o Latitude what experts have is the same regardless whether its scientific or not.
o Juror intuition may be equally good or bad with all kinds of expert knowledge
o Would be weird irony if treated non-science differently – if decided that non-science
could come in more easily, then would end up with more junk science
 Ex: Forensic handwriting examination flunks Daubert test; because it flunks
Daubert, it is not science; because it is not science, it need not pass the Daubert test;
a much looser test of soundness applies; under this test, it is admissible
 Daubert Applied in this case:
o Not reliable
 Method: Problems with expert: expert disregards his own methodology (ignores 2 of
the 4 factors he says are important)
 Can’t estimate use of the tire
 Inspected only by photo so never seen it
 Concedes that this is subjective
o Not sufficiently relevant
 Fit fails-
 803(4)- medical diagnosis or fitness
 Notes: (3:20)
o Courts can do this gate keeping stuff
o Is this gate keeping stuff really worth the candle- should this just be done on cross
 More than just protecting the jury from charletons in experts clothing
 its about protecting crt from time waste
o don’t rely on cross-examination as much as we pretend—if we did our rules would look
different (don’t trust it )
o None of this proves that the expert is wrong, he may be right, its just his method.
o Daubert Applied
 Problem 9.15 (p. 784)
 FACTS: place a $ figure on the pleasure of life
 Analysis :
 (1) Is person sufficiently qualified: yes – professor of economics, trained in field,
publications, etc.

95
  (2) Appropriate topic: yes – because it has to do with the damages- even if something we
don’t believe we have intuitions
o not something jurors doing on their own
 (3) Basis (703 question) (discussing from appropriate basis?)
 Facts made known to expert before trial: evidence seems like hearsay, but even if it’s
inadmissible, it’s probably fine to use as a basis (published sources)
 (4) Method- Reliability: (Daubert factors)
 Is it testable: No – impossible to test the values that people place on things
 Peer review and publication: lots of publications about this
 Significant indication that it is taken seriously by other scientists…”increases
the likelihood that substantive flaws in methodology will be detected”
 Error Rate: problem with error rate is that you don’t know and can never know if
the expert is correct with regards to this victim or other people – the entire system is
speculative – it defines its own results – “wild guess”
 Control techniques
o General acceptance: very little evidence here that it is generally accepted
o Independent vs. Litigation focused: seems to predate the litigation
 2 fail, 3 pass
 What to do when not sure?
 (1) Recall first principles: goal of all of this Daubert analysis is to exclude junk
 so question is whether this is junk science: doesn’t seem like pure junk, but also
doesn’t seem like what it is supposed to be;
 (2) Relevant ?v- here probably not
 (3)Run 403 balancing test
o If you fail the Reliability portion of the analysis, then you are done, but on exam it would
still help to address the Relevance question

o Polygraph Evidence
 Why have it?
 Roots out lies
 Depends on things that are not easy to control
 Argument against
 Aura of infallibility despite the fact that there are mistakes made
 Invades the jury’s credibility role
 No limiting principle – if open door, then could have polygraph tests in every case and every
witness
o Once we figure out that they are good in certain situations how to we figure out when
they are not good.
 Notes:
 However, this is one of few places where juries follow limiting instructions fairly well
 Jury credibility issue? But we do that all the time with expert witnesses.
 ONLY New Mexico allows it generally
 Most jurisdictions allow polygraph evidence if both parties stipulate to it – but why allow
otherwise inadmissible evidence just because the parties stipulate to it?
o If we think the science is bad why would it be ok if it is stipulated to it

96
  Some jurisdictions allow polygraph evidence for impeachment or corroborate testimony if ∆
testifies and Gov impeaches ,
 no Confrontation Clause right to use polygraph evidence for exculpatory purposes
 Crumby:
 FACTS: ∆ worked at a bank and was identified as inside man by accomplice. ∆ submitted to
polygraph to prove his innocence—passed the test.
 ISSUE: Is polygraph admissible and under what circumstances?
 Four main concerns from Brown: 1) polygraph evidence is likely to be “shrouded with an aura
of near infallibility, akin to anscient oracle of Delphi” giving an overly significant, if not
conclusive weight ot he expert testimony; 2) polygraph evidnece is an opinion regarding the
ultimate issue in the case, rather than just one relevant issue; 3) polygraph evidence infringes
on the jury’s roles in determining credibility and 4) jurdicial resources will be unduly
consumed on the great deal of testimony required
 RULE
o Must provide notice
o Opposing party must be given reasonable opportunity to have its own competent
examiner administer polygraph
o some jurisdictions allow polygraph evidence for impeachment or corroborate testimony
if ∆ testifies and Gov impeaches ,
 but there is no Confrontation Clause right to use polygraph evidence for exculpatory purposes
 As resistant as courts are to this (except New Mexico), every court acknowledges that
polygraph evidence is not going away – Daubert leaves door open for polygraphs to get good
enough to gain admission
 Problem 9.14
 Judge let polygraph examiner testify about the procedure of the test and that ∆ was willing to
take the test; spoke “firmly and unhesitatingly”.
 ISSUE: should the opinion evidence been excluded?

————————AUTHENTICATION AND IDENTIFICATION————————

Basic Ideas

 FRE 901: Requirement of Authentication or Identification

o General Provision. The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims.
o Illustrations. By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:
 Testimony of witness with knowledge
 Non-expert opinion on handwriting
 Comparison by trier or expert witness
 Distinctive characteristics and the like
 Telephone conversations
 Public records or reports
 Ancient documents or data compilation

97
  Process or system
 Methods provided by statute or rule

 FRE 902: Self-Authentication

o Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect
to the following:
 Domestic public documents under seal
 Domestic public documents not under seal
 Foreign public documents
 Certified copies of public records
 Official publications
 Newspapers and periodicals
 Trade inscriptions and the like
 Acknowledged documents
 Commercial paper and related documents
 Presumptions under Acts of Congress
 Certified domestic records of regularly conducted activity
 Certified foreign records of regularly conducted activity

