Evidence Outline

Wonsowicz Fall 2021

Evidence Outline
Table of Contents
Table of Contents................................................................................................................................................ 1

I. Role of the Jury.......................................................................................................................................... 3

***DOES EVIDENCE MATTER?***........................................................................................................................ 3

II. Relevance.................................................................................................................................................. 4
A. General Rules of Relevance..............................................................................................................................4
1. FRE 401: Is it relevant?.................................................................................................................................4
2. FRE 104(b): Is there a conditional relevance objection?.............................................................................7
3. FRE 403: Even if it is relevant, is it too prejudicial?.....................................................................................8
Can the evidence be stipulated?.........................................................................................................................10
B. Specialized Rules of Relevance.......................................................................................................................11
1. FRE 407: Is it a subsequent remedial measure?........................................................................................11
2. FRE 408: Is it evidence of a compromise?.................................................................................................13
3. FRE 409: Is it a payment of medical expenses?.........................................................................................15
4. FRE 410: Is it a plea or a plea discussion?..................................................................................................16
5. FRE 411: Is it evidence of insurance?........................................................................................................19

III. Character Evidence................................................................................................................................... 20

A. FRE 404(b): Character & Propensity & Other Acts.........................................................................................20
1. Character propensity and evidentiary hypotheses....................................................................................20
2. FRE 406: Habit Evidence............................................................................................................................27
B. Exceptions to Character Propensity Reasoning..............................................................................................29
1. FRE 404(a) & FRE 405: Proving Character..................................................................................................29
2. FRE 413–415: Sexual Assault and Child Molestation.................................................................................35

IV. Impeachment........................................................................................................................................... 38
A. Attacking General Trustworthiness................................................................................................................39
1. Bias.............................................................................................................................................................39
2. Defect in capacity.......................................................................................................................................40
3. Character for untruthfulness (“liar by nature”).........................................................................................40
B. Cast Doubt on Specific Testimony...................................................................................................................47
1. FRE 613: Demonstrating prior inconsistent statements............................................................................47
2. Contradicting a witness on cross or through extrinsic evidence...............................................................48
C. FRE 608(a): Witness Rehabilitation................................................................................................................49
D. FRE 412: Rape Shield Law..............................................................................................................................50
E. Hearsay & Impeachment................................................................................................................................53

***IS THIS EVIDENCE RELIABLE?***.................................................................................................................. 54

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V. Hearsay.................................................................................................................................................... 54
A. FRE 801: What is hearsay?.............................................................................................................................54
B. FRE 801: Hearsay Exemptions........................................................................................................................59
1. Prior Statements of a Testifying Witness...................................................................................................59
2. Admissions by Opposing Parties................................................................................................................64
C. FRE 803: Hearsay Exceptions..........................................................................................................................72
1. FRE 803(1)–(2): Present Sense Impressions and Excited Utterances........................................................72
2. FRE 803(3): Then-Existing, Mental, Physical, or Emotional Condition......................................................75
3. FRE 803(4): Statements for Medical Diagnosis or Treatment....................................................................77
4. FRE 803(5): Writing to Refresh Memory/Recorded Recollection..............................................................81
5. FRE 803(6) and (7): Business Records........................................................................................................83
6. FRE 803(8): Public Records........................................................................................................................86
7. FRE 803(16): Statements in Ancient Documents.......................................................................................89
8. FRE 803(18): Statements in Learned Treatise............................................................................................89
9. FRE 803(21): Reputation Concerning Character........................................................................................89
10. FRE 803(22): Judgement of a Previous Conviction...............................................................................89
D. FRE 804: Hearsay Exceptions..........................................................................................................................89
1. FRE 804(a): Unavailability..........................................................................................................................89
2. FRE 804(b)(1): Former Testimony..............................................................................................................91
3. FRE 804(b)(2): Dying Declarations.............................................................................................................93
4. FRE 804(b)(3): Statements Against Interest...............................................................................................95
5. FRE 804(b)(6): Forfeiture by Wrongdoing..................................................................................................97
E. FRE 807: Residual Hearsay Exception.............................................................................................................99
F. FRE 806: Attacking and supporting a Declarant’s Credibility.......................................................................102

VI. The Confrontation Clause....................................................................................................................... 102

VII. Authentication & Best Evidence......................................................................................................... 110

A. FREs 901 & 902: Authentication...................................................................................................................110
B. FREs 1001–1004: Best Evidence Rule...........................................................................................................116

VIII. Lay and Expert Testimony................................................................................................................... 119

A. FRE 701: Lay Testimony................................................................................................................................119
B. FRE 702: Expert Testimony...........................................................................................................................122
1. Proper Qualification.................................................................................................................................123
2. FRE 704: Proper Topic..............................................................................................................................124
3. FREs 703 & 705: Proper Basis..................................................................................................................128
4. Proper Methodology...............................................................................................................................132

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I. Role of the Jury

FRE 606(b)
(b) When inquiring about the validity of a verdict:
(1) Prohibited Testimony or Other Evidence.
Jurors may not testify about (court cannot receive affidavit or evidence of juror’s
statement on the following):
 Any statement or incident that occurred during the jury’s deliberations
 The effect of anything on that juror’s or another juror’s vote
 Any juror’s mental processes concerning the verdict or indictment
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
 External Influence (outside): (ADMISSIBLE under 606(b)) outside information
that is relevant.
 General threats: bribes, threats, etc.
 Obtaining non-admissible evidence: bailiff saying, “this is D’s third time in
his courtroom and D is a felon,” gaining access to evidence that is not
admitted, newspapers, media reports, juror’s personal “investigation”
(Facebook, going to scene, etc.)
 Internal Influence (Tanner): (INADMISSIBLE under 606(b)) thought process,
discussions inside jury room, drugs/alcohol, physical or mental incompetence
 Exception (when jurors can testify about internal influences): In the
“gravest and most important cases”
 Unless: there are non-juror alternatives (can go through other avenues),
then do that before putting juror on the stand
 Ex. bailiff testifying, receipts from jury’s TGI Fridays from their
lunch to show they were drinking at lunch
 Note: advocate either way on “gravest/most important cases” because no
good definition
 Race is “grave and most important”
 Constitutional violations are likely grave and most important
(C) a mistake was made in entering the verdict on the verdict form

***DOES EVIDENCE MATTER?***

Analysis Steps: Why introduced?  By whom?  When is this introduced?
 Why: To impeach? To establish an element of a defense?
 Who?
 When: Is this the case in chief? Did someone open the door? Is this cross examination?

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II. Relevance
A. General Rules of Relevance
1. FRE 401: Is it relevant?

Rule 401. Test for Relevant Evidence

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:
 the United States Constitution;
 a federal statute;

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 these rules; or
 other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.

Two requirements of relevance:

 Probative: it has any tendency to make a fact more or less probable than it would be
without the evidence; the evidence must provide proof (affects the probability) of the
proposition it is offered to prove.
o “Any tendency” is a low threshold.
 Material: the fact is of consequence in determining the action; look to the black letter of
the substantive law
o Note: If on exam the black letter law is given, watch out for materiality analysis

Types of evidence
 Direct: evidence asserting the existence of the fact to be proven or, if real evidence,
embodies or represents that fact proved (i.e., tangible evidence, witness testimony,
demonstrative evidence)
 Circumstantial: proof that does not actually assert or represent the fact to be proven but
from which a factfinder can infer an increased probability that the fact does or does not
exist
o the inference is known as an “evidentiary hypothesis”
o The judge must determine if the evidentiary hypothesis provides a heightened
probability of the fact to be proved in order to admit the circumstantial evidence
o Note: Can cause relevance concerns
 Real: tangible items
 Demonstrative: illustrative evidence, e.g., a diagram

Evidentiary hypothesis: Does the evidentiary hypothesis the proponent provides (burden on
proponent) heighten the probability of fact to be proven? If so, admit evidence
 Examples:
o Consciousness of guilt/innocence
o OKMIMIC
o Doctrine of chances
o Corroboration

Cases
U.S. v. Figueroa (2008): D was convicted of having a firearm on parole. D had bought the gun
from W who testified in court. W had swastika tattoos and the defense wanted to argue that, since
D was a member of an ethnic minority, the tattoos could be used to impeach W as to his bias and
credibility.
 Holding: The tattoos should come in because D was a racial minority, and the two
swastika tattoos suggest that W harbored animus against racial or ethnic minority groups
and their members. Therefore, tattoos were relevant to a probative of W’s credibility,
bias, and motive to lie when testifying against D.
 Holding: The possible gang affiliation was not admissible. While prosecution can
investigate some areas on examination without full knowledge of the answer to

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anticipated questions, there must be some good faith basis for questioning (no fishing
expeditions allowed). Here, defense counsel had no information as to whether W was
affiliated with a gang.
 Majority rule: Witness bias is always relevant

Hicks v. Kentucky (2009): D was convicted of kidnapping, robbery, and assault. S, D’s only
witness, testified that another man, R, was the real culprit. D and S were white and R was black.
The trial court ordered S to take off his shirt to show the jury his swastika tattoos.
 Holding: The trial court erred in having S reveal his swastika tattoos, but the error was
harmless. There was no evidence as to what the tattoo meant to S, why he chose to have it
placed on his body, or whether he had any particular feelings, negative or positive,
towards African-Americans or any ethnic group at all, so the relevance of the tattoo was
not established.
 Harmonizing Figueroa and Hicks: Figueroa got a bigger break as he was the defendant
who wanted to cross examine a witness. But when a government wanted to do it to a
defense witness, it did not have the benefit of the Confrontation Clause.
 Minority rule: It must be shown that the tattoo indicated a bias to be relevant

U.S. v. James (1999): D was charged with aiding and abetting her daughter in killing D’s
boyfriend by handing her a gun. D testified that she was terrified of the boyfriend because there
were many stories about him beating up and killing other men, thus she gave her daughter the
gun as a form of self-defense. The trial court excluded proof of the boyfriend’s prior crimes,
claiming that it did not matter if the stories were true, it only mattered what D thought at the time
of the crime.
 Holding: Because the crux of D’s defense rested on her credibility and because her
credibility could be directly corroborated through the excluded documentary evidence,
exclusion of the documents was prejudicial and more probably than not affected the
verdict.
 The evidence served two legitimate functions: to corroborate D’s own testimony that she
had heard her boyfriend tell her these things and to corroborate her statement that she had
reason to be afraid of her boyfriend in his vicious drunken mood.
 Rule: Corroborative evidence is allowed when:
o Credibility is central to the case, so the corroboration is necessary
o And the evidence to be corroborated is remarkable
o There is little other evidence available

Problems
Problem 2-1 – Suicide: D charged with aiding her boyfriend in killing 5 people. D told fellow
inmate details of murder (location of bodies, etc.) to pin murders on another inmate serving
LWOP. Fellow inmate was an informant and when D found out, she attempted suicide.
 Prosecution: Evidentiary hypothesis is that she tried to kill herself because she is
conscious of her guilt and therefore, she is guilty
 Defense: There are other reasons for suicide attempt and too prejudicial because some
jury members may find suicide immoral
 Holding: Allow in, but use a limiting jury instruction

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 Different judges could reach different conclusions, but generally jail-house suicide
attempts come in on relevance

Problem 2-2 – Peterson Financials – (State v. Peterson): D on trial for 1st degree murder of his
wife who he claims “fell” down the stairs. Wife may have been about to lose her job, wife’s
death meant that D got $1.8 million, D had no taxable income and the couple had been losing
money.
 Prosecution: Evidentiary hypothesis is that D had a financial motive to kill his wife
 Holding: Rule 401 makes evidence relevant if it has any tendency to prove any fact that is
of consequence. At trial evidence presented on finances tended to show that Petersons
had some financial difficulties and D stood to inherit about $1.8 million upon wife’s
death. Jury could infer from this evidence that D murdered wife, at least in part, for the
money. Evidence of potential inheritance combined with financial difficulties may be
evidence of motive for murder therefore relevant.

Problem 2-3 – Rejected Plea Deal: D wanted to admit evidence that he rejected a plea deal to
prove his innocence at trial.
 Defense: Evidentiary hypothesis is that D is so confident of his innocence that he turned
down an offer, showing he was not guilty.
 Holding: The evidence is inadmissible; D does not know what he’s turning down, he
might be turning it down because accepting a plea would cost him his union job; as a
first-time offender, he might not comprehend the difference between a jail and a prison
sentence. Plus, if this can be used as evidence of innocence, then the prosecutors will be
less inclined to make plea bargains since they may then be used against them as evidence
in court to prove innocence, increasing the number of cases going to trial.

Problem 2-4 – Unarmed Police Killing: Two officers drove to shop to investigate and
encountered two men sitting in a Cadillac in a parking lot adjacent to the shop. The officers
pulled it over and one officer noticed that the passenger was a repeat criminal. The officers
approached car with guns aimed at occupants, ordered “hands up.” As the first officer
approached, the driver made a quick movement with his hand into his coat (looked like reaching
for a weapon), then the officer shot and killed him. At trial, the officer claimed self-defense, so
the prosecution sought to introduce evidence that driver was unarmed.
 Holding: Evidence not admissible because reasonableness of the officer’s belief that his
life was in danger is not affected by whether driver was actually armed, so the evidence
is irrelevant; does not help prove what a reasonable officer would have done.
 Holding: If the officer had testified that he saw a shiny object similar to a gun in
suspect’s hand, then evidence could be admissible for impeachment purposes (attacking
officer’s credibility).

2. FRE 104(b): Is there a conditional relevance objection?

Rule 104. Preliminary Questions

(a) …
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether
a fact exists, proof must be introduced sufficient to support a finding that the fact does

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exist. The court may admit the proposed evidence on the condition that the proof be
introduced later.

Definition: a missing link in the factual chain that may make the whole chain irrelevant (or at
least less probative)
 Reasonably known standard: if the factual premise cannot be reasonably understood from
the context, then it is an issue of conditional relevancy
o Triggering fact: the defendant claims he did not do it, or a certain event did not
occur
 If relevance depends on a conditional fact, then the contested evidence goes to jury only
if judge determines that it can (judge’s screening role)
o Huddleston standard: It must be determined (1) whether if the fact was true, it
would be relevant, and (2) whether a jury could reasonably find the fact by a
preponderance of the evidence based on all the evidence in the record; whether
“sufficient” support exists such that jury could conceivably find the fact true
 33% standard: The threshold for the judge to admit evidence on the
preliminary fact is low, but more stringent that “any tendency”
 Even if evidence is admitted, it does not mean it is true; a jury still might
find it is not true

Problems
Hypo: Sally Smith on trial for murder. Prosecution calls witness and asked who he saw leaving
the scene of the crime. Witness says, “it was Sally Smith, who lives on 123 Elm Street.” Are
there missing links to that conclusion?  how does witness know Sally’s name and address?
 If witness is Sally’s son, then the missing links are explained from the context because a
son can ID his mother and knows her address
 If witness had never met Sally prior to seeing her, the context does not resolve the
missing factual link

Hypo: Johnson, convicted with aiding abetting boyfriend’s murders is in jail before trial. She
tells informant (jail mate) where the bodies are. The prosecution offered evidence that the bodies
were discovered at 1pm, then wanted to offer evidence that Johnson attempted suicide at 3pm.
 Missing fact: need to know that Johnson became aware of the fact that prosecution found
the bodies (the rest of the chain is conditional on this fact)
 Prosecution’s chain of logic: bodies discovered  Johnson became aware  Johnson
realized her confidant was an informant  Johnson attempted suicide because she was
aware that her guilt would be proven in court.

3. FRE 403: Even if it is relevant, is it too prejudicial?

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.

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Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
If the court admits evidence that is admissible against a party or for a purpose — but not
against another party or for another purpose — the court, on timely request, must restrict
the evidence to its proper scope and instruct the jury accordingly.

Evidence can be inadmissible if the probative value is substantially outweighed by

countervailing considerations
 FRE 403 is still designed to favor admissibility
 Countervailing considerations:
 unfair prejudice: “unfair” distinguishes between prejudice resulting from
reasonable persuasive force and prejudice resulting from excessive emotional or
irrational effects that could distort the accuracy and integrity of the fact-finding
process
o confusing the issues
o misleading the jury (impermissible/mistaken inference)
o undue delay
o wasting of time
o or needlessly presenting cumulative evidence
 The probative force of the evidence is what must be balanced against its FRE 403
determination. Factors of probative force:
o Centrality: The more central to the point of litigation then the more probative it is
o Necessity: The probative value of the evidence increases if the proponent of the
evidence only has one (or limited) avenue(s) of presenting that evidence and
therefore the need for that particular evidence is greater; more essential = more
probative
o Alternative avenues: If there are other ways of proving the point that are less
prejudicial (e.g., stipulation), then it is less probative
o Limiting instruction: Will jury be likely to follow a jury instruction on its use?

Problems
Problem 2-5 – Peterson Gay Porn/Escort (State v. Peterson): Wife “falls” down the stairs, D,
the husband, is on trial for her alleged murder. Prosecution sought to introduce evidence of porn
on D’s computer (printed out and found with legal documents), and his communications with a
gay escort. Are the gay porn and D’s email communications with gay escort relevant to show
motive and to rebut what D’s counsel said about D’s idyllic marriage in opening statement, and
not substantially outweighed by the risk of unfair prejudice?
 Holding: All the evidence was admissible under the evidential hypothesis that it rebuts
the idyllic marriage described in the opening statement (D “opened the door” to this
argument)
 Conditional relevance issue here too – if wife found out about male escort, then could
lead to motive (wife discovered email  fighting  killing). How do we get around this
conditional relevance issue? Wife could have discovered it because it was in an obvious
place next to Verizon phone bill (enough to get past Huddleston)

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Problem 2-6 – Excessive Force Officers: P was arrested during a drug raid and later sues a
police officer for using excessive force. The officer calls two of his fellow officers who
witnessed the arrest to testify that excessive force was not used, but on cross it was revealed the
two officers had been previously suspended for use of excessive force. How likely is the court to
admit the evidence that the two officers had been suspended for excessive force?
 Holding: the fact that the witnesses had been suspended for using excessive force was
admitted, but details about what they did were excluded.
o There was a concern that admitting the details of the incidents would introduce
inflammatory rhetoric, causing jury to respond with emotion
o Admitting all the evidence would turn the trial into a circus (series of mini trials
about what the officer-witnesses did or did not do)
 Takeaway: A judge can admit some parts of evidence and exclude other parts that are too
prejudicial (scalpel)

Problem 2-7 – Sexual Harassment at Work: P alleged she was sexually harassed by a fellow
employee. P wants to introduce evidence that she 1) heard he’d beaten his wife, to show why she
feared him; and 2) evidence of harasser’s criminal conviction for also accosting P.
 Holding: The risk of prejudice substantially outweighs the value of the evidence. The
judge was probably concerned that a jury would over-rely on the evidence and would not
listen to an instruction. Instead of admitting testimony about the wife-beating, P could
potentially limit prejudice by saying “I heard he has violent tendencies”
 Holding: The prior conviction is not admissible. There is high prejudicial value about the
accosting conviction because the jury will think that this prior conviction proves his
current guilt (propensity reasoning). It would also cause jury confusion to admit this
evidence.
o Was this a criminal trial, then it would be admissible under FRE 609, since
truthfulness is always relevant and prior convictions can be used to disprove this
characteristic

Can the evidence be stipulated?

Stipulation of evidence: a party can concede a fact that the opposing party is seeking to establish
with the evidence it wishes to submit so that the evidence won’t be required to be admitted,
reducing its prejudicial effects
 A trial judge will consider this offer to stipulate as a factor when evaluating 403
objections.
o If alternative evidence were found to have substantially the same or greater
probative value but a lower danger of unfair prejudice, sound judicial discretion
would discount the value of the item first offered and exclude it if its discounted
probative value were substantially outweighed by unfairly prejudicial risk (Old
Chief)

Cases
Old Chief v. U.S (1997): D was charged for carrying a firearm as a convicted felon. D had been
convicted of serious assault. D sought to stipulate the evidence of his prior conviction so that the
details of the conviction would not be discussed in front of the jury. The trial and appellate courts
denied D’s offer of stipulation.

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 Holding: Evidence is not admissible if its unfair prejudicial effect substantially outweighs
its probative value. Rule: The prosecution can be forced to agree to a stipulation ONLY
when the evidence it is seeking to admit concerns only the defendant’s status (as a felon).
o Severely limited: If the issue is something other than a defendant’s status, then the
prosecutor will not be forced to agree to the stipulation.
 Holding: D offered alternative evidence – the stipulation – and that was more than
adequate to establish the required element of his status as a convicted felon. Thus, the
probative value of the prejudicial details of his prior conviction are substantially
discounted

Problems
Hypo: Johnson’s jailhouse suicide attempt. Prosecution wants to introduce evidence: 1)
testimony of guard who discovered Johnson hanging in cell, 2) the sheets she used to hang
herself, 3) pictures of her neck after the attempt (injuries). Defense counsel could offer to
stipulate that Johnson attempted suicide but keep out all the other evidence surrounding the
attempt.

B. Specialized Rules of Relevance

Specialized rules of evidence involve forms of prejudice/probative balancing for situations where
the probative value is deemed low, the prejudice high, and the social implications of allowing the
evidence are extremely negative
 These rules fail the 403 test (and limit judicial discretion) BUT if evidence admissible
under a specialized rule, 403 still applies (argue limiting instruction would not be
effective)
o When evidence does past the special rules test, always look to see if limiting
instruction would be effective for jury. If no, then inadmissible under FRE 403
 Relevance (401/402) still applies
 NOTES:
o The policy rules are more important than the specified exceptions because that is
what determines admissibility; the exceptions are not exhaustive
o Look out for dueling evidentiary hypotheses
 5 Specialized Evidence Rules:
o FRE 407: Subsequent Remedial Measures
o FRE 408: Compromise Offers and Negotiations
o FRE 409: Offers to Pay Medical and Similar Expenses
o FRE 410: Pleas, Plea Discussions and Related Statements
o FRE 411: Liability Insurance

1. FRE 407: Is it a subsequent remedial measure?

Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
 negligence;
 culpable conduct;

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 a defect in a product or its design; or
 a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if
disputed — proving ownership, control, or the feasibility of precautionary measures.

Policy:
 The fact that a party undertook some type of remedial measure may not indicate fault;
there are alternative reasons for doing so, so the probative value of the evidence may be
low
 We do not want to discourage people from making repairs and improving safety
 Unfairly prejudicial factors may affect the jury, such as misleading the jury by over-
relying on one piece of evidence or confusing the issues for the jury
 It is unfair to penalize someone who took socially responsible action

The evidence is inadmissible when:

(1) Subsequent to a (liability-creating) event
o Subsequent means after injury or harm allegedly caused by an event
o Remedial action taken after the manufacture of a product but before plaintiff’s
injury is not covered and would be admissible
o Remedial action taken after another’s accident but before the plaintiff’s injury
would be admissible
(2) A remedial action is taken
o Remedial is defined broadly; a remedial action would have made the earlier harm
or injury less likely to occur had the measure been made prior to the event causing
the injury or harm
o Examples: changes in design, installation of protective devices, new warnings,
removal of dangerous conditions, changes in policies, dismissal of employees, etc.
o Courts do not examine deeply the effectiveness of the remedial action; the focus is
on whether or not to categorize the action as remedial
 Not remedial: post-event investigations; third-party remedial measures
(3) And that measure is offered for a liability-based purpose

Exceptions (non-exhaustive): impeachment, ownership, control, feasibility of measure

 Controverted Requirement: can only argue ownership, control and feasibility when the
issue is controverted
o Initial Design (impeachment)
 Safest, best (admit)
 Safe, adequate, reasonable at the time (do not admit)
 All precautions (unsure because could mean “at the time”)
 Most reasonable (unclear)
o Subsequent Measure (feasibility)
 Impossible, impracticable (admit)
 Not advisable, not necessary (do not admit)
 Most reasonable, too costly (unclear)
 Hubris test: when a defendant does not controvert feasibility merely by arguing or
introducing evidence that a device, process or design is reasonably safe, but claiming that

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all precautions were taken or that no safer design was possible clearly puts feasibility at
issue. In this situation, the plaintiff can introduce evidence that there have been changes
made to improve safety
 Limited impeachment use: Use of evidence for impeachment of a witness may be
allowed only if the witness denies the existence of a particular hazard, testifies that the
product was as safe as it could be, or characterizes an alternate design or protective
measure subsequently adopted as unnecessary, ineffectual, or otherwise inadvisable.

Cases
Wood v. Morbark (1995): P’s husband is killed in a woodchipper manufactured by D. After the
accident, D elongated the chute of the machine. In trial, D repeatedly pointed out that customers
continued to buy the machine, and D’s witness testified that the original chute length was the
safest possible length.
 Holding: D’s statements and witness testimony took unfair advantage of the court’s in
limine ruling that blocked the admissibility of the evidence of the subsequent remedial
measure, extending the chute length. The witness testimony opened the door to
impeachment, so P should have been able to ask why the supposedly safest (superlative)
design possible was modified after the accident.
 D turned the shield of inadmissibility under FRE 407 into a sword and misled the jury

Problems
Problem 3-1 – Forklift Design: P was injured by a forklift, which D manufacturer subsequently
changed to remove the part that injured P. D’s expert witness admitted on cross that the forklift
possessed and “excellent and proper design.”
 Holding: “Excellent and proper design” is not a superlative, so there was no contradiction
value and evidence of removing the part was inadmissible

Problem 3-2 – Timber Maul: P was injured in 2006 when a piece of timber maul struck him in
the eye while he was splitting timber. P sought to introduce evidence that in 2005, D
manufacturer conducted tests that showed that the maul was dangerous, and that D fixed the
problems on later models.
 Holding: The evidence is admissible. FRE 407 does not apply because the measure was
not subsequent to the party’s injury

2. FRE 408: Is it evidence of a compromise?

Rule 408. Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party —
either to prove or disprove the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or
offering to accept — a valuable consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim —
except when offered in a criminal case and when the negotiations related to a

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claim by a public office in the exercise of its regulatory, investigative, or
enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.

Civil applications only; FRE 410 is the criminal version

Policy:
 Encouragement of settlement claims by protecting against having settlement efforts used
against a party at trial should settlement fail
 Limited probative value in settlement statements and conduct; multiple reasons for a
party to offer a settlement, not just guilt or weakness of position

Evidence of (a) what happened during negotiations/compromise (offers, acceptances, statements

made, conduct, etc.) and (b) the offer/compromise itself, is inadmissible if:
(1) There was an ongoing settlement negotiation due to a dispute
o Low standard for finding a dispute; it can be an actual dispute or a difference of
opinion
o Whether there is a dispute is a fact intensive determination. Factors:
 Was the statement intended to be part of the negotiations toward a
compromise?
 Had a party explicitly asserted a claim against the other? (X happened so
you owe me Y)
 Is the prospect of litigation readily apparent?
 Have attorneys become involved in the proceedings? If so, this weighs
heavily
 Does not include one side anticipating a lawsuit and other side is
not intending to sue
o Applies to settlement offers made in response to oral or written claims for relief,
even if a suit has not been filed
(2) There is a dispute as to validity or amount.
o “I don’t owe you” “I’m liable but don’t owe you” “I owe you, but not that
amount”
o Hypo: Sally walks into DVD rental store and tell cashier she lost a DVD. He says
that she owes $20 for losing it. Sally says, “I’m sure that’s what you charge for a
replacement DVD, but here’s $10. Take it or leave it.”
 There is no dispute here as to validity because she admits she lost DVD
and no dispute as to amount because she acknowledges that’s what the
store charges for lost DVDs. Therefore, FRE 408 doesn’t apply and her
statements can be used against her
(3) Evidence is inadmissible for liability or damages purposes
 Exclusions:
o Pre-existing information cannot be immunized by presenting it to an adversary
during compromise negotiations
o Evidence will not be excluded if it is otherwise discoverable

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o FRE 408 deems inadmissible evidence that a party or witness settled or offered to
settle a claim with a third party if the evidence is offered to prove in/validity of
the present claim
 This evidence may be admissible for other purposes such as bias

Exceptions (non-exhaustive): bias, prejudice, rebuttal of claim of undue delay, to prove breach of
an agreement to settle, to prove an effort to obstruct a criminal investigation or prosecution
 No general impeachment exception: settlement/settlement discussions cannot be admitted
for impeachment purposes
 Statements made in settlement discussion for a particular claim can be admitted as
evidence for other, separate claims
 There are no available exceptions when a civil defendant enters into a settlement
agreement admitting fault; that settlement is not admissible against the defendant in a
subsequent criminal prosecution when offered to prove liability for a claim, invalidity of
claim, or the amount of the claim

Cases
Weems v. Tyson Foods (2011): P claimed she was facing gender discrimination at work when she
was placed on administrative leave and told to find another position within the company within
30 days. P complained to HR. HR did not follow up but gave P a separation agreement. P sued,
claiming HR failed to investigate her claims adequately and wanted to admit the separation
agreement as evidence.
 Holding: the separation agreement should not have been admitted. It was clearly an offer
of compromise under FRE 408 because: (1) there was a dispute concerning P’s
employment and why she was on administrative leave; (2) P wanted to use the agreement
to demonstrate bad faith by D, which is inseparable from the question of liability; (3) P’s
counsel relied on it heavily, so it made a material difference.
 Rule: A dispute can be actual dispute or a difference of opinion

Problems
Problem 3-3 – “Probably has Merit”: D (engineer) says P’s claim, that construction difficulties
increased the cost of construction and would require a higher contract price, “probably has
merit.” D then denied P’s request to change the contract price accordingly. P wants to introduce
evidence of D’s earlier statement.
 Holding: Prior statement admissible because it did not arise out of compromise or
settlement. It was a statement made as part of the performance of the contract. A contract
dispute wouldn’t arise until P’s claim was rejected, so at the time D said “probably has
merit” there was no dispute to settle. Also, it was not a dispute because it was not a “no.”

3. FRE 409: Is it a payment of medical expenses?

Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.

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Policy:
 Protecting good Samaritans
 The evidence is questionably relevant because the offer to pay may come from other
motivations such as compassion; we want to encourage humane impulses
o “Similar expenses” are interpreted broadly to achieve this policy goal

Offers to pay medical (or similar) expenses are not admissible to prove liability, even if there is
no claim
 Interpreted broadly to include expenses related to treatment like personal care (serves
social policy)
 Applies specifically to tort claims; the evidence is admissible for other claims (e.g.,
contract claims)

Exceptions (non-exhaustive): agency, control, ownership, or impeachment

 Does not require a disputed claim or that the offer be an attempt to compromise a
disputed claim, so it applies in more situations
 Does not exclude collateral admissions of liability by the offeror
o Example: “Sorry I ran a red light. Can I pay your medical expenses?” The first
sentence is admissible while the second is not.

Problems
Problem 3-6 – Grocery Grapes: P slipped and fell on grapes in D’s grocery store. Manager at D
told her to go to the doctor and the store would take care of everything, then the store refused to
pay. P claims that her conversation with manager was a promise to pay her reasonable medical
bills from the fall. D says inadmissible under FRE 409.
 Holding: This was a promise to pay medical expenses that falls under FRE 409, however
P is offering it to prove that there was a contract. It is admissible here because P is suing
in contract law (not tort law) and the evidence has a non-liability-based purpose.
 If she was suing in tort law, the only reason to offer this evidence would be liability
based, so it would be inadmissible

4. FRE 410: Is it a plea or a plea discussion?

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible
against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
i. Note: A “nolo contendere” (no contest) plea is a lot like a guilty plea; it
carries the same fundamental consequences, but not the official admission
of guilt.
(3) a statement made during a proceeding on either of those pleas under Federal Rule
of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a
later-withdrawn guilty plea.

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(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be
considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record, and with counsel present.

Policy:
 Low probative value: While an unwithdrawn guilty plea may be used against the
defendant in a later action (e.g., a civil trial), a withdrawn guilty plea or a plea of nolo
contender cannot. This is because an innocent individual might accept a plea to avoid the
risk of loss at trial and a potentially greater penalty, and thus this evidence bears minimal
probative value if it is withdrawn.
o Unwithdrawn guilty pleas have higher probative value as it is an admission of
guilt
 We want to promote plea bargaining
o Admissibility of guilty pleas will not discourage plea bargaining because the pleas
will result in lower sentences, outweighing subsequent use of their pleas
o Both prosecutors and defendants can negotiate freely without either worrying
their statements will be used

Evidence of the following cannot be used against the defendant in a later civil or criminal
proceeding:
(1) A withdrawn guilty plea (but a finalized guilty plea is admissible)
(2) A nolo contendre plea (not an admission of guilt)
(3) Statements made during the plea proceedings
(4) Statements made during “plea discussions” with prosecutor if discussions did not result in
a final guilty plea
o Defining plea discussion:
 The discussion be with an attorney for the prosecuting authority
 The presence of attorneys does not automatically make it a plea
discussion
 What happens when a prosecutor is present but not playing a leading role
(e.g., during police interrogations)?
 Statements by the accused are excludable if (1) she exhibits a
subjective expectation to negotiate a plea and (2) that expectation
was (objectively) reasonable under the totality of the circumstances
 Statements with law enforcement will not necessarily meet the test
unless the law enforcement personnel gave the impression of
having more authority than she actually possessed
 Plea offers and collateral statements associated with the plea offers are inadmissible

Exceptions:
 Exhaustive: FRE 410 bars all use of evidence other than explicit exceptions

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 Completeness: in any proceeding in which another statement made during the same plea
or plea discussions has been introduced, if in fairness both statements ought to be
considered together.
o Rationale: We want to avoid misleading the factfinder with incomplete or
misleading statements offered by one party that are taken out of context
o Example: if the plea bargain went like “I can put you away for 3 years but I am
offering you six months,” and the defense tells the jury that the prosecution said
he would only put him away for six months, then the prosecution should be
allowed to bring in evidence of the full discussion
 Situations where the defendant is later prosecuted for perjury or false statements during
plea bargaining
o Rationale: We want to incentivize the defendant to be truthful in negotiations and
forthright in carrying out any required steps for the plea bargain, such as testifying
against other parties
 Cannot use the evidence for impeachment
o But the defendant may waive their protection against the use of their plea-
bargaining statements to impeach
 Courts are split as to whether the defendant can use evidence of a rejected plea bargain;
some rely on FRE 403 to exclude the evidence
o Rationales:
 We do not want to discourage prosecutors from entering negotiations for
fear that the plea bargain will be rejected and used against the prosecution
at trial
 A minor reduction in the sentence does not necessarily mean that the
prosecution feels its position is weaker
 If only a minor reduction in sentence time, then denial of the plea bargain
is not that probative of a consciousness of innocence

Problems
Problem 2-3 – Embezzling Union Employee: D arrested for embezzlement which could be
charged as a misdemeanor or a felony; prosecutor offers D a plea for it to be misdemeanor and if
D doesn’t accept then prosecutor will take to trial as a felony. If D accepted plea, he would get
kicked out of his union (for committing a crime of dishonesty). D refuses the offer. At trial D
wants to admit the refusal of his plea as evidence of his consciousness of innocence.
 Holding: The evidence of his plea rejection is inadmissible, since we’re not sure how
probative it is (he might have refused the deal because he didn’t want to lose his union
job, or he’s not savvy enough to know a good deal when he sees one) and the prejudice
was high
 Policy: if we admit that type of evidence, it will discourage plea deals

Problem 3-7 – Defrauded Friend: Blair made a $50,000 loan to D and D said he would pay
Blair $100,000 back. Blair found out she was defrauded, notified FBI, and the government filed
claim against D’s property. D, his attorney and the AUSA all met and during the meeting, D
admitted to the fraud, thinking that if he cooperated, he wouldn’t be indicted at all. Government
never formally made such agreement or formal plea offer to D.

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 Holding: D’s admissions are not protected by FRE 410. Even though D’s attorney and the
AUSA were present, D volunteered the information to seem cooperative, which is not
what plea bargaining looks like. Court said the evidence was admissible.
 Two-part test:
o Objectively, we see lawyers talking in a room (prosecutor there and situation where
plea normally occurs)
o Subjectively, D thought if he said he was guilty and asked for no sentence he could
get off. His intention was to create a cooperative environment, not to negotiate for a
lower sentence.
o Prof doesn’t like this because D is not sophisticated, but court says that since D had
a lawyer in the room, it’s okay.

5. FRE 411: Is it evidence of insurance?

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit
this evidence for another purpose, such as proving a witness’s bias or prejudice or
proving agency, ownership, or control.

Policy:
 We want to encourage the purchase of insurance and want to prevent those who purchase
it from being prejudiced at trial
 We fear that a jury may feel than an insured may not be responsible for the verdict, as a
“deep pocketed” insurance company will pay for it; the jury may be tempted to award an
excessive verdict
 Lack of relevance
 There is limited probative value behind the idea that someone who buys insurance is
more reckless

Evidence that a person was or was not insured is not admissible to prove liability (i.e., that
person acted negligently or otherwise wrongfully)
 Jurors often assume people have insurance since it is so commonplace, so sometimes an
instruction is necessary to instruct them not to speculate about whether or not there is
insurance

Exceptions (non-exhaustive): agency, ownership, control, bias of witness, prejudice of witness

 Insurance evidence helps to prove that a party denying control of a person, place, or
instrumentality actually did control it since they have insurance for it
 Bias of witness comes up when an investigator is employed by an insurance company
that insures the defendant

Cases
Williams v. McCoy (2001): P and D got into car accident. P sought an attorney after D’s insurance
adjuster tried to force her into a settlement offer. The trial court barred P from mentioning D’s

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insurance, but D’s lawyers tried to paint P as a litigious party since she engaged an attorney
before getting medically evaluated.
 Holding: P should have been allowed to tell the jury why she got an attorney (i.e.,
mention’s D insurance) once D tried to paint her as overly litigious; she should have had
the right to explain otherwise; her reasons would not bear on liability or damages. The
prejudice to the defendant did not outweigh the probative value nor the prejudice P
suffered in not being able to explain her answer.
 Compare to Morbark where defendant turned the shield into a sword
o Look at evidentiary hypothesis and narrative that is being woven to determine
whether something should be admissible
o Either side can “open door” to evidence that normally might not be admissible
based upon evidentiary hypothesis that’s trying to be proven

Problems
Problem 3-8 – Lost in Translation: P (Portuguese-speaking) was injured while serving as a first
mate on a D’s speeding fishing boat. D’s insurance adjustor falsely wrote down (in English) that
P said the boat was moving slowly. P wants to introduce evidence that the insurance adjustor’s
report was incorrect.
 Holding: Since the evidence goes to bias (adjustor has self-interest in incorrectly
translating), rather than liability, evidence is admissible. The entire defense was based on
the credibility of the adjustor’s translation so should be able to admit that to show bias.

III. Character Evidence

A. FRE 404(b): Character & Propensity & Other Acts
FRE 404(b) determines the proper use of evidence of “other acts”
 The act does not need to be a “bad” act to be admissible
 Can be a subsequent act, not just a prior act
 There is a strategy to defining what is an “other” act and what is part of the incident at
issue

Analysis steps: Is the evidence relevant under FRE 401  If so, can you prove that the party
committed the other act per FRE 104(b) (Huddleston standard)?  If so, does the evidence meet
the “missing word” test or the exceptions under FRE 404(b)?  If so, weigh the evidence under
FRE 403

1. Character propensity and evidentiary hypotheses

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

(a) …
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.

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(2) Permitted Uses. This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. [OKMIMIC]

Other acts cannot be used to show action in conformity with those other acts; character
propensity reasoning is disallowed
 Character propensity reasoning: the inference from character to conduct; the inference
that a person’s disposition or propensity to engage in certain conduct can be used to prove
that she acted in accordance with that disposition or propensity at the time at issue in the
case
 Does the evidentiary hypothesis’s probative value depend on character? If so, then
inadmissible. If not, then you must find a permissible reason
o Applies to positive character attributes as well as negative
 Applies to anyone’s character (i.e., the parties’ and the witnesses’)

“Other act” evidence may be admissible when it does not involve character-propensity reasoning
(both criminal and civil cases)
 Categories that do not require an inference from character to conduct (non-exhaustive)
(OKMIMIC):
o Motive: motive is relevant to proving a party’s intent, which is often an element
of a crime
o Intent: intent must often be proven circumstantially (i.e., there is rarely direct
evidence of party’s intent), other act evidence demonstrating intent often focuses
on similar conduct that is committed under similar circumstances.
o Opportunity: opportunity often provides proof to a location, a time, or an
instrumentality necessary to commit the crime.
o Identity: identity is revealed when another act marks a distinctive method that
sheds light on the identity in the case at issue.
 It must be invoked by the defendant to bring this up
 Modus Operandi (MO): evidence that shows a defendant’s distinctive
method of operation; singular strong, sufficiently idiosyncratic,
distinguishing killer from others. Such evidence may be properly admitted
pursuant to Rule 404(b) to prove identity. (High threshold.)
o Preparation or plan: preparation or plan focuses on other acts that indicate a
design by the party to accomplish an act.
 Plan is to be understood broadly. 2 types:
 Blueprint plan: a plan for handling similar situations for a certain
goal
o Examples: officers beating confessions out of arrestees of
high-level crimes
 Single, well-established goal
o Knowledge: other acts demonstrating knowledge are often used to rebut
affirmative defenses that a party did not know a certain aspect of his actions.
 Knowledge may also be used to establish affirmative defenses, such as
self-defense

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 Specialized knowledge: if the party is an expert in something, then they
may have specialized knowledge, meaning they have pattern recognition
abilities as a result of the expertise; the knowledge is different from the
what the average person has on the topic. This is used to disprove a party’s
argument that they were unaware
o Absence of mistake or accident: other act evidence rebuts a claim of accident
when the same type of event occurred previously (e.g., in an arson case, other
suspicious fires of the defendant’s property may rebut the defense that this
particular fire was an accident).
 Other allowable uses:
o Narrative integrity: the evidence is inextricably intertwined such that its removal
would leave the story deeply mysterious
o Doctrine of chances: fortuitous coincidence becomes too abnormal, bizarre,
implausible, unusual, or objectively improbable to be believed; major similarities
between incidents
o Rebuttal of defendant’s argument / impeachment
o Consciousness of guilt / innocence
 See flight test from Robinson
o Not an “other” act (see Zachowitz)
 Procedure:
o Proponent of the evidence has the burden of showing (by a preponderance of the
evidence) non-character-based reasons for the evidence being offered
o A proponent of non-character-propensity evidence may use extrinsic evidence.
o FRE 403 balancing in this context considers several factors:
 The extent to which the point to be proved is disputed; the more strongly
an issue is contested, the more likely the evidence is necessary.
 The adequacy of proof of the other act. The proponent of the other act
evidence must be able to prove that the party did, in fact, commit the other
act.
 The probative force of the evidence.
 The proponent’s need for the evidence. Thus, if other evidence in the
proponent’s arsenal may prove the same point, or if the point is at best
marginal to the issues in the trial, its probative value is lessened.
 The availability of less prejudicial proof.
 The prejudicial effect of the other act; courts analyze not only whether the
evidence will inflame the jury’s emotions but also examine the degree to
which “overpersuading” the jury or a preventative conviction may occur if
the evidence is introduced.
 The similarity to the charged wrongdoing. The greater the similarity of the
other act to the charged wrongdoing, the more likely the evidence veers
into character-propensity reasoning (“she did this before, so she must be
guilty this time”).
 The effectiveness of a limiting instruction. A limiting instruction that
explains the use of the other act evidence to the jury (e.g., “you may use
this evidence as proof of X, but you may not use this evidence as proof of
Y”) should always be requested when a party loses an objection based on

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FRE 404(b). If the limiting instruction will not ease jury confusion
between the permissible and impermissible use of the evidence, this is a
strong argument for exclusion of the evidence.
 The extent to which other act evidence prolongs proceedings.

Cases
People v. Zachowitz (1930): A group of men said nasty things to D’s wife. D and his wife went
home, D got mad, grabbed one of his many guns, and went to confront the group. The altercation
resulted in D shooting one of the other men. The prosecution laid out all of D’s weapons at trial
before D even testified and painted D as a murderous man out to kill.
 Holding: The evidence of D’s other weapons was inadmissible because it was used for
the sole purpose of implying D had a murderous disposition (character propensity
reasoning).
 This case illustrates the importance of choosing what the scope of the incident is. Is D’s
selection of one of his multiple weapons part of the whole transaction itself? Or was that
a separate act?
 How the evidence is used can show the true evidentiary hypothesis

State v. Peterson (2006): A friend of D had died in a very similar way; she also fell down stairs,
resulting in a lot of blood; D was the last person to see each alive; the women looked alike; etc.
 Holding: the evidence of D’s friend’s similar death was admissible because it goes to
disprove that both incidents were accidents; doctrine of chances
 The evidence could also be used to show knowledge; even if D didn’t kill his friend, he
saw what falling down the stairs looked like and knew how to stage an accident
 Remoteness in time matters more for some OKMIMIC words than others (e.g., matters
more for plan, less for absence of accident/knowledge)

United States v. Robinson (1998): D committed two bank robberies using a blue truck, an orange
ski mask, and a Louis Vuitton bag. He was caught fleeing the second robbery, so he plead guilty
to the second robbery, but he went to trial for the first. The prosecution wanted to admit evidence
recovered from the second robbery to prove that D did the first robbery, too.
 Rule: To use evidence as MO and to avoid it becoming character propensity, the evidence
must bear the following factors:
o (1) Singular (tight connection) strong resemblance to the pattern of the offense
charged
o (2) Sufficiently idiosyncratic (peculiar/individual) to permit an inference of
pattern
o (3) Clearly distinguishable from other criminals doing this act
 Holding: MO can be used to establish identity. Given the very strong similarities between
the two robberies, it cannot be said that the probative value of evidence demonstrating
these similarities is substantially outweighed by the danger of unfair prejudice.
 Holding: D’s flight after the second robbery can also operate as evidence of
consciousness of guilt for the first robbery, too.
 Rule: Determination of the probative value of flight as evidence of a defendant’s guilt
depends on the degree of confidence with which four inferences can be drawn:
o (1) from behavior to flight; show it was actually flight

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o (2) from flight to consciousness of guilt; show he was fleeing because conscious
of being guilty of something
o (3) from consciousness of guilt to consciousness of guilt concerning the crime
charged; show the consciousness of guilt was due to the crime at hand
o (4) from consciousness of guilt concerning the crime charged to actual guilt of the
crime charged; show he was actually guilty of the crime
 MO + flight  consciousness of guilt
 Holding: Additionally, the evidence from the second robbery was inextricably intertwined
with the prosecution’s story of the first robbery because otherwise there would be a
narrative void as to how the prosecution came to have the ski mask and bag and other
evidence.

U.S. v. Hernandez (1992): D’s roommate and his dealer were arrested in a drug sting for meth in
Washington DC. D denied having any involvement. A witness testified against D that she had
told him how to make crack when she allegedly she used to sell it in NYC.
 Holding: The witness’s testimony should not have been admitted. It was not relevant to
proving D had an intent to participate in the current crime or any future crime. It would
also fail under FRE 403 because it had no probative value as to the current crime; the
“other act” was not an essential aspect of the crime nor did it furnish context; and the
informant was questionably reliable (and there’s a conditional relevance problem).
 Denying guilt does not automatically raise the issue of intent
o a defendant said he was at the scene of the crime but did not participate; this
raises the issue of intent
o a defendant said he gave his friend a truck to use but did not know the friend
would use it for a crime; this begs the question of the defendant’s true intent

Problems
Problem 4-1 – Satanic Cult: A prostitute’s remains were found, and her pimp was charged with
murder. Prosecution wanted to introduce evidence that D was involved in a satanic cult and had a
cult tattoo to show motive for D to kill the victim when she left the cult.
 Holding: The evidence of the tattoo and cult is admissible to show D’s motive for murder.
Court said the evidence about D’s membership in the cult could not have been extricated
from the prosecution’s narrative, otherwise would leave a mysterious hole for the jury.
Inextricably intertwined, narrative integrity.

Problem 4-2 – Child Porn: D chatted with an undercover officer “Ashley” in an adult’s only
online chatroom. “Ashley’s” picture was a 20-something year old, she said she liked beer and
Perdue, but she told D that she was 13. They arranged to meet, but D never showed up.
Prosecution wanted to introduce the following to show D’s intent, knowledge, and absence of
mistake: 1) D’s other IM conversations with offensive sexual details, 2) 100 images of child
pornography found on D’s computer (printed and shown to jury), 3) testimony of Jane Doe that
D had sex with her multiple times when she was 15.
 Holding: Trial court let it all in. Appellate court said it was admissible under FRE 404(b)
(absence of accident since D argued that it was accidental that she was 13), but then
excluded it all under FRE 403 (too prejudicial, also cumulative).

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 There was a FRE 104(b) conditional relevance issue here. It needs to be shown that he
knew the other girls were underaged. It needs to be shown that the porn was his porn.

Problem 4-3 – Drugged at a Party: D, a Marine, tested positive for methamphetamine. He

argues that someone must have slipped a drug into his drink while he was performing as a
musician at a moving out party. Prosecution seeks to admit that D tested positive 3 years earlier
and gave the exact same story: D couldn’t remember the location of the party or the name of the
host, D’s brother was the only witness both times, and D never reported either incident to police.
 Holding: This was the kind of abnormal, bizarre, implausible, unusual scenario that falls
under the doctrine of chances.
 Note that minor similarities will not be used to bootstrap other acts into the courtroom
(prevents this from becoming the exception that swallows the rule).

Problem 4-4 – Child Molestation: D has two daughters. Mother 1 concerned that D was
abusing her daughter and wants to introduce evidence of similar injuries to D’s daughter with
Mother 2. D said daughter’s injuries were self-inflicted (he denied he did it).
 Holding: Court used identity to admit evidence of abuse on second daughter since the
injuries were similar. Identity was made live by the fact that D denied he was responsible
o Opportunity: he had visitation rights
o Rebuts argument that the injuries were self-inflicted
o D could argue there would be strong incentive for a preventative conviction
(highly prejudicial)

Problem 4-5 – The Porno King: Employees filed a complaint against employer (D) for sexual
harassment based on hostile work environment. In order to rebut P’s claim at trial, employer
needed to prove that it took immediate and appropriate corrective action once it became aware of
Ps’ complaints. Ps argued that D knew about harassment but failed to address it. D company told
the guy who was harassing employees (“the porno king”) to investigate the incident. Ps want to
introduce evidence that the investigator watched porn at work and was known in the office as
“the porno king” to show that the company failed to sufficiently address the problem by
assigning him to be the investigator.
 Holding: The court held that it was admissible. The fact that it was widely known that he
was the “porno king” gets us past the conditional relevance question. Court admitted it as
to knowledge (D knew of investigator’s behavior) and thought it highlighted the
appropriateness/inappropriateness of selecting him to do the investigation. The jury and
the proponent of evidence can never do character-propensity reasoning, but you can ask
the employer to do propensity-based reasoning when determining who should conduct
the sexual harassment investigation

Problem 4-6 – Prior Heroin Conviction: Crystal was caught smuggling meth at the airport. She
was supposed to bring it to her boyfriend, Serrano and he was going to deliver it to Martinez.
When she was caught, she agreed to help the cops. Martinez gave Serrano a ride to the airport to
pick up Crystal, who had spoken with Serrano on the phone and referenced a “package” jabbing
her in the back. Martinez said he hadn’t overheard the call and didn’t know what was happening
but was arrested and charged with conspiracy and aiding abetting the importation of meth.
Prosecution wanted to introduce his prior conviction for heroin importing.

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 Holding: D’s prior conviction can be used to show that he knew how to import drugs and
can recognize the pattern of urgently needing a ride to the airport. Drug sales require
specialized knowledge, which can be used in pattern recognition.
 No conditional relevance problem as to the prior conviction because he was convicted; it
is documented
 There is a conditional relevance issue as to whether he really did hear the phone call; but
given his specialized knowledge, by the preponderance of the evidence, a jury could
conclude that he was aware he was driving to a drug pick up

Problem 4-7 – Police Dog: Officer released his dog when suspect didn’t raise his hands, even
though he knew the suspect was unarmed. Suspect flailed at the dog, officer told him not to touch
his dog, and officer began to strike suspect. Suspect never fully recovered cognitively and was
later killed in prison. P, suspect’s mother, wants to introduce evidence of (1) a prior incident in
which the officer’s old dog was killed by a suspect and he gave it an elaborate funeral, and (2)
testimony from other officers that it was common knowledge the officer didn’t like anyone to
touch his dog. The issue at trial was whether officer hit suspect intentionally or by mistake
(404(b) words)
 Holding: Evidence was admissible to show absence of mistake. Officer said he had no
intention of it leading to this type of injury, it was a mistake. D opened the door by
structuring his defense as accidental. The evidence of his love for previous dogs lets us
understand his mindset and determine that it was not a mistake, but intentional and he had
motive to hit the suspect.
 Example of how the other act is not necessarily a bad act

Problem 4-8 – Beaten Inmate: Officers beat inmate while he was being transferred. D officers
claimed that P intentionally provoked them in order to file a 1983 claim. Issue at trial was
whether officers used force simply to restore order or whether they used force maliciously and
intentionally to cause P harm. P wants to introduce evidence of incident reports about the same
officers that P had filed but were never substantiated. D wanted to introduce evidence of P’s prior
disciplinary records indicating that he had provoked officers in the past.
 Holding (incident reports): since Ds’ use of force is at issue here, the reports could show
Ds’ intent or motive to harm P (explains why they used excessive force). Conditional
relevance issue here because prior reports were never substantiated, however, court says
admit because there is a live witness and counterevidence, so let jury make the
determination.
 Holding (P’s disciplinary records): Not admissible. Ps intent is not at issue. Even if it’s
true that P likes to provoke guards, that doesn’t matter because officers are never allowed
to use excessive force even if provoked.

Problem 4-9 – Electrocuted Prisoner: D confessed to shooting and killing two police officers
after being punched, kicked, and electrically shocked during interrogation. D wants to admit
evidence from two people (1) one who was electrically shocked by the same officers 9 days
before (to show plan/preparation), and (2) one who was beaten by the same officers on the same
day (to show intent and opportunity).
 Holding: Evidence was admissible. When individual acts are sufficiently similar to the
charged case, that can be incorporated under “plan.” Here, officers had a plan to

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electroshock the suspect until he confessed (interpreting plan more broadly as
“blueprint”). Shows that “here at this police department, when we get a suspect who
won’t confess, this is how we get him to confess.” Court also admitted beating evidence
to show intent and opportunity.

Problem 4-10 – Jet Ski Collision: P suing D jet ski manufacturer after a collision. P claims
defective stop-switch on jet ski. D denies liability and claims that the collision was cause by P’s
recklessness. D wanted to introduce evidence of: (1) P was doing 180º maneuvers right before
the collision, and (2) testimony that P was doing 180ºs on prior days.
 Holding (before accident 180ºs): It’s all one act. He was doing the 180ºs right before the
collision, so it’s not considered an “other act” and therefore it is admissible because
404(b) doesn’t even apply.
 Holding (prior days 180ºs): inadmissible because they are trying to say once a risk-taker,
always a risk-taker. Since he was doing 180ºs in previous days, he has a character-
propensity to do these, and during the accident he was acting in accordance with his
character. This is inadmissible under 404(b).

Problem 4-11 – Sodomized Inmate: Inmate was sodomized while in prison. He brought a 1983
claim against prison guards/officials and said he suffered emotional anguish. Ds argued that the
encounter was consensual so there was no emotional anguish. Ds sought to admit: (1) evidence
that inmate engaged in consensual homosexual activity before, and (2) inmate’s testimony that
the male victim of inmate’s manslaughter charge was a former love interest.
 Holding: Inadmissible. This is pure character propensity reasoning (“once you’ve
consented to have sex, all sex is consensual, and you shouldn’t be upset”).

2. FRE 406: Habit Evidence

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to
prove that on a particular occasion the person or organization acted in accordance with
the habit or routine practice. The court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.

How to identify a habit

 The more specific a behavior, the more likely it qualifies as a habit
o Example: “Victor is a safe driver” is too vague to qualify as a habit. But “Victor
always wears his seatbelt” addresses a very specific behavior that could be a habit
 Regularity contributes to whether it is a habit; it cannot be a behavior that possesses
numerous exceptions.
 Non-volitional, automatic behavior; the more thought that goes into whether to exhibit a
behavior, the less likely it is a habit.
o The more a behavior requires judgment, the less likely it is a habit
o Typically, innocuous (not harmful or offensive)
o Because it is perceived as automatic, its probative value is usually very high
 NOT doing something can be a habit

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Procedure:
 A proponent of habit evidence may use extrinsic evidence to prove that on a particular
occasion the person acted in accordance with the habit/routine practice regardless of
whether it is corroborated/whether there was an eyewitness
 The proponent must also also prove a large enough sample to convince the court that the
behavior is automatic.
o Look for: (1) adequacy of sampling (broad), (2) uniformity of response (whenever
have sample, always acted the same way)
 No exception to the character-propensity ban is required, nor is OKMIMIC under FRE
404(b) needed. It is fact-intensive inquiry as to whether a behavior can be fairly called a
habit or if it is more accurately an attempt to gauge a party’s character

Cases
Reyes v. Missouri R.R. (1979): P was run over by D’s train. D wanted to admit evidence of P’s
four prior convictions for public intoxication that occurred over ~42 months to show that he was
drunk the night of the incident.
 Holding: The evidence is inadmissible because it is clearly intended to reflect P’s
character as a drunk. The incidents here were to irregular to be considered habit evidence.
 Inadequate sampling and irregular

Problems
Problem 4-12 – Friday Sabbath: D on trial for alleged larceny that happened on a Friday night.
D sought to introduce evidence that he was always home on Friday nights to observe sabbath: (1)
wife testimony that he was always home on Friday night, and (2) Rabbi testimony.
 Holding: Inadmissible. Although this is pretty regular and sounds like specific behavior,
the court said that following the Sabbath was too volitional, D needed to think about it
too much. Doesn’t rise to the level of invariable regularity

B. Exceptions to Character Propensity Reasoning

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1. FRE 404(a) & FRE 405: Proving Character

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance
with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if
the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of
an alleged victim’s pertinent trait, and if the evidence is admitted, the
prosecutor may:
1. offer evidence to rebut it; and
2. offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim was the
first aggressor.

Rule 405. Methods of Proving Character

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(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony
in the form of an opinion. On cross-examination of the character witness, the court may
allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved
by relevant specific instances of the person’s conduct.

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What type of evidence is admissible?
 A criminal defendant may only offer evidence of a character trait that is pertinent to the
underlying crime charged under FRE 404(a)(1) or may offer (subject to exceptions under
FRE 412) pertinent character traits of an alleged crime victim.
 FRE 404(a) does NOT apply to civil cases unless the character trait is something
that needs to be proven as part of the tort; see list of torts below
 The limitation to pertinent traits is a matter of relevance.
o “lawlessness” is a pertinent trait for all crimes
o A trait of “peacefulness” is not relevant for a non-violent crime
o A trait of “honesty” is often not pertinent for violent crimes

Who may introduce and how may it be rebutted?

 The criminal defendant must “open the door” by offering a pertinent trait of character of
herself or the alleged victim.
 A defendant can open the door three ways; she can offer this evidence:
o (i) through a character witness who testifies as to the defendant or victim’s
character
o (ii) through the defendant’s own testimony as to her character or the character of
the victim (e.g., the defendant becomes her own character witness by describing
her character or that of the victim)
o (iii) through cross-examination of a government witness that involves asking the
witness about the witness’s perception of defendant’s or the victim’s character.
 The prosecution can rebut that evidence based on how the defendant opened the door.
o If D offers character evidence about herself then prosecutor can rebut it by
showing that D lacks that trait or holds an opposite one
o If D attacks the victim’s character, then prosecutor can (subject to limits of 412
[rape shield]):
 Rebut by bringing evidence or witnesses to show that the victim lacked the
accused trait or held the opposite trait
 Bring evidence or witnesses to show the defendant had the exact same trait
o In the limited circumstance of a homicide case, the defendant can open the door
by claiming the victim was the first aggressor; then the prosecutor can introduce
evidence of the victim’s peacefulness.

What process must be followed?

 The party is limited pursuant to FRE 405(a) to reputation or opinion evidence as to
character on direct examination
o Reputation: gathering data points in the community and how everyone views D
 Witness must lay foundation (they are familiar with D’s reputation in the
relevant community during the relevant time period)
 Community: neighborhood, professional colleagues, church community,
etc.
o Opinion: witness must know D sufficiently to form an opinion; “I believe D is
honest”

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 Witness must testify as to his knowledge of the target witness, whether it
be personal or professional.
o The character witness cannot base her opinion on specific incidents by, for
example, offering an example of when defendant exhibited honest behavior; as it
has historically been perceived as both confusing to the jury and a potential waste
of time.
o Policy: we do not want to go down the rabbit hole of arguing over the veracity of
the specific examples
 A character witness may be cross-examined on her testimony, and specific instances can
be used to undermine the testimony. The specific instances cannot be used to prove the
trait, just the strength of the witness’s testimony.
o As long as (i) the specific instance is relevant, (ii) the cross-examiner possesses a
good faith basis for the question, and (iii) it can survive a FRE 403 analysis, it
may be inquired into on cross-examination.
o The witness must likely have been able to obtain knowledge of the specific
incident for it to be relevant.
o Because the purpose of the specific instance evidence is to test the credibility of
the character witness, the questioner cannot prove the incident occurred if the
witness claims no knowledge of the incident.
 No extrinsic evidence is allowed. The witness’s answers must be
accepted
 The prosecutor may call a character witness to disprove that the defendant possesses an
alleged character trait. This rebuttal character witness is limited to reputation or opinion
on her direct.
o If the prosecutor wants to explore specific instances of conduct, she must rely on
the cross-examination of the defendant’s character witness.
 The prosecution cannot turn a fact witness for the defendant into a character witness on
cross by asking the witness questions about the defendant’s character and then supplying
specific instance evidence to counter the testimony.
o If the fact witness voluntarily offers character testimony, then the door has been
opened to the prosecution to bring specific instance evidence to counter it
o See Gilliland
 Better to offer the evidence under FRE 404(b) because then there are no procedural
handcuffs: can use specific instances and offer extrinsic evidence

The role of FRE 405(b)

 FRE 405(b) allows specific instances of character on direct in cases in which “a person’s
character or character trait is an essential element of a charge, claim, or defense[.]”
 FRE 404 does not apply to civil cases EXCEPT for the crimes listed below where
character trait must be proved as part of the tort
 Examples of where the thing that must be proved is a character trait (i.e., a person’s
propensity to engage or not engage in certain forms of behavior must be proved):
o Seduction (where “chastity of the victim” may need to be proven)
o A defense to entrapment (where the question may be whether the defendant was
“predisposed” to committing a crime)

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o In the civil arena, negligent entrustment or hiring, parental custody disputes, libel,
slander, and defamation are examples where character may be an essential
element of a claim or defense (PELDS).
o NOT ON LIST: self-defense; self-defense is not a character situation

Cases
Broyles v. Commonwealth (1954): D was convicted of murder. At trial he introduced several
witnesses to testify that he had a reputation for peace and quietude. The prosecution cross
examined the witnesses and asked if they knew about D’s drunk and reckless driving and
disorderly conduct convictions.
 Holding: A conviction for drunken driving, or reckless driving, or disorderly conduct has
some reasonable connection with a man’s reputation for peace and quietude. In the legal
sense, peace and quietude signify obedience to law, public quiet, good order and
tranquility. A jury might reasonably infer that a propensity to drunken driving, reckless
driving, or disorderly conduct is evidence of an attitude of disrespect for the law
inconsistent with a good reputation for peace and quietude.
 Rule: Lawfulness is always pertinent in criminal case

U.S. v. Gilliland (1978): D was convicted of transporting a stolen automobile. His stepson served
as a fact witness since he was there when D supposedly legally purchased the car. On cross-
examination, the prosecution asked the stepson if D was the type of person who would ever forge
documents or steal cars. When the stepson said no, the prosecution asked him if he was aware D
had stolen cars and forged documents in prior convictions.
 Holding/Rule: The stepson was not a character witness and cannot be forced to become a
character witness by the prosecution asking him questions about D’s character. Thus, it
was improper to present the evidence of the prior convictions to counter the stepson’s
character testimony.
 Rule: Had the stepson volunteered the character testimony, then the specific instance
evidence could be used to counter his testimony.

Problems
Problem 5-1 – Post Office Theft: A tax rebate check was stolen from the post office, a postal
employee, D, was suspected. She knew she was under investigation but was allowed to keep her
job until investigation concluded. To determine if she was the thief post office put 3 “test letters”
with money in them in a bin that D was processing to see if she would steal them. She did not
steal them, and D wanted to introduce that as evidence to show her law-abidingness.
 Holding: This is a criminal case with D opening the door and it is pertinent to lawfulness,
but the evidence is offered in the wrong way because this is a specific instance on direct
which is not allowed (can only offer opinion/reputation on direct).
 The court also notes here that her not stealing when D knows they are watching her really
doesn’t say much about lawfulness; not particularly probative.

Problem 5-2 – Rastafarian Alibi: D was charged with homicide and introduced an alibi witness
who claimed that D was with him baking Rastafarian bread on night of shooting, he knew D
because they were Rastafarians which is a religion that is peaceful and rejects violence.

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 Holding: The court approached this in two ways: (1) FRE 610 says that evidence of
witnesses’ religious beliefs or opinions is not admissible to attack or support the
witnesses’ credibility; and (2) D being a Rastafarian, acting in accordance with his
religious beliefs is a specific instance and thus not allowed on direct when acting as a
character witness.

Problem 5-3 – Drug-Dealing Dad: D was arrested for selling drugs after drugs were found
behind a tree where D had been hiding. D wanted to introduce testimony from his baby mama
about what D had done on the day he was arrested (that he would have been dropping off his son
right before the arrest) and that shows that he’s a “family man.”
 Holding: this seems like a specific instance and being a “family man” is not probative to
lawfulness (fathers can still be drug dealers). Evidence inadmissible.