 Best evidence rule suggests that on occasion a party will have to produce original doc
 Authentication: Want to show that it is what proponent of evidence suggests that it is
 About FRE 901
o (a): Core question: is the evidence sufficiently reliable for the jury to see it, given what the proponent
says that it is
 What does the proponent say that the evidence is?
 Is the evidence actually that?
 Authentication questions are essentially Huddleston-like conditional relevance questions (Rule
104(b)) – relevant when jury can find by a preponderance of the evidence
 Notes: (1) Jury deciding, (2) by preponderance of the evidence
o (b): Illustrations – not a comprehensive list
 Note: Authentication is not the same as admissibility
 Caution: Authentication does matter, but should not consume evidence analysis

Authentication Applied: Documents and Voice

 Problem 10.1 (p. 808) – “To Send Money”

o Want to introduce evidence that defendant filled out the slips
o Authentication question: how do we know that the ∆ is the sender – can we authenticate these
documents such that we can show that ∆ is the sender?
 What does the prosecutor purport the evidence is? – that it is evidence of ∆’s involvement in the
crime – not just a western union slip, but one that was filled out by ∆
o Ways to authenticate:
 Handwriting analysis
 901(b)(2) – non-expert familiar with ∆’s handwriting not acquired for purpose of litigation
o (based on first-hand knowledge not acquired for litigation)
o very libraral –anyone can authenticate

98
  but very strict when litigation enters the realm
 901(b)(3)
o Comparison by trier – show the jury the western union form and also show a sample of
∆’s handwriting and let them compare
o Comparison by expert – same as above only with expert
 Circumstances and Context – 901(b)(4) - ∆’s name, address, and phone number were one them –
factors which would suggest that the slip must have been written by him
 Hearsay – can use it to authenticate so long as the hearsay is otherwise admissible
 Problem 10.2 (p. 809) – Handwriting Opinion
o US Postal Investigator who became involved in investigation and with that became familiar with ∆’s
handwriting – close question whether this was knowledge acquired for litigation
 901(b)(2)- o
 United States v. Stelmokas (3d Cir. 1996)
o ∆’s citizenship revoked because he lied during his interview for displaced persons – said was a teacher
when in fact working for Nazis during WWII in Lithuania
o Case based in part on documents that are about 50 years old (from about time of war) – prosecutor
purports the documents are solid evidence that ∆ was a member of the Schutzmannschaft and was not a
teacher as he says
o Court says the documents are authentic
 FRE 901(b)(8): Ancient Documents
 Evidence that a document or data compilation, in any form,
 (A) is in such condition as to create no suspicion concerning its authenticity,
 (B) was in a place where it, if authentic, would likely be, and
 (C) 20+ years old (NY differs with time period)
o Each is satisfied in this case
 In addition to satisfy the rule, ∆’s explanation is completely implausible - ∆ says that he was
framed – but there is no reason to frame ∆, and in addition, this is a weird way to do it, since all of
the documents were sealed
o Authentication question
 There are a lot of them but ask:
 “why would anyone want to frame the D, and is this the way they would do it”
 Problem 10.3
o Prosecutor wanted to admit a note from a car that had the license plate and car make of another car that
∆ was found in.
o Establish chain of custody
o Authentication and admisibiliyt two different things
o Analysis
 Handwriting analysis
 901(b)(2)- testimony of a witness
 901(b)(3)- comparison
o show a sample to the jury and let them compare it or expert compare
 Distinctive characteristics
 901(b)(4)- distinctive charactericts
o other distinctive characteristics like location
 Admissible hearsay

99
  901(a)- (:24)

 Phone calls
o Mere assertion of identity of a person talking on the phone is not sufficient evidence of authenticity
o Authenticating phone conversation
 Outgoing call 901(b)(6)
 W made a call tot the number assigned by the phone company to a particular person AND
 The circumstances show tat the person who talked ont eh other end was in fact the person the
caller was trying to reach
o Show circumstances: 1) self-identificaiton by person on other end; or 2) witness/caller id
of the voice
 Incoming phone calls
 Voice identification 901(b)(5)
 Distinctive characteristics 901(b)(4)
 Characteristic of speech itself, or the circumstance soft the call must render it improbable that
the caller could be anyone other than the person the proponent claims him to be
 Maria?! Video
o Tom hanks calls wife asking for Maria… woops?
o How do we authenticate phone call?
 901(b)(5)- voice identificaiotn
o I recognize my husbands’ voice it was him
 Clint Eastwood Video
o How to authenticate the recording of the call
 901(b)(5)
 If can’t authenticate, then there are reliability and relevance concerns
o How to authenticate: might be able to have Clint Eastwood testify that he knew the voice and had heard
it before
o What are content-based things that would help argument that this is authentic
 Caller doesn’t voice objection when Eastwood calls him “Booth”
 Caller mentions president’s like of a poem – so can show that ∆ knew about this fact
o 901(b)(5) and (b)(9) –can be combined

 Problem 10.4 (phone calls)
o Facts: *69 and pizza hut
o Can you authenticate voice familiarity?
 Only if you are familiar to the voice on the other end—if this is the first time you heard voice
(901(b)(5) wont work
o 901(b)(5)
 aural voice identification is not a subject of expert testimony
o 901(b)(6)- outgoing phone call(A); phone call made to place of business (B) PLUS 901(b)(9)
 we assume that *69 works,
 State v. Small (Ct. of Appeals Ohio, 2007)
o Victim told friend that he owed someone money and feared for his life – victim also made call to
someone regarding the money in presence of friend

100
 o After victim died, friend called the number that the victim had called – person had Jamaican accent and
said his name was Dominique (a name ∆’s wife said ∆ used)
o Distinction between comparison by trier and expert is great here: nothing in text of rule, but advisory
committee notes says that “aural voice ID is not a subject of expert testimony
o Could use jury comparison, voice ID by lay witness
o Facts/Circumstances that let you know ∆ was on the phone:
 Jamaican accent, going by name Dominique
o Could also look at 901(b)(6)

Authentication Applied: Photo and Video

 Notes
o These are not in most cases hearsay – not asserting anything, just physical evidence
o To authenticate a photograph, do not actually need the photographer herself to take the stand- only need
witness to take the stand and say that facts represented in the scene or the object correctly portrays the
facts (Dixon)