Problem 5-4 – Hydroponics: D (and co-Ds) charged with selling cocaine to an undercover cop.
D did not deny his presence at the scene but argued that he lacked the requisite criminal intent
(opening statement saying D makes money, does hydroponics, is a property owner). Is this
opening the door for the prosecution to bring in D’s prior marijuana conviction?
 Holding: The prior conviction is inadmissible. D’s attorney is allowed to introduce who
their client is without making it about character. It needs to be a little more specific to
become character (“honest,” “peaceful”). It is harmless to let in this backstory evidence.
 Rule: There needs to be specific assertions to implicate character

Problem 5-5 – Inmate Killing: D, inmate, was on trial for killing a corrections officer. On his
direct, he testified that he killed the officer because the officer was planning to let other inmates
out of their cells to kill D. D had been convicted of two murders. On cross he testified that he had
not been “out to hurt nobody or anything.” On cross, prosecutor asked D about his prior
conviction for killing another inmate.
 Holding: D’s statement on cross was not a character statement because D was being
specific to the case. He was not saying that he was a generally peaceful man, he was
explaining at this specific time he did not intend to hurt anyone. A particular occasion is
not a general claim of character. It would be a problem to say everyone who raised self-
defense is bringing up character.
 Rule: Statements specific to the case are not general character

Problem 5-6 – Brass Knuckle Self-Defense: D and the victim got into a fight. D was charged
with assault with a deadly weapon but argued self-defense. D sought to introduce evidence that
he had a reasonable fear of the victim because he knew the victim had been carrying brass
knuckles earlier that day and knew the victim had recently attempted to inflict severe injury on a
relative.
 Holding: The evidence of D’s knowledge of the victim’s prior violent act and his carrying
brass knuckles was admissible because this is a 404(b) problem. The evidence goes to D’s
knowledge, not character propensity.

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2. FRE 413–415: Sexual Assault and Child Molestation

Rule 413. Similar Crimes in Sexual-Assault Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the
court may admit evidence that the defendant committed any other sexual assault. The
evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the
prosecutor must disclose it to the defendant, including witnesses’ statements or a
summary of the expected testimony. The prosecutor must do so at least 15 days before
trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime
under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object
— and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of
another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or
physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

Rule 414. Similar Crimes in Child Molestation Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation,
the court may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the
prosecutor must disclose it to the defendant, including witnesses’ statements or a
summary of the expected testimony. The prosecutor must do so at least 15 days before
trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.
(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:
(1) “child” means a person below the age of 14; and
(2) “child molestation” means a crime under federal law or under state law (as “state”
is defined in 18 U.S.C. § 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a
child;
(B) any conduct prohibited by 18 U.S.C. chapter 110;
(C) contact between any part of the defendant’s body — or an object — and
a child’s genitals or anus;
(D) contact between the defendant’s genitals or anus and any part of a child’s
body;
(E) deriving sexual pleasure or gratification from inflicting death, bodily
injury, or physical pain on a child; or

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(F) an attempt or conspiracy to engage in conduct described in
subparagraphs (A)–(E).

Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged
sexual assault or child molestation, the court may admit evidence that the party
committed any other sexual assault or child molestation. The evidence may be considered
as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must
disclose it to the party against whom it will be offered, including witnesses’ statements or
a summary of the expected testimony. The party must do so at least 15 days before trial or
at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence
under any other rule.

FRE 413, 414, and 415 are “pure” exceptions to the ban on admitting character evidence to prove
the propensity of the defendant.
 Regardless of whether a prior sexual offense was even reported to authorities, specific
details of that prior sexual offense are admissible based on purely propensity-based logic
o A sexual crime is defined broadly; for example, it can encompass child
pornography
 The evidence is admissible “on any matter to which it is relevant,” and the presumption is
in favor of admission.
 Whether the other sexual assault occurred is a conditional relevance question governed
by the relatively lenient Huddleston standard
 It is debated whether the full force of FRE 403 should be applied to the evidence.
o Do not assume FRE 403 “lite” is the default since there is a duty to reduce
prejudice against the defendant
o Guardia 5 factors for FRE 403 balancing (the stronger each factor the more
probative the evidence):
 The similarity of the prior acts to the acts charged
 Here similarity makes it more probative and thus more admissible
 The closeness in time of the prior acts to the charged acts
 The frequency of the prior acts, the presence or lack of intervening events
 The need for evidence beyond the testimony of the defendant and alleged
victim.
 [Background factor: will this result in a mini trial about the previous
sexual conduct? If so, this weighs against admissibility]
 Evidence covered by one of the FRE 413–415 can be admissible for use in a case
involving another, e.g., evidence of sexual assault can be used for a child molestation
case against the same perpetrator.
 All “other” acts are admissible, regardless of if they were before or after the incident at
issue
 Procedure: The prosecution is also afforded a great deal of freedom in presenting this
evidence; they may open the door to the proof and may offer specific instances of sexual
assault on direct examination of a witness.

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Cases
U.S. v. LeCompte (1997): D was accused of sexually abusing his wife’s niece by joining her on
the couch while her siblings were asleep in the same room. Prosecution wants to admit evidence
of D’s sex offenses against his first wife’s niece 8 years ago, committed while they played games
at his house. There were similarities and differences (diff. levels of isolation of victims,
methodology D gained trust of V, 8 years apart) between both cases. At the earlier trial,
prosecutor missed a deadline so there was a procedural handcuff, forcing prosecution to use FRE
404(b) rather than FRE 414, which failed.
 Holding: The FRE 403 balancing test should be loosened to give the intended effect of
FRE 414, so this evidence should be admissible. The two incidents were substantially
similar, and the differences were small.
 FRE 403 “lite”

U.S. v. Guardia (1998): Two women sued their OBGYN for inappropriate touching. They sought
to introduce the evidence of four other women’s testimonies. There were differences in the
experiences: One of the witnesses complains that D improperly touched her breasts, not her
pelvic area; another complains of D’s use of a medical instrument, not his hands; chaperons were
present during the examination of two of the four Rule 413 witnesses; all six women had
extraordinary gynecological problems that appeared to require different courses of treatment and
examination.
 Holding: There is no indication that Congress did not intend FRE 403 to operate normally
against FRE 413–415. Due to the differences here and the six testimonies, the jury would
be confused so the testimonies should be excluded.

Problems
Problem 5-7 – Date Rape: Jan was at a party drinking, passed out, woke up to D holding her
down and raping her, she couldn’t stop him. She reported to school counselor the next day and D
was arrested. Prosecution wanted to introduce testimony of a similar sexual assault where D
assaulted another girl 3 months after Jan.
 Holding: The evidence of another sexual assault is admissible whether it is prior or
subsequent, so this was admissible under 413.
 In this case, the subsequent act was even more probative than if it had been a prior act.
He cannot be rehabilitated and he will always act according to his character even if he is
under investigation

Problem 5-8 – Rape then Molestation: D facing criminal charges for molesting his 10-year-old
niece at a slumber party while she was sleeping on the couch. Niece’s mom, D’s sister, wants to
testify that D raped her while at a party 11 years earlier, after she had passed out (she was 20).
She had reported the rape but dropped the charges because of family pressure.
 Holding: The time lapse between events and the fact that one is rape and one molestation
weighs against admission of the evidence. The facts that D committed sexual assaults on
relatives who were unconscious points towards admission. Court says that 413 evidence
is admissible in a 414 case and vice versa. FRE 403 balancing determined that the
common nature of the crimes made the evidence admissible.

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Problem 5-9 – Child Porn: D was arrested for possession of child porn. Prosecution wants to
admit evidence of D’s 2-year-old conviction for selling child porn. D claims that prior possession
of child porn doesn’t constitute evidence of child molestation.
 Holding: Child pornography, even possession is sexual abuse of a minor. Even though D
had never touched a child before, it is still admissible. Crimes must be read broadly.

Problem 5-10 – ER Doctor Assault: D, an ER doctor, penetrated Martinez both vaginally and
rectally against her will. There was no medical reason for it. D denies it. Martinez wants to
introduce evidence that 6 years earlier, there was a civil complaint filed against D where a
woman alleged that D inserted his fingers into her vagina during a postoperative exam. The
operation had resulted in vaginal and rectal complications, victim was heavily sedated, and
charges against D were dropped.
 Holding: FRE 403 balancing here made it a close call, but court ruled inadmissible. The
accuracy of victim’s testimony was questionable because sedation, there was a medical
reason for D’s inspection, court was afraid admission would result in a mini trial over the
evidence (which does seem to be a background factor, we saw in Guardia).

IV. Impeachment
Impeachment: to call into question the veracity of a witness.
 Impeachment is always relevant. Anyone who steps onto the witness stand and testifies is
open to attack for their truthfulness.
 A criminal defendant can be impeached on her truthfulness, as can a character witness.
 Impeachment is not a substantive attack/cannot be used to prove guilt, offering to
undermine credibility

Rule 607. Who May Impeach a Witness

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

Notes:
 Plaintiff’s counsel cannot call a witness, however, for the sole purpose to impeach her
 FRE 608 and 609 have the most procedural handcuffs, so use those rules last; no extrinsic
evidence allowed

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A. Attacking General Trustworthiness

Cast doubt on general trustworthiness; attacking the witness’s ability to tell the truth, positioning
that the witness is a liar by nature, and/or that the witness should not be believed in this instance

1. Bias
Bias: a very broad term that reflects an attitude of a witness that might cause her to be more or
less favorable to a party for a reason other than the merits; impaired impartiality
 Almost anything that might so sway a party may be introduced as evidence of bias:
personal relationships, business relationships, bribes, a financial stake in the outcome of
the suit, etc.
 Advantages
o Bias is always relevant, not a collateral issue
o Can show circumstances to show the strength of bias (Abel)
 Bias can be proved through extrinsic evidence; not limited to cross-
examination
 Limitations:
o FRE 403 applies
o This is not a character attack; exploring the circumstances that have the potential
to cause this witness to slant their testimony, even if it is unconscious.
 Attacks purely based on character are not allowed extrinsic evidence

Cases
U.S. v. Abel (1984): D and X were arrested for robbing a bank. X testified against D to say he
was a part of the robbery. D offered W as a witness to say that X had planned to frame D so that
X would receive more favorable treatment from the government. X then countered W’s

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testimony, saying D and W were all part of the Aryan Brotherhood where it was a practice to lie,
steal, cheat and kill for one another, thus W’s testimony is biased.
 Holding: It is permissible to impeach a witness via bias even though the FRE do not
enumerate such a rule.
 Holding: The evidence of the gang was sufficiently probative of W’s bias towards D to
warrant its admission. It was also necessary to describe the gang so that the strength of
W’s bias was understood (i.e., that the gang was not just a loose knit group).
o The evidence was “scalpeled” to eliminate the gang’s name and forbid discussion
of the punishment for disobeying the gang
 The prosecution wants to say they are showing W’s bias, because if they were showing
that W was a “liar by nature” (FRE 608(b)), then they would not be allowed to use
extrinsic evidence

2. Defect in capacity
Defect in capacity: an argument that the witness could not accurately perceive, remember, or
narrate an event and therefore her description should be given little or no weight.
 Defect in capacity can be proved through extrinsic evidence
 Examples: vision, drug use (Observation: on drugs when you witnessed it? Narration: on
drugs now as you tell us your testimony?)
o The evidence of the defect in capacity must show that the defect was present
during the incident or the testimony. See Henderson.
 Limitations:
o FRE 403
o A party must have a reasonable/good faith basis for this avenue of impeachment;
fishing expeditions are not allowed.
o Defect must exist at the relevant period of narration or perception
o The further we move temporally from the event, the higher the burden of
introducing evidence

Cases
Henderson v. DeTella (1996): D murdered C’s uncle and shot her in the head. C testified to the
incident at trial, but on cross, the defense attorney questioned her about whether she ever used
drugs in front of D and J. C denied it. The defense later tried to but J on the stand to testify that
he had seen C use drugs, but the trial court denied the testimony.
 Holding: D was not deprived of his right to confront the witnesses (C) against him when
the trial court barred the testimony of J. Absent a connection to C’s cognitive abilities, J’s
testimony would have served only to impeach her character, a purpose we have
repeatedly deemed improper. There was no attempt to say that C was on drugs at the time
of the incident, so it is not probative of C’s ability to recognize and identify the individual
who committed the offense.
 The court notes that if J was going to testify that C was using drugs within the time frame
of the events to which she testified, it might have been admissible.

3. Character for untruthfulness (“liar by nature”)

Character-propensity arguments as to the truthfulness of any witness is allowed as long as FRE
608 and 609 are followed
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 you will be able to:
o FRE 608(a): call a witness to testify as to their opinion of the witness’s honesty,
o FRE 608(b): explore past examples of dishonest behavior by the witness on cross
examination, and/or
o FRE 609: introduce the witness’s prior convictions on cross examination

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

(a) Character Evidence.
(1) …
(2) …
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted
under Rules 607, 608, and 609.

a. FRE 608(a): Calling a character witness

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about that character. But
evidence of truthful character is admissible only after the witness’s character for
truthfulness has been attacked.

FRE 608(a) allows the “credibility” of any witness to be attacked via opinion or reputation of a
character witness. Truthfulness is the only pertinent characteristic
 Procedural requirements:
o While he may testify as to either opinion or reputation of the target witness, a
proper foundation must be laid.
 For reputation, the character witness must testify to familiarity with the
relevant community (broadly defined) of the target witness.
 For opinion, the character witness must testify as to his knowledge of the
target witness, whether it be personal or professional.
o Like FRE 405, the cross-examination of the character witness may explore
specific acts of the target witness as long as those specific acts relate to the target
witness’s truthfulness
 Limitations:
o The character witness is limited to opinion and reputation evidence on the
truthfulness of the target witness and may not rely on specific instances to
demonstrate the validity of his testimony.
o Character witness can always attack credibility (e.g., untruthfulness evidence), but
cannot bolster (truthfulness) until after the target witness’s credibility has been
attacked
o No extrinsic evidence allowed.
o Unlike bias or defect in capacity, the character witness is limited to his conclusory
statements regarding character for truthfulness.
o Character witness can also be impeached

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o FRE 403 applies

b. FRE 608(b): Cross-examining a witness regarding non-conviction

material

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness

(a) …
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to
attack or support the witness’s character for truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they are probative of the character for
truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified
about.
By testifying on another matter, a witness does not waive any privilege against self-
incrimination for testimony that relates only to the witness’s character for truthfulness.

Under FRE 608(b), one may cross-examine any witness regarding specific instances of conduct
that relate to truthfulness only  “liar by nature” attack
 The core component of the non-conviction misconduct must involve dishonesty, but
courts have sent mixed signals as to what crimes qualify; fact-intensive analysis
o Example: Violent behavior and drug use are too weak to link to veracity
o Example: Theft by stealth has been linked to veracity, but more straightforward
theft (robbery) is too weak
 Do not need to wait for the person to say “I’m truthful”
 Limitations
o The underlying act must concern dishonesty
o The misconduct must not lead to a conviction.
 If there is a conviction, then that is an FRE 609 attack
o Cannot ask the witness about arrests
o Extrinsic evidence is not allowed to prove character for truthfulness; must accept
the witness’s answers
 A clever attorney may, however, try to introduce extrinsic evidence by
arguing that she is conducting a different type of impeachment, like bias
o If the impeachment concerns contradicting prior statements, FRE 608(b) does not
apply. See FRE 613.
o The questioner must have a reasonable basis for her inquiry, and courts have
discretion under FRE 403 to block overly prejudicial impeachment attempts.
 Analysis steps: specific instances of conduct are admissible when
o (1) The purpose of producing the evidence is to impeach or enhance credibility by
proving that the witness’s conduct indicates his character for
truthfulness/untruthfulness

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o (2) The conduct in question is in fact probative of truthfulness/untruthfulness and
is not too remote in time
o (3) The conduct in question did not result in a conviction and
o (4) The inquiry into the conduct takes place during cross-examination
o And even then, 403 plays a role
Hearsay and impeachment: Hearsay declarants can be impeached with: (1) bias, (2) capacity, (3)
prior inconsistent statements, (4) counterproof, (5) conviction
 But 608(b) liar by nature attack can only come in on cross, yet there is no cross of a
hearsay declarant, circuit split:
o Some courts with not allow liar by nature because no cross of hearsay declarants
o Other courts have allowed to just mention the specific instances but no extrinsic
allowed

Cases
State v. Morgan: D shot an unarmed victim. The prosecution wanted to provide testimony that
that D had threatened to shoot someone with a shotgun a few months ago.
 Holding: Because the only purpose for which this evidence is sought to be admitted is to
impeach or to bolster the credibility of a witness, the only character trait relevant to the
issue of credibility is veracity or the lack of it. We conclude that the prosecutor’s cross-
examination of defendant in this case concerning an alleged specific instance of
misconduct, i.e., two assaults by pointing a gun at two people during the same incident,
was improper under Rule 608(b) because extrinsic instances of assaultive behavior,
standing alone, are not in any way probative of the witness’ character for truthfulness or
untruthfulness.
 Holding: The evidence is also inadmissible under Rule 404(b) because it is pure
propensity reasoning; because D was the aggressor in an incident three months ago, he
must be the first aggressor now.
 D was allowed to introduce this testimony about victim under 404(b) because it goes to
knowledge. “Yeah, I shot him, but 3 days ago he was violent, etc.” This is not 404(a)
because it is specific instances which are not allowed on cross under this rule (limited to
reputation/opinion).

Problems
Problem 6-1 – Running from Police: D standing in the street, approached by an officer then ran
and eluded the officer. He was finally apprehended by another officer (Soto) and was charged
with illegal possession of a firearm. At trial, Soto was the sole eyewitness to support the
conviction, no fingerprints on gun. D claimed that Soto planted the gun and attempted to
impeach Soto in two ways: (1) testimony of criminal defense counsel who would testify
regarding Soto’s reputation for untruthfulness within the “court community” (e.g., other defense
attorneys); and (2) D attorney’s opinion that Soto was untruthful. Also, D wanted to cross-
examine Soto regarding suspension of Soto’s driver’s license.
 Holding (reputation 608(a)): court said that “court community” was not a tenable
foundation for reputation evidence, but even if it was, evidence was not admissible
because defense counsel relied on too small of a sample size with only criminal defense
attorneys. This reputation evidence should be omitted under FRE 403

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o Note: if defense counsel had said “court community” involved him asking judges,
prosecutors, other people in the courthouse, that might have been enough for
reputation
 Holding (opinion 608(a)): Court said defense counsel’s opinion lacked a sufficiently
supported factual foundation. All he had was gut reaction of Soto, which was not enough.
o Note: if counsel had said “I’ve cross examined him, seen Soto testify, seen him
caught in lies and testimony has made me question his veracity” that would
probably be enough for opinion. Need more than just gut reaction, you need
something to base it on.
 Holding (suspended license): The court allowed cross-examination of the officer’s
suspended driver’s license under 608(b) because he probably a had a duty to report it to
his supervisors (involved lack of truthfulness).

c. FRE 609: Cross-examining a witness regarding the witness’s

convictions

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) In General. The following rules apply to attacking a witness’s character for truthfulness
by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal
case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant,
if the probative value of the evidence outweighs its prejudicial effect to
that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements of the crime required
proving — or the witness’s admitting — a dishonest act or false statement.

Rationale: if you cannot obey the law, you cannot be trusted to tell the truth in court

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Rule: can attack a witness’s character for truthfulness/untruthfulness through evidence of a prior
conviction
 Can offer following information:
o What witness convicted of,
o Place of conviction,
o Date of conviction
o Anything more is up to judge’s discretion, but usually not allowed in
 Rationale: the seriousness of the crime supports that one convicted of a felony is less
likely to to follow societal rules by telling the truth under oath.

FRE 609(a)(1) allows evidence of a felony, punishable by more than one year in prison, whether
or not it involves dishonesty
 If one could have received a sentence in excess of one year, the rule applies even if the
defendant was sentenced to less. Punishment, not sentence, is the key
 For non-criminal defendants, the conviction(s) is to be admitted subject to the balancing
test of FRE 403.
o Favors admissibility
o The burden is on the objecting party.
 The criminal defendant receives a more lenient test—the evidence is admitted only if its
probative value outweighs its potential to cause unfair prejudice to the defendant.

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o 50/50 test  51% prejudice, 49% probative = inadmissible
o Brewer factors to determine probative/prejudicial weights:
 (1) the nature of the crime
 More likely to be admissible if crime related to honesty or veracity
 If violent, less probative of truthfulness
 If deception, more probative of truthfulness
 (2) the time of conviction and the witness’ subsequent history
 Favors admissibility if it’s closer to present charge
 (3) similarity between the past crime and the charged crime
 If crimes are similar, then favors inadmissibility because of risk of
propensity-based reasoning
o Favors exclusion
o The burden is on the proponent to show probative value, and this test does not
require that prejudice “substantially outweigh” the probative value.
 Limited by FRE 609(b)–(e)

Under FRE 609(a)(2), crimes (misdemeanors or felonies) of dishonesty and false statement are
automatically admissible
 Evidence admitted under FRE 609(a)(2) is not balanced under FRE 403
 FRE 609(a)(2) applies only “if the court can readily determine that establishing the
elements of the crime required proving—or the witness’s admitting—a dishonest act or
false statement.”
o In order to readily determine the degree of deceit involved in the offense, one may
look to the statutory elements of the charged crime, the face of the trial court’s
judgment, the indictment, a statement of admitted facts, and/or jury instructions.
o Deceit, untruthfulness, or falsification must be an element
o NOTE: even if you committed a crime in a dishonest way, that does not qualify
unless truthfulness is a necessary element
 Most courts limit the scope of prior conviction impeachment to the bare facts concerning
what the witness was convicted of and when.
o Cannot get into the details of the crime
o We care only about status
o Only extrinsic evidence allowed is certified copy of the conviction; do not
have to rely on witness’s statement
 Limited by FRE 609(b)–(e)

FRE 609(b)–(e)
 FRE 609(b) sets a ten-year limit to all convictions brought in under FRE 609(a).
o This includes prior lie convictions
o Rationale: found very little probative value in older convictions, as the evidence
must clear a “reverse 403” test in that the probative value of the conviction must
substantially outweigh its prejudicial effect.
o Very few convictions will meet the “reverse 403” test
o Brewer rule:

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 Clock starts running: the date of conviction or release, whichever is later.
But if D violates parole and get sent back, then second date of release
applies.
 Clock stops running: indictment for present charge or start of trial for the
present case, whichever is earlier
 FRE 609(d): Juvenile adjudications can only be admissible in criminal cases against a
non-criminal witness if it is necessary (extremely high bar), and adult’s conviction for
same offense would be admissible to attack credibility
o Can offer documentary evidence (i.e., conviction)
o Limitations:
 Cannot use in civil cases
 Cannot use against a criminal D to impeach

Cases
U.S. v. Brewer (1978): D was charged with kidnapping and car theft. Prosecutor sought to
introduce evidence of four past convictions for: kidnapping, rape, aggravated assault, and assault
with a deadly weapon
 Holding: D’s parole and subsequent prison sentence constitutes confinement for his
conviction, so the clock for the 10 year rule did not start ticking until release after re-
confinement.
 Holding: The kidnapping conviction should not be admitted because the jury will be
inclined to use it as character propensity reasoning. Admission of the other three
convictions, all involving serious crimes, should sufficiently serve the purpose of
impeaching the defendant’s credibility – the probative value outweighs the prejudicial
effects.
o Under the factor test, kidnapping is basically a violent crime (weighs against
admission), D kept conflicting with the law (weighs towards admission), and
kidnapping charge was identical to one of the previous acts which would
prejudice the jury (weighs against admission)

Problems
Problem 6-2 – Drug Debacle: D was a former drug-user/dealer but had stopped. DEA went to
her house to arrest her husband, a fight ensued, and D was prosecuted for assaulting a federal
officer. Government wants to admit D’s prior conviction for drug offenses.
 Holding: prior conviction inadmissible under FRE 609 50-50 test. Nature of prior crime
(drugs) is not probative of truthfulness, and since drugs are implicated in events giving
rise to D’s arrest, evidence of her previous convictions for drug offenders would
prejudice the jury.
 Brewer factors:
o Nature: not probative of truthfulness
o Time: has not done them recently, no longer uses
o Similarity: very similar scenarios might be too prejudicial
 Look at entire context, not each charge in a vacuum

Problem 6-3 – Embezzling Bank Teller: D was a bank teller who made 16 separate,
unauthorized withdrawals, and is now charged with embezzlement. His defense is

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misidentification, that another teller stole the money, not him. D has a prior car theft felony
conviction from years prior, so he is worried that prosecution will introduce that.
 Holding: The prior conviction is not admissible under the 50-50 balancing test. Court was
uncertain of whether car theft is probative of honesty/dishonesty and concerned that
admitting the conviction (which involves stealing, just like the current charge) would
cause the jury to “go down propensity road.” (Close call.)

d. FRE 608(a): Witness Rehabilitation

Bolstering: calling a witness to testify that another witness is truthful under FRE 608(a)
 Methods:
o Depending on how the witness was attacked, they will offer evidence that shows
good character or limits the scope of the alleged bad character of the witness.
o On re-direct, a witness may attempt to explain, deny, or mitigate the damage
caused by impeachment.
 FRE 608(a) mandates that “evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked.” Thus, if a witness’s character for
truthfulness has been attacked by (i) opinion or reputation evidence under FRE 608(a),
(ii) cross-examination using specific incidents under FRE 608(b), or (iii) conviction
evidence under FRE 609, then the party that called that witness may call a character
witness to bolster her reputation for truthfulness.
o Rationale: to save time and confusion
o The character witness can only testify regarding the truthfulness of the witness
who was impeached (the target witness), can only rely on reputation and opinion
evidence on direct and can be cross-examined using specific incidents relating to
the target witness
 Can you bolster if not a 608 attack and instead 613 attack or bias? Most courts treat as
fact intensive to determine if it seemed like it was a character-based attack. If it was, then
allowed to bolster

C. Cast Doubt on Specific Testimony

1. FRE 613: Demonstrating prior inconsistent statements

Rule 613. Witness’s Prior Statement

(a) Showing or Disclosing the Statement During Examination. When examining a witness
about the witness’s prior statement, a party need not show it or disclose its contents to the
witness. But the party must, on request, show it or disclose its contents to an adverse
party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s
prior inconsistent statement is admissible only if the witness is given an opportunity to
explain or deny the statement and an adverse party is given an opportunity to examine the
witness about it, or if justice so requires. This subdivision (b) does not apply to an
opposing party’s statement under Rule 801(d)(2).

Something “irreconcilably at odds” or clearly incompatible with the witness’s testimony such
that there is a contradiction that can be used to impeach witness.
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 However, courts do not necessarily try to reach the bar of “irreconcilably at odds”
o It does not have to be the diametric opposite
o Often this comes up when the witness says “I don’t remember” on the stand; then
the court will allow the contradictory, prior testimony to be admitted if it was
clearly something the witness would have remembered
 Extrinsic evidence allowed
 Cannot use contradicting evidence for a collateral matter
o Test: could the fact be introduced for a reason other than contradicting the
witness; if it has independent legal significance then it is admissible
 Two allowable uses:
 Does it go to the merits of the case?
 Does it provide some other type of impeachment, such as bias?

Two procedural hurdles

1. FRE 613(a) requires that, on request, the statement must be shown or disclosed to an
adverse party’s attorney.
2. FRE 613(b) provides that when extrinsic evidence of prior inconsistent statement is
introduced, the witness must, either before or after the contents of the statement are made
known to the jury, be afforded a chance to explain or deny the statement, and an adverse
party is afforded an opportunity to interrogate the witness regarding the prior inconsistent
statement.
o if the lawyer introduces the prior inconsistent statement while cross-examining
the witness, the witness will have an opportunity to explain or deny the statement
on cross or on his attorney’s re-direct examination.
o FRE 613(b) allows the attorney to introduce evidence of the witness’s prior
inconsistent statement after the witness has left the stand, but only if the opposing
attorney can recall the witness to the stand to give the witness an opportunity to
explain or deny the statement.

Cases
U.S. v. Winchenbach (1999): D was on the stand for selling cocaine. Her son, W, was her alibi
witness. W had previously told a police officer that D’s boyfriend kept cocaine buried in the
yard, but denied ever saying that when testifying at trial. The prosecution brought the police
officer to the stand to rebut W’s testimony.
 Legal issues: Is the officer’s testimony extrinsic evidence relating to a specific instance of
W’s misconduct, offered by the prosecutor to attack W’s credibility (and thus prohibited
by Rule 608(b))? Or is it extrinsic evidence of a prior inconsistent statement made by W,
offered after W had been afforded an opportunity to explain or deny the remark and in
circumstances wherein the appellant had a full opportunity to interrogate both W and the
officer on the matter (and thus admissible under Rule 613(b))?
 Holding: The officer’s testimony falls under FRE 613(b), thus is admissible as extrinsic
evidence. This is a 613 issue because the witness’s two statements were irreconcilably at
odds. This is not a 608(b) issue because the witness’s statement about cocaine being
buried in the backyard would not “in and of itself” cast doubt on the witness’s
truthfulness.

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 The judge instructed that this went to credibility not truth of the matter. Jury could not
use statement to determine IF there was cocaine in the yard.

2. Contradicting a witness on cross or through extrinsic evidence

Offer counterproof to a proposition on which the witness has testified.
 2 methods:
o Cross-examining the witness and noting facts which indicate the witness may
have lied or been mistaken
o Use extrinsic evidence, such as calling another witness to contradict the target
witness or introducing a document that contradicts the target witness
 extrinsic evidence is allowed since this is not a character attack
 Limitations: the contradiction cannot concern a “collateral” matter; the issue which you
are impeaching must concern either:
o The merits of the claim (i.e., substantive issues)
o Credibility issues other than contradiction, such as bias, lack of capacity, and
untruthfulness
 The counterproof must have “any tendency”; low relevance standard

Cases
U.S. v. Opager (1979): D was arrested for selling cocaine to undercover agents and an informant;
D argued entrapment as a defense. One way to rebut entrapment is to show that D has a
disposition for selling cocaine (character propensity is an element of the rebuttal). The informant
testified to D’s disposition for selling drugs at a hair salon they both worked at. D wanted to
submit business documents proving that the informant had not worked at the salon in years, but
the trial court barred it under FRE 608(b), saying extrinsic evidence is not allowed to prove that
the informant has the character of untruthfulness.
 Holding: The evidence is admissible and is not controlled by FRE 608(b). D was not
using the evidence to prove the informant is a liar but to prove a relevant element of her
defense. The informant’s testimony that he saw D deal in cocaine in 1974 was a factor in
establishing D’s criminal “predisposition,” itself a matter clearly of consequence to her
case. Hence, the payroll records, “as indicative that a fact in issue did or did not exist,”
were clearly relevant.

D. FRE 412: Rape Shield Law

Rule 412. Sex-Offense Cases: The Victim

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to
prove that someone other than the defendant was the source of semen,
injury, or other physical evidence;

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(B) evidence of specific instances of a victim’s sexual behavior with respect
to the person accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional
rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a
victim’s sexual behavior or sexual predisposition if its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice
to any party. The court may admit evidence of a victim’s reputation only if the
victim has placed it in controversy.

FRE 412 limits the impeachment of alleged victims of sexual offenses. Unless one of the
exceptions apply, evidence of reputation (e.g., under FRE 404(a)(2)) and/or sexual behavior
(e.g., under FRE 404(b)) is not admissible for the inference that the complainant consented to sex
on the occasion in question at trial.
 Errs on the side of exclusion
 Rationale:
o Evidence of a sexual history is used at trial more as a harassment technique
against the complainant rather than as a method to obtain probative evidence.
o Low probative value: that a person has engaged in a particular sexual activity
before does not mean she consented to a certain sexual activity with a certain
person on a certain later occasion.
 Neither specific acts nor reputation evidence is allowed under the rule
 Broad definition of “sexual behavior”:
o physical conduct
o behaviors that imply sexual contact, such as the use of contraceptives
o “activities of the mind,” such as fantasies and dreams.
o Bars evidence of “sexual predisposition,” which includes evidence that may have
a sexual connotation to the jury, including dress, speech, or lifestyle.
 Other acts: Both past behavior and behavior subsequent to the alleged incident are
covered
o Sexual behavior intrinsic to alleged sexual misconduct is not prohibited; it is not
an “other” sexual behavior; those are relevant
 Even though an exception exists under FRE 412, if the evidence violates any other rule,
such as FRE 404 or FRE 403, the evidence is inadmissible.
 Civil: it covers any matter alleging sexual misconduct, including sexual harassment.
Defines sexual behavior more broadly than FRE 413–415
o Evidence of sexual acts or sexual predisposition faces a “reverse 403” test: the
evidence is admissible only if its probative value substantially outweighs the
danger of harm to any victim or substantially outweighs the unfair prejudice to
any party
 Favors inadmissibility
 evidence of a sexual assault of a non-party in a sexual harassment case
would not be admissible if either the probative value does not
substantially outweigh the harm to the non-party victim or the probative

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value does not substantially outweigh the unfair prejudice to any party in
the litigation.
 The burden is on the proponent of the evidence.
 Criminal: it applies to sexual misconduct evidence even when a sex crime is not charged.
Different than FRE 413–415
o Example: there was a kidnapping with sexual assault, but the prosecutor only
brought the kidnapping charge. The sexual assault is still covered by FRE 412
o Exceptions for criminal cases:
 the complainant’s prior sexual conduct is admissible when the evidence
suggests that someone other than the defendant was responsible for semen
or other physical evidence.
 This is irrelevant is defendant admits to the conduct but claims it
was consensual
 Can only be used to explain the physical evidence and nothing else
 the defendant may offer evidence of prior sexual encounters between the
complainant and the defendant in order to prove consent.
 A prosecutor, however, may offer this evidence for any purpose,
including any relevant purpose under FRE 404(b), such as intent or
motive.
 Only can prove consent to the defendant, not other parties
 Claiming the event did not happen, then this exception would not
apply; irrelevant
 an exception exists where the exclusion of the evidence “would violate the
defendant’s constitutional rights” such as a defendant’s guaranteed rights
of confrontation, compulsory process, and due process.
 E.g., ability to confront the accuser since it is essential to my
defense
 403 Applies: if evidence is admitted under 412 exception, can still raise a 403 objection
(probative value is so low and prejudice/harassing nature is so high that it substantially
outweighs small probative value)

Cases
Doe v. United States (1981): D, alleged rapist, claims victim consented. D wanted to introduce 7
pieces of evidence: (1) victim’s general reputation around the army post where he was stationed,
(2) victim’s habit of coming to the barracks to see soldiers, (3) habit of coming to meet people at
the barracks, (4) her landlord testifying about witnessing victim’s promiscuous behavior, (5)
evidence of what a social worker learned of the victim, (6) telephone conversation that D had
with victim, and (7) evidence of D’s state of mind as a result of what he knew of victim’s
reputation and what she said to him. D relies on the constitutional rights exception to FRE 412.
 Holding: Evidences 1-5 are inadmissible because that says nothing about what she
did/whether she consented on the night in question. However, court allows 6 and 7
because went to D’s state of mind (similar to knowledge in 404(b))
o It was reasonable for D to believe that victim had consented because she was
sexually experienced (shows that D did character-propensity reasoning but
doesn’t force jury to do so). This is like the employer in the porn king case where

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employer should do propensity reasoning to determine that porn king shouldn’t
investigate the assault
o Seems like court created a “state of mind/knowledge/mistake of fact” exception
that could swallow the rule
 Minority rule: As long as there is some non-propensity use, evidence should be
admissible
o Hawaii Case: man and woman on a part bench and he reached for her bra strap.
She said on direct: “I’ve never been in that situation before.” Court interpreted
this to mean she had never been in a sexual situation before, so it opened the door
to her sexual history.
o Iowa Case: woman told D she had posed for naked pictures before and she might
pose for D. D said victim had consented, because if she would pose nude then she
consented to sex. Court said it went to D’s state of mind.

Stephens v. Miller (1994): D says sex was consensual, that they were having doggy style sex
when D said “Tim Hall said you liked it this way” and made reference to partner-switching, then
victim freaked out/got upset and fabricated a rape claim. Victim claimed D raped her. D’s alibi
witness caved on the stand and admitted that D told him to lie on the stand. Trial court allowed
testimony that D said something that offended D, but not the specifics (scalpel – court doing
implicit 403 balancing of D’s constitutional rights and prejudice to victim).
 Holding: The trial court was correct and what they excluded was “a very minor
imposition” on D’s case and D’s comment “had no purpose other than to degrade.”
 Rule: sexual history is usually not probative
 Dissent: D’s testimony was the cornerstone of his case. It’s hard to imagine a jury
believing D’s version so when you balance, you should balance in favor of D. D deserves
to present case as he sees fit.

Problems
Problem 6-4 – Vaginal Tear: D convicted of statutory rape of a 10-year-old and wants to
introduce evidence that the cause of a vaginal tear was from sex between the victim and a 13-
year-old boy David. D admits to having consensual sex with the girl, but D’s testimony not very
probative (can’t pinpoint a date when he’d had sex with victim). Expert testimony says a tear
would be painful and D said victim never screamed/seemed to be in pain when they had sex.
 Holding: The testimony about David may be admissible under FRE 412(b)(1)(A) because
it points to another perpetrator; there is a conditional relevance issue of whether D was
the source of the injury. D’s testimony about his consensual experiences with the victim
may also be admissible under FRE 412(b)(1)(B). But, while FRE 412 allows the
testimony, the court kept it out under FRE 105 because of the conditional relevance
issues.

Problem 6-5 – Fabricated Rape: D on trial for statutory rape of a 15-year-old girl. D wants to
bring in evidence that, to get her mother’s attention, the victim fabricated a story 11 months
earlier that she had been forcibly raped.
 Holding: The evidence is admissible under 404(b) as motive (i.e., motive to fabricate a
charge to get her mother’s attention). FRE 412 is inapplicable, because the evidence is
not being offered to prove that the victim engaged in other sexual behavior, but instead to

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show that the victim lied about sexual behavior. Defense was also allowed to ask the
victim about the prior act under FRE 608 on cross-examination (because false reporting
is a crime involving dishonesty)

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***IS THIS EVIDENCE RELIABLE?***

V. Hearsay

A. FRE 801: What is hearsay?

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Policy: We are concerned with unreliability stemming from four testimonial capacities:
 Perception
 Memory
 Narration
 Sincerity

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Hearsay: A statement or assertive conduct which was made or occurred out of court and is
offered to prove the truth of the facts asserted in the statement
 Declarant: a person who makes a statement based on personal/first-hand knowledge.
o Animals are not a declarant
o Computers, if there is no human input / automatic program, are not a declarant
 Hearsay statement: whether we are analyzing an oral statement, written statement, or
physical conduct, the conduct must be assertive to qualify as a statement.
o Assertion: any action undertaken by the declarant that is intended to communicate
a fact.
o Assertive (physical) conduct test: (i) For what purpose is the proponent of the
evidence offering it? (ii) Did the declarant intend to communicate that purpose to
an audience? If yes, hearsay.
 The party claiming the conduct is an assertion possesses the burden under
FRE 104(a) to prove that the actor intended his conduct to be assertive
(i.e., usually the objecting party claiming it’s hearsay)
 Example: hyperventilation is not intended to assert anything, it’s an
involuntary reaction
o Implied assertions test: (i) For what purpose is the proponent of the evidence
offering it? (ii) Does the proponent’s purpose in introducing the evidence match
the declarant’s intent? If yes, hearsay.
 Methods for determining
 Responding to a question?
 FRE / Majority View: unintended assertions are admissible non-hearsay
because if the person is not trying to assert something, they are likely not
lying because cannot be lying about something that they never intended to
assert, no sincerity concerns (Long)

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 Minority View (Common Law): look to all hearsay risks (narration,
perception, memory in addition to sincerity); if it relies on those factors,
too, then its hearsay (Dullard)
 Argue using both tests and why the minority approach might be better in a
certain scenario given the declarant’s intent
o Silence can be an assertion, but only when you mean to assert something by the
silence
o Reputation is hearsay (but there’s an exception for it)
 Outside the courtroom: statements made in the courtroom that do not bring statements
made from outside the courtroom, are not hearsay
o Your own statements can be hearsay if they were said outside the courtroom
 Ex: testifying in court “I saw Mike Tyson” vs. “I told him two weeks ago
that I saw Mike Tyson”
o Not hearsay: testifying “I had a conversation with a student that caused me to fear
for my safety”
o Hearsay: testifying “The student told me Mike Tyson had a knife”
 For its truth: For what purpose is the evidence offered (evidentiary hypothesis)? If the
matter asserted in the statement must be true for that purpose to be effectuated, then the
statement is offered for the truth of the matter and is hearsay
o Test: If the statement would still be relevant regardless of its truth, then it was not
offered by the proponent for its truth and is not hearsay
o Useable evidentiary hypotheses examples:
 Where proving the state of mind of either the declarant or listener is the
purpose of the evidence. Often, in proving someone possessed
knowledge, belief, or intent (KBI), what matters is not the truth of a
statement but rather that someone uttered it or someone heard it. (See
Parry for example)
 KBI must be relevant to the case (See Galvan; Bridges)
 Where impeachment is the purpose of the evidence.
 Where a “verbal act” is the purpose of the evidence. A verbal act takes two
forms:
 a verbal act can be a statement of operative fact which gives rise to
legal consequences. It is the words themselves that carry a legal
consequence, because they represent, for example, an offer, a
defamatory statement, or an illegal threat. These statements are not
offered for their truth; they are offered because they were said by
someone and/or someone heard the declarant
 a verbal part of a vague physical act. The words are presented to
explain the physical conduct; they are offered for their truth, but it
is a common law traditional exception
o Remember to FRE 403 balance when the statement could be used both for its
veracity or a permissible evidentiary hypothesis
o Change evidentiary hypothesis to try to get evidence in

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Proponent of evidence arguments that something is not hearsay:
1. Statement is not assertive because declarant did not mean to assert anything when she
uttered those words (e.g., “ouch”)
2. Statement not assertive because offering for a purpose that does not match the declarant’s
intent when she uttered the words (e.g., implied assertions). As it was never the
declarant’s goal to articulate the purpose for which I am offering this evidence, no
sincerity issues arise
3. Conduct is not assertive because the declarant did not intend to communicate the purpose
for which I am offering this evidence to an audience
4. Statement was not made out of court. Declarant is not attempting to recite any statement
made outside of this proceeding
5. Statement is not offered for its truth. Offering to demonstrate the state of mind of the
declarant (or the listener). This statement would be just as helpful to the jury if they did
not believe it to be true, because it only demonstrates what the declarant (or listener)
knew (or felt, believed, etc.)
6. Statement is not offered for its truth. Offering to impeach and therefore attempting to
prove the conflict between this statement and another statement, not the truth of either
statement
7. Statement not offered for its truth. It is a verbal act which gives rise to legal consequences
(e.g., defamatory statement in a defamation action; an offer in a contract action)
8. Statement not offered for its truth. It is a verbal part of an act which seeks to explain the
ambiguity behind a physical act (e.g., “you may borrow pen but please give it back”)

Things to remember:
 Hearsay declarants can be impeached
 Don’t forget about other objections:
o Hearsay statement can also talk about another act
o Can also be a subsequent remedial measure
o Can be talking about specific instances of reputation when those are not allowed

Cases
U.S. v. Parry (1981): D was arrested for possessing with intent to distribute PCP. D argued he
had proceeded upon the good faith belief that he was working for the agents, assisting them in
locating drug dealers. To prove that he knew they were undercover agents, D wanted to bring his
mother as a witness to testify that D had told her that the person who was calling the house often
was a narcotics agent.
 Holding: the mother should have been allowed to testify because the out-of-court
statement was not offered to prove that the caller was a narcotics agent or that D was
working with the agent, but to establish that D had knowledge of the agent’s identity
when he spoke. Knowledge is relevant because D based his entire defense on the
knowledge.

State v. Galvan (1980): V was bound and beaten to death. D went to help his friends with V’s
murder and brought along his young daughter. A couple days after the incident, the daughter
began acting strange by tying up her hands with a belt and pretending to beat her chest; a few

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months later, the daughter began to cry at a cartoon depicting a mouse bound up. D’s ex-wife
testified to the behavior of the child in court.
 Holding: the ex-wife’s testimony is hearsay because the evidence of the child here was
offered in the belief that the child intended to assert what she had seen. The evidence is
not presented to show the child’s knowledge because it does not matter what the child
knew; the real evidentiary hypothesis was that a man was bound and stabbed
o Wonsowicz: it is arguable that the crying was not an assertion but an involuntary
reaction and should not have been considered hearsay
 Rule: Statements of memory or belief are generally not allowed to prove the event
remembered or believed

Bridger v. State: V is sexually assaulted in D’s apartment. D denies that the assault happened and
that V was ever in his apartment. She says D had a picture of a horse on his wall. Prosecution
offers that as proof, but D claims this is hearsay
 Holding: The evidence is not hearsay because it was offered to show that V is not
clairvoyant not for its truth (Majority view)
 When it is the victim or defendant, KBI is much more important; the knowledge of the
victim here was much significant than the knowledge of the child in Galvan

U.S. v. Long (1990): D was charged with possession of guns and drugs. During a search of his
apartment, an officer answered D’s phone and the caller asked if D “still had any stuff?”
 Holding: The phone call is admissible because the caller was not calling to assert that D
was a drug dealer, therefore the statement is not being offered for its truth. There was no
implied assertion; the caller may have conveyed messages about D through her questions,
but any such messages were merely incidental and not intentional
 Majority view: look to declarant’s intent (only worried about sincerity); the FREs point
only to looking at intent

State v. Dullard: Police raided D’s house and found the remnants of a meth lab. There was also a
note left behind: “B— I had to go inside to pee + calm my nerves somewhat down. When I came
out to go get Brian I looked over to the street North of here + there sat a black + white w/the
dude out of his car facing our own direction—no one else was with him”
 Holding: the writer of the note was implying that D had a meth lab and so he should be
careful that there are police around. Thus, the prosecution’s purpose for offering the note
(i.e., to prove D had a meth lab) is the same as the implied assertion of the note. Further,
there are concerns about errors in narration, perception, and the declarant’s testimonial
capacity. So, it is hearsay.
 Minority view: look to all hearsay risks (narration, perception, memory in addition to
sincerity); if it relies on those factors, too, then its hearsay
 Argue using both tests and why the minority approach might be better in a certain
scenario given the declarant’s intent

Exception / Exemption List

801 Exemptions:
 FRE 801(d)(1)(A) Prior Inconsistent Statements
 FRE 801(d)(1)(B) Prior Consistent Statement

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FRE 801(d)(1)(C) Statements of Identification
FRE 801(d)(2) Admissions by Party Opponent
o FRE 801(d)(2)(A) Individual Admissions
o FRE 801(d)(2)(B) Adoptive Admissions
o FRE 801(d)(2)(C) & (D) Statements of Agents
o FRE 801(d)(2)(E) Co-Conspirator Statements
803 Exceptions:
 FRE 803(1) Present Sense Impression
 FRE 803(2) Excited Utterance
 FRE 803(3) Then Existing Mental, Emotional or Physical Condition
 FRE 803(4) Medical Diagnosis
 FRE 803(5) Writing to Refresh Memory
 FRE 803(6) & (7) Business Records
 FRE 803(8) & (10) Public Records
 FRE 803(16) Statements in Ancient Documents
 FRE 803(18) Statements in a Learned Treatise
 FRE 803(21) Reputation Concerning Character
 FRE 803(22) Judgement of a Previous Conviction
804 Exceptions:
 FRE 804(a) Unavailability: must apply to use all following exceptions
 FRE 804(b)(1) Former Testimony
 FRE 804(b)(2) Dying Declarations
 FRE 804(b)(3) Statements Against Interest
 FRE 804(b)(6) Forfeiture by Wrongdoing
807 Residual Exception

B. FRE 801: Hearsay Exemptions

Exemption: “not hearsay” exempt from being considered hearsay
 The party reaching for the hearsay exception/exemption has the burden of proving all the
elements by a preponderance of the evidence (under FRE 104(a)) to the judge; the judge
can look at inadmissible evidence to determine if the elements have been met
o Versus 104(b) where the burden of proof is: could a reasonable jury find by a
preponderance of the evidence that the fact exits which requires only admissible
evidence; conditional relevance

1. Prior Statements of a Testifying Witness

a. FRE 801(d)(1)(A): Prior Inconsistent Statements

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a deposition

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FRE 801(d)(1)(A) allows a declarant-witness’s prior inconsistent statement to be used
substantively (i.e., for its truth) in narrow circumstances.
 Necessary foundation:
o the prior statement must be inconsistent with the trial testimony that comes after it
 Diametrically opposed statements
 Going from specific to general, or from certain to uncertain, may satisfy
the inconsistency requirement if an impeachment value exists in pointing
out the differing statements.
 “I don’t remember” – has to be improbable that one would forget
 Factors: high level of detail given previously, the testimony itself
would have been memorable (i.e., grand jury), outside incentives
to remember, the event to be testified about itself was very
memorable
o the prior statement must be made in a proceeding or deposition where the witness
was under oath
 Includes: grand jury; preliminary hearings; other trials; depositions
 Rationale: we are worried about coercion or prosecutorial shenanigans
o the speaker must be subject to cross-examination at the current proceeding
regarding her earlier statement (she must be in the witness box, cannot be an
absent witness)
 See U.S. v. Owens

fact

Not Admissible Substantively Because it

is Hearsay

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Different from FRE 613

 FRE 613 allows the use of prior inconsistent statements to impeach only (show two
competing versions to attack witness’s credibility) and doesn’t allow prior inconsistent
statements to be offered for their truth (used substantively)
 FRE 801(d)(1)(A) allows us to offer earlier statements for the truth (substantively); if all
3 elements met  non-hearsay

Problems
Problem 7-1 – Stolen Money Orders: Russell stole money orders and Polin was arrested after
cashing them. Polin testified before a grand jury that Russell had asked him to cash the orders in
return for half of the money and that Russell prepared the money orders, drove him to the stores
to cash them, and gave him fake ID to cash them with. Polin was called as witness at Russell’s
trial and said he couldn’t remember if he had any contact with Russell.
 Holding: The court held that grand jury testimony was admissible at trial. Polin’s
testimony was hearsay, but the inconsistent statements exemption applied since
forgetfulness meant there was an inconsistency, and it was highly unlikely that Polin
would forget both the crime and what he said testifying in front of a grand jury; both are
significant events. Plus, his previous testimony had a lot of detail, also revealing that he
did not actually forget.

Problem 7-2 – Robbed Post Office: Ds were arrested for robbing a post office. Hester claimed
she accompanied Ds on a crime spree, told a postal inspector about it during an interview at her
home (he asked questions, wrote a statement, asked her to make any changes, and she swore to
its accuracy and signed). At Ds’ trial, Hester denied or did not recall the incriminating statement
that Ds had made that she had sworn to.
 Holding: The court held that this was inadmissible hearsay. The statements were not
made under oath, the court is looking for verbatim records/transcript that are routinely
kept and that’s not what this is, and no proof that this was her verbatim statement.

b. FRE 801(d)(1)(B): Prior Consistent Statements

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) …
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when
attacked on another ground

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FRE 801(d)(1)(B) allows a witness to rebut an impeaching attack by offering consistent
statements. Thus, if a witness is accused of lying, she may point to a prior statement that is
consistent with her testimony to rebut the attack.
 Limited to attacks based on (1) faulty memory and (2) inconsistency
o Cannot be used for, as an example, bias
o FRE 801(d)(1)(b)(i): a consistent statement rehabilitates when it rebuts a charge
of recent fabrication or improper influence/motive.
o FRE 801(d)(1)(b)(ii): a consistent statement rehabilitates when it invalidates
attack on a witness such as inconsistency or faulty memory.
 Necessary foundation:
o the statement offered must be consistent with the present testimony by the witness
 The prior statement need not have occurred in a formal setting; opens it up
to informal statements as long as they are consistent
 The statement must have occurred before there is a motive to lie or act
self-servingly (see Tome and Lynch)
 a motivation to fabricate exists when such statements are
inherently “self-serving”
o it must be admissible either to rehabilitate the witness’s credibility or to rebut a
charge of recent fabrication or recent improper influence or motive
 It must relate to the testimony at trial and should not introduce new points
not covered in the witness’s testimony; the “consistent” words must be
consistent with matters on which the witness was actually impeached
 Express or implied charge of poor recollection is enough to be considered
an attack (Problem 7-3 “Memory gets better”)
 Whether it rebuts depends on the type of attack:
 Global attack: e.g., this entire document is a lie. Then any
consistent statement within that document rebuts “all of it is a lie”
 Microscopic attack: must rebut with consistent statement specific
to what is attacked
 Seemingly “microscopic” attacks on particular parts of testimony
may actually be considered full attacks on an entire statement as a
whole, allowing for evidence to rebut (Problem 7-4)
o the witness must be subject to cross-examination at the current proceeding.

Cases
Tome v. U.S. (1995): D was charged with sexual abuse of his child, but D claimed the accusations
were fabricated so that his ex-wife could gain full custody. The child struggled to testify at trial,
but the government offered six witnesses who all said the child had told them about the abuse.
 Holding: The witness statements were not admissible because the child’s out of court
statements occurred after there was a motivation to lie so she could live with her mother.

U.S. v. Lynch (2018): D was arrested for operating a medical marijuana dispensary. D testified
that he had believed California’s decriminalization of marijuana superseded federal law, citing
that he had had a phone call with a DEA agent.

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 Holding: The contents of the phone call with the alleged DEA agent are inadmissible
because D had a motivation to lie at the time of the statements: He was currently running
one dispensary and planning to open another.
 Rule: a motivation to fabricate exists when such statements are inherently “self-serving,”
for example, where a person was under investigation, even though not yet formally
charged.
o An alibi surely does not become a prior consistent statement, just because it is
proffered before a crime occurs. An alibi is given after there is a motive to lie

Problems
Problem 7-3 – Memory Gets Better: Witness saw D drive away (in a stolen car) after shooting
a man. That night, witness identified D in a line-up. At trial, witness testified that he looked D in
the face twice during the carjacking. On cross-examination, D’s attorney said to witness: “your
memory gets better with time, doesn’t it?” On redirect, the court allowed prosecution to admit
written statements witness had given to police on the day of the crime which were consistent
with the trial testimony.
 Holding: The court said that an express or implied charge of poor recollection is enough,
therefore, the prior statements were admissible (though the “attack” was borderline).

Problem 7-4 – Sexual Assault Porch Light: D was charged with sexually assaulting three
women. One of the victims provided a detailed written statement when D was arrested. D
impeached the witness on cross, pointing to inconsistencies (whether porch light was on, etc.).
Prosecution sought to point out consistencies in her prior statement (but did not relate to the
specific statements that D had attacked).
 Holding: The statements were admissible. The court found that D’s attack was attacking
the entire statement, not just the pieces that it picked apart. Thus, any truth/consistency
offered by the prosecution would rebut the attack made by D on cross even though they
did not address the specific problematic statements defense counsel pointed at.

Problem 7-5 – Entrapment for Terrorism: Ds were accused of attempting to provide support
to terrorist organizations. Government informants met with Ds and took notes, but after the
government paid the informants less compensation than they requested (asked for $1mil, got
$100,000). At trial, Ds called one of the informants, alleging the informant had used trickery to
entrap them. On cross, the government introduced some of the informant’s notes to rebut the
allegation that the informant’s actions induced D’s crimes (showed that D was not induced).
 Holding: Court said that notes were inadmissible since the motive to fabricate (informant
was turned down for $1mil offer and thought maybe government could come up with
more money) arose before they were written (like Tome); informant knew if he helped
catch Ds he’d get money

c. FRE 801(d)(1)(C): Statements of Identification

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:

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(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(C) identifies a person as someone the declarant perceived earlier.

FRE 801(d)(1)(C): Even if the declarant-witness is supremely confident of her identification at

trial, and even if opposing counsel does not attempt to impeach her on that identification, her
prior identification is admissible as a crucial component of many criminal trials—the
identification of the defendant.
 Simple foundation:
o The statement must be one of identification after having “perceived” the
identified person and
o The speaker must be subject to cross-examination on the statement
o Does not need to be bolstering; the witness does not have to have been impeached
 Rationale: pretrial identifications often prove more reliable than those made in court
because they occurred at a time closer to the time of the offense.

Cases
U.S. v. Owens (1988): V, a prison guard, was brutally beaten with a pipe, leaving him severely
mentally impaired; in the hospital, V identified his attacker to the FBI agent. On cross-
examination, however, he could not remember seeing his assailant.
 Holding: The prior identification in the hospital was admissible, despite V’s memory loss.
 While the defense argued it was not getting a fair cross, Scalia points out that the defense
got a great cross by showing that V could not remember anything; Rule 801(d)(1)(C),
only requires that the witness be able to talk about the statement, not more than that

2. Admissions by Opposing Parties

FRE 801(d)(2)(A)–(D) exemptions do not require personal knowledge of the declarant; these are
the only hearsay rules that do not require personal knowledge
 Only rules that allow for speculation by witness who are not experts

“Party opponent” statements

a. FRE 801(d)(2)(A): Individual Admissions

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party’s Statement. The statement is offered against an opposing
party and:
(A) was made by the party in an individual or representative capacity

This is the go-to rule

FRE 801(d)(2)(A): your words can be used against you, and, if they are offered against you at
trial, your words will be deemed non-hearsay; cannot be offered by the party
 Broad scope

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o The statement need not be against the party’s interest
o No requirement that the declarant have personal knowledge regarding the topic of
the statement; speculation allowed
o One defendant’s words cannot be used against another defendant because they are
not opposing parties
 If a party is speaking in a representative capacity (e.g., as a corporate agent), the
statement can be used against the party as an individual.
 If a party claims to have not uttered the words, the Huddleston test will govern

Problems
Problem 7-6 – Truck Driving Rapist: D, a driver for truck company, picked up a stranded
motorist, raped and murdered her in the cab of his truck. P brought suit against D and company,
alleging the company should have known he was an unreasonable risk to the public (negligent
hiring/retention). P wanted to offer an affidavit from a private investigator who interviewed D
and, in the affidavit, the PI related D’s statement that managers at the company were aware of his
criminal history but told him not to worry about it and not to list it on his application.
 Holding: The statements can come in against D, but not against the company since they
are not opposing parties but both defendants; also, D had not yet been hired by the
company, so he was not yet their agent.

b. FRE 801(d)(2)(B): Adoptive Admissions

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party’s Statement. The statement is offered against an opposing
party and:
(B) is one the party manifested that it adopted or believed to be true

FRE 801(d)(2)(B) exempts from the definition of hearsay any statement to which a party has
manifested an adoption or belief in its truth.
 Any express agreement to a statement by a party, ranging from a verbal declaration to a
nod, will allow the statement to come in against that party.
 “Tacit admissions” (i.e., silence) have been admitted against a party:
o The party heard and understood a statement made in his or her presence,
o The circumstances naturally called for a reply (i.e., under similar circumstances, a
reasonable innocent person would have immediately denied the accusation),
o The party had the opportunity to deny the statement, and
o The party either remained silent or made an evasive or equivocal reply.
 Criminal defendant: if a defendant is in custody and has been Mirandized, silence cannot
be used to impeach and cannot be used substantively as an adoption under FRE 801(d)(2)
(B).
o Miranda only kicks in with custodial interrogation
 Custodial: you cannot leave
 Interrogation: you are asked questions you are expected to reply to

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o Pre-arrest silence that is not induced by government action (e.g., the government
has not given the defendant his Miranda warnings but he chooses to remain
silent) can be used to impeach and used substantively as an adoption.
o Where defendant is in custody but has not been Mirandized, allows for pre-arrest
silence to be used to impeach, but the Circuit courts are split as to whether the
statements can be used substantively as an adoption.

Use of silence in response to law enforcement questions (criminal defendant):

Pre-custody Custody Post-Mirandizing
Pre-Mirandizing Pre-Mirandizing
Impeach Yes Yes No
Substantively Yes Split No

Problems
Hypo: police officer shows up in a 7-11 parking low and there is a dead body. Officer goes up to
a person, Dirk, in the parking lot and says: “did you kill this person?” then person is silent. Dirk
is then arrested and says he killed the person in self-defense.
 Impeachment? Dirk says this was self-defense, but when officer asked Dirk whether he
killed the person, he didn’t say anything. There is a contradiction that allows for
impeachment here
 Substantively? It meets the 4 implied adoption elements, so yes it can come in
substantively (pre-custody, pre-Miranda)

Hypo: same, but in the police cruiser, officer asks Dirk “did you kill that person?” Now this is
custody, pre-Miranda, so it can be used to impeach but courts are split as to whether it can be
used substantively.

Hypo: same, but in police cruiser, and Miranda rights are given, then officer asks Dirk “did you
kill that person. This custody and post-Miranda, so it cannot be used for impeachment nor
substantively.

Problem 7-7 – University Race Discrimination: P sued D university, alleging he had been
treated differently on the basis of his race by his supervisor (Fisher). University grievance
committee investigated the claims and issued a report stating that Fisher had treated P differently,
and recommended reassignment for P to new supervisor. University president implemented all of
the report’s recommendations, Fisher removed of all supervisory duties, P was reassigned and
continued to receive poor performance reviews from his new supervisor. P wants to offer the
grievance committee report to corroborate his claim of unequal treatment.
 Holding: By adopting all recommendations in the report, D adopted everything in the
report. Otherwise, the university would have written a reply. Court looks at how major
the steps taken were (i.e., removing Fisher of all supervisory duties) and determines that
the President wouldn’t have done something that extreme unless she believed the
allegations. She accepted the report’s conclusions as truth. She was also expected to have
read the entire report given that it was very important.

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Problem 7-8 – Press Conference: CEO D replied, “next question” at a press conference held in
response to allegations of fraud and insider trading when he was asked if he was “cooking the
books.” Can the question come in as an admission?
 Holding: By giving an equivocal response, D adopted the statement the statement “are
you cooking the books?” so it is admissible against CEO and co-conspirators. Elements:
(1) CEO heard and understood the question, (2) strong accusation that calls for a reply,
(3) CEO had opportunity to deny, (4) CEO gave equivocal response. Court says that
cooking the books is a really strong accusation (outright accusation of a crime) and
therefore we would expect a very hard no to that accusation.
 Note: Prof strongly disagrees because allowing “next question” to mean that they cooked
the books is a pretty heavy for “next question”; worried that whenever someone is asked
something in a press conference, they risk adopting that question.

Problem 7-9 – Drug Addicted Murderer: D, a crack addict, was arrested and charged with
being a felon in possession of a firearm after his friend was murdered (and he was suspected of
murdering her because she wouldn’t give him more money). D’s friend and drug dealer testified
that D had become strange and paranoid, and when she asked D if he killed someone, D didn’t
answer.
 Holding: D’s silence was not admissible since it was unclear whether D felt compelled to
respond (he was a crack addict), or if he had perceived the witness (friend/drug dealer) as
an enemy (i.e., whether the witness had asked him in a friendly or accusatory manner).
It’s unclear whether D would answer this question because it was asked by friend/drug
dealer. His silence was therefore ambiguous.
 Had the friend/dealer accused D of killing someone instead of asking, then D’s lack of
response may constitute an adoption.

Problem 7-10 – Fake Bills: D paid a criminal court fine with fake bills while bailiff watched
from behind. D handed bills to the clerk, she handed them back and said, “now give me real
money.” D then gave her a different $80. D was charged with knowingly offering, exposing and
keeping with intent to furnish US currency. Prosecution wants to introduce bailiff’s testimony.
 Holding: The evidence was admissible since a reasonable person would have objected,
expressed surprise, or requested and explanation in response

c. FRE 801(d)(2)(C) and (D): Statements of Agents

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party’s Statement. The statement is offered against an opposing
party and:
(C) was made by a person whom the party authorized to make a statement
on the subject;
(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed

FRE 801(d)(2)(C) and (D): the words of your agents may be used against you as well.

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 Personal knowledge is not required on the part of the express or implied declarant-agent;
the party will still be bound even if the declarant-agent has no actual knowledge and is
merely relaying what she was told.
 FRE 801(d)(2)(C) covers the express agent, someone who the party authorized to speak
for her.
o The totality of circumstances must indicate that the principal gave the agent the
authority to make statements on behalf of the principal.
o Prof will tell us if agent status is express
 FRE 801(d)(2)(D) covers implied agent; an employee can only be an implied agent
within the scope of her employment duties
o Implied agent status is built on context
 Within the scope of employment
 A leadership role may expand the scope of their responsibilities
even if the leader is not usually involved in certain activities
(Problem 7-11 Church Bishop)
 While employed
 You are not an agent if you have already decided to quit/leave
because you now lack the incentive to speak truthfully/accurately
 No personal knowledge: personal knowledge is not required on the part of the express or
implied declarant-agent; the party will still be bound even if the declarant-agent has no
actual knowledge and is merely relaying what she was told (see Mahlhandt)
 Bootstrapping: The statement offered as an express or implied admission may be
considered when determining whether that person is truly an express or implied agent,
but that statement alone does not establish the predicate facts of agency and scope
 Rationale: reliability; we don’t expect agents to make statements in conflict with the
desires of their employer for fear of losing their job
o If there is a reason to doubt an actor’s reliability, then he might not qualify as an
agent (ex: police officer as translator for defendant)
o Adversarial: If agent was in an adversarial posture, then his statements are not
reliable, and therefore more admissible (Problem 7-12, Problem 7-13)
 Principal can’t bind the agent, but the agent can bind the principal.
o However, majority view: in criminal cases, an out-of-court statement of a
government employee is not admissible against the government under FRE 801(d)
(2)(D).
 Note: ONLY EMPLOYEES get the agent exception. Not independent contractors

Cases
Mahlandt v. Wild Canid Survival (1978): D1, an employee of D2, was housing a wolf at his
house that allegedly attacked a child. D1 was not home at the time of the incident, but once he
heard about the attack, he (1) left a note for his boss at the office that the wolf bit a child and (2)
told his boss the next about the attack. These were all speculations. D2 had a board meeting
where the attack was discussed and that discussion was recorded in the meeting minutes.
 Holdings: D1’s two statements are admissible against both D1 and D2, since D1 was
acting as an implied agent and his own statements can be used against him; further, it
does not matter that D1 was not a witness to the events and was only speculating under
the rule. The meeting minutes are not admissible against D1 because the principal cannot

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bind the agent. And while the meeting minutes could come in against D2 under FRE
801(d)(2)(C), they are barred by FRE 403 due to the low probative value (all
speculative).