 Simms v. Dixon (DC Court of Appeals, 1972)
o FACTS: collision between automobiles driven—conflict between the testimony of collision.
Photographs of the automobile taken after the collision were excluded. Reverse.
o ISSUE: whether the person who took the photograph is necessary to lay the foundation. No
o Photographer is not necessary to lay a proper foundation for the admissibility of the proffered photos.
 TEST: whether the phots accurately represent the facts allegedly portrayed in them
o Here, court found that photos did accurately represent the facts but required the photographer to be
there to testify = reversible error
 Problem 10.5
o FACTS: After victim shot through window in presence of photographer, the two stage photos to show
what happened
o ISSUE: Are the photos what they purport to be – they claim to accurately show what happened at the
shooting
o Can probably authenticate victim’s position on the bed because photographer and the victim were there
and they can get on the stand and testify that the picture accurately portrayed what they saw
o However, the pictures that show what the shooter saw could only be authenticated by the shooter if he
took the stand, which he likely won’t -
 can’t use testimony of victim or photographer because they did not see this perspective
 Wagner
o FACTS: informant made a drug transaction that was recorded but was later unavailable to testify. ∆
argues that video was not properly authenticated b/c no “pictorial testimony” offered.
o COURT: pictorial tesitony is one theory of authenticating pho or video take it is not the only theory
 Silent witness theory- photographic evidence may be admitted upon proof of the reliability of the
process with produced the photograph or videotape 901(b)(9)
 Test: consideration of the following:
o (1)Evidence establishing the time and date of the photographic or video evidence;
o (2) Any evidence of editing or tampering;

101
 o (3) The operating condition and capability of the equipment producing the photographic
or video evidence as it relates to the accuracy and reliability of the conduct;
o (4) The procedure employed as it relates to the preparation, testing, operation, and
security of the equipment used to produce the photographic product, including the
security of the product itself, and
o (5)Testimony identifying the relevant participants depicted in the photographic or video
evidence
 Thelma and Louise Robbery Video
o How to authenticate the robbery video
 If cashier is available, then can have the cashier testify that the videotape accurately and fairly
represents the crime that he saw
 Ask if
 If cashier is unavailable, and there are no other witnesses:
 901(b)(4) – circumstantial evidence
 Chain of control – show that the tape hasn’t been tampered with – 901(b)(9) – “Silence
witness theory” – look at 5 factors:
o Evidence establishing the time and date of the photographic or video evidence;
o Any evidence of editing or tampering;
o The operating condition and capability of the equipment producing the photographic or
video evidence as it relates to the accuracy and reliability of the conduct;
o The procedure employed as it relates to the preparation, testing, operation, and security of
the equipment used to produce the photographic product, including the security of the
product itself, and
o Testimony identifying the relevant participants depicted in the photographic or video
evidence (Wagner)

————————THE “BEST EVIDENCE RULE”————————

 Basics:
o (1) Not about oral testimony;
o (2) About providing trier with the original evidence or a mechanically made duplicate in contexts in
which the content of the writing matters whenever possible
o (3) Trying to keep human recollection out of it
 Not about the best evidence but the most admissible
 Coverage: FRE 1001: Applies to writings and recordings, photographs, or their equivalents, but not oral
testimony
 What does it mean to prove the content of a writing or photograph, etc?
o
o We don’t require the original all the time but only when the contect of the writng, photo actually
matters
o Contexts in which the writing is in issue itself: what is in the “writing” is in some sense the case (e.g.
copyright cases, child pornography cases)
o When writing has independent probative value – when evidence is the only evidence you have of the
crime

102
 FRE 1002- Requirement of original
o Best evidence rule aims to assure that whenever, possible jury has access to an original or duplicate if a
case turns on the content of writing, recording or photograph
 Admissibility of Duplicates (FRE 1003): A duplicate is admissible to the same extent as the original unless
(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be
unfair to admit the duplicate in lieu of the original
o U.S. v. Jackson
 FACTS: ∆ was talking to officer who was undercover as a 14 yr old girl. ∆ went to meet up with
“officer” but changed his mind and never stopped; prosecution wants to admit “copy and paste”
documents of their conversation--∆ says that best evidence rule applies and prosecusiton omitted
parts that showed that he wanted to introduce his grand niece to person he was talking to. Original
files were erased during maintenance clean up
 ISSUE- can duplicates be admitted?
 Holding: A document is not admissible when it does not accurately reflect the contents of the
original
 Here, the conversation was offered in piece-meal
 Rationale : fraud prevention; distortion (faulty memory)
 TEST
o Does the best evidence rule applied?
 Ask whether the parties are trying to prove content of the writing, recording or photograph is at
issue-
 1) when the writing, recording or photograph is itself as issue in the litigation OR
o at issue ( at the heart of the issue)
 copyright
 child porno
 liabel
o not enough
 all that is proved is that the writing exists, was executed or was delivered
 incidental record memorized or evidence by writing
 transcript
 if trying to prove oral testimony
 photographs
 contra copyright
 2) when it has independent probative value
o is it the only evidence that you have? (can you prove the crime in other ways?)
 If answer no, best evidence rule doesn’t apply – done
 If yes, then have to follow the requirements of the best evidence rule – must have original or a
sufficient duplicate
 Unless, can satisfy the exception (Rule 1004):
o Originals lost or destroyed: all originals are lost or destroyed,
 unless the proponent lost or destroyed them in bad faith; or
o Original not obtainable: no original can be obtained by any available judicial process or
procedure; or
o Original in possession of opponent: at the time when the original was under the control of
the party against whom offered, that party was put on notice, by the pleadings or

103
 otherwise, that the contents would be a subject of proof at the hearing, and the party does
not produce the original at the hearing; or
o Collateral Matters: The writing, recording, or photo is not closely related to a controlling
issue
 Why have rule:
o Reliability
 (1) Don’t trust human memory (in certain context it cannot be relied on)
 (2) Fraud concern (especially when it really matters)