Problems
Problem 7-11 – Church Bishop: P church wanted to open a day-care center in a residential area
(prohibited by zoning laws). The church argued that city’s refusal of permit violated the
Religious Land Use Act. The city wanted to introduce a letter written by the local bishop
responsible for hiring clergy which said the day care center looked like a commercial venture
rather than a religious function.
 Holding: The court analogized the bishop to upper-level management (administrative
superintendent) of the church. Bishop is an implied agent of the church. In addition to his
other duties, he has administrative/supervisory role in each church in his jurisdiction, he
was speaking on the issue, felt authorized to speak on the issue and that is enough to call
him an agent in this context, so the court admitted the letter.

Problem 7-12 – Resignation Letter: Ps (who are black) alleged that they were fired because of
their race and company claims they were fired because of poor job performance. Ps offered into
evidence a resignation letter written by their former supervisor (who is white) describing the
company’s discriminatory practices.
 Holding: The court found this inadmissible because it goes against the spirit of the
exception because he was acting as the employer’s adversary, against the employer’s
interest (rather than in the employer’s interest). The statement is just not trustworthy
enough. Also, he was no longer an agent because the first words of the letter were “I
hereby tender my resignation,” so after he wrote those words, he was no longer an
employee.
 Prof says this is a close call.

Problem 7-13 – Pot Translator: D pulled over for speeding, and officers found marijuana in his
truck. D was interrogated and preferred to answer questions in Spanish, so Agent Joel served as
an interpreter between D and Agent Wooten who was asking questions. Agent Joel also asked D
some of his own questions. Agents Joel and Wooten testified at trial that D admitted to knowing
about the marijuana in the truck and that D told them where he picked it up and where he was
dropping it off. D corrected Joel’s interpretations in English during the interrogation. D argues
that Wooten’s testimony is inadmissible hearsay.
 Hearsay within hearsay: W is reporting what J told him that D said
o D  J  W, each arrow needs a hearsay exemption
 D  J, 801(d)(2)(A) party opponent (government offering this against D,
so he is bound by his own words, so J can get on the stand and say, “D
said…” and that all falls under party opponent)
 J  W, no hearsay exemption for this.
 Prof says J is D’s express agent because he is a translator, however, J is
adversarial because he asked D questions himself, and he is law
enforcement, he Mirandized D. Also, not a good interpreter, D has to
correct him.

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 Holding: Court held that the statement from D  J was admissible under party opponent,
but there was no exception for the second arrow, so J could testify about what D said, but
W couldn’t testify about what J told him D said.
 Note: if police had someone who was just an interpreter, then that might be allowed

d. FRE 801(d)(2)(E): Coconspirator statements

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(2) An Opposing Party’s Statement. The statement is offered against an opposing
party and:
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.

FRE 801(d)(2)(E)
 Rationale: necessity trumps trustworthiness
 This exemption applies in civil cases as well as criminal ones.
 Necessary foundation:
o A conspiracy existed,
 Can apply anytime people act together by mutual understanding in pursuit
of a common purpose
 Joint venture
 One need not be charged with the crime of conspiracy in order for this
exemption to apply.
 Make sure a brand-new conspiracy hasn’t been formed
o The conspiracy was in progress when the declarant made the statement,
 Statements made after the main objectives of a conspiracy have been
accomplished or thwarted by law enforcement do not fit the exemption.
 Statements made to confirm the completion of the conspiracy are covered
 Courts seek to determine whether the statements occurred before or after
the last overt act necessary for the conspiracy.
 Statements made during the concealment phase (i.e., after the last overt act
necessary for the conspiracy) do not satisfy the exemption unless the
proponent can demonstrate that the conspirators agreed at the outset to the
concealment.
o The declarant was a coconspirator,
o The declarant made the statement in furtherance of the conspiracy, and
 Defined broadly: Any statement that is meant to advance the ball on a
conspiracy by promoting the conspiratorial objectives
 Statements that can reasonably be interpreted as encouraging an
advancement of the conspiracy, such as initiating the conspiracy, mapping
out of strategy, keeping coconspirators apprised of the progress of the
conspiracy, and encouraging further cooperation among the coconspirators
would be “in furtherance” of the conspiracy.
 Reasonable person test

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 It is in furtherance even if one of the party members is not present if it is
still in furtherance of the group’s established goal
 See Problem 7-14 Drug Distribution Chain
 See Problem 7-15 Girlfriend Concealing
 NOT in furtherance: brags
o The party against whom the statement is offered was a member of the conspiracy.
o [Extra] but you also need more evidence than just the hearsay; the evidence need
not be necessarily admissible

Bruton Doctrine: In a joint trial (with 2+ Ds), one D’s confession cannot be used against a co-D
and limiting instructions are not adequate to substitute for co-D’s constitutional right to cross.
(Even if you have a statement of party opponent against one D, you still need another hearsay
exception to get it in against the other D)
 Confessions are not in furtherance of the conspiracy so the confession cannot be used
against a coconspirator

Cases
Bourjaily v. U.S. (1987): D was busted in a drug sting. D and an FBI informant talked on the
phone about a cocaine sale including the quality of the drug and the desired price; the call was
recorded. D was arrested at the meet up by the FBI. The government introduced the evidence of
the recorded phone calls, claiming that it had had established by a preponderance of the evidence
that a conspiracy involving D and the informant existed, and that the informant’s statements over
the telephone had been made in the course of and in furtherance of the conspiracy.
 Holding: The phone calls were admissible as evidence as coconspirator statements, and
they can be used to help establish that there was a conspiracy in addition to the other
evidence such as D showing up to the meet up with money.
 Rule: Elements of any hearsay exception/exemption and whether they are met is a
question for the judge under rule 104(a). Standard by which the judge makes this
evaluation is preponderance of the evidence (person reaching for the exemption must
meet every element by a preponderance) (Huddelston).
o Proponent of the evidence has the burden of proof; use the context to get to 50.1%
o Inadmissible evidence can be used
o In making such a determination, a court may use the hearsay evidence sought to
be admitted under the coconspirator statement exemption

Bruton v. U.S. (1968): one D (Evans), confessed during interrogation that he had an accomplice
and had committed armed robbery. At trial, testimony about the confession was admitted, but
Evans didn’t testify.
 Holding: There is no hearsay exception/exemption to allow Evans’ confession to be
admissible against Bruton. The confession was not in furtherance of a conspiracy because
Evans was confessing to authorities.
 Note: Bruton also possessed a 6th Amendment Confrontation Clause objection; Bruton
could not cross-examine the declarant of a testimonial statement offered against him.

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Problems
Problem 7-14 – Drug Distribution Chain: Goins accused of distributing cocaine and
prosecutors allege that Goins sells to Wadelington who then sells to Peoples and Capel (G  W
 P&C). To prove that Goins is the main supplier, prosecution wants to introduce testimony of
Capel that Peoples asked him talk to Goins about bypassing Wadelington. Prosecution argues
that this fits under co-conspiracy exemption, but Goins says it’s a separate conspiracy between
Peoples and Capel that he had no involvement in.
 Holding: The overall purpose of the conspiracy is what we look at, and the overall
purpose was to move G’s drugs. At the end of the day everyone is talking about selling
G’s cocaine and G is supplying the community. The distribution chain is still distributing
G’s product. Thus, the statements are admissible under this exemption

Problem 7-15 – Aiding and Abetting Girlfriend: Angela was charged with aiding and abetting.
Her boyfriend was charged with killing 5 people, she asks someone in prison to help her find an
inmate serving a life sentence who would be willing to take the blame for the murders. Person
she asks is an informant, who asks for more details of the murders so whoever confesses sounds
reliable. She gives handwritten notes and maps (where victims buried), and details about the
murders. Informant gives to the police.
 Holding: Whether the evidence is admissible against the boyfriend under the co-
conspirator exemption depends on whether the conspiracy was still in progress. The
lower court said that the conspiracy was ongoing because they committed a crime, didn’t
want to be caught, so this was concealment. The appellate court said unless concealment
is contemplated, then evidence cannot be used, but usually concealment is not part of the
conspiracy, so likely inadmissible.
 Exam: make an argument about whether the concealment was in furtherance of the
conspiracy or a new conspiracy all together. (Prof seems to think this is beginning of new
conspiracy)

C. FRE 803: Hearsay Exceptions

FRE 803 exceptions are considered highly reliable, so the declarant does not need to be available
as a witness
 Except for FRE 803(5)

1. FRE 803(1)–(2): Present Sense Impressions and Excited Utterances

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.

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FRE 803(1)–(2):
 Rationale: The immediacy of the utterance makes it unlikely the declarant observed the
event, decided to craft a lie, crafted a lie, and then uttered the lie. Additionally, the
immediacy of the statement makes errors of memory less likely
 The risk of inaccuracy or unreliability of the statements goes more towards the weight of
the statements rather than their admissibility
 Necessary foundation for a present sense impression:
o Personal knowledge
o The declarant made the statement during or very shortly after the event (usually
classified as within minutes of the event), and
 There is no clear amount of time; short temporal leash
 The court is more concerned as to whether there was an opportunity for
fabrication or memory loss
 If the witness has to reach into her memory at all or there is
deliberation, then it is problematic
 Spontaneity
 The event need not be startling or stressful
o The statement describes or explains the event or condition.
 Necessary foundation for an excited utterance:
o Personal knowledge
o The event was startling or stressful,
 Objective: the event was objectively startling or stressful
 Subjective: Whether, in fact, the declarant was in a state of nervous
excitement
 Context-dependent inquiry: the nature of the event, the behavior of the
declarant, and the contents of the statement are central factors to
determining whether this element is met.
o Declarant made a statement relating to the event or condition, and
 Does not need to actually describe the event, just be related to it
 Recounting history may take the utterance out of the excited utterance
exception. Example: “Dirk has a knife and will stab Charlie” is okay, but
“Dirk has a knife and will stab Charlie because they have hated each other
for years” not okay
o Declarant made the statement while she was in a state of nervous excitement.
 The temporal leash is longer for an excited utterance; as long as the
nervous excitement continues to exist, the statement is deemed reliable.
 Excitement can be reignited, think PTSD/extreme circumstances
 Can be triggered by location, or sounds, etc.
 Reaction is immediate, no time to lie
 Children experiencing intense pain and trauma are considered to have
longer excited states

Problems
Problem 7-16 – 911 Narration: Bemis and Kates arguing, Bemis pulls a gun, Kates grabs the
gun and breaks it. Bemis runs into his apartment to get another gun, forgot his key, broke in.
Neighbor calls the police because thinks Bemis is an armed burglar. While neighbor is on phone
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with 911, while others gathered around the window where Bemis was, and described the scene.
Neighbor repeated some of the statements to the 911 operator.
“Now there’s a cop beating the…out of the guy”
“There’s five units… but it’s kind of getting ridiculous guys. I mean, the cop’s beating the…out
of the guy right now. The guy’s got a gun, though. I guess it’s legal”
911 operator said: “apparently he must have thrown down the gun”
 Holding: The neighbor’s 911 statements are inadmissible because neighbor did not have
personal knowledge of what he was describing, other people were yelling things to him to
repeat, so it suggests that he was not actually observing what he was describing
(paraphrasing).
 Holding: The 911 operator’s statements are inadmissible because the 911 operator should
not be excited or distressed. They’re also not a present sense impression (speculation),
because she cannot see what’s happening.

Problem 7-17 – Informant Picking Photo: Duncan was a DEA information who purchased
cocaine from Cole. 10 minutes after the deal, Agent did a debrief. Duncan recognized Cole, but
not person who was with him. Duncan IDed Anderson from 20-30 photos as the other person.
Debrief was recoded and Duncan verified, but Agent forgot to include ID of Anderson in the
record. Is Duncan’s ID admissible?
 Holding: Inadmissible. This was within the relevant time frame for PSI. Even though
Duncan didn’t know Anderson, there was nothing to indicate that she didn’t see him.
However, picking out a photo 10 minutes later required Duncan to go back into her
memory bank, which requires contemplation and is less reliable. As an informant
(snitch), Duncan may have had reason to fabricate.
 Note: if she walked up to officers immediately after, it might be admissible

Problem 7-18 – Upset Mother: D arrested for involuntary murder of his 9-month-old son.
Looking to admit testimony of Andrews, a neighbor who babysat the son 8 months prior to death,
one day for 12 hours. When D’s wife went to pick up son from Andrews’ house, she was crying,
appeared nervous and when Andrews asked what was wrong, she said that her husband had
gotten jealous of the baby and tried to destroy all the son’s stuff that morning
 Is Andrews’s testimony admissible?
o Holding (PSI): inadmissible as present sense impression because it had been 12
hours since D had tried to destroy the stuff that morning.
o Holding (excited utterance): If mother were really overwhelmed by emotion, seems
like she would have been emotional when she dropped the son off in the morning
(she wasn’t); also, the mother hadn’t volunteered the information. If she were truly
overwhelmed by emotion, she would not have waited to be asked about it. Court
was skeptical about “reigniting” stress of the event.
 Is it admissible if wife made the comment when she had dropped the son off in the
morning?
o Prof said: the 12 hours is really what influenced it for this judge, so removing the 12
hours makes this a much better argument.
o Prof also says that it may have been possible for her excitement to be reignited now
that she’s speaking at the scene of the incident

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Problem 7-19 – Photo of Attacker: V, who lived in Portland, was found unconscious with
severe head injuries outside of Vancouver, WA. Police suspected D. V underwent two brain
operations, sufficient brain damage, but memory intact. 8 weeks after the attack, her sister
showed her a news article with D’s photo. Sister said that V looked at the picture, immediately
became distressed, pointed and “said very clearly, ‘he killed me, he killed me.’” V cannot testify
because she cannot understand significance of oath.
 Holding: The timing of this knocks out PSI (8 weeks). The statement is admissible as an
excited utterance. Being shown the photo was the startling event, not the attack itself
(senses can get re-ignited). Here, it felt like the emotions were controlling V because she
said “he killed me” immediately (therefore less likely to fabricate a lie).
 Re-ignited excited utterance: must look to how declarant is reacting to determine if we
can reignite.

Problem 7-20 – Battery of Child: D charged with battery of his GF’s 19-mo-old son, Joshua.
Joshua’s babysitter said that Joshua had bruises and face injuries and appeared to be “in a daze.”
When D arrived to spend time with Joshua, Joshua tried to pull himself away from D. The next
day, Joshua had more bruises and right side of his face was swollen. Babysitter asked him what
happened, and he took his right hand, balled it into a fist and placed it against his right cheek,
then started rambling on.
 Holding: The child’s punching motion is admissible as an excited utterance
o Present sense impression: This doesn’t work because the child’s statement occurred
12 or more hours after the event (the next day).
o Excited utterance: Child’s punching act was nonverbal conduct made for the truth
of the matter asserted (a physical answer to a question); the physical trauma and
laboring under pain could be startling event here – it’s an ongoing, stressful
condition; fair to assume a child’s stress lasts longer than an adult’s; the fact that the
child started babbling right after being asked a question suggests that the response
was given on impulse rather than as a result of reflection.

2. FRE 803(3): Then-Existing, Mental, Physical, or Emotional Condition

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the declarant’s
will.

Rationale: then-existing state of mind statements are considered trustworthy because there is
little risk of misperception—you are the best judge as to your state of mind. Similarly, because
the statement is focused on the present, there is no risk of faulty memory.
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Four categories of statements are covered under FRE 803(3):
 Statements of present bodily condition, regardless of whether it is made to a medical
professional or to a lay person.
o The statement does not cover past conditions
 Statements of present state of mind or emotion when offered to prove a state of mind or
emotion of a declarant that is in issue.
o Example: good faith, intent, knowledge, coercion
o Can be used to prove a necessary, live element
o Example: Someone overheard a manager say “I hate race X and don’t want to hire
race X.” This statement can be admitted in a discrimination claim when the
element of the speaker’s state of mind is at issue
 Statements of the declarant’s state of mind in order to show subsequent conduct of the
declarant.
o Gets messy when there is another person included. Ex: “Sally and I are going to
the library.” Can this be used to show Sally went to library? See Houlihan
 Majority: yes
 Minority: you need some other corroborating evidence in addition to the
statement
o Backward-looking statements cannot be used to backward looking facts; find
another hearsay exception for that part of the sentence if possible
 Ex: “I am going to the library because I bombed my midterm.” This
cannot be used to show he failed his midterm because now that is
backwards looking; all testimonial capacities are at issue now
 FRE 803(3) allows the scalpeling of sentences. The first half of the
sentence can be used to show he went to the library
 However, sometimes backward-looking facts are admitted to prove the
state of mind or physical feeling (ex: the details of a rape to prove that the
victim was truly traumatized)
o Can be used to show joint conduct; “allowing evidence of intention as tending to
prove the doing of the act intended”

Cases
Mutual Life Insurance Co. v. Hillmon (1982): P brought a life insurance claim on her husband,
but the insurance companies refused to pay because they suspect her husband is still alive and the
dead body found was not his. To prove the body was not his, the companies wanted to admit
letters from V, who had been supposedly travelling with the husband and was now missing. The
letters detailed that he was planning to travel to a certain city with the husband in a couple days,
and then his letters stopped shortly thereafter, and the dead body was then found in that city.
 Holding: The letters are admissible. The letters do not prove that V actually went on the
trip, merely that he had the intention to do so. This is relevant because it makes it more
probable that he did actually go on the trip and thus more probable that the body found
was his. They can also show that the husband was also in the area at the time of the death.
 Court finds the necessity of the evidence is important (it’s the only way to link the
husband and Hillmon)

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 Court finds the evidence is fairly trustworthy, since letters were sent to loved ones (an
audience with whom he’s expected to be trustworthy) as a way to tell them where to
direct their next letters

U.S. v. Houlihan (1994): Ds were accused of killing V. The prosecution sought to introduce V’s
statements to his sister as he was leaving her apartment on the night he was killed. Specifically,
V had told his sister that he was going to meet Ds.
 Holding: V’s statements can be admitted as circumstantial evidence of the meeting and to
prove the subsequent conduct of Ds.

Problems
Problem 7-21 – Real Cheaps: D arrested by FBI agents near a truckload of highjacked
cigarettes. D wanted to elicit testimony at trial from arresting FBI agent when agent approached
D, D exclaimed: “I thought you guys were just investigating white collar crime; what are you
doing here? I only came to get some cigarettes real cheap.” D said “real cheap” cigarettes refers
to bootleg cigarettes (e.g., shipped from NC to avoid taxes), not stolen ones (which would
disprove D of the state of mind required for conviction for possession of stolen contraband
cigarettes).
 Holding: He was offering for intention at the moment, not to prove what kind of
cigarettes were in the truck. Not offering to prove a fact remembered or believed. Court
said this was his present belief and that it was admissible.
 The fact that he did it while at the scene of a crime goes to the weight of the evidence, not
the admissibility
 Hypo: 8 hours later, D is sitting in his cell and FBI agent comes and says: “what were you
doing at that truck?” and D says, “I was there to buy Real Cheaps,” this has a backward-
looking component and is inadmissible.

Problem 7-22 – Prison Rape: Vogel had a history of mental illness and was arrested and
brought to jail, where jail administrators ordered him to change into prison garb. He refused, five
officers subdued him and changed his clothes forcibly while he yelled that he was being raped.
He died a few weeks later. His family alleged that the state acted with deliberate indifference to
his serious medical needs and that his treatment in prison caused Vogel anguish that led to his
death. At trial Vogel’s sister wanted to testify about a conversation she had with Vogel 1 week
after his release from prison where he stated he “believed he had been raped” while in prison,
gave details of rape and the emotional impact it had on him.
 Holding: 2-1 decision, the entire statement is admissible, but limited to mental feeling
only.
 2 Judges: look at P’s evidential hypothesis – offered to prove a mental feeling “I feel I
was agitated because I was raped” and this mental feeling was relevant because it showed
the impact on Vogel. His mental feeling is the clearest way to show that his experience
caused him distress and that was why his sister offered it (goes to damages), to show how
distressed he was. Limited to the idea that this could only go to mental feeling. The
details of his belief about the rape were necessary to show exactly how distressed he was.
 Dissent: This is offered to prove backward looking facts that he actually was raped. He
was concerned, but about a past thing, and the statements were being offered to prove that
past thing. There is a difference between “I’m upset” and “I’m upset because I was

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raped.” Rape was a live issue at this trial and dissent thought it was being offered to
prove that Vogel was actually raped.
 Exam: Figure out what the declarant’s intent was and why prosecutor wanted to admit the
evidence

3. FRE 803(4): Statements for Medical Diagnosis or Treatment

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or
treatment; and
(B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.

FRE 803(4) allows the introduction of statements regarding past bodily condition.
 Rationale: the statements are trustworthy because at least in the situation of a patient
seeking treatment from a physician, the patient will speak sincerely and accurately in
order that she can receive the best care possible. The risk of misperception and faulty
memory are minimal when the declarant herself has perceived the bodily condition.
 Necessary foundation:
o The declarant made a statement to a proper addressee,
 If the patient spoke to a family member or Good Samaritan in the hopes
that they would convey the information to a doctor, then the statement is
covered.
 If the declarant speaks to a nurse or hospital intake assistant, the statement
is covered if the goal is to get diagnosis or treatment.
 Doesn’t actually need to get to a doctor, just have to have intention for it to
go to doctor
 Most courts have held that statements from doctor to patient are not
covered
 Between medical professionals while treating are covered; messages
between medical professionals increase reliability because they are all
focused on treatment
o The declarant made the statement for a medical motive, and
 The statement must focus on diagnosis or treatment.
 Covers expert witnesses (diagnosis) and treating physicians (treatment)
o The subject matter of the statement is reasonably pertinent to diagnosis or
treatment.
 Usually, statements as to fault would not be covered, as those statements
are rarely necessary for diagnosis.
 Exception: they can be used if it involves domestic or child abuse,
since the injuries could recur and the doctor has a duty to treat and
protect his patients  future treatment is relevant

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 Once more is shared beyond what helps the doctor in diagnosis or
treatment, reliability wanes
 Even an expert retained for litigation purposes can use FRE 803(4) at trial
to demonstrate a diagnosis.
 Statements that affect future treatment are included
 Iron Shell Test: (1) Is declarant’s motive consistent with the purpose of the
rule? (seeking treatment/diagnosis) (2) Is it reasonable for physician to
rely on this information for a diagnosis or treatment?
 Psychiatrists (courts split)
o Some courts: Psychiatrist is a doctor just like any other doctor. Trying to get
treatment so person is going to honest, and psychiatrist is probing things that she
thinks are going to be helpful to your physical wellbeing.
o Other courts have expressed concern over whether people are always truthful/self-
aware when talking to psychiatrists. It’s not the same as “doctor my knee hurts”

Cases
U.S. v. Iron Shell (1990): D was convicted of attempted rape of a young girl. The girl told the
doctor that she had been drug into the bushes, that her clothes, jeans and underwear, were
removed and that the man had tried to force something into her vagina which hurt. She said she
tried to scream but was unable because the man put his hand over her mouth and neck. The
doctor repeated these statements at trial.
 Holding: All of the statements were within the scope of the rule because they were related
to her physical condition and were consistent with a motive to promote treatment. This is
especially true since the statements concern what happened rather than who assaulted her.
The child’s age also indicates that she was unlikely to lie. Physician’s leading questions
were likely attributable to her age, not because the doctor was trying to be an investigator
 The fact that in this case the discussion of the cause of the injury did not lead to a
fundamentally different exam does not mean that the discussion was not pertinent to
diagnosis. It is enough that the information eliminated potential physical problems from
the doctor’s examination in order to meet the test of 803(4). Discovering what is not
injured is equally as pertinent to treatment and diagnosis as finding what is injured.

Problems
Email Problem – Falling Through Floor: P sued the police officers who arrested because when
he was arrested, D claims the officers beat him. The officers say he was found in an attic and the
floor collapsed, resulting in D’s injuries. D wanted to introduce his medical records that
referenced the “assault.”
 Holding: The records were admissible; the injuries from an assault would be different
from ones falling through a floor so the plaintiff would want to be honest about which
caused the injuries to get accurate treatment. It is also a natural for a doctor to ask how
one got the injuries, and that is consistent to the treatment

Problem 7-23 – Prisoner Drug Experiment: P prisoners suing D drug company for issues
related to its drug, Halcion. Prisoners with insomnia filled out report forms that physicians used
to assess the drug’s impact on human subjects.

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 Holding: The report forms are inadmissible. This case involved a research protocol, not
diagnosis/treatment. An institutional researcher, rather than a treating physician, was
involved. We don’t know that the motive of prisoner/declarant was “I want to be treated”
and we don’t know if the doctor was trying to treat them. It was more about the doctors
compiling data, so it was, “you have insomnia, take this pill and see what happens.” That
is different than going to a doctor, talking about your insomnia and having them give a
treatment plan.
 Both the declarant and the listener must care, and here the listener did not care

Problem 7-24 – Murdered Wife: Melvin and Julia filed for divorce and separated. Melvin went
to Julia’s after drinking one day, became physically abusive, she tried to flee, and he killed her
with his car. He wanted to negate the intent needed for 1st degree murder saying he was enraged
regarding the divorce. Prosecution offered statements of Julia’s doctor, who treated her for rape 8
days before the murder and she IDed Melvin as her assailant. She also told him that she was
afraid because Melvin suspected her of having an affair and he had threatened to kill her. Are
Julia’s statements to doctor regarding the rape admissible? Are the statements regarding Melvin’s
threats admissible? Other objections?
 “I’m afraid because D thinks I’m having an affair”
o Not admissible under 803(4) because not pertinent to diagnosis
o “I’m afraid” is admissible under FRE 803(3) as an emotional condition. However,
“because D thinks I’m having an affair” is backward-looking, inadmissible.
 “Melvin raped me”
o Admissible under FRE 803(4). Even D’s name is admissible, since the
perpetrator’s identity is relevant to the victim’s treatment/care (doctor should
know if someone you’re going home to or a random stranger)
 “Melvin threatened to kill me”
o Not admissible under FRE 803(4), since not part of diagnosis/treatment.
o In this context, it is being offered to prove that he did threaten to kill her (because
what’s at issue is whether D had the intent for 1st degree murder).
o Could also argue that this is prejudicial and inadmissible under FRE 403
o FRE 404(b) – threatening to kill someone is another act, so trying to introduce
this in a case where he actually ended up killing her, that is character propensity
saying he threatened to kill her and therefore he killed her.
 But could use intent as FRE 404(b) word to get it in.
 Holding: This court allowed everything in – analogized to the treatment of children and
domestic violence situations. It is fair that a doctor would want to make sure their patients
in this position are safe and psychologically sound.

Problem 7-25 – Bucci at a Nightclub: Bucci waiting in line at a nightclub, was hit in back of
head by an unknown assailant, knocked unconscious, awoke at hospital. Bucci sued nightclub.
Issue at trial: whether Bucci’s injuries were intentional (if so, Bucci cannot recover). Bucci trying
to exclude 3 forms of evidence:
 EMT report: statement by bystander to EMTs, “patient complained of neck pain after
being struck once in face by a fist”
 ER physician record “direct blow” “hit & kicked in the face”
 Triage nurse report “punched in left side of head”

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 Holding: Court said 803(4) covered all of this because everyone felt a duty to be accurate
and therefore, we should be trusting the statements, therefore admissible.
 Prof says:
o This is a game of telephone (Samaritan  EMTs  ER Nurse  Triage Nurse)
and maybe not trustworthy. At some point the story changed, so even with the best
intentions (everyone being accurate), it went from being struck in the head to hit
and kicked in the face.
o Bystander’s comment allowed since it was made to EMT to be conveyed to a
doctor, the statement could help with diagnosis, bystander didn’t have a motive to
lie. But since it is an unknown declarant, harder to establish that the purpose of
that statement was to get medical treatment for Bucci.

4. FRE 803(5): Writing to Refresh Memory/Recorded Recollection

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.

Rule 612. Writing Used to Refresh a Witness

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to
refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those
options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides
otherwise in a criminal case, an adverse party is entitled to have the writing produced at
the hearing, to inspect it, to cross-examine the witness about it, and to introduce in
evidence any portion that relates to the witness’s testimony. If the producing party claims
that the writing includes unrelated matter, the court must examine the writing in camera,
delete any unrelated portion, and order that the rest be delivered to the adverse party. Any
portion deleted over objection must be preserved for the record.

What to do if your witness begins to forget facts during her trial testimony
 Option 1: use FRE 612 to refresh the witness’s memory. You provide the witness with
any document or object you feel will aid her memory.
o No foundational requirements. It need not be crafted by the witness and need not
have anything to do with the litigation.

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o The witness reads the document and if she says her memory is now refreshed,
then questioning can continue
 The document is not admitted into evidence  no hearsay
o If she says her memory is still not refreshed, then you may want to rely on a
document in lieu of testimony. This means it is hearsay
 Option 2: If the document becomes hearsay, then you try to admit it under FRE 803(5)
o Necessary foundation:
 The witness previously possessed personal knowledge of the facts
recorded,
 The witness subsequently prepared or adopted a record of those facts,
 Ex: she wrote down the license plate number, or adopted someone
else’s record of the license plate number
 The witness prepared or adopted the record while the events were still
fresh in her memory,
 The witness can vouch that when she prepared the record or adopted the
record, the record was accurate, and
 This is the only FRE 803 rule that requires the presence of the
witness
 The witness must re-adopt it on the stand (even if they had
previously adopted it)
 Requirement: Both the declarant and the person recording the
statement must establish foundation (both need to testify to
accuracy of statement)
 At trial, the witness cannot completely and accurately recall the facts even
after reviewing the document.
o You now have established the foundation for the document and may read the
document to the jury.
o Only opposing counsel may offer it as an exhibit, which would allow the jury to
view it.

Cases
Baker v. State: D was convicted of robbery and murder. W1, a police officer, arrived at the scene
and took V to the hospital, but on the way, W2, another officer, called to say they picked up D.
W1 brought V to identify D, but V said that D was not the perpetrator. V died. To refresh W1’s
memory of this at trial, defense counsel attempted to show him the police report relating to that
confrontation and prepared by W2.
 Holding: Defense counsel was allowed to show W1 the police report to refresh his
memory. It did not matter that W1 had not prepared the report himself, since the report
was not being admitted into evidence. This was Rule 612, not Rule 803(5).

Problems
Problem 7-26 – Inmate Fight: Coleman witnessed an incident in a federal prison in which D
struck a fellow inmate. Two weeks later, an officer interviewed Coleman about what happened,
transcribed the interview into a report, and returned 4 months later to review with Coleman.
Coleman refused to sign the report. At trial, Coleman testified that he did not see D strike the
victim. He said he did not sign the document because he did not think it was accurate.

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 Holding: No, Coleman did not adopt the testimony as his own (fails elements #2). He
also did not re-adopt the report while on the stand
 Court requires that both people testify (Coleman and the officer).

5. FRE 803(6) and (7): Business Records

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information
transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is
not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information
or other circumstances indicate a lack of trustworthiness.

FRE 803(6)
 Necessary foundation: This foundation need not be established by the person who crafted
the business record; the rule allows an “other qualified witness,” such as a business’s
custodian of records, to testify as to the foundation.
o The record was made and kept in the course of regularly conducted business
activity,
 Any regular organized activity, including criminal enterprises.
o It was a routine practice of the business to make the record,
 The level to which the practice was routine means that the organization
regularly conducted that practice; an unusual record may not qualify
 To be compiled regularly does not have a specific time frame, it just needs
to be made as regularly as the record mandates (ex: a quarterly report is
only made 4 times a year)
o The record was made at or near the time of the transaction it records, and
 The record was created within a reasonable time after the transaction
o The record was made by, or from information transmitted by, a person with
knowledge who acted in the regular course of business.
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 Can call the custodian of records who can say “I have firsthand knowledge
of how records are kept at this company, I know that this record would
have been made contemporaneously with the transaction and therefore I
vouch for the accuracy of this document”
 Often a business record may incorporate a statement of someone outside the business,
such as a customer. That person has no business duty to report information, and therefore
their hearsay is considered unreliable.
o Hearsay within hearsay: If a statement from someone outside the business is
incorporated within the business record, another hearsay exception is needed with
regard to the “outsider’s” statement if it is offered for its truth.
o When the business has a duty to verify the hearsay within hearsay and they do so
and have a witness who can say it was verified, then hearsay within hearsay can
come in under business record (Problem 7-27 Prison Logbook)
 Note: a court does not have to admit the document if some aspect of the business record
makes it seem untrustworthy.
o If a motive to misrepresent is apparent, such as if the document was made solely
for litigation purposes, a court may rule that the document is inadmissible.
 Primary motive test: if the main purpose is for litigation issue then it is
inadmissible
o The burden is on the opponent to show a lack of trustworthiness.
 Applies to FRE 803(6)–(8)
o Ex: Scheerer

FRE 803(7) governs proof the of the nonoccurrence or nonexistence of a matter by showing that
no record of it is found in regularly kept records that would have recorded it if it did occur or
exist.
 Necessary foundation:
o All the elements of FRE 803(6) are met
o A qualified witness must testify that a diligent search revealed no record.
 The burden is on the opponent to show a lack of trustworthiness.