 Problem 10.7 (p. 828) – Perjury Trial

o Prosecution wants Rogers to testify that he was at prior hearing where government purports Lamarre
lied under oath at ∆’s instigation
o Best way to do this would be to just look at the transcript from the previous hearing – but don’t actually
have to have the best evidence available – so testimony might still be ok
 Lamarcr reported transcript  court

 Transcript is hearsay, but would be admissible as present sense impression
 Transcript is also self-authenticating
o This opens two question
 Is Rogers testimony ok?
 Why bring the testimony anyway?
o Is Rogers’s testimony ok? yes
 Perjury claim is not about content of transcript, but what Lamarre said – perjury is about what
person said, not what stenographer wrote down – very fine distinction
 Government is not trying to prove the content of the writing – they are proving what Lamarre
said, which happens to be in the writing, but that is only incidental – the writing is only one
way to prove what Lamarre said
 But if we were trying to prove what the transcript said ---that would be different
o Why bring it anyway?
 All part of a strategy
 “you lied to me on the stand” rather a piece of paper.
 Facts of the actual case- Roger is the person that was asking the actual questions.
o 403 analysis is necessarily relational to the alternatives
 there is probataive value in the testimony but is it too prejudicial
 Notes: Best evidence rule only applies when trying to prove something about the writing itself

 Problem 10.8 (p. 829) – Alice’s Restaurant II

o Restaurant was gutted by fire; neighbor told investigator that she saw man break into restaurant and
pour from gasoline can, then lit match and got away in car; the neighbor immediately wrote down the
plate number on a card, then testifies at trial about the plate number from memory (doesn’t use card)
o Does her testimony violate the best evidence rule:
 they are not trying to prove the contents of the card –
 what is at issue? trying to prove the license plate number itself
 this can be proved by the card, but also by her memory
o Notes:

104
  Card would be hearsay, but could be used to refresh the witness’s memory 803(5)
 If what prosecutor is trying to prove the number that is written on the card, then the best evidence
rule would apply
 Paul Newman video
o If nurse never told the doctor anything, but just gave him the chart, then would probably need to
produce the chart at trial to show that the doctor was negligent – contents of the form are the whole
case because the nurse never told the doctor about the things in the form – the form is all that the doctor
saw or heard
o What about nurse’s testimony that after the operation the doctor told the nurse to change the info on the
form so that he would avoid liability?
 Is this an Exception to best evidence rule? –
 say that doc destroyed original by tampering with it 1004(1), (they doctored the only part that
matters)
o – therefore the original form is useless or more likely to be useless
 Seiler v. Lucasfilm (1987)
o Seiler claims that Lucasfilm copied his “Striders”
o Problem is that ∏ can’t get the original sketches, so offers reproductions that were put together after the
movie came out
o Best evidence rule does apply to these kinds of drawings –
 within scope of the rule –
 text of rule says “or their equivalent” –
 so would be weird to allow photographs but not sketches –
 also same concerns apply here ( fraud, accuracy, frealiaty of human memory)
o ∏ is attempting to prove the content of the drawings – this is central to his whole case – so need the
originals or mechanically made duplicates in order to satisfy the best evidence rule
 (unless can satisfy 1004 –exceptions)
o Can we satisfy 1004 (exceptions)
 court says no because ∏ destroyed the originals in bad faith
 his is fraud—this is at the heart of it
 Problem 10.9 (p. 836) – GPS Data
o FACTS: ∆ charged with illegally importing pot – GPS devise found on ∆’s boat, which revealed that he
had take a route from Mexico, used the backtrack ; at trial, don’t have the GPS or the printout of the
route
o Best evidence rule applies because there is no other way of showing that the journey started in Mexico
(independent probative value)–
 so requires original or duplicate unless within exception
o Exception? Was the government behaving in bad faith –
 easy to say that they were negligent, but difficult to say that they were acting in bad faith
 crt said that even though not bad faith
o 403
o Notes:
 Even if you say that it wasn’t bad faith, still have to survive 403
 What if ∆ instead deleted everything on the GPS – then exception applies because the info was lost
through no fault of the government

105
 III. Privileges

————————GENERAL PRINCIPLES————————

 FRE 501: Privileges: General Rule. Except as otherwise required by the Constitution or provided by Act
of Congress, or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a
witness, person, government, State, or political subdivision thereof shall be governed by the principles of
the common law as they may be interpreted by the court of the United States in the light of reason and
experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or
political subdivision thereof shall be determined in accordance with State law.
 Evidence excluded could be perfectly reliable and relevant, but this is about broader social and public goals,
such as protecting privacy, legal representation or marital bond
 Evidentiary exclusions based on public policy similar to:
o Specialized relevance rules (407-411);
 ex- (408) encourage settlement; Medical offers (409) to encourage medical offers of
payments/good Samaritans
o Basics of propensity box (404b)
 ignore past acts even if probative because notion of entering court with blank slate
o Jury only rules- ex: determining credibility---social commitment/public policy to that approach
 Policies behind this evidentiary rule: (information screen)
o Utilitarian argument- helps society overall to allow people to talk freely and fully to certain people
 Better social benefits -
o Deontological/Rights based argument- certain rights we have that are so important and so wetted in
fabric of social culture that we are willing to sacrifice accurate judicial outcomes in favor of those
rights
 rights that one has to a private sphere- deontological basis to preserve these rights- government
should stay out
 Past of Federal Privileges Rooted in Common Law
o 1973- FRE first proposed and included 13 proposed rules for privilege
o Congress, in face of controversy, punts and passes general provision Rule 501 which gives duty to
elaborate federal privileges with the federal courts
 Rule 501 only privilege rule – Congress leaves it to court to elaborate federal privilege in light of
Reason and Experience
 1st Concern: ossification - rule will effectively freeze privilege law where it was in 1973
 2nd Concern: only controls in federal courts so leaves room for divergence between federal and
state privileges
 Allows forum shopping by parties
 Undercuts state’s policies by virtue of that privilege that they are trying to accomplish
 Erie doctrine included in Rule to solve this problem--- privileges are deemed substantive
which means federal courts, when adjudicating state claims, applies state privilege law
o Gets tangled when judge hearing both state claims and federal claims
 Separate state and federal claims in the same claims – pregnant with litigious
mischief

106
 Jaffee v. Redmond (SCOTUS, 1996) (psychotherapist-patient privilege)
o FACTS: ∆ shot and killed man and received extensive counseling (50 sessions or more) from LCSW;
∏ wants access to LSCW information for cross-examination privilege; ∆ claims privilege; District
Judge denies privilege and orders documents turned over; ∆ still refuses to turn it over and District
Judge asks jury to make adverse inference that the contents of the sessions were unfavorable to the D
o ISSUE: Does psychotherapist privilege apply here to D’s sessions?
o SC says balance not appropriate and need absolute rule (reasoning below)
 General Presumption is that duty of all litigants to give their evidence b/c public has right to
every person’s evidence - must give evidence as long as reliable and relevant
 Duty/presumption can be overridden when the demands of the public good transcend the call for
the evidence or the truth (the public good for keeping
 When do we know when public good outweighs duty? When reason and experience tell us
(Rule 501 language)
 Reason- does logic indicate this information should be shielded?
 Need confidentiality and trust when talking with psychotherapist in order to not chill
discussion---need services provided by profession to be good
o Same logic that informs attorney/client privilege; clergy
o If ∆ doesn’t trust her therapist, then she won’t be honest (the chill effect) and won’t be
mentally helped
 (Point 1)Note- no federal doctor/patient privilege but there are state privileges
o Court assuming doctors can rely on objective, physical tests so don’t need as much trust,
confidence and full/frank disclosure (this totally undercuts rationale for hearsay exception
for medical providers 803(4))
 (Point 2) Public good substantial here---facilitate appropriate treatment for individuals; mental
health of citizenry is of transcendent importance
 If erase privilege, won’t get much evidence anyway because conversation with therapist will
be chilled
o Lose-lose without privilege- minor – ppl won’t say anything at all
 Patients don’t get treatment; court don’t get evidence
o With privilege, win because get healthy citizenry
 Experience- have other jurisdictions tried it and how has it worked out?
 All 50 states and D.C have some form of this
 Proposed Rule 504, in initial proposal for FREs- not promulgated – some evidence
 Federalism concern---federal litigation will frustrate goals of state legislation
o Can apply in one court but not another; the patient won’t know what when the privilege
will apply
o HOLDING: court recognizes a psychotherapist/patient privilege
o Court adopts a absolute privilege – no balancing
 Categorical rule better because if make it’s effectiveness uncertain and contingent, then its benefits
will not be realized –
 Won’t have full disclose if person not sure if their convos with therapist will not be privileged
o Court neglects to define contours of the rule
 Don’t give the scope of the rule
o Social workers

107
  This privilege applies to social workers because logic is the same and not fair to punish poor who
can’t afford rich psychotherapist
o Scalia’s Dissent (4 prongs)
 1. Price too high for this privilege- selling out truth too quickly and Interest group capture-
lobbyists got a hold of the court
 truth didn’t win here, lobby did
 2. Psychotherapists and social workers are too different---many rules are based on status of
professional (have same convo with Mom and social worker but don’t privilege convo with Mom)
 3. No real chill without privilege and if don’t talk to therapist, its person’s loss
 4. States’ versions of privilege varies wildly and he hates inverse preemption (state law effectively
displacing and preempting federal law)
 Problem 11.1 (Relayed Threats) pg. 854
o FACTS: retired cop made threats through the years; therapist had duty to disclose those warnings and
cop knows the therapist is communicating those threats; insurance company tells cop they will stop his
benefits and he threatens someone from insurance company and therapist warns insurance company
about threat of violent retribution; cop gets indicted for extortion (trying to obtain property of benefits
through threats of force)
o Why might these threats, made to a therapist, not be privileged?
 Prosecution’s argument: cop aware that therapist was communicating his threats and could have
expected these to be disclosed too, so privilege shouldn’t apply
 (intent based confidentiality- privilege requires intent to be confidential; privilege only
extends to communications intended to be confidential)
 Confidentiality not defined in Jaffee case but usual understanding seems okay and consistent
 Policy of the rule does not apply—no public good
 Prosecution could also claim dangerous patient exception- serious threat of harm to patient or
others and can only be averted by disclosure
 Jaffee recognized this possibility but its contours are still highly contested
 Prosecution could also argue a crime-fraud exception- not confidential communication if made in
furtherance of crime or fraud
 Furtherance of crime here because using therapist as his conduit and the threat is the crime
 Note 501
o Leaves it open
o (:49)

 REPORTER SHIELD
o NY recognizes privilege –fed court don’t
 In re: Grand Jury Subpoena, Judith Miller (reporter’s privilege)
o FACTS: reporters asked for source and they won’t give the name up
o ISSUE: was the source confidential, privileged information beyond the scope of any subpoena?
o DC Circuit says no privilege based on past Branzburg case
o Constitutional Issue- 1st amendment ?
 No first amendment right
o 3 judges give 3 opinions: No privilege here, no privilege at all, yes privilege but exception here
o One Judge says too uncertain for this privilege--- who’s a reporter? Who’s a source?
Unadministratable (however states do recognize this privilege)

108
  Too much room for deception- just set up blog
o One judge says disinclination to create a new privilege – problem about freezing common law
o One judge says this privilege important for utilitarian goals and robust press for accountable govt but
not okay here: proposes a balancing test: case-by-case balance with harm of disclosure v. benefit of the
news
Reporter’s privilege not recognized in federal court but are recognized in some states