Cases
U.S. v. Kim (1979): D was convicted of conspiracy to bribe congressmen. The government
argued that, in 1974, D had been having severe financial issues that resolved themselves after the
alleged first payment of the bribing money by his client. The government wanted to show that all
of D’s debts were paid shortly after the delivery of the money to prove that he had in fact taken
money. D argued that he had a lot of money at home in Korea to support him and wanted to
prove this by admitting a fax from his Korean bank stating that in 1977 he personally withdrew
$400,000, and he had deposited the money there throughout 1975.
 Holding: The telex from the bank was inadmissible. First it was not made near the events
because it reports on deposits from 1975 but was prepared in 1977. Second, the telex was
not made for a regular business purpose, but was sent in response to a government
subpoena; the bank did not rely on it.
 While a regular business means of communication was used (i.e., a telex), the message
did not serve a regular business purpose

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 The bank’s telex is hearsay within hearsay; the telex itself is hearsay and then it says
another record shows the value of his bank account, and that other record is also hearsay
o So, we need a hearsay exception for both levels
 It also lacked relevance because it showed D’s banking history years after the alleged
crime

Scheerer v. Hardee’s Food Systems: P walked across D’s parking lot and slipped. D’s employee
wrote up an incident report that described the surface of the parking lot as dry, not wet or oily,
and included the statement that “a friend explained [P’s] shoes were slick....”
 Holding: The statement in the report is unreliable because it is not certain who exactly
said P’s shoes were slick (hearsay within hearsay). The incident report was inadmissible
as a business record under FRE 803(6) because it had been prepared in anticipation of
litigation.

Problems
Problem 7-27 – Prison Logbook: Vargas testified that D ordered him to kill people after Vargas
visited D in prison on 3 occasions. To corroborate Vargas’s testimony, prosecution introduced the
prison visitor logbook. A prison guard with 8 years of experience in prison visits testified that the
prison requires visitors to enter their name and address in the prison visitor logbook, and then a
guard verifies by checking IDs.
 Holding: The logbook is admissible under FRE 803(6) business record (both the logbook
and Vargas’ name)
o Elements:
 (1) It is a regularly conducted business activity to have visitors sign the logbook
and then have the guards check ID
 (2) The logbook is routine practice
 (3) The entry was created when the visitor checks in
 (4) Guards verify it, and there is no motive for the guards to misrepresent the
information therefore trustworthy
o Hearsay within hearsay:
 When Vargas signs his name, he is asserting “my name is Vargas” for the truth
of the matter that his name is Vargas and he was the person visiting the prison
 It is reliable because if Vargas signed his name wrong, he would have gotten
caught when the guard checked his ID. The court said it was the business duty
to verify the ID, so therefore the hearsay exception for business records covers
the hearsay within hearsay (his name)

Problem 7-28 – Sinking Yacht: Sinkovich’s yacht struck some rocks and sank. Sinkovich’s
insurer hired an investigator, Geary, and sought to admit his report into evidence. The report
found that Sinkovich had breached his insurance agreement in many ways, so insurer refused to
honor policy.
 Holding: The report is inadmissible because the general trustworthiness of Geary is called
into question since he is preparing the report in anticipation of litigation. Insurer is
thinking about litigation, hires Geary to give them results they wanted so they didn’t have
to pay the claim. Not trustworthy

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 Timing: If Sinkovich called insurer as soon as boat sank, then insurer did factual
investigation (police records, etc.) and concluded something wasn’t right, then hired
independent investigator, maybe not in anticipation of litigation. But if Geary is the first
call they made, then that suggests litigation preparation.
 Primary motive test: There may be other reasons for the report, but they are not the
primary motive. If this is not routine, then it indicates that the primary motive is litigation
preparation

Problem 7-29 – Bait Money: D was arrested for robbing a bank when “bait money” from the
bank was found on him. A bait money list is made by the bank employees and verified 3 times
per year when the bank employee checks the serial numbers on the list against those on the
actual bait money. Prosecution submitted the bait money list into evidence to prove that the
money D was carrying was in fact the bait money from the robbery.
 Holding: The list is admissible under FRE 803(6) because even though the records
weren’t updated weekly or monthly (i.e., created at/near the time of the transaction), it is
still reasonable to believe that the numbers were accurate.
 Reasonableness v. Regularity: Court takes reasonableness into account. It is reasonable to
only check 3 times per year because the bait money is supposed to be a bag of money that
no one touches, so we wouldn’t expect change.

6. FRE 803(8): Public Records

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
a. Public Records. A record or statement of a public office if:
(C) it sets out:
1. the office’s activities;
2. a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-
enforcement personnel; or
3. in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(D) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
b. …
c. Absence of a Public Record. Testimony — or a certification under Rule 902 —
that a diligent search failed to disclose a public record or statement if:
(E) the testimony or certification is admitted to prove that
1. the record or statement does not exist; or
2. a matter did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind; and
3. in a criminal case, a prosecutor who intends to offer a certification
provides written notice of that intent at least 14 days before trial,
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receiving the notice — unless the court sets a different time for the
notice or the objection.

FRE 803(8) admits a record of a public office if it sets out that office’s activities, a matter
observed while under a legal duty to report, or factual findings from a legally authorized
investigation.
 Rationale: The trustworthiness of the record stems from the belief that public servants
will perform their duties accurately and carefully.
 Necessary foundation:
o The proponent must prove that the document is an authentic public record and
that it contains any of the three types of information:
 The office’s activities;
 A matter observed while under a legal duty to report, but not including, in
a criminal case, a matter observed by law-enforcement personnel; or
 Criminal Defendant Exception: disallows anything observed by
law enforcement personnel to be used against a criminal defendant,
since they may be biased.
o Exception: courts have allowed routine, non-adversarial
reports to be admitted against a criminal defendant, as there
is a lesser risk of bias.
 Ex: creating a car VIN number list, not created with
litigation in mind to target a certain person
 “Law-enforcement personnel” has been read broadly to include
scientists, criminologists and forensic specialists.
 Government laboratory reports occupy a middle ground.
o Courts lean toward it being adversarial if it’s a test done
with a specific defendant/case in mind
 in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation;
 Investigative findings cannot be offered against the accused
 Factual Findings:
o Factual findings include opinions and conclusions (Beech
Aircraft)
o Factual findings must be made by the government (majority
view) (Problem 7-31 Friend Cover-Up)
o Applies to legislative and executive decision-making, not
judicial statements (Problem 7-30 Settlement with Hospital
 Witness and judge statements from prior trials in public records do
not fit under the rule
 Third person hearsay does not become admissible just because it
appears in a government record; factual finding made BY the
government is what we are looking for
o No indication of lack of trustworthiness
 Party who says the evidence is not trustworthy has the burden of proof
 Factors (Beech Aircraft)

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 (1) Was doc timely?
 (2) Do you need special skill? Did the preparer have it?
 (3) Was there a hearing to allow numerous viewpoints to be
expressed?
 (4) Were there motivational problems?

The absence of entries in public records is admissible under FRE 803(10).

 This exception allows the proponent to offer a certificate by a recordkeeper indicating
that a diligent search failed to turn up a record where one would expect it to be found.

Cases
Beech Aircraft Corp. v. Rainey (1988): A Navy plane crashed killing the two pilots. It could not
be determined how the crash happened. The families brought suit against the Navy, and the Navy
claimed pilot error. The Navy sought to introduce was an investigative report completed during
the six weeks following the accident, and it was organized into sections labeled “finding of fact,”
“opinions,” and “recommendations.” The opinions sections stated: “The most probable cause of
the accident was the pilots [sic] failure to maintain proper interval.”
 Holding: The report was admissible in its entirety, including the opinions section; neither
the language of the Rule nor the intent of its framers calls for a distinction between “fact”
and “opinion.” As long as the conclusion is based on a factual investigation and satisfies
the Rule’s trustworthiness requirement, it should be admissible along with other portions
of the report.
 The Advisory Committee proposed a nonexclusive list of four factors to determine
untrustworthiness:
o (1) the timeliness of the investigation
o (2) the investigator’s skill and experience
o (3) whether a hearing was held
o (4) possible bias when reports are prepared with a view towards litigation

Problems
Problem 7-30 – Settlement with Hospital: Sopp was injured when a hospital negligently gave
her contaminated test fluid and the hospital settled with Sopp. The hospital’s insurer initially
refused to pay for their share of the settlement. The hospital sued the insurer. At trial, the jury
found in favor of the hospital. The insurer appealed claiming that Sopp’s settlement was
unreasonably excessive and the hospital offered evidence of the trial court transcript where the
judge said he believed the settlement had been “fair and reasonable”
 Holding: The transcript is inadmissible because it is not clear how trustworthy the judge’s
statements are. This was being offered for the truth of what the judge asserted. We don’t
know how judge came to the conclusion, there was no trial, and we don’t think that
judges typically investigate (that’s what the jury is for); plus the court noted a bunch of
other things (cannot depose judge’s, we don’t want to get into the process of having to
depose judges for what they say at a settlement hearing). A judge’s statement is not
considered a government finding

Problem 7-31 – Friend Cover-Up: Pagan helped his friend Kouri in covering up the theft of
over $1 million that Kouri embezzled from his employer, by making phony receipts accounting

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for the stolen money; then Pagan lied at trial and was tried for perjury, conspiracy and
obstruction of justice. Pagan wanted to introduce self-exculpatory statements he made in a
telephone conversation with a government informant which was taped without Pagan’s
knowledge.
 Holding: The tape is inadmissible under 803(8) because this rule should be limited to
statements made by the government. D’s statements were self-serving, and not reliable.
These statements are not factual findings, this is just a guy saying over the phone, I never
did it.
 Rule: Third person hearsay doesn’t become admissible merely because it appears in a
public record. This is self-serving and not reliable.

7. FRE 803(16): Statements in Ancient Documents

A statement in a document that is at least 20 years old and whose authenticity is established is
admissible regardless of whether declarant is available as a witness

8. FRE 803(18): Statements in Learned Treatise

A statement contained in a treatise, periodical, or pamphlet is admissible regardless of whether
declarant is available as a witness if:
(A) the statement is called to the attention of an expert witness on cross-examination OR
relied on by the expert witness on direct examination, and
(B) the publication is established as a reliable authority by the expert’s admission or
testimony, by another expert’s testimony, or by judicial notice.

9. FRE 803(21): Reputation Concerning Character

A reputation among a person’s associates or in the community concerning the person’s character
is admissible regardless of whether declarant is available as a witness
 Whenever reputation or opinion is allowed [608(a), 404(a)], this is the hearsay exception
that covers it, so it is not a hearsay issue.

10. FRE 803(22): Judgement of a Previous Conviction

This is how we get in the prior conviction under 609

D. FRE 804: Hearsay Exceptions

The FRE 804 exceptions are only available if the declarant is unavailable to be a witness
pursuant to the mandates of FRE 804(a)

1. FRE 804(a): Unavailability

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if
the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;

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(4) cannot be present or testify at the trial or hearing because of death or a then-
existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able,
by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying.

FRE 804(a) defines the grounds of unavailability.

 The listed grounds are illustrative, not exclusive
o Other factors:
 Must have lost all memory, not just some; some allows you to be
impeached
 Nature of infirmity
 Medical risks
 Doctor’s notes
 Necessity of witness
 Importance of case – can it be reasonably delayed?
 Number of witnesses to be scheduled
 Reliability of the previous statements
 Provability
 Time of recovery
 The burden of showing unavailability of the declarant is on the proponent of the hearsay
evidence.
 When the defendant pleads the Fifth, that cannot make her unavailable so that her hearsay
is now admissible
 Absence equates to unavailability under FRE 804(a)(5) as long as sufficient efforts to
obtain attendance or testimony of the declarant have been undertaken

Problems
Problem 7-32 – Pregnant Witness: D charged with robbing a camera equipment crew. There
were two trials (first resulted in hung jury). One TV crew member testified at the first trial that
she witnessed the robbery. At the second trial, she didn’t testify because her doctor’s opinion was
that her pregnancy made her unable to undergo the stresses of testifying.
 Holding: The Court would not reschedule because the trial was complicated, many
witnesses, 10 defense attorneys, travelling judge. It would be too difficult to reschedule
for a time and make everyone available again. Videotape of the witness’s testimony was
allowed.
o Factors we should be looking at when someone says they are too sick to show up
 Provability - the fact that she had a doctor’s note matters
 Time of recovery - judge cannot postpone for person to recover
 Reliability - is it self-reported or doctor reported?

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 Her hearsay is reliable as it was recorded hearsay and she was previously corss
examined
 Other special circumstances that may indicate that the trial needs to go on
o STILL NEED an 804(b), here it was an 804(b)(1)

Problem 7-33 – Memory Fading: Antitrust action, the plaintiffs offered testimony of Moody
who intended to testify regarding a statement made by Ballard, and Moody said on the stand “the
specific dialogue of this conversation has faded with the years.” He recalled the general subject
matter but didn’t remember the details. Plaintiffs argued that the gaps in Moody’s knowledge
made him partially unavailable under FRE 804(a)
 Holding: He is not unavailable. This would mean that a lot of witnesses will be
unavailable. Must have no memory of the events to which the hearsay relates. If you have
some memory, you are NOT unavailable. Not going to create a broad exception for just a
little bit of memory loss. It means complete lack of recollection.

2. FRE 804(b)(1): Former Testimony

Rule 804. Hearsay Exceptions; Declarant Unavailable

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether
given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose
predecessor in interest had — an opportunity and similar motive to
develop it by direct, cross-, or redirect examination

FRE 804(b)(1) enhances reliability by mandating that the past statement was:
 (i) Testimony: sworn statements made in response to questions on the record.
 (ii) Proceeding: carries a very broad meaning, including not only judicial inquiry but also
administrative or legislative inquiries.
o Statements of law enforcement officers during investigations are NOT covered
o Courts are split as to a grandy jury being a proceeding
 Different quantum of proof and standard; prosecutor may have an
incentive not to pull out all the stops at grand jury
 But the prosecutor would know it could come in against them and they
had an opportunity to cross examine
 (iii) The party against whom the testimony was offered at the second trial (or its
predecessor in interest) must have had an opportunity to develop the testimony at the first
proceeding through direct or cross-examination.
o All that is required is an opportunity
o Does not matter if the opportunity was not taken
 (iv) The party against whom the testimony was offered must have had a similar motive to
develop the testimony at the first trial as at the second.
o If the second proceeding is a criminal trial, the prior testimony is only admissible
against a party if that party was a party to first proceeding.

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 The only common party must be the party against whom the testimony is
offered.
 Criminal defendant needs an opportunity to confront witnesses.
o For a civil trial, courts are forced to examine the words “predecessor in interest”
to determine whether the term should be used narrowly (i.e., a predecessor in
interest must be in privity with the current party) or broadly (i.e., any party with a
similar interest and motive is a predecessor in interest).
 Example: there is a plane crash on the runway and each passenger brings
individual suits
 A v. Airline  A was deposed in this trial
 B v. Airline  B can use A’s testimony from the previous trial
since Airline was a defendant in both and had an opportunity to
cross A; Airline my also bring A’s testimony, though, despite B not
having the ability to cross examine A, because A’s attorney had the
same motive as B
 Does not matter if you could have done a better cross examination than
your predecessor in interest
 if the issue to which the testimony related at the former proceeding is
substantially identical to the issue in the present proceeding, then a similar
motive to develop the testimony is likely to exist.
 “substantially identical” is the gray area
 Feldman exemplifies similar motive
 Johns-Manville exemplifies substantially identical
 Circumstances or factors which influence motive to develop testimony
include “(1) the type of proceeding in which the testimony is given, (2)
trial strategy, (3) the potential penalties or financial stakes, and (4) the
number of issues and parties”. (Feldman)
 Rationale: This prior testimony was previously tested, or at least the opportunity existed
to test it, through examination under oath in the earlier proceeding.
o establishes a baseline of trustworthiness.

Cases
U.S. v. Feldman (1985): Ds were accused of defrauding customers. Ds decided not to defend
against the civil suit. During the civil suit however, Ds’ partner agreed to testify against Ds
during his deposition. Ds had not attended the deposition because they did not know the partner
was going to flip, nor had any criminal charges been asserted against Ds yet. The government
sought to introduce the partner’s testimony at Ds’ criminal trial.
 Holding: The partner’s testimony is not admissible at the criminal trial even though Ds
had an opportunity to attend and defend at the partner’s deposition. At the time of the
deposition, Ds were not adverse parties to the partner; Ds decided not to defend against
the civil suit but aggressively did so against the criminal suit (different trial strategy); the
stakes were much higher for Ds in the criminal trial. Thus, no one at the partner’s
deposition had the requisite stake in the proceeding that would be necessary for them to
be deemed a predecessor in interest to the criminal defendants, and those who did have
the requisite stake had no reason to suspect that they should be there.
 Rule: A naked opportunity to cross examine is not enough

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Clay v. Johns-Manville Sales Corp. (1983): Ps sued Ds on the basis of products liability claims
resulting from Ps’ exposure to asbestos containing products manufactured by the Ds. Ps sought
to introduce testimony from a now-deceased witness who served 22 years as the only full-time
physician for D and had testified at cases where D was not a party about the extent of the
knowledge possessed by Ds of the hazards of asbestos containing products during the years when
Ps allege they were exposed to asbestos.
 Holding: The witness testimony is admissible because the defendants to the cases at
which the witness had testified had a sufficiently like motive to cross-examine about the
same matters as D would have, was accorded an adequate opportunity for such
examination.
 Rule: If a previous party had a like motive to develop the testimony about the same
material facts, then it is a predecessor in interest

Problems
Problem 7-34 – Mail Fraud: D was accused of mail fraud. D subpoenaed a co-D to testify on
his behalf, but co-D refused. D then attempted to use his co-D’s earlier grand jury testimony to
rebut an accusation made by a prosecution witness that D had made extortionate threats. At grand
jury, co-D said that the idea such threats were made was “ridiculous.”
 Holding: Courts are divided on this issue whether of statement at a grand jury, where the
prosecution previously had a shot at examining a witness, is admissible under FRE
804(b)(1), since the standard at a grand jury is lower (probable cause), so prosecution
might not bring its a-game and examine a witness as thoroughly as it would in a criminal
trial.
o Half: Prosecution trying to prove a case in both instances, so same motivation
regardless of the standard of proof. Prosecutor got their chance to examine witness.
Prosecutor also knows that its statements might be used later in a trial, so it has
motivation to be thorough
o Other Half: The intensity is different because it is easier to get an indictment than to
show beyond a reasonable doubt.

Problem 7-35 – Employment Discrimination: Ps are African American workers suing two
levels of the labor union, local and national, for discrimination. Ps attempt to introduce
depositions by officers/officials of the local labor union into its case against the national labor
union. Defense says parties not the same.
 Holding: The local labor union was a predecessor in interest to the national labor union,
such that its statements at an earlier deposition can be brought into a case against the
national labor union. The defense for both cases was the same: “No discrimination
happened here.” Since both organizations had the incentive to vigorously defend the
allegations, the statement by the local labor union officer can come in against the national
labor union. Same lawyer for both. Also, national labor union not throwing local union
under the bus (not attacking local union’s discriminatory ways).

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3. FRE 804(b)(2): Dying Declarations

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or
in a civil case, a statement that the declarant, while believing the declarant’s death
to be imminent, made about its cause or circumstances.

FRE 804(b)(2):
 FRE 804(b)(2) expanded the common law roots of the exception to include civil actions
as well as homicide prosecutions (no other criminal actions)
 Personal knowledge is necessary, no speculation
 Necessary foundation:
o The statement relates to the cause or circumstances of impending death,
 The speaker is explaining the circumstances that led him to his situation,
 Broad, backward-looking statements qualify
 Ex: “My wife poisoned the salmon mousse, and I saw her putting arsenic
in it”  backward-looking, but admissible
 Ex: “It was the salmon mousse I ate yesterday, my wife poisoned it” 
second half may be inadmissible because it is unclear where his personal
knowledge came from
o The declarant had personal knowledge of the matter asserted, and
 The declarant must do more than guess; he must be speaking about matters
of which he personally knows.
o The declarant believed that death was imminent.
 The rule does not mandate that the declarant die, he must only be
unavailable pursuant to FRE 804(a).
 The declarant had a settled hopeless expectation that death is imminent.
Anything less would make the statement less reliable.
 Subjective: subjectively you must believe it, and
 Objective: objectively needs to be reasonable (e.g., not think going
to die from a splinter)
 Test: Death must either be indubitable, or the declarant must expressly
declare his belief
 Minority rule: Some jurisdictions allow you to bank this belief
based on your prior condition; relaxes indubitability. See Adamson

Cases
State v. Adamson (1983): D, hired by the mafia, car bombed a reporter, V, who had been
investigating the mafia. V told rescuers that D had planted the bomb and the mafia had planned
it. V’s limbs were badly mutilated, and he told the rescuers he felt himself dying. In the hospital
the next day, he answered some questions, identifying D as the person who was going to meet. V
died.

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 Holding: the statements at the scene were not admissible because V was speculating as to
who attacked him; the statements in the hospital were admissible despite them being a
day after the bombing because his injuries were so grave.
 Here the court discussed the gruesomeness of D’s injuries at the scene to determine that
D had a sense of imminent death; we can use facts for how a victim ended up in the
hospital to determine if he had a sense of death later

Problems
Problem 7-36 – Burned Alive: [Majority Rule] Garrison was badly burned (was drunk and on
crack, walked to bedside of his partner while on fire); he told his partner that Joey and a large
black man did it. He was continuously screaming “God help me.” Doctor and nurses told his
partner that he was likely to die (doctors told partner that Garrison had 72 hours to live, 10%
chance of survival, didn’t tell Garrison). Two days after the attack, still at the hospital, Garrison
told the police that Joe and a large black man did it.
 Holding: There was no reason to believe that Garrison thought his chance of survival was
not significant; he didn’t say anything to explicitly suggest that he thought he was dying,
nor did any doctors tell him his chance of survival; at the scene he was on drugs and may
not have been able to understand the circumstances. He also lived 7 more months
indicating he was a fighter. (Adamson court would probably have let this in.) Court
admitted the statement to his partner as an excited utterance but excluded the statement in
the hospital.

Problem 7-37 – Child Abuse: After being babysat by his mom’s boyfriend, the four-year-old’s
mother found him in bed with his eyes closed. When she asked him to open his eyes, he said “I
can’t, I’m dead.” And then: “don’t bother me, I’m already dead.” At the hospital, a nurse asked
him how he got his bruises, and he explained “from Mike, mom’s wife.” The child died soon
thereafter (88 bruises on body, signs of sexual abuse, blows to abdomen).
 Holding: The child’s statements are admissible. The court finds that as with excited
utterances, children get a longer “leash” in terms of expectations. Here, the child’s
statements plainly concerned the cause of his impending death.

4. FRE 804(b)(3): Statements Against Interest

Rule 804. Hearsay Exceptions; Declarant Unavailable

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(3) Statement against interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if
the person believed it to be true because, when made, it was so contrary
to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.

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FRE 804(b)(3) need not be a party (even a witness’s statement can qualify), but it must be
against the declarant’s interest when uttered
 The declarant must be aware that the statement is against her interest.
o Under the circumstances known to the declarant (subjective), would a reasonable
person not have made the statement (objective)
o Fact-intensive analysis
o Statements that are not against interest should be scalpeled out (Williamson)
 When then finger is pointing both ways, in one sentence, must look at
which way it is pointing more.
 Against interest
o If the statement may conceivably cause criminal liability to attach, it will be
against the declarant’s penal interest.
 Does not necessarily need to be a confession
 Corroborating evidence is needed for a statement that exposes the
declarant to criminal liability.
 This is true regardless of whether the prosecution or defense offers
the evidence.
 Factors that help corroborate: (how court looks at statement)
o (1) Relationship between defendant and accused
o (2) Were there other listeners who can verify the statement?
o (3) What is the motive of the declarant in saying it?
o (4) Was the statement spontaneous?
o Whether statements are against monetary interest or proprietary depend on
context.
 If the surrounding facts indicate that the statement would hurt the
declarant’s financial or ownership interest, it will be against self-interest.
 A statement that either subjects someone to civil liability or destroys
declarant’s civil claim would also qualify.
o Statements that go against a speaker’s societal interest, such that it would
potentially open the declarant to public disgrace, are NOT covered under the
federal version of the rule.
 Bruton might come up here, statements against the interests of one defendant may not be
against the interests of another defendant, so another exception may be needed for the
statement to be used against the other defendant.

Cases
Williams v. U.S. (1994): W was found to be transporting cocaine. During his interrogation, he
admitted to transporting it for D and that it belonged to D.
 Holding: A “statement” under this rule only covers the self-inculpatory statements, but
the non-self-inculpatory statements are inadmissible because they are not reliable. The
fact that a person is making a broadly self-inculpatory confession does not make more
credible the confession’s non-self-inculpatory parts

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Problems
Problem 7-38 – Driving Car into Mob: there was a party at D’s house, a mob of 15-20 people
shows up, D and friends get in a fight with the mob. D kills a guy and argues self-defense.
During altercation, Fast Horse had driven her car into the crowd. To demonstrate the violent and
threatening nature of the mob, D wanted to introduce Fast Horse’s statements to police in which
she said, she had driven her car into the mob and was thereupon attacked by the mob (Fast Horse
wouldn’t testify).
 Holding: Fast Horse’s statements were inadmissible. Statement = “I drove into the crowd
and the crowd attacked me”
o “I drove into the crowd” – court said that without the second part of the statement,
this no longer shows that the crowd was violent. It meets the against self-interest
requirement but doesn’t advance the evidential hypothesis (irrelevant under FRE
401), therefore inadmissible.
 Prof disagrees and thinks this shows how unstable and violent this situation
was  shows “any tendency”
o “The crowd attacked me” – this was inadmissible because it points to other people,
so it loses reliability.

Problem 7-39 – Pimp: D violated the Mann Act when he transported 3 female dancers
(including a minor) across state lines to engage in prostitution. At D’s trial, the minor was unable
to testify. Prosecution wants to call the detective who took her statement (not under oath, but
signed by her) and have him read its contents, which explained that D drove her and the others
from MN to ND, ordered them to prostitute themselves, and was to pick them up a few days
later.
 Holding: The minor’s statements are inadmissible despite her admitting performing sex
work. The minor declarant was never charged; she was just volunteering the information
to the police and will suffer no liability for uttering the phrases. If there were evidence
that the declarant (mistakenly) subjectively thought she was in trouble, self-inculpatory
statements made could be admissible if they were still relevant after scalpeling out the
non-self-incriminating statements. It was a major factor that she knew she wouldn’t be
punished.
o When then finger is pointing both ways, in one sentence, must look at which way it
is pointing more.

Hypo: Girl in 5th grade and school does pledge of allegiance every day before school. Girl and
boy decide to kneel during the pledge in protest. The principal saw two people kneeling, but he
couldn’t see who it was. Principal went up to the boy after and asked if he was kneeling. He said
“ask Eva. It was her idea”
 Can “ask Eva” come in?
o Even though pointing to Eva, he is saying if you want answers, go ask her. He
didn’t say “no” to the principal when she asked.
o This statement, direct allegation where you say ask Eva, is Shane saying “I was
part of this” so it can come in even though it is pointing both ways
 “It was her idea” – this is completely placing the blame on Eva, so cannot come in

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5. FRE 804(b)(6): Forfeiture by Wrongdoing

Rule 804. Hearsay Exceptions; Declarant Unavailable

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability. A statement offered against a party that wrongfully caused — or
acquiesced in wrongfully causing — the declarant’s unavailability as a witness
and did so intending that result.

FRE 804(b)(6): The party who undertakes the wrongdoing forfeits her hearsay exception to the
words of the silenced declarant.
 That party retains all her other objections under the Federal Rules of Evidence
o Example: the party that silenced the declarant could still object that the hearsay
was irrelevant, improper character evidence, or substantially more prejudicial than
probative.
 Necessary foundation:
o The opposing party engaged or acquiesced in wrongdoing,
 Does not need to be a crime
 Must be an improper, significant interference with the declarant’s
appearance as a witness, such as the use of force or threats on the
declarant.
 the opposing party need not personally commit or actively participate in
the wrongdoing; even tacitly assenting to someone else committing the
wrongdoing will be enough
 Applies to potential witness
 This rule can be used against government
o The intent of the wrongdoing was to procure the unavailability of the declarant as
a witness, and
 The intent to silence the declarant need not be the only intent of the
opposing party.
 Does not need to be the primary purpose, just one of the motives
 Divine motivation scenario: why did they do what they did?
 Look at the facts
 Make the arguments pro and con
 Preponderance of the evidence that they had intent to silence the
witness
o The wrongdoing did, in fact, cause the unavailability of the declarant as a witness.
 The witness is murdered: To convict someone of murder, you have to
prove it by reasonable doubt; but to get the statements in as hearsay, there
just needs to be a preponderance of the evidence that you committed the
murder (judge decides, jury does not need to hear, 105(a))

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 The rule applies to any trials, even subsequent trial that did not exist at the
time of the wrongdoing; any subsequent trial where that witness’s hearsay
could have hurt you, you cannot get a shield.
 The preponderance of the evidence standard applies to the foundational elements of FRE
804(b)(6); 105(a).

Problems
Problem 7-40 – Enron Witnesses: D (former Enron CEO) was indicted for conspiracy and
securities fraud. He tried to contact 300 former employees as potential witnesses, but only 4 were
willing to speak with him. D argued that their reluctance to speak was due to government
intimidation (heavy publicity re D’s trial and other former Enron employees), even though
government sent them letters assuring them they would not be subject to prosecutorial retaliation
for testifying for D. D wants to testify as to statements made to him by his reticent former co-
workers.
 Holding: D did not show by a preponderance of the evidence that the government made
witnesses unavailable through coercive tactics/intimidation. While the government could
be guilty of intimidation, D did not meet his burden. Furthermore, the government made
a strong ameliorative measure that probably remedied any misimpression it may have
made initially. No evidence that government intended to procure the absence.
 Forfeiture applies to the government too.

Problem 7-41 – Wife and Paramour: In a first proceeding, Gray brought criminal charges
against his wife and her boyfriend, alleging assault. Gray was found dead, so in a second
proceeding, his wife was charged with fraud related to the receipt of his insurance proceeds.
Prosecution wants to offer hearsay testimony of Gray before he was killed. Wife argues that she
never intended to silence him in this case she never anticipated would exist (if the alleged
charges are true, she sought to make Gray unavailable in the earlier criminal case Gray brought
against her).
 Holding: Gray’s hearsay statement is admissible in a subsequent fraud case against his
wife that arose after a criminal case against his wife. The wife should not be able to profit
from making him unavailable in an earlier case. The preponderance standard was met in
the earlier criminal case, so Gray’s statement can come in in subsequent cases. Reliability
does decrease when talking about a trial that she hadn’t even contemplated yet, but this
rule is about equity.
o If there is preponderance of the evidence that she killed him, then this can come
in.
 She may have had several motives for killing him (e.g., getting life insurance) but since it
was possible that she also wanted to silence him in the assault case it is admissible
 Rule: the rule applies to any trials, even subsequent trial that did not exist at the time of
the wrongdoing; any subsequent trial where that witness’s hearsay could have hurt you,
you cannot get a shield

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E. FRE 807: Residual Hearsay Exception

Rule 807. Residual Exception

(a) In General. Under the following conditions, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not admissible under a hearsay exception in
Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness—after
considering the totality of circumstances under which it was made and evidence,
if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party
reasonable notice of the intent to offer the statement—including its substance and the
declarant’s name— so that the party has a fair opportunity to meet it. The notice must be
provided in writing before the trial or hearing—or in any form during the trial or hearing
if the court, for good cause, excuses a lack of earlier notice.