 Basic Idea of privilege- screen against disclosure or discovery of info not because of reliability or
relevancy, but because there are other public policy reasons for doing so
 TEST:
 1st question: REQUIREMENTS: Whether there’s a privilege that applies?
o If there isn’t a privilege yet, see if one should apply under 501 (reason and experience)
o IF Already exists a privilege, figure out if it extends to this situation
 (1) Was there an established relationship between the people (such as patient and therapist)?
 (2) Was there an intent for this communication to be confidential?
 (3) Privileges cover communications, but not underlying facts counsel
 difference between “I did it” with “I told X that I did it”
 nd
2 question: Exceptions (if in the context of privilege does an exception apply)
o (1) Waiver- voluntary disclosure of the communication –the person who holds it can only waive it
 ex: telling others the content of the privileged communication
o (2) Dangerous patient privilege- obligation to others outweigh obligation to client/patient
o (3) Crime or fraud- not privileged if in furtherance of crime or fraud
 doesn’t apply to crimes already committed
o (4) Constitutional exceptions- where Constitution requires the privilege yield; info must come in or
else it will violate someone’s constitutional rights
 Problem 11.2 (Rights Meets Privilege)- pg. 870
o FACTS: Grand Jury indicts ∆ for rape and assault of 13 year old girl; ∆ wants to have young boy to
testify he, not ∆, committed the crime; boy invokes his 5th Am privilege against self-incrimination; ∆
looks to boy’s psychologist whom boy had told this info to; boy’s mom had waived the privilege so Dr.
had told ∆’s attorney all this info; conflict of interest so wavier might not be valid because mother not
legitimate holder of the privilege; Court appoints GAL who re-invokes the privilege for boy
o Proposed FRE 511- valid waiver for communications---implies only holder of privilege can waive that
privilege
 Conflict of interest so courts found Mother couldn’t waive BR’s privilege
o (1)Not a new privilege here under Jaffee
 Relationship- yes
 Intent confidential- yes
 Communication- yes
o (2)No waiver, no dangerous patient exception, not in furtherance of crime or fraud
o (3) ∆ could argue his Constitutional rights are being denied because he can’t present evidence that is
critical to his defense
 Chambers case- constitutional rights to present evidence critical to your case as long as it has
assurances of reliability/trustworthiness
 Chambers plus test- (3 Steps)
 (1) Evidence is critical to the case
109
 o ∆ would say critical b/c best evidence he has & exculpatory, not peripheral
 (2) guarantees of Trustworthiness
o D would say trustworthy b/c disclosing to Dr in confidence; statement against penal
interest and no reason to lie about that
 (3) Balance of weight of the privilege claim v. ∆’s need for evidence (critical nature of
evidence itself)
o may lead to criminal investigation – reputational consequences
o ∆’s need for evidence: courts split on if ∆ can tromp therapist/patient privilege
o CONFLICTS
 Common Law v. Con (compulsory)—split
 Con (5th) v. Con (compulsory)- 5th always wins
 Prosecutor can give immunity for ∆ to testify
o NOTE:
 Important refinement to Jaffe—not really an absolute rule-in some circumstances,
psychotherapist/patient will not be absolute when used by ∆s on constitutional grounds
 5th Am always wins---compulsory process does NOT trump self-incrimination privilege

 Morales v. Portuondo- pg. 873
o FACTS: 2 men convicted of murder; woman walking with victim; approached by group of teens;
Rivera runs and they beat him and he dies; companion picks Morales out of lineup and is indicted; he
rejects plea deal and maintains his innocence; Fornes, after trial, told 4 people (Priest, Montalvo’s
mother, Morales’ attorney, own attorney) that he really did it and 2 ∆s innocent; Fornes pleads 5th Am
and trial court won’t set aside verdict; Fornes dies and priest comes forward with Fornes’ confession to
him
o Conversations:
 1-Priest says this was a heart to heart convo and not a formal confession; encourages Fornes to go
forward;
 2- Fornes meets with Legal Aid attorney who advises him to stay quiet because he has his whole
life ahead of him and no assurance this will get Morales and Montalvo off the hook
 3- Montalvo’s mom
 4- Morales’ attorney
o “classic ethics tragedy: confess to a crime and takes it to the grave”
o Hearsay question: are Fornes’ comments to others hearsay and are they admissible or inadmissible?
 Hearsay?
 Yes, out of court assertions offered for truth of matter asserted (that he killed them and
Morales didn’t)
 Exception?
 804(b)(3) Statements to Montalvo’s Mother and Morales’ attorney could be statements against
penal interest
o Fornes is unavailable (5th Am or dead)
o Exposes him to criminal liability
o Exonerate D and inculpate 3rd party, NEED corroborating evidence
 Any here?---bootstrap that he told exact same story to 4 people so likely to be
credible (repeated in consistent and compatible way)
 807- Statements to Fornes’ own attorney and Priest

110
 o Not statement against penal interest because meant for them to stay confidential so no
exposure to liability
o 807 residual exception- more probative than anything else, more vital, etc.,
 trustworthy, generally remorseful
 Assume it passes hearsay check, don’t have to worry about confrontation clause in this scenario
 Doesn’t apply because protects against use of evidence against criminal ∆ - Here, trying to be
used by criminal ∆ against State so confrontation clause nothing to say
o Privilege and Constitution Issue
 Montalvo’s Mom- no privilege
 Morales’ attorney- no privilege because not his attorney
 His own attorney- Cohen- attorney/client privilege (seeking legal advice and no subsequent waiver
because convos with everyone else prior)
 Privilege survives the client’s death
 Priest- clergy privilege (priest penitence privilege) Is there privilege ?
 Relationship?
o Was not a formal confession and Archdiocese said to tell court
o Was heart to heart not a formal confession –but does can absolution
o Not clear whether it applies in the first place
 Intent to keep if confidential? Told a lot of people (but timing might matter for waiver)
 Communication? Yes, about communication
 Assume privilege applies---think about exceptions:
 Waiver- tells multiple people so waived whatever confidentiality you had with them (waiver
about communication and not the facts);
o “inconsistent with any desire to maintain a priest-penitent privilege”
o incompatible with desire to maintain privacy
 Constitutional rights- ∆ would claim compulsory process violated (even if it’s a privilege
and
o Chambers Plus test (even if evidence would otherwise be inadmissible under the state’s
rules of evidence, a ∆ in a crim case may nonetheless be entitled to introduce the
evidence if its exclusion would render his trial fundamentally unfair” )
 Critical to defense
 Sufficiently trustworthy for court to rely on it
 Told multiple people, repeated same story, Ramirez said similar things
before he committed suicide
 Balance (interests protected by privileges against ∆ need for the evidnece)
 Disclosure essential and shows his innocence which no other evidence will
do that and piercing privilege low impact because Fornes dead now
 Applying exceptions- Attorney-
 Waiver- doesn’t apply
o does not speak to anyone subsequent to his conversation with Cohen
o Privilege survives death of the client (weakens privilege)
 Constitutional rights
o Chambers
 Critical to defense
 Trustworthy for court to rely on it

111
  Told 3 other people –Fornes wanted to help the two men in jail but Cohen
stopped him
 Balance
 Remarkable circumstances—the attorney-client priviledge must not stand in
the way of the truth. –2 innocent men in jail for 13 yrs
 Notes:
o 1- Remember foundation of privilege:
 Priest thought confession-like enough that he kept it secret all these years and he granted
absolution—tacked on
o 2- Waiver of communication, not the facts:
 Waive privilege if Fornes said “I told Father Towle I committed the murder”, not “I committed the
murder”
o 3- This decision is over determined
 why: habeas corpus case- very difficult to get it granted
 5th Am always trumps Chambers- what do we do?
o What about Crawford rights? What if witness’ invocation of 5th Am right against self-incrimination
effects ∆’s right to confront and cross-examine the witness?
o Courts can do 2 things:
 (1) Declare a mistrial;
 (2) Strike witness’ testimony overall (direct and cross-examination testimony) if it’s a collateral
issue to the train
 what is the scope

————————MARRIAGE————————

Spousal Testimony

 BASIC IDEA: Once spouse is privileged from adversely testifying against the other (whether husband or
wife)
o Adverse testimony
 Scope
o State: Many states recognize in the civil and criminal contexts;
o Fed: fed courts, seems to apply in criminal contexts only
 Historical Anchors
o (1) Interested witness back in the day were not competent to testify –so would not take the stand (no
one recognizes this
o (2) Marital unity – two souls in one person –if force one to testify against the other would “tear this
body in sounder” (decision to testify against spouse might already be too late – so excluding the
evidence might not matter)
 Modern Justification
o Utiliterian- help society
 Preserve the sanctity of marriage
o Deontalogical – rights based

 Justification problems :20
112
 o 1) too broad- you cannot testify at all against your wife- testimony generally not just testimony to the
communication
 privilege is much broader than the jursitficaiton
o 2) woman being
o 3) den of thieves – “it secures, to every ma, one safe and unquestionable and ever ready accomplice for
every imaginable crime “- ready to go crime partner
o 4) too late- if you are ready and willing to testify against your spouse the marriage is already over
 Trammel v. US (1980)
o FACTS: ∏’s wife named as coconspirator – two engaged in heroine importation; husband seeks to
invoke spousal testimonial privilege to block wife from testifying; District Court focuses more on
marital confidences
o ISSUE: who may assert the spousal privilege in federal court: the witness
o When can you assert privilege: during marriage and only during marriage
 Privilege requires legal marriage or civil union
 Test:
o Who should hold the privilege ?
 Both- Hawkins
 Benefit: equity to the law
 Concern: gives the ∆ an easy out in every case
 Defendant – Proposed rule of 505
 Benefit: “there when you need it most”
 Concern: den of thieves- D can keep an accomplice of the stand
 Witness- if W wants to invoke his spouse testimonial privilege [WINNER]
 Pro evidence choice—recognizes in a realistic way that if the spouse is ready to talk its too
late
 RULE: in Fed court, spousal testimonial privilege exists and its held by Witness
o When can be assered: asserted only during the marriage
o Scope: fed court –criminal
 Crime Fraud Exception
o Some jurisdictions apply exception to jointly committed crimes
o Many jurisdictions don’t apply and say that marriage trumps crime
o Most jurisdictions and FED COURT reject privilege when crime is committed against the other spouse
or against children (NY) p. 958-

 Athlete on Trial
o Only evidence of husband’s abuse is wife’s testimony – wife refuses to testify
o Texas Law, however, makes an exception – removes the privilege in domestic violence settings, forcing
spouse to testify against the abuser
o On one hand, this protects women, but on the other hand, it is bad for women because it is paternalistic
o Very private matters
o Threat might not work – women who do not want to testify might still refuse because they will call
bluff that court will actually place a victim in contempt and put in jail
o STANDARD RULE- gives incentive to testify if she otherwise would not—of if she has motivating
incentive gives excuse to testify without appearing like she’s turning on her spouse

113
 Marital Confidences

 Generally
o BASIC IDEA: Private marital communications are privileged
o Communications made during the marriage intended to be confidential
o Presumption that all communications during marriage fit the privilege
o Reason for Privilege: Society wants to encourage communication between spouses
o Scope: fed court for both spouses
o Privilege hinges in large part on whether spouses intended for communication to be private
 Ex: Tom Hanks phone call – hard to say that he intended it to be confidential because he didn’t
know he was talking to his wife
 was it made in front of third person? ( young children ok)
 Applying to Tom Hanks
 phone call
o For tom
 Didn’t know he was talking to her
o For Maria
 She knew who she was talking to
 Bedroom
o Would apply to both

 Problem 13.1 (Office Emails) (p. 969)

o NYSP investigator emailed wife saying that he told someone he arrested to deliver to him a PSP before
his arraignment – email sent on work computer – he is brought on extortion charges
o ∆ probably intended email to be confidential, but expectation is unreasonable because to send the email
he had to go past a screen that said that the info he did on the computer could be accessed by his
employer
o Notes:
 Does it matter whether the communication is not about the intimate details of marriage? – Doesn’t
necessarily exclude the privilege, but might matter obliquely because the more intimate the
communication, the more likely the spouse intended to keep it confidential
o NO MARITAL Confidence privilege: no expectation of privacy
 NOTES OF M P
o Covers all types of communication – regardless of what is about
 Problem 13.2 (Kitchen Counter Note) (p. 970)
o FACTS: Wife writes letter to husband (left in kitchen counter), saying that she suspects he is working
with his sister who is engaging in fraudulent schemes – wife eventually joins in the enterprises
o ISSUE: whether the letter is covered by the privilege
o Presumption of confidentiality would seem to apply
o Does it matter that they considered telling the sister? – Doesn’t matter – what matters is the
communication, not the facts involved
o Does it matter that this was left on counter – no, but might depend on who cold access the information
(i.e. if there are small children who could not reach or read the note vs. teenage children)
 United States v. Rakes (1998) (√ - exceptions don’t apply)