FRE 807: A trial judge has a great deal of discretion in applying FRE 807, but the Congressional
intent behind the rule indicated that it should be used very rarely and only in exceptional
circumstances.
 Necessary foundation:
o The proponent of the evidence has given proper notice pursuant to the rule,
o The statement possesses circumstantial guarantees of trustworthiness equivalent
to the exceptions found in FRE 803 and FRE 804, and
 Feels just as trustworthy as other rule requirements because of the context
 Trustworthiness factors: (Dallas County)
 (1) Circumstances call for truth
 (2) Easy detection of a lie
 (3) So public that a lie would be detected
 Fact intensive analysis
o The statement must be more probative on the point for which it is offered than any
other evidence the proponent can procure through reasonable efforts.
 Necessary: nothing of equal value can be found through reasonable efforts
 Unless the hearsay is admitted, the facts would be lost because the
declarant is dead or unavailable or because the nature of the assertion is
such that evidence of the same value could not be obtained from the same
person or another source. (Dallas County)
 Need not be totally inaccessible but must require great practical
inconvenience. (Dallas County)
 Near misses:
o Majority definition: If you came close to meeting another exception, but just
barely missed, and the evidence is still trustworthy and necessary, it is admissible
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 If the evidence fits under a FRE 803 or 804 exception, the court should
rely on that exception rather than FRE 807.
o Minority definition: if a piece of evidence came close to qualifying under FRE
803 or 804 but did not meet the exception (i.e., it was a “near miss”), then you
should not admit it under FRE 807; otherwise, you are weakening the
prerequisites required by Congress if every time a near miss occurs it is admitted
under FRE 807. FRE 807 should only apply to situations not contemplated by
Congress.
 Limitation: USE IT RARELY

Cases
Dallas County v. Commercial Union Assurance (1961): The county clock tower collapsed, and a
report commissioned by the county said it was due to a lightning strike. The county had
insurance for lightning. The insurance company argued that the char on the clock tower was not
from lighting but from a fire long ago, thus, the collapse was actually due to poor design and
maintenance. The insurance company sought to introduce an article from over 50 years prior
describing that there had been a fire in the clock tower.
 Holding: The article was admissible. In matters of local interest, when the fact in question
is of such a public nature it would be generally known throughout the community, and
when the questioned fact occurred so long ago that the testimony of an eyewitness would
probably be less trustworthy than a contemporary newspaper account, a federal court may
relax the exclusionary rules to the extent of admitting the newspaper article in evidence.
We do not characterize this newspaper as a “business record”, nor as an “ancient
document” (because hearsay within hearsay), nor as any other readily identifiable and
happily tagged species of hearsay exception. It is admissible because it is necessary and
trustworthy, relevant and material
 Factors: (1) necessity, (2) trustworthiness
o Necessity: “great practical inconvenience” is not that high of a standard; you do
not have to claim that this is the only way to prove the fact

Problems
Problem 7-42 – Picking Out a Photo: Duncan (a CI) purchased cocaine from Cole. About 10
minutes after the transaction, Duncan met with DEA agent and Detective for debriefing and told
them that she recognized Cole but did not recognize the individual who accompanied him.
Agents showed her 20-30 photos of suspected co-conspirators. Detective testified that Cole
immediately IDed Anderson. DEA agent recorded the debriefing and Duncan verified it, but the
ID of Anderson wasn’t in this record
 Holding: As a “near miss” under the present sense impression exception (10 minutes was
on the borderline and she had to go back to her memory bank), the evidence is admissible
under FRE 807
o The evidence was necessary – eyewitness was only person who saw the actual crime
happened and likely the only person to place the guy at the drug buy (great practical
inconvenience if the evidence were not admissible, since other witnesses might not be
available/willing to testify) and
o Trustworthy (the informant probably knew subjectively and objectively that it would
be easy for officers to determine if she was lying; furthermore, she was not a co-

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conspirator, and her testimony was corroborated by officers’ testimony). Court said
this was a close call, but admitted it

Problem 7-43 – Assault Reenactment: 17-year-old who was deaf, mute and severely mentally
challenged was the victim of an assault by her neighbor. It was really hard for her to
communicate, she could use sign language, but limited vocabulary. 3 days after the assault, the
police asked her what happened, and video recorded her reenactment in her home. This is
hearsay because it is being admitted for the truth that he assaulted her and how the assault
happened (assertion for the camera). Also, one of her teacher’s testified that, based on her mental
challenges, it “would be almost impossible for her to fabricate an entire incident of such
complexity.”
 Holding: There is no near miss here because no other hearsay exception that covers this.
But it is admissible.
o Necessity: she is available, but she cannot communicate what happened to her during
the assault. This is the only way to get the information.
o Trustworthiness: there were no leading questions in the video, she had to come up
with the narrative. The lack of a police station interview made it feel more like they
were observing her than directing her. The lack of rehearsal meant a lot to the court.
Court found it reliable based on teacher’s testimony and there was just no evidence of
bias.

F. FRE 806: Attacking and supporting a Declarant’s Credibility

Rule 806. Attacking and Supporting the Declarant

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E)
— has been admitted in evidence, the declarant’s credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes if the declarant
had testified as a witness. The court may admit evidence of the declarant’s inconsistent
statement or conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against whom the statement was admitted
calls the declarant as a witness, the party may examine the declarant on the statement as
if on cross-examination.

FRE 608
 The hearsay declarant is a witness who can be impeached
o Unclear if FRE 608(b) (“liar by nature”) is useable, specific instances of
nonconvinction misconduct, since there is no cross examination
 Majority says you can use it; usually in the form of the judge reading
something to the jury, essentially forcing the other side to stipulate to it
 Minority says no cross, no FRE 608(b)
 FRE 806 applies to all statements admitted under FRE 801(d)(2)(C)–(E), FRE 803, FRE
804, and FRE 807
o FRE(d)(1) exemptions are not included because the witness is already on the
stand for those exemption, so impeachment clearly applies

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o FRE 801(d)(2)(A)–(B) are not included because the opposing party is present at
trial and her veracity is obviously fair game

VI. The Confrontation Clause

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to . . . be
confronted with the witnesses against him
 Does not apply
o In civil cases
o Where hearsay is used against the government/prosecution in a criminal case; the
government does not have a right to confront a witness, it’s not the criminal
defendant
 Analysis: Is it hearsay? (if not then analysis ends)  Does it fit under an
exception/exemption? (if not then analysis ends)  Does that exception also satisfy
Confrontation Clause?  If not, is the exception testimonial?
o Any testimonial statement offered against an accused is only admissible if:
(Crawford)
 (1) The accused has the right to cross-examine at trial the person making
the statement, OR
 (2) The accused
 (1) had prior opportunity to cross examine the declarant AND
 (2) the declarant is shown to be unavailable
 If non-testimonial, then just need hearsay exception
o Is the statement testimonial?
 Crawford: is the statement characterized as a solemn declaration, or a
casual, off-hand remark?
 Davis: what was the primary purpose of the interrogator and declarant?
 Nontestimonial if (objectively) the primary purpose of the
interrogation is to allow police assistance to an ongoing emergency
 Testimonial if (objectively) there is no ongoing emergency and the
primary purpose of the interrogation is to prove past events
relevant for future criminal prosecution
 Factors (for determining testimonial in police interrogation/911):
(Davis)
o (1) Happening now:
 Describing events as they are actually happening
(nontestimonial)
 Describing past events (testimonial)
o (2) Ongoing Emergency:
 Ongoing emergency/cry for help (nontestimonial)
 Ongoing emergency factors (Bryant):
o (1) Immediacy
o (2) Magnitude
o (3) Particularity (of risk to declarant)
o [Reliability]

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 No ongoing emergency (testimonial)
o (3) Resolving Emergency:
 Necessary to resolve emergency (nontestimonial)
 Primary purpose to establish/prove past events that
may be relevant to later criminal proceedings
(testimonial)
o (4) Formality:
 Low level of formality (nontestimonial)
 Very formal (testimonial)
 Lab reports are testimonial (Melendez-Diaz)
 Statements made to persons other than law enforcement officers are much
less likely to be testimonial as such statements are not usually made with
the primary purpose of creating evidence for the prosecution
 Statements of children are unlikely to be testimonial, as the declarant
usually does not intend that his statements be a substitute for trial
testimony
o If it is testimonial, is the declarant available for cross examination?
o If the declarant is unavailable, did the defendant have a prior opportunity to cross-
examine the declarant?
 To forfeit Confrontation Clause, D must intend to make the declarant unavailable as a
witness (as in the FRE 804(b)(6) analysis). (Giles)

Hearsay exceptions/exemptions that satisfy the Confrontation Clause (prioritize these

exceptions)
 FRE 801(d)(1) Prior Inconsistent Statements, Prior Consistent Statements, Statements Of
Identification: the exemptions mandate the witness be on the stand, so the defendant can
confront the witness
 FRE 801(d)(2) Admissions by Party Opponent, Individual Admissions, Adoptive
Admissions, Statements of Agents, Co-Conspirator Statements: the defendant can
confront his own words, and the Court has held the defendant cannot complain of failure
to confront others speaking on his behalf
 FRE 803(5) Writing to Refresh Memory: mandates that the declarant be on the stand
 FRE 804(b)(1) Former Testimony: allows prior testimony only if the defendant had an
opportunity and similar motive to examine the declarant on the prior occasion, which
satisfies the confrontation clause
 FRE 804(b)(2) Dying Declarations: was grandfathered in under Crawford (dying
declarations)
 FRE 804(b)(6) Forfeiture by Wrongdoing: was discussed in Giles were the Court held
that one may forfeit their Confrontation Clause right

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Cases
Crawford v. Washington (2004): D was arrested for stabbing a man. His wife had been a witness
to the stabbing and was interrogated by the police. The wife did not testify at trial due to the

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marriage privilege which prevents a spouse from testifying without the other spouse’s consent.
However, in Washington, this privilege does not extend to the spouse’s out of court statements.
The trial court and appeals court disagreed about the admissibility of the statements each coming
to different conclusions about their reliability. The Court held that the statements were
inadmissible, not because of their reliability but because they were testimonial.
 Rule: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of hearsay law
 Rule: Where testimonial evidence is at issue, however, the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for cross-
examination.
o Testimonial: formal statements
 A solemn declaration made in the course of a criminal trial
 Prior testimony at a preliminary hearing
 Statements before a grand jury
 Statements at a former trial
 Formal statements to a government officer
 Statements during police investigations
o Not testimonial:
 Unconsidered, off-hand, overheard remarks
 Casual remarks
 Many of the hearsay exceptions/exemptions:
 business records
 statements in furtherance of a conspiracy: completely informal, the
coconspirator is not acting like a prosecutorial witness, the desire
is the exact opposite of wanting to bear witness against someone
 Policy: The Framers were concerned about “government shenanigans” / corruption

Davis v. Washington / Hammer v. Indiana (2006):

 Davis: A 911 operator received a phone call from V who was in the midst of a domestic
violence dispute with D. V was talking quickly so the operator cut her off, saying, “Stop
talking and answer my questions.” was frantic and in response to the 911 operator’s
questions, identified D as the person who was beating her. She gave the operator his
identifying information, including his birthday She described the context of the assault,
why he was at her house, etc. V did not appear as a witness, so the state sought to admit
the recording of the call as evidence.
 Hammer: Police responded to a report of a domestic disturbance. V let the cops into the
house and the officers separated D and V. In response to the officer’s questions, V wrote a
statement that admitted that D had broken the furnace, shoved her down into the broken
glass, hit her, threw her down, destroyed furniture and her car, and attacked her daughter.
V did not appear at trial, so the prosecution sought to bring the officer who interviewed
her to testify to what she had said that night.
 Legal Issues: what qualifies as a “testimonial statement”?
 The statements in Davis (at least until the 911 operator took control of the conversation)
were nontestimonial; the statements in Hammer were testimonial
 Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to

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enable police assistance to meet an ongoing emergency. They 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.
o It’s the declarant’s statements, not the interrogator’s questions that the
Confrontation Clause requires us to assess
o “‘A solemn declaration or affirmation made for the purpose of establishing or
proving some fact.’” The ex parte actors and the evidentiary products of the ex
parte communication aligned perfectly with their courtroom analogues.
o Factors differentiating from Crawford:
 Present vs. past tense
 Ongoing emergency
 Necessary to resolve emergency
 Formality

Whorton v. Bocking (2007): The Confrontation Clause does not apply to nontestimonial
statements; under Crawford an out of court, nontestimonial statement that was not subject to
prior cross examination is admissible even if it does not seem reliable

Giles v. California (2008): D killed his girlfriend in a domestic violence dispute. Three weeks
before the murder, the girlfriend had told police that D was beating her and wanted to kill her. D
claimed self-defense as to the murder. Since the court found there was D did not intend to make
his girlfriend unavailable as a witness, he had not forfeited his confrontation clause rights. The
girlfriend’s statements to the police were testimonial and thus inadmissible.
 Rule: The defendant must intend to make the declarant unavailable as a witness in order
to forfeit his Confrontation Clause right

Melendez-Diaz v. Massachusetts (2009): The state offered the affidavits of lab test results of D’s
drug tests instead of calling the laboratory analysts as witnesses. The analysis was after the fact,
the analysts knew who the defendant was, it was going to directly support the prosecution. The
affidavits were found to be solemn declarations or affirmations made for the purpose of proving
some fact of the prosecution. Further, an objective witness would know the results would be used
at trial. So they were inadmissible under the Confrontation Clause
 Rule: affidavits reporting laboratory results are testimonial under the Confrontation
Clause when the defendant is known to the analysts

Michigan v Bryant (2011): Police arrived at a gas station to find V in his car with gunshot
wounds in his abdomen. As the police showed up, they each asked V what had happened. V told
them D had shot him through a door at D’s house six blocks away. V did not know where D was.
V later died, so the prosecution sought to admit his answers to the police questions at the scene
against D.
 Holding: An “ongoing emergency” can extend to police officers and the public at large.
Here, the declarant was not acting as a prosecutorial witness. The Court held that the
circumstances of the interaction between V and the police objectively indicate that the
“primary purpose of the interrogation” was “to enable police assistance to meet an
ongoing emergency.” Therefore, V’s identification and description of the shooter and the

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location of the shooting were not testimonial statements, and their admission at D’s trial
did not violate the Confrontation Clause.
 Factors
o (1) Role of reliability in determining testimonial
 Sotomayor: important – we’re always concerned about the prospect of
fabrication, if it’s reliable then there is no risk of fabrication
 Scalia: doesn’t matter – we care about whether declarant is acting as a
prosecution witness, worried about evading CC
o (2) Whose intent matters?
 Sotomayor: the intent/purpose of both declarant and police officers matters
(but prioritize declarant’s intent if they’re at odds)
 Scalia: care about the declarant’s intent and do not care about
interrogator’s intent except that it helps discern the declarant’s intent
o (3) What factors (make this an ongoing emergency)?
 Sotomayor: 3 main factors (1) immediacy, (2) particularity, (3) magnitude.
Other factors (generally fit into main 3):
 Weapon (in reach? Destructive weapon?)  more nontestimonial
 Medical condition of the declarant: if very ill  more likely
nontestimonial (b/c less likely to fabricate)
 Type of victim (domestic violence?)
 Declarant acting like a witness.  if so, more testimonial
 Takes place in exposed area
 Whether interrogator seems organized
 Police secured scene?
 The less police know  more likely ongoing emergency/
nontestimonial
 General threat  more nontestimonial
 More informal/not acting like a witness  more nontestimonial
 Whether statement is reliable
o Rules of hearsay that identify some statements as reliable is
relevant as a factor in determining reliability of the
evidence
 Scalia: determining testimonial only involves determining whether there
was a prior opportunity for cross-examination (if so, evidence is reliable
and admissible)
o (4) Formality: formality suggests the absence of an emergency and therefore an
increased likelihood that the purpose of the interrogation is to “establish or prove
past events potentially relevant to later criminal prosecution”
o Dissent (Scalia): Here, declarant was safe (surrounded by 5 officers); officers
weren’t pulling weapons or securing the scene; officers asked him a battery of
questions; seemed like a direct examination. Clearly testimonial.

Ohio v. Clark (2015): D beat a boy, the boy did not testify at trial, so the prosecution introduced
evidence that he told his teachers D had beat him. The Court unanimously found that the boy’s
statements were nontestimonial even though the teachers possessed a legal obligation to report

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the abuse to the government. There was an ongoing emergency given that the boy was in danger
in his home, and his responses to his teachers were spontaneous and informal
 Rules:
o (1) Statements made to persons other than law enforcement officers are much less
likely to be testimonial as such statements are not usually made with the primary
purpose of creating evidence for the prosecution
o (2) Statements of children are unlikely to be testimonial, as the declarant usually
does not intend that his statements be a substitute for trial testimony
 Broadened the ongoing emergency analysis to situations beyond police interrogations

Williams v. Illinois (2012) (plurality): A rape kit was sent to an outside/private lab, the lab sent
back the DNA, and the state police entered the DNA into a database to identify D as the rapist. A
police forensic scientist testified to the match at trial. The outside lab’s report was not entered
into evidence nor were any witnesses called from the lab. The plurality found that the lab report
was not offered for its truth and that no Confrontation Clause violation existed. Thomas thought
the report was hearsay but agreed that this particular lab report was not testimonial, giving them
the fifth vote.

Problems
Problem 8-1 – Jogger Shot: D and his wife were in an altercation outside their home. A jogger
running by asks the wife if she’s ok, D tells him to fuck off, goes and gets a gun from his house,
and fires at the jogger. Jogger runs to a phone booth and calls 911 (flustered and shouting info at
dispatcher, who told him to calm down). Officers subsequently interview the wife, who is crying
and jogger. Jogger and wife don’t testify, so prosecutors want to introduce their statements.
 Jogger’s 911 call:
o Hearsay exception: excited utterance because it’s not every day that someone gets a
gun in their face, and while he was on 911 call, he was flustered, couldn’t
communicate clearly, shouting at dispatcher, she had to tell him to calm down.
o Confrontation Clause: nontestimonial because it was an ongoing emergency, cry for
help, he is not acting like prosecutorial witness. If Davis was a cry for help, this was
too. The husband is right around the corner, still has the gun, is clearly angry with
jogger.
 Wife’s statements:
o Hearsay exception: excited utterance because when officers arrive, she is still crying,
and this is an upsetting situation (getting into argument with husband who pulls a
gun).
o Confrontation Clause: The court said nontestimonial; the threat is still there, husband
is in the house, still has a gun which he previously fired. This seems like a more
dangerous situation than Bryant. Key for the court was the ability of D to resume
shooting, so this could result in a shootout at any moment.
 Could argue testimonial: Police are interviewing her, trying to gather facts about
what happened.
 Note: the types of questions the police ask can determine testimonial or not. If
they are asking what’s his social, outstanding warrants for him, etc. then more
testimonial, but if asking what type of gun, how much ammo, what’s going on,
is he high, etc. then less testimonial.

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 Jogger’s statements to officers:
o Hearsay exception: excited utterance. Based on his previous interaction with
dispatcher we can assume that he is still in state of excitement. Could also argue
present sense impression for some of this if it were within 15 minutes or so.
o Confrontation Clause: same analysis as wife

Problem 8-2 – Gun Pulled on CRI: A confidential reliable informant (CRI) goes to buy drugs
from D while officers observe. CRI suddenly backs away, runs back to police car in less than a
minute. Officer asked “did you get anything” and the CRI immediately answered negative,
adding “he pulled a gun on me and told me to get the f** out of there, so I came right back to
you.” CRI did not testify; officers want to bring in his hearsay statement.
 Holding: The hearsay is admissible under present sense impression but inadmissible
under Confrontation Clause. The CRI was talking to police officer, knows this is going to
be used at trial, and the risk here just wasn’t as evident (no ongoing emergency).
o Hearsay exception: present sense impression because less than a minute and talking
about what he just perceived. (Not excited utterance because doesn’t appear terribly
afraid when back in the cop car, but prof can see this working.)
o Confrontation Clause: testimonial – confrontation appears to be over; we don’t really
expect that this guy is going to open fire on just anyone. There was a conditional
nature to the threat (get out of here or I’ll shoot you) and the condition was met when
CRI ran away. And the threat was directed at just the one person, or anyone who I son
his property, so there is no risk of him shooting others willy nilly.

Problem 8-3 – Officer McGee: Isaacs was shot on the street (6 bullets in abdomen, kidney,
liver, large intestines; fractured spine; bullets punctures lung); Officer McGee responded, and
when he arrived there were other officers and a police van there already. Isaacs was lying face-up
on the sidewalk, a police officer with him. McGee approached Isaacs and said, “who shot you?”,
no response, said “I don’t think you’re going to make it. Who shot you?”, Isaacs said “Tom shot
me” but McGee heard it wrong so there was back and forth with McGee asking “Who” over and
over. It was hard for Isaacs to breathe during this then he died in hospital.
 Holding: The hearsay is admissible under dying declaration, which is an exception to the
Confrontation Clause, therefore the statements are admissible.
 Hypo: if not a dying declaration then can use excited utterance. This is similar to Bryant.
Likely this is not testimonial, but it could be argued both ways.
 Exam: if you’re sure that something is dying declaration, no need for Confrontation
Clause analysis. But if not sure, then you should do the analysis.

VII. Authentication & Best Evidence

A. FREs 901 & 902: Authentication

Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.

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

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the former
Panama Canal Zone; the Trust Territory of the Pacific Islands; a political

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subdivision of any of these entities; or a department, agency, or officer of any
entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A
document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)
(A); and
(B) another public officer who has a seal and official duties within that same entity
certifies under seal — or its equivalent — that the signer has the official capacity
and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person
who is authorized by a foreign country’s law to do so. The document must be
accompanied by a final certification that certifies the genuineness of the signature and
official position of the signer or attester — or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of certificates of
genuineness relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document’s authenticity and accuracy, the court
may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a
document that was recorded or filed in a public office as authorized by law — if the copy
is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule
prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a
public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been
affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and
related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else
that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a
copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown
by a certification of the custodian or another qualified person that complies with a federal
statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the

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proponent must give an adverse party reasonable written notice of the intent to offer the
record — and must make the record and certification available for inspection — so that
the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the
original or a copy of a foreign record that meets the requirements of Rule 902(11),
modified as follows: the certification, rather than complying with a federal statute or
Supreme Court rule, must be signed in a manner that, if falsely made, would subject the
maker to a criminal penalty in the country where the certification is signed. The
proponent must also meet the notice requirements of Rule 902(11).
(13) Certified Records Generated by an Electronic Process or System. A record
generated by an electronic process or system that produces an accurate result, as shown
by a certification of a qualified person that complies with the certification requirements
of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule
902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data
copied from an electronic device, storage medium, or file, if authenticated by a process of
digital identification, as shown by a certification of a qualified person that complies with
the certification requirements of Rule (902(11) or (12). The proponent also must meet the
notice requirements of Rule 902 (11).

Overview
 This is not a super common objection so don’t make a lot of them
 Review them closely
 Interplays with hearsay closely
 Exam: start with evidential hypothesis, then analyze hearsay, then analyze authentication.
 How to authenticate:
o (1) First ask: what is the proponent’s evidential hypothesis? (Why is it being
offered?) (Blowpoke; Problem 9-4 Passports)
o (2) Then: could a reasonable jury find by a preponderance of the evidence that the
item is what the proponent claims it is? (conditional relevance issue –
Huddleston)
 Judge can only rely on admissible evidence in making a conditional
relevance determination, FRE 104(b)
 If admitted, counsel is free to attack the weight of the evidence, and the
jury is free to reject the proponent’s argument (all other objections still
apply).
 FRE 901(b) offers a nonexclusive list of methods to authenticate evidence
o An attorney can use another method as long as she meets her conditional
relevance burden
o Can also combine items on the list
o Most common method: FRE 901(b)(1) testimony of someone that an item is what
it is claimed to be; the witness cannot make a bald assertion but must typically
explain how she knows the item is what she says it is
 Example: a witness cannot say that it was D’s blow poke; it can’t be
authenticated as such by that witness because that is speculation. Likely
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o Evidence that is fungible, nondistinctive, and/or likely to change in condition is
often authenticated by proving a chain of custody of the evidence and notes that
the evidence was not tampered with during their custody
 Defects in the chain of custody usually affect the weight of the evidence,
not its admissibility
 Whether a writing is self-authenticating under FRE 902 is a question for the trial judge
under FRE 104(a) (i.e., the judge can look to inadmissible evidence to determine this)
 Characterization: the evidence cannot be characterized
o Ex: “Is this the blow poke the DA said was mysteriously missing” (characterizing
the evidence) vs. “Is this the blow poke the DA talked about in his opening
statement” (no characterization)
 Silent witness theory: the automaticity and reliability of certain forms of evidence should
allow it to be met if the following factors suggest reliability (bring in a witness to testify):
o (1) Does it establish time and date? (if so, more reliable)
o (2) Is there evidence of tampering? (if so, less reliable)
o (3) Does the operating condition of the equipment create accuracy and reliability?
(if so, more reliable)
o (4) Procedure in testing the equipment. (whoever installed camera, did they
follow proper procedure?)
o (5) Relevant participants depicted in the photo? (if so, more reliable)

Cases
Bruther v. General Electric Co. (1993): P was electrocuted by a lightbulb and alleged that D had
manufactured the lightbulb. D moved for summary judgment on the ground that P cannot
authenticate the lightbulb he wants to introduce into evidence. D says there are no identifying
marks on the bulb, and there is a gap in the chain of custody of the bulb right after the accident
because no one took care to safeguard the bulb after the accident; the bulb was later removed
from the socket and it’s unclear what happened to it. Only after P’s counsel requested it did the
plant manager go look for it and find it; the manager found a broken bulb in a cabinet near the
accident site but cannot confirm it was the exact bulb. The plant manager thinks it was the right
bulb since they otherwise would not keep a broken bulb. Only six people had access to the area
where it was stored. A GE bulb was inserted into that same panel two weeks earlier, and P also
wrote in an affidavit that the plant used only GE bulbs
 Holding: The court allowed the bulb to be admitted into evidence because it is the jury,
and not the court, which must evaluate the significance of P’s inability to account for the
bulb following the accident

Problems
Problem 9-1 – Heroin Through Hole in Door: Police received tips that three people (Ds) were
dealing heroin through a hole in an apartment’s door, and that someone inside would record the
amounts in either spoon or capsule form. Officers searched the house and found a slit in the door,
notebooks denoting price and numbers (and Ds’ names) and different sets of handwriting that
was not successfully identified.
 Holding: The evidence was sufficient to support a finding that Ds conspired to buy/sell
heroin. Hearsay exception is business records, and “distinctive characteristics” (901(b)
(4)), i.e., the code of calling pills “buttons” was consistent with what the informant had

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said (helps to buttress the argument). Government was allowed to use facts from the
document to prove/authenticate who the authors were.
o Business record exception: this is a business record talking about supply, demand,
income, revenue; can come in against the business and Ds are part of the business
o Co-conspirator: this is all co-conspirator statements now being offered against 3
members of conspiracy. Corroborating evidence – the notebook was found in the
apartment where informant said Ds were in. Informant’s description of
apartment/notebooks accurate.
o Party opponent exception: This is harder because we don’t actually know who wrote
the book. You’ll have to prove who wrote each entry, much harder to do
o Confrontation Clause: coconspirator statements are not testimonial; they were not
acting like prosecutorial witnesses; business records are often exempted from
Confrontation Clause

Problem 9-2 – Video of Bank Robbery: D robbed a bank, and an automatic camera at the bank
took photos of him. He objected to a trial exhibit which contained 5 pictures from the bank
camera and 5 photos of a model wearing the clothing that D was allegedly wearing when he was
arrested. Exhibit was prepared by FBI agent who testified as an expert witness in forensic
photography.
 Holding: Both (1) the surveillance photos and (2) the photos of the model wearing D’s
clothes can be authenticated. The video surveillance photos can be authenticated under
the “silent witness” theory, while the photos of the model wearing D’s clothes can be
authenticated by personal knowledge (expert needs to say it fairly and accurately depicts
what the mannequins looked like). Banks have a strong interest in making sure their
cameras are tested, accurate, etc.

Problem 9-3 – 911 Caller: A series of nine 911 calls came from a male caller threatening to
blow up local schools and City Hall. D was charged with making the threatening phone calls
from a cell phone. Three witnesses identified D’s voice on 911 calls: Coleman (who hadn’t slept,
was on crack, and couldn’t identify his voice again a month before trial when D’s attorney had
him call); Little (whose identification occurred 4 months after the events, and she might have had
an incentive to lie because she was under investigation for another crime); and Officer Brown
(who “already had it in his mind that D was the caller and had learned his voice during the
investigation).
 Holding: The witness’s identifications were sufficient to support an authentication that
the voice was D’s. A jury could find by a preponderance of the evidence that all of these
people identified the person’s voice as D’s. The issues with the reliability of each
identification goes to weight, not admissibility.
 While you cannot learn someone’s handwriting for trial, you can learn someone’s voice
for trial.

Hypo – Blowpoke: D called a surprise witness, an investigator, and asked him whether the
blowpoke found in D’s home matched the model blowpoke that the prosecution suggested could
have been the murder weapon.

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 Holding: (1) The investigator could testify that the model was the same because he can
compare the markings, shape, etc.; (2) He cannot testify that the blowpoke was the one
from D’s home because he had no personal knowledge.
 Note: another conditional relevance problem here  someone needs to say “I found it in
the garage”

Problem 9-4 – Polish Passports: Pluta (a U.S. citizen) attempted to enter the US from a small
town in Canada and had a hatchback car with a lot of luggage in it. The customs inspector got
suspicious when Pluta told him he was only in Canada for a few days and hadn't brought
anything back with him. Inspector ordered a secondary investigation which revealed women’s
clothes, personal effects, passports, and documents with Polish names. The two women were
eventually found hiding in the bushes in a nearby parking lot. Pluta was charged with two counts
of smuggling illegal aliens into the U.S. Government had burden to prove that the women were
not US citizens. At trial, the government introduced passports to prove (1) a connection between
the women and Pluta and (2) the that they were polish citizens (no certification or affidavit with
them). Durign his testimony, McMillian, who had extensive knowledge in conducting passport
inspections, said that he knew they were Polish passports because it was indicated on the
passports
 Holdings:
o (1) Testimony establishing D’s connection to the women was allowed
 Since D’s defense was “I'm not smuggling anyone,” these passports show a
connection between D and the two women due to the fact that documents with
women’s names were found on D. All that matters is that the passports were
found in the car.
 Hearsay: They are not offered for truth, only care that the women’s names are
on them not whether they are real passports. All we care about is that these
were things found in the defendant's possession so all you need to authenticate
is the officer to say, I searched the car and found these in the defendant's car.
o (2) Testimony establishing that the women were not U.S. citizens was not allowed.
Passports are not self-authenticating (because not certified) under FRE 902(3), so
they can’t be used to show they were Polish passports. McMillian’s statements were
bald assertions since he was just reading the passports to show they were Polish.
 Had he testified that he sees a lot of Polish passports and these look identical to
them, then the testimony may have been permissible

B. FREs 1001–1004: Best Evidence Rule

Rule 1001. Definitions That Apply to This Article

In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout — or other output

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readable by sight — if it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately reproduces the
original.

Rule 1002. Requirement of the Original

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

Rule 1003. Admissibility of Duplicates

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

Rule 1004. Admissibility of Other Evidence of Content

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

When a party is trying to prove the contents of a writing, recording, or photograph, the law
requires that the party produce the best evidence on that point; i.e., secondary evidence is
inadmissible because the photograph/recording/writing must be produced itself
 Proving the contents occurs when:
o (1) The writing/photograph/recording is at issue in the case, its content is the thing
to be proved; the document has legal content
o (2) The witness derives her knowledge from what the document states
 If the witness independently had the knowledge, then the rule does not
apply
 In crafting a narrative, a party may want to rely on a
writing/photograph/recording to prove an event. The
writing/photograph/recording is thus being offered for its content, so the
best evidence rule applies
 When the evidence is made central instead of incidental then the rule
applies; the evidence is no longer illustrative but proof of the point being
made.
 Rationale: we do not want vague or imprecise evidence (accuracy); we also do not want
fraud
 Majority rule: you do not have to provide records for the nonexistence of something, like
a sale; the rule does not apply to nonexistence of documents

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 FRE 1001(a) and (b) define records and writings as broadly as possible; FRE 1001(c)
defines photographs broadly to include x-rays and motion pictures
 FRE 10001(d) says there can be more than one “original” as the definition includes any
counterpart intended to have the same effect by the person who executed or issued it
o Ex: landlord and tenant execute two copies of the lease
 FRE 1001(e) and 1003 reveal that any mechanically made reproduction is admissible as a
substitute for the original
o A manually created reproduction would not be admissible for fear of fraud or
human error
o (1) mechanical copy, (2) the reflects the source, (3) and the source document is
authentic
 Exceptions
o FRE 1004 allows secondary evidence in lieu of the original when
 The original was lost or destroyed without any bad faith
 The original is beyond the reach of the judicial process (i.e., the entity
possessing the original cannot be subpoenaed)
 The original is in the possession of the opponent who has given notice that
content would be proven at trial
o FRE 1004(d) allows an exception when the original is not closely related to a
controlling issue; the original would not add to the accuracy of the fact-finding
process because it is not central to the dispute
o Rule: When seeking to apply an exception, the proponent must have sufficiently
attempted to produce the best evidence.
 Triggering fact: someone says they are going to testify about a document

Cases
Meyers v. U.S. (1948): D was charged with perjury-related crimes in connection with D’s
testimony at a United States Senate hearing. At trial, the prosecution called W, who had
questioned D at the Senate hearing, to testify to what D said at the hearing. The prosecution then
introduced the stenographic transcript of the Senate hearing into evidence.
 Holding: W was allowed to testify since he had knowledge of the hearing independent of
the transcripts, so the best evidence rule does not apply. The prosecution was not seeking
to prove that the contents of the transcript of the Senate hearing were true. Rather, the
prosecution was merely seeking to prove what D had said at the hearing, regardless of
whether a transcript even existed
o While the transcripts was evidence of what he had said, it was not the only
admissible evidence
 Hearsay: not hearsay, since it is a verbal act

Problems
Problem 9-5 – Box of Calculators: Nano convicted of theft of a box of calculator. To prove that
the calculators were taken by criminal means the prosecutor sought to eliminate other
possibilities which would account for the disappearance. Prosecutor asked the merchandise
manager for the division selling calculators:
“Were they sold?”
“No, they were not sold, because by checking our sales record we have not…”

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Defense objected under best evidence rule - checking the sales record
Trial judge said “well, he testified that they weren't sold”
 Holding: A witness may testify in lieu of a document when he’s testifying to something
that was not in a document; the best evidence rule does not apply for lack of evidence.
This is not the terms of a document. Frivolous to produce records for the non-existence of
something. How many records do I need to introduce to prove that this is not in there? If
you are saying that there is no record, this isn’t a situation where a small variance of
words is going to matter.