114
 o FACTS: Husband and wife open liquor store and are extorted by someone who threatens to hurt them if
he is not made a partner in the business; husband is called to grand jury and he doesn’t say anything to
grand jury about extortion scheme; prosecutor charges Rakes with obstruction of justice and perjury
o ISSUE: whether privileged communication was waived
o CONCLUSION: privilege not waived
 Later divorce irrelevant
 Clear that Rakes intended communication to be confidential
 No limit on rule regarding financial matters
 No exceptions:
 No waiver: Although Rakes talked about extortion w/ third party, he only disclosed facts, not
actual communication with his wife; furthermore, he only told third party in order to avoid
paying debt – not to announce his circumstances publically
 No crime fraud: exception doesn’t apply b/c the Rakes were victims of the extortion crime
 Problem 13.3 (Poisoned Deadstock) (p. 976)
o FACTS: ∆ owned a deadstock company and sold dead animals to NBP, who in turn decided to start its
own deadstock company, forcing ∆ to go out of business - ∆ accused of contaminating NBP’s
deadstock; ∆’s defense is that employee (Barry) of NBP is actually contaminating the deadstock; police
received anonymous letters saying that there had been purposeful contamination at the deadstock plant;
another anonymous letter says that the plant is overrun with ants; ∆ wants to call Barry’s wife to testify
about Barry’s conversation about the giant ants
o Test: is it a privilege?
 Yes Conversations are presumably confidential – Doesn’t matter that Barry and wife are now
divorced
 Communication w/in scope of privilege,
o Exceptions:
 Waiver: Did wife waive privilege when she spoke to FDA agent
 Even talking to FDA about facts doesn’t destroy the privilege – privilege is about the
communication and not the facts – in this case the wife talked to the FDA about the facts
(although she obtained the facts from the communication)
 Constitutional Exceptions Inquiry:
 Is it essential: Chambers would suggest that the info is critical enough
 Trustworthy: Question not whether there were ants, but whether Barry said those things –
trustworthy
 Balance: Fairly strong that ∆ would need evidence, but privilege is weak – not about intimate
details, information got out to others, marriage is already over

Spousal Testimony Marital Confidences

Scope In most states, applies to Applies in both criminal
both civil and criminal; and civil cases
In Fed court, seems to Fed court
only cover criminal (but
no SCOTUS
affirmation)
Who Can Assert Witness Either spouse
Privilege Survives Only during marriage Applies even after

115
 divorce
(must be made during
marriage)
Coverage Testimony – doesn’t 1)Private
matter what the content 2)Marital
of the testimony is Communications
Rationale History: marital unity Pro-Marriage: Society
Modern: sanctity of wants to encourage
marriage and communication between
importance of avoiding spouses ; invading
discord and disunity personal space (private
or social)
listed in Prop. Rules No listed in prop. rules

————————FAMILY————————

Sibling Privilege

 Rule: Nothing recognizes a sibling privilege

 Should there be a sibling privilege?
o Slippery slope problem – if have sibling privilege, might end up with privilege for other relatives, close
friends; gives courts too much discretion
o Might affect settlement – if don’t know whether there is a privilege, might not know what will happen
at trial, and then will affect whether people decide to settle
 Brother’s Keeper Video
o Is there privilege ?
 No –nowhere
o Should there be privilege?
 More flexible.. more adaptable? Should be for judges to decide like we saw in Jaffey
 What would be the cost for moving from rule to standard?
o You will loose constitent application by courts—once you think that one court will do
something other than another gives you incentive to forum shop
o Loose predictability- for the parties
o Harder to settle cases- don’t know what would come in as evidnece and what wouldn’t
o Unpredictable for the rest of us—in Jaffey Justice Steven argued that it was an absolute
rule
 The more unpredictable the rule is the more money we will spend at pre trial
o Rules trump standard

Parent Privilege

 No federal court parent privilege

 New York is outlier – does recognize a child parent privilege

116
 Public tends to favor the parent privilege more than the courts do—scalia likes moms
 In re Grand Jury Proceedings (1997)
o Three consolidated appeals
 Daughter subpoenaed to testify against father in kidnapping charge – refuses to testify – held in
contempt (Parent  child)
 Virgin Island case: Father subpoenaed to testify against son – (child parent)
o Privilege fails in all of these contexts
o WHY no privilege: Court declines to find privilege:
 (1) Overwhelming majority of all courts reject privilege
 3 states have 3 versions of this by statute
 NY is the only state that has recognized this my common law- (rooted in the state
constitutional provision of privacy)
 (2) No support in FRE 501
 (3) Privilege wouldn’t have impact on parental relationship
 Court says that children will not even know that the privilege exists, so it will not affect the
relationship with parents (this argument was made in the marital confidence privilege but it
was recognized there)
 (4) Reason for Decline of privilege
 Recognition of privilege should be left to Congress
o Congress should be the one to draw the line: all parents, step-parents ? who is a parent
and who is a child
o However congress punted all of this to courts under 501
 Cynicism and Futility
o Children do not need a privilege to be induced to speak with their parents – not going to
change anything about how kids choose to talk to parents
o Not likely to change what parents do either
 Parents will protect the kids with or without the privilege
 No evidentiary gain (prosecutors rarely make parents testify on stand—looks bad
to the jury )
o Nurture – parents have obligation to nurture and guide children, even when that requires
disclosure of things that are bad for their kids – don’t want privilege to get in way of
parents providing necessary services for children who need help
 Argument: this could have been resolved by vesting the privilege on the witness
o Dissent:
 Two versions of the privilege are not identical (parent-child and child-parent), so could recognize
one and not the other
 Should not be treated the same
 Child needs the parent cousel more than the parent needs the child
 Privacy-based argument: there should be some things that are free from state intervention
o

117
118