Problem 9-6 – Amtrak Footlocker: Conway, a train conductor, alleges that he was injured
assisting a passenger exiting the train, and sued his employer Amtrak. Passenger dropped a
footlocker on Conway’s chest. Conway wanted to testify that he did not “have any authority to
stop a passenger from boarding a train with a footlocker” according to the rules of Amtrak.
 Holding: P’s statements are inadmissible without producing the Amtrak rules. P’s
statement (and his choice of the term “rules”) indicates that his knowledge is derived
from a document (D’s company policies). The document itself should be admitted. Best
evidence rule applies because Conway made the “rules” central to his legal argument.
 If he said, “I was told during training that my responsibilities regarding footlockers is…”
then no BER because he has independent knowledge of what the rules are.

Problem 9-7 – Michael Jackson: P alleged that D, Michael Jackson, infringed her copyright for
her song “Dangerous.” She said the original was unavailable because it had been made on a tape
that the studio recycled, and she had depleted her supply of (25) cassettes when she distributed
them in 1990. Instead, P wants to introduce evidence (1) of the lyric and chord charts and (2) a
recreated recording of the demo tape which she created from memory.
 Holding: P’s proposed pieces of secondary evidence are not admissible in lieu of the
original. P’s efforts to obtain the originals (the cassettes, not the master tape) were
insufficient (search was not diligent enough – must prove that they were all lost or
destroyed; how does her family not have a copy?). She should have tried to subpoena the
tapes from her label, too, before reaching for an exception. Also, her re-recording is not
an acceptable duplicate, because it was not mechanically done. Court was worried about
the high risk of fraud in a case like this.

VIII. Lay and Expert Testimony

A. FRE 701: Lay Testimony

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;
and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.

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 Requirements:
o (1) Firsthand knowledge: The lay opinion must be rationally based on the perception
of the witness
 Reasonable conclusion from the facts
 Speculation or irrational conclusions are inadmissible
o (2) Helpfulness: Testimony will be helpful to the jury’s factfinding
 Idea: It is not helpful to throw conclusions at a jury, need to provide jury
underlying facts so they can draw their own conclusions.
 Opinion not generally preferred. Opinion is permissible if
 (1) It would be really difficult to break down
o Ex: “he was singing loudly”  an opinion  impossible for
the witness to give the decibel level
 (2) Collective facts doctrine: breaking down a broad opinion into
underlying facts would mean it’s inaccurate
o Sometimes the sum of the individual facts does not adequately
express the conclusions; when the facts are broken down it
makes it a little less accurate
o The lay witness is competent enough to express the
conclusion/opinion (ex: that the noise was “inappropriately”
loud); something a lay person would have an opinion on
o The underlying facts are explained, so the conclusion is
permissible; the jury gains something from the inference and,
in possession all the collective facts, the jury can evaluate the
weight to give the conclusion
o If the opposing party does not like the conclusion, they can
attack on cross
 Trial judges have a great deal of discretion as to when to allow lay
opinion. General principles:
o The more a conclusion goes to a central issue in the case, the
more it should be broken down; less likely an opinion should
be allowed
 Don’t want the witness doing the jury’s job for them
o The judge should consider the degree to which it is possible to
convey the conclusion in more specific terms
o The judge should consider how many facts are encapsulated in
the opinion; the more facts that exist, the greater the need to
break it down
 Is it based in part on hearsay?
o The judge should consider the jury; if the jury can draw the
conclusion just as easily as the lay witness, then the lay witness
should be prohibited from giving the opinion
 FRE 104(a) issue
o (3) It is not expert testimony (doesn’t invade the expert’s realm)
 Cannot be part of science or technical knowledge

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 However, courts have let in seemingly expert-like testimony where the
testimony is not being used for its truth but to explain the witness’s state of
mind and/or subsequent actions. (Problem 10-2 Countersurveillance)

Cases
Government of the Virgin Islands v. Knight (1993): D claimed when he was hitting V with the
gun, it accidentally went off and shot V. The district court excluded testimony of an eyewitness
who was prepared to testify that in his opinion the gun went off accidentally. The court did allow
the eyewitness to testify that D never pointed the gun at V and that he never threatened to shoot
V.
 Holding: The exclusion of the witness’s testimony about it being accidental was an error.
The eyewitness described the circumstances that led to his opinion. It is difficult,
however, to articulate all of the factors that lead one to conclude a person did not intend
to fire a gun. Therefore, the witness’s opinion that the gunshot was accidental would have
permitted him to relate the facts with greater clarity, and hence would have aided the jury.
Based on an assessment of the witness’s credibility, the jury then could attach an
appropriate weight to this lay opinion
 Illustrates that there is a low threshold for allowing in opinion

Problem
Problem 10-1 – Knife Stain: V was raped and murdered by D (who had priors for burglary and
sexual assault). D’s defense was that he didn’t intend to kill her. V had been stabbed multiple
times. Two lay witnesses testify: one found the victim’s shirt and wanted to testify that it looked
like someone had wiped blood off on it; a second (crime scene specialist police officer, but non-
expert) believes the stain was consistent with someone wiping a bloody knife off on the shirt.
 Holding: (1) D’s prior crimes are admissible under FRE 404(b) (intent). Prior burglary
and sexual assault lead to intent to harm. (2) The witnesses’ testimonies about the blood
smears are admissible lay opinions. The court said a lay person could make the
determination of what a knife smear bloodstain looked like, and even though the crime
scene specialist could be qualified as an expert didn’t mean he had to be in order to
testify.
 Prof thinks the crime scene specialist’s testimony should be kept out under FRE 403
because the jury will attach the weight of an expert testimony to it
 Prof also thinks the past crimes should be inadmissible as disguised propensity-based
reasoning
 FRE 413 did not apply to his sexual assault because the case was not about the sexual
assault

Problem 10-2 – Countersurveillance: Police conducted surveillance of a drug dealer. After D

was arrested, the prosecution introduced testimony of two federal agents: (1) Reno, who testified
that the observed buyer was followed by two cars, which “indicates that they are doing
countersurveillance, looking for law enforcement” and (2) Gourley, who testified about finding
baggies with corners cut off, which is the way drug dealers usually package crack for sale.
 Holding: Both testimonies are permissible under FRE 701. (1) Reno was just describing
what he observed and its effect on his state of mind (it raised red flags with him) as the
cherry on top; he wasn’t generally opining on how countersurveillance generally occurs,

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but that he thought it was ongoing in this specific instance which explained his
subsequent actions. (2) Gourley’s testimony was partially admissible (where he testified
as to the significance of the baggies in this case based on his observation). But his
opinion about how drug sales work was inadmissible because this required expert
opinion; he began testifying about things more generally instead of just observations he
made in this case.
 Exam: Be careful about police officers acting as fact witnesses (unless they’re speaking
to their own state of mind), because the jury will likely attach the weight of expert
testimony to them.

B. FRE 702: Expert Testimony

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Requirements for expert testimony

1. Proper qualification: does the expert have the necessary knowledge, skill, experience,
training, and/or education
o You cannot exceed the scope of your experience
o Can get specific about how he has experience for this case (i.e., the expert can say
they have reviewed the information in this case)
o Proponent of expert has burden of proving her expertise
2. Proper topic: is it beyond the ken? Adding depth of understanding? Disabusing
misconception? Merely providing jurors tools to evaluate facts, to abdicate their role?
3. Proper basis: (1) Do other experts rely on it? (2) Is it reasonable to rely on it in this case?
o Talk more generally about the knowledge; avoid case-specific facts
o Can he bring in the underlying data/facts? Can he articulate his bases?
 Hearsay exceptions, FRE 404(b)
 Remember the learned treatise hearsay exception
 If there is a 404(b) or hearsay objection  no way to get it in via normal
rules then it can be offered solely for the purpose of evaluating the expert’s
opinion under FRE 703  reverse 403
 If it makes it through FRE 703 and this is a civil case, then it is admissible
 If it makes it through 703 and this is a criminal case: General knowledge
or case-specific?  If case specific, does the expert have independent
knowledge of the fact or did the expert receive it through an out of court
statement?  If out of court statement, is the statement being offered for
its truth?  If so, does it satisfy a hearsay exception/exemption?  If so,
is it testimonial?  If so, does it meet the mandates of the Confrontation
Clause (i.e., opportunity to cross examine)?

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4. Proper methodology
o (a) Reliability under Daubert and Kumho
 Tested, peer reviewed, rate of error, standards, general acceptance,
independent of litigation, experience of the scientist, accounting for
alternative explanations, proper care, generally reliable field
o (b) Logical deficiencies? Analytical gap between the data and the opinion?
 Does science justify the jump?
 Even a reliable theory may be applied incorrectly
o (c) Relevance: does it fit the facts of this case?
5. FRE 403
o Risk of jury confusion?
o Risk of a waste of time?

1. Proper Qualification
Cases
U.S. v. Locascio (1993): W, an FBI agent, testified extensively about organized crime families
generally, the rules of the Sicilian Mafia, and roles that bosses like D1 and “consigliere” like D2
played in the Gambino crime family. W also listened to taped conversations and identified the
speakers for the jury. W explained his knowledge came from his 17 years working with other
FBI agents who knew about the inner workings of the Mafia and five years on the organized
crime squad, with two years as supervisor. W also said he relied on other confidential sources,
implying countless informants and other recorded mob conversations. Ds argued that W was not
qualified as an expert to interpret tape recordings or opine on Gambino family structure because
he lacked knowledge of linguistics, crime sociology, recording technology, and voice analysis.
 Holding: W’s testimony was admissible. Ds’ argument ignores W’s extensive background
working for the FBI’s organized crime unit, which counts as specialized knowledge; Ds’
characterizations of the expertise required was too micro. W was qualified to testify as an
expert on organized crime.

Problems
Problem 10-3 – Korean Businessmen: Cobbi (US company) entered into a contract for the sale
of chicken with Jinro (a Korean company). Jinro sued Cobbi for breach of contract and Cobbi
argued that there was no contract at all, and it was really a sham that Jinro orchestrated to cover
up high-risk investment program that circumvented Korea’s currency regulations. Cobbi offered
the testimony of Pelham (commercial investigator for non-Korean companies doing business in
Korea, had lived in Korea 12 years, 5 tours in Korea with the Air Force), as an expert on Korean
law and business practices (specifically their propensity to engage in fraud to avoid Korean
currency laws). The witness had not investigated Jinro itself (couldn’t be fact witness).
 He testified that the modus operandi of Korean businessmen was to try to circumvent
currency laws.
o Korean businessmen don’t like laws that restrict their freedom to conduct
business/make money
o It is common knowledge that there are attempts made in Korea to get around currency
regulations
o Has personal knowledge of several schemes by Korean businessmen to get around the
regulations
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o He generally advised clients to be wary of oral contract with Koreans because the
prevalence of corruption and fraud in the Korean business community is very
great/extensive
 Holding: The commercial investigator did not have the proper qualifications to provide
expert testimony. He went beyond his scope, he was not a legal expert, not a business
expert, he had no empirical data, he had not studied Jinro to see if these stereotypes eve
applied, and his comments were prejudicial therefore not properly qualified to offer
opinion.
 The witness may have been qualified to discuss general fraudulent transactions in Korea
(even without a law/business degree, due to his substantial experience), but his role as an
investigator is to uncover facts, not to make conclusions, and his testimony on Korean
businessmen goes too far. It’s merely a cultural stereotype, which would be inappropriate
for any expert to testify about (so inadmissible under FRE 403 if nothing else).

2. FRE 704: Proper Topic

Rule 704. Opinion on an Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just
because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether
the defendant did or did not have a mental state or condition that constitutes an element
of the crime charged or of a defense. Those matters are for the trier of fact alone.

The proper topic for an expert witness is one that helps the trier of fact understand the evidence
or determine a fact in issue
 Helpfulness centers on whether a topic is so commonsensical that expert analysis would
not provide any benefits to the jury
o Expert testimony must be “beyond the ken” of the jurors
o There is a risk that a jury will abdicate its role of critical assessment and merely
accept the expert’s word rather than analyze the issue themselves
o Does not mean that expert testimony on a subject within common knowledge is
automatically excluded as unhelpful; if the expert can add depth to the topic or
can debase any jury misconceptions they might have, then the testimony is
allowed
o An expert should be providing the jury with tools which allow them to undertake
factual analyses; provide criteria that the jury should use in undertaking their
analyses is preferable to providing the conclusions they should reach
 See Hines
o Not interviewing the individual in question in a case or discussing the facts of a
case may make it less likely that a jury will just accept the testimony of an expert
without thinking (thus making it more likely to be admitted) (Hines; Problem 10-4
Hmong Women)
 While there is no rule that prohibits an expert from providing a conclusion, such
conclusions may not be perceived as helpful by the trial judge under FRE 104(a), so he
may exclude them
o See Hines

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o Two areas where opinions may be unhelpful to the jury:
 Expert testimony on the law
 The trial judge instructs the jury on the law, so this testimony could
create confusion
 An expert witness should not define legal terms such as “deadly
force”
 Applying law to fact may also be excluded if it is telling the jury
what conclusion to reach
 When applying law to fact is unavoidable, the trial judge may
admit it with a limiting instruction to tell the jury that this is an
opinion
o But the expert should clearly lay out how he got to that
conclusion, still giving the jury the tools
o Ex: explaining the background of mesothelioma and
asbestos to get to the conclusion that “I think asbestos
caused this cancer”
 Expert testimony on the “ultimate issue” before the jury
 The witness cannot usurp the function of the jury, see Burkhart
o Assessing credibility is the jury’s job, so expert testimony
on this will most likely be excluded
 But if the legal term used by the witness corresponds to its lay
meaning rather than its legal meaning, the conclusion is admissible
(e.g., “recklessly”)
 Ex: “Drove dangerously” is allowed if the background information
is provided (i.e., the speed limit, how fast the driver was driving,
etc.) but saying “he drove negligently” is not allowed
 Test: whether the terms used by the witness have a separate,
distinct and specialized meaning in the law different from that
present in the vernacular. If they do, exclusion is appropriate
 Burkhart: an expert may offer his opinion as to facts that, if found,
would support a conclusion that the legal standard at issue was
satisfied, but he may not testify as to whether the legal standard
has been satisfied
 FRE 704(b) provides an exception to FRE 704(a), banning testimony regarding a
criminal defendant’s mental state or condition when that testimony is used to establish
whether the accused possessed or lacked a mental state or condition that constitutes an
element of, or defense to, the crime charged
o An expert can testify as to whether a criminal defendant suffers from a mental
disease
o But in providing the testimony, the expert may not opine whether that mental
disease affected the defendant’s ability to understand the wrongfulness of her
actions

Cases
U.S. v. Locascio (1993): [See previous facts]

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 Holding: W’s testimony explaining the operation, structure, membership, and
terminology of organized crime families was on the proper topic. Such expert testimony
“was relevant to provide the jury with an understanding of the nature and structure of
organized crime families.” Also, there was “no question that there was much that was
outside the expectable realm of knowledge of the average juror.” (i.e., it was beyond the
ken of the jury) . Plus many jury members may have the wrong ideas about organized
crime families based on all the tv shows, so this helps disabuse them of misconceptions.

Burkhart v. WMATA (1997): A bus driver for D got into an altercation with a deaf passenger, P,
over bus fare. P spoke with a transit officer after the incident and alleged he requested a
translator, but that one was never provided. P subsequently filed suit against D for injuries
sustained as a result of the altercation. P further alleged that he was subject to discrimination, by
reason of his disability, in violation of both the ADA and Rehabilitation Act in that D failed to
take appropriate steps to ensure that communications with him were as effective as
communications with others. P called an expert witness, and the court allowed W “as an expert
with respect to the issues of police procedures, practices, and training, as they concern the
[ADA] and the Rehabilitation Act.” W testified as to whether D had met its burdens under the
ADA.
 Holding: W’s testimony consisted of impermissible legal conclusions rather than
permissible factual opinions. He used language with a distinct menaing in te law and did
not use it for its lay meaning.

U.S. v. Hines (1999): D was charged will robbing a bank. The government's principal evidence
consisted of the eyewitness identification of the teller who was robbed. D offered the testimony
of W, a psychologist who studies perception and memory, and who has been qualified as an
eyewitness identification expert in other cases. W testified on the decreased accuracy of cross-
racial identification relative to same-race identification, the effect of stress on identification, the
effect of time on memory as it relates to identification, the “confidence-accuracy” phenomenon
which suggests the absence of any correlation between the amount of confidence expressed by an
eyewitness in his or her memory and the accuracy of that witness’s identification, the
suggestiveness of subtle aspects of the identification process, such as the darkness of a particular
photo as compared to others in the array, the fact that the eyewitness knows there is a suspect in
the mix, the transference phenomenon by which a witness may believe that a face looks familiar
but is unable to say whether her familiarity comes from seeing a previous mug shot, or from the
robbery, etc.
 Holding: W’s testimony was admissible. While jurors may well be confident that they can
draw the appropriate inferences about eyewitness identification directly from their life
experiences, their confidence may be misplaced, especially where cross-racial
identification is concerned.
 Holding: The testimony does not usurp the jury’s function because all that the expert does
is provide the jury with more information with which the jury can then make a more
informed decision. The fact that the expert has not interviewed the particular eyewitness
makes it less likely that the jury will merely accept the expert testimony and more likely
that the testimony will be appropriately cabined. The witness can only be providing the
jury with the tools to analyze the eyewitness; he has no more specific information. The

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science makes no pretensions that it can predict whether a particular witness is accurate
or mistaken.

Problems
Email Problem – Racist to the Boyfriend: P (a young black man) was visitng his white
girlfriend at a hotel. D, a police officer, was in the lobby of the hotel trying to contact sex
workers; he arrested a couple for sex work then also arrested P. D claimed her heard P had try to
sell him sex with P’s girlfriend earlier. P denied any such interaction and claimed he was arrested
in violation of his civil rights. At trial, P’s girlfriend testified to the incident and said the arrest
was racially motivated and did not have probable cause.
 Holding: The girlfriend was allowed to. Testify to her opinions about racial prejudice.
Racism is not easily observable so just describing the events to the jury without that
conclusion will not necessarily lead the jury to conclude it was racist.
 Not an example of expert testimony, but it applies to both expert and lay opinions

Problem 10-4 – Hmong Women: P, a Hmong refugee, sued D, a state employee & Hmong
refugee (who was supposed to be helping her find employment in US), for depriving her of
constitutional rights under color of state law after he raped her (on multiple occasions). P needed
to show that D abused a position of power given to him by the government. P offered an expert
(epidemiologist – disease expert) who often worked with Hmong communities, who intended to
testify generally about the Hmong community (but not to the specifics of the case), that women
are generally submissive to men, the role of Hmong women in sex/marriage, that Hmong
refugees are reliant on government officials for their needs (developed an awe of and deference
towards people in government positions).
 Holding: The expert opined on a proper topic. Certain of P’s behaviors might lead a jury
to believe that the sex was consensual (and D was innocent) (e.g., why didn’t she report,
why would she be alone with him again?), but the expert’s testimony helps provide a jury
with tools to understand the situation from the perspective of a Hmong woman (helps
disabuse the jury of misconceptions). Furthermore, the expert never gave the ultimate
conclusion (“this woman was raped”).
 There was no better expert available on the Hmong culture which is why an
epidemiologist (and not an academic who studies the culture) was permitted to testify.
 Note: be careful of this being a stereotype like the Korean businessmen problem, but
there are more tools here than in that problem; he limited his stereotyping to the facts of the
case. Also here, the stereotypes were absolutely central while the Korean testimony was
less relevant. (prof thinks there is kind of a problem with stereotyping here)

Problem 10-5 – Child Psychologist: D was charged with raping a child he was babysitting. The
prosecution called a child psychologist (with 30 years of experience) to testify about the low rate
(2-5%) of false allegations in such cases.
 Holding: It was not proper for him to discuss the percentages of false allegations because
that was too conclusory. Providing the percentages transformed the expert into a weigher of
credibility, thereby usurping the jury’s role. This moved the expert into the realm of human
lie detection which is the jury’s role (we are especially concerned about taking this away)
and especially concerned when start assigning numbers to it.

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 Note: credibility is different from causation; generally witnesses are not allowed to testify
about credibility at all but this not only was testimony about credibility but was practically
a conclusion on it since the percentages were so low

3. FREs 703 & 705: Proper Basis

Rule 703. Bases of an Expert

An expert may base an opinion on facts or data in the case that the expert has been made
aware of or personally observed. If experts in the particular field would reasonably rely
on those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.

Rule 705. Disclosing the Facts or Data Underlying an Expert

Unless the court orders otherwise, an expert may state an opinion — and give the reasons
for it — without first testifying to the underlying facts or data. But the expert may be
required to disclose those facts or data on cross-examination.

Analysis steps
1. FRE 703 allows expert testimony to rest on any of three grounds:
o facts within her personal knowledge
o facts presented to her at trial
 can answer hypotheticals presented to her at trial; as long as the facts in
the hypothetical are admitted into evidence by the close of the case, the
line of questioning is proper
 an expert can gain knowledge by listening to trial and can be asked
questions regarding the testimony she heard
o facts presented to her outside of court but not perceived by her personally
(hearsay) if (1) those facts are the type of facts reasonably relied upon by experts
in her field in drawing such conclusions and (2) it is reasonable in this case
 broadest
 the expert can rely on facts or data that is neither perceived by him not
introduced into evidence as long as, pursuant to FRE 104(a), the trial
judge finds that the facts or data are the type relied on by experts in the
field and that such reliance is reasonable in this case
 judge can consider the testifying expert’s testimony, the opinions
of other experts in the field, or other sources the judge deems
reasonable
2. Can he bring in the underlying data/facts? Can he articulate his bases?
o Hearsay exceptions, FRE 404(b)
 Remember the learned treatise hearsay exception
o If there is no 404(b) or hearsay objection and no way to get it in via normal rules
then it can be offered solely for the purpose of evaluating the expert’s opinion

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under FRE 703 (reverse 403: must be substantially more probative than its unfair
prejudice)
 Favors exclusion
 Alternatively, the judge could limit the expert to testifying about the types
of underlying data used instead of the specifics of the data
 If it passes in a civil case, then it is admissible not for its truth but only to
evaluate the expert’s bases
o If it makes it through 703 and is a criminal case:
 General knowledge or case-specific?
 Case-specific fact: a fact that relates to the particular events and
participants alleged to have been involved in the case being tried
 General knowledge is not typically subject to exclusion on hearsay
grounds; the expert can therefore allude to the hearsay in her
testimony
 If case specific, does the expert have independent knowledge of the fact or
did the expert receive it through an out of court statement?  If out of
court statement, is the statement being offered for its truth?  If so, does
it satisfy a hearsay exception/exemption?
 If an expert testifies to case-specific out-of-court statements to
explain the basis of her opinion, those statements are offered for
their truth and are hearsay. The proponent of the evidence must
either (1) find an applicable hearsay exception or (2) admit the
evidence through a different witness (which would then allow the
expert witness to be asked a hypothetical question based on the
evidence) (Williams v. Illinois)
 If so, is it testimonial?  If so, does it meet the mandates of the
Confrontation Clause (i.e., opportunity to cross examine)?

Cases
U.S. v. Locascio (1993): [See previous facts] Ds argued that because W relied upon “countless
nameless informers and countless tapes not in evidence,” his testimony violated FRE 703.
 Holding: W was entitled to rely upon hearsay as to such matters as the structure and
operating rules of organized crime families and the identification of specific voices heard
on tape in forming his opinion, since there is little question that law enforcement agents
routinely and reasonably rely upon such hearsay in the course of their duties.
 An expert who meets the test of Rule 702 is assumed “to have the skill to properly
evaluate the hearsay, giving it probative force appropriate to the circumstances.” The fact
that W relied upon inadmissible evidence is therefore less an issue of admissibility for the
court than an issue of credibility for the jury.

Cases: Confrontation Clause & Expert Evidence

Bullcoming: Lab tested white powder found in D’s car. An analyst concluded that it was cocaine
and wrote up a report. A different analyst from the lab was sent to testify about the report in court
 Holding: The report is testimonial, so confrontation is not satisfied with this witness; the
analyst who did the actual analysis is necessary

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 Bullcoming did not necessarily extend to a situation in which an expert witness was asked
for his independent opinion about underlying testimonial reports that were not themselves
admitted into evidence

Williams v. Illinois (2012): if an expert testifies to case-specific out-of-court statements to

explain the basis of her opinion, those statements are offered for their truth and are hearsay. The
proponent of the evidence must either (1) find an applicable hearsay exception or (2) admit the
evidence through a different witness (which would then all the expert witness to be asked a
hypothetical question based on the evidence)

Problems
Hypo – Mother Puncher: Psychologist gets on stand as expert witness when someone is going
to be involuntarily committed. Expert says, “yes this child should be committed.” Basis for
opinion: when child’s mother brought the child to the hospital, the mother said to the doctor “he
punched me in the face.” Expert is thinking that the child is a danger to others because he
punched his mother in the face.
 Court then asks:
o (1) Do others rely on this type of information? Yes, we do rely on family members
when making involuntary commitment decisions (empirical question)
o (2) Is it reasonable to rely on it in this case? Any reason to think that the mother was
lying?
o If yes to both then it can come in.
 Sub-Hypo: now expert wants to say, “I think this child should be involuntarily
committed because he punched his mother in the face.” This is now hearsay and doesn’t
look like there is a hearsay exception.
o If we want to bring evidence in only to show that expert has a basis for his opinion,
then it needs to satisfy reverse 403 test (does its probative value substantially
outweigh any unfair risk of prejudice?)
o Technically not being offered for its truth because, just offering to show that expert
has a basis for her opinion.

Problem 10-6 – Make me Look Crazy: D arrested and charged for being a felon in possession
of a firearm, and D asserts insanity defense. D introduced testimony of psychiatrist, Dr. H, who
said D was severely mentally ill and on date of incident and couldn’t understand nature of his
conduct. Prosecution offers, Psychologist, Dr. Dana who testifies that D is creating false
symptoms and is not really insane. Her basis is working in a prison in Chicago, and hearing from
a forensic psychologist that two other prisoners told the forensic psychologist that D told them to
pretend D was crazy.
 Basis is inadmissible hearsay (since no hearsay exceptions apply to get inmates’ or
psychologist’s words admitted).
o D  Inmate 1 & Inmate 2  forensic psychologist  Dr. Dana
o Dr. Dana will say, “a fellow psychologist told me that two inmates told him that D
told them to make him look crazy” (offered for truth because goes towards
rebutting insanity defense)
 Issue: In relying on the guard’s hearsay-within-hearsay testimony, did the psychologist
have a proper basis for his opinion?

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 Holding: Yes. (1) Other psychologists would likely rely on this information (inmate
hearsay in evaluating another inmate), but (2) It seems that it would not be reasonable to
rely on it in this case, since the inmates (who were also inmates on the psychological
ward) went to the psychologist. But the court said it met the reverse 403 test and let it in
because it was reluctant to leave an expert’s opinion hanging without a basis.

Hypo: vehicular manslaughter case, prosecution offers expert to testify that, based on the skid
marks of the car, the car was travelling at 50 MPH. At trial the expert:
 Explains that the accident reconstruction experts rely on a mathematical formula to
determine the speed based on length of skid mark; not testimonial hearsay because this is
general knowledge
 Testifies that skid mark in question was 100 ft long and he knows this because the police
officer who measured skid mark told him. This is testimonial hearsay because case-
specific facts offered for its truth (if skid mark is not 100 ft long, then expert’s conclusion
re speed of car is wrong).
o Prosecution can:
 Try to find hearsay exception for police officer’s statement
 Bring in the evidence another way like putting officer on the stand (after officer
testifies, expert can be asked a hypothetical like “if you assume skid mark is 100
ft long, then how fast was car going?”)

Problem 10-7 – STEP Notices: Police department gives STEP Notices to people associating
with known gang members informing them that they are associating with a known gang that
engages in criminal activity and if they continue, they may face increased penalties. An issuing
officer records date and identifying (descriptions/tattoos), and ID of gang members. Officers sign
notice under penalty of perjury. Sanchez was arrested for commission of felony for benefit of a
gang. Prosecution called an expert gang officer who testified generally to gang culture, how one
joins a gang and quoted from a STEP notice that Sanchez was issued the year before as his basis
for saying Sanchez was a member of the Delhi gang. Expert on cross conceded that he wasn’t
present when notice was issued. Sanchez argues CC violation.
 Holding: the quote from the STEP notice is hearsay and a case-specific fact (goes beyond
general gang populations) that the expert is using to form basis of his opinion that
Sanchez was in the Dehli gang.
o There is no hearsay exception that applies to the notice. Not present sense
impression because officer who issued the step notice is going into his memory
bank and saying I observed you hanging out with these gang members; too non-
contemporaneous
o FRE 703 - Reverse 403 – expert only offering notice as the basis of his opinion,
not for the truth. Is the STEP notice substantially more probative than prejudicial?
It is prejudicial, but more probative value because it provides basis for expert
opinion (can give jury instruction to tell jury they can only use for basis, not for
truth)
o It is a case-specific fact about Sanchez associating with a gang
o Is it testimonial? Yes, because it is a formal notice, given by officer, signed under
penalty, acting like prosecutorial witness b/c clearly document to use if person
engages in more gang activity.

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 Counter argument: it is more like a social worker because community
outreach purpose of STEP notices, not testimonial.
 This doesn’t work because the requirement that the issuing officer signs
the notice under penalty makes it seems like officer is anticipating that this
could be used in court if further gang activity.
o STEP notice could still be admissible if the officer who issued the notice is called
to testify that he issued STEP notice, but if he tries to get in the STEP notice then
issues of trying to get in public record against a criminal D (not allowed). But his
testimony could make expert’s testimony admissible.

4. Proper Methodology
An expert’s methodology must be relevant (must “assist the trier of fact”) and reliable (derived
from scientific knowledge and requiring good grounds) The burden of satisfying the rule and the
Daubert requirements is on the proponent of the witness
 Non-exclusive list of Daubert and Kumho factors (for reliability): Tested, peer reviewed,
rate of error, standards, general acceptance, independent of litigation, experience of the
scientist (i.e., leader in the field, length of career), accounting for alternative
explanations, proper professional care, generally reliable field
o Look for whether there is an analytical gap between the data and the opinion;
logical deficiencies (Kumho)
 Is the methodology applied correctly?
 Relevancy is fact/case-specific

Cases
Daubert v. Merrell Dow Pharmaceuticals (1993): P, children born with birth defects, sued D.
They presented 8 expert witnesses who testified that D’s drug caused the defects. The district
court rejected the testimonies because the opinions were based on scientific techniques that were
not “generally accepted” in the scientific community.
 Holding: The “generally accepted” method rule is no longer valid; instead, the expert
testimony must be reliable and relevant.
 The judge is free to request affidavits, deposition transcripts, oral argument, and live
testimony to make his decision about whether the expert testimony is admissible

Kumho Tire Company v. Carmichael (1999): P’s tire blew out, so they sued D, the manufacturer,
claiming it was a defective tire. P brough W as an expert witness. W stated that blowouts caused
by tire abuse exhibited four symptoms and that at least two of those symptoms had to be present
for a blowout based on tire abuse to occur. W looked at photos of the tire in question and testified
that he saw all four symptoms of abuse in his inspection of the tire in question, but that none of
the symptoms were present to a significant degree. He concluded that tire abuse did not cause the
blowout, and so it must have been caused by a defect. The district court excluded the testimony.
 Holding: The Daubert factors apply to all expert testimony, not just scientific. It would be
almost impossible for courts to distinguish between evidentiary rules for scientific
knowledge and technical knowledge, as they often overlap. It is too hard for jurors to
evaluate the reliability on their own, we need judges to be gatekeeprs in this context. The
sway an expert has exist no matter if the expert is testifying on scientific or other
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 Holding: The factors listed in Daubert are not exclusive
 Holding: W’s testimony was properly rejected, for his findings went beyond the range of
where experts disagree. His test was subjective, no one else used it, and then he did not
seem to follow it himself. It was also questionable that he would be able to determine if
the tire had been abused just using visual inspection. W was unable to also determine
how far the tire had gone, he may not have measured the tread properly, he did not
compare it to other tires, and he only looked at photos on the day of the testimony.

Problems
Perrier Hypo: Perrier forgets to change their filters which results in Benzene in the water (which
causes Leukemia). Plaintiff gets Leukemia and sues Perrier saying that’s all he ever drank.
 Attacking Plaintiff's treating physician as his expert who says that the Perrier was a
substantial factor in causing Leukemia
o Proper knowledge because he was treating physician
o Proper basis (firsthand knowledge)
o Proper topic
o Can we get him on credentials?
 He treats people for a living, rarely does litigation/expert witness stuff
o Attack him on methodology
 What defense experts would be helpful for this?
 Look for experts who have done rigorous testing in this area
 Needed many experts who were everything that treating physician was not
(in academia, who had been publishing)
o Defense experts ended up saying that assuming the worst (P drank Perrier only every
day for a lifetime - this wouldn’t cause the type of cancer he had)

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