RELEVANCE [FRE 401; 402] o Effect on hearer/reader: statement offered to show that the

 When we say “relevant,” there are two distinct links between a piece of listener knew or did not know something ≠ hearsay. Not being used
evidence and the case: to prove the assertion is true, but to demonstrate the effect on the
o Probative Relationship (link 1): evidence must make the factual person who heard it, such as displaying the listener’s knowledge or
proposition more (or less) likely than it would be w/o the evidence elucidating the listener’s intent.
o Materiality (link 2): evidence must be material; must be a link  Ex: D is charged w/ a crime that requires that she knew fact
btwn the factual proposition which the evidence tends to establish, A. Testimony that X told D A, offered to show that D knew
and the substantive law. A, is not hearsay.
 In assessing the probative value, the judge must determine what o Circumstantial evidence of state of mind on declarant: a
proposition the evidence is being offered to establish, and must follow statement offered to show the declarant’s state of mind (including
the “chain of inference” between the evidence and that proposition. intent + knowledge) ≠ hearsay (Lyons) (Parry). Statement offered
o Evidence is admissible when it helps advance a link in the to show D’s state of mind circumstantially, w/o the finder-of-fact
chain of reasoning (U.S. v. Dominguez) needing to accept the declarant’s assertion in the statement to be
o Evidence is relevant when it advances a link, even if it does not true.
make the ultimate connection (Knapp v. State)  Ex: D is charged w/ statutory rape, in a jurisdiction where a
 For an item of circumstantial evidence to have a probative value, the reasonable mistake as to the victim’s age is a defense.
evidence must make the existence of the fact more probable than it Victim’s testimony, “before we had sex, D told me, ‘I know
would be without the evidence. you are only 15,’ offered to prove D knew victim was 15, is
o “A brick ≠ a wall” means if the particular fact in dispute is the non-hearsay.
 Ex: in the Lyons case, the children chanting “Barney” was
wall, the item of evidence just has to be a brick in the wall.
used to show the state of mind/belief that the children
 To determine if evidence is relevant, determine whether the evidence
thought the costume was Barney. The statements were not
will have any value, as determined by logic/experience, in proving the
offered for the truth of the matter that it was actually Barney
proposition for which it is offered (State v. Larson)
o Implied assertions: conduct that is not intended as an assertion ≠
Probative Value + Prejudice [FRE 403] hearsay
 FRE 403 allows the judge to exclude relevant evidence if its probative  Ex: A opens an umbrella, and assume that A did not intend to
value is substantially outweighed by (1) prejudice; (2) confusion; and (3) assert to assert that it was raining. To prove it was raining, W
waste of time. For evidence to be admitted, probative value must may testify, “A opened an umbrella,” and this ≠ hearsay
outweigh the harm. (U.S. v. McRae) (Old Chief) o Assertions/assertive conduct offered for different purposes: an
 Evidence does not need to achieve the conspicuousness of a smoking assertion offered to prove the truth of a matter other than the one
gun to have probative value (U.S. v. Mehanna) asserted ≠ hearsay.
 Where the potential probative value of a piece of evidence is marginal,  Evidence ≠ hearsay when we are not concerned w/ the actual facts the
and the evidence is more likely to confuse the jury rather than serve its statement asserts, but rather a belief/mental state the statements prove,
purpose, the court can exclude the evidence under FRE 403 (U.S. v. because in that case the evidence is not being offered to prove “the truth
Noriega) (U.S. v. Flitcraft) (Abernathy v. Superior Hardwoods, Inc.) of the matter asserted therein” (circumstantial belief) (Lyons)
Conditional Relevance [FRE 104(b)]  Out of court statements that show knowledge is a belief, rather than the
actual truth of a statement, = non-hearsay (U.S. v. Parry)
 If proving a fact depends on proving another fact, we cannot prove them  An out-of-court statement ≠ hearsay, even when it is offered to show the
at the same time mental state of D (b/c shows the effect on the listener) (Subramaniam)
o May admit one fact, on condition that its proof to be introduced (Southerland) (U.S. v. Johnson)
later IF a reasonable juror could come to the conclusion by  An out-of-court statement ≠ hearsay when it is not offered for the truth
preponderance that the conditional fact has been established that of the matter asserted therein, but the fact that the words themselves
makes the other fact relevant were spoken is evidence of the crime (verbal act) (Saavedra)
 When the admissibility of evidence turns on relevancy, and the  Where an out-of-court statement offered is words that are part of a
relevancy then turns on the existence of some other fact, the judge contract being litigated and have an operative fact, this is not hearsay
should ask whether a reasonable jury could find that that fact exists (performative utterances) (Hanson v. Johnson)
(FRE 104) o Performative utterances are not w/in the scope of hearsay b/c they
o 104(b): Relevance is conditional on the showing of some other do not make any truth claims–they are words that have significance
fact; judge is deciding whether to admit the evidence, but the judge for the fact that they were said (Creaghe)
is asking himself a different question: Not, can I find it’s sufficient o Statements that are simple demands ≠ hearsay (Montana)
to support a find, but could a jury. “The judge makes a preliminary Implied Assertions
determination whether the foundation evidence is sufficient to  If statements include nonverbal conduct ONLY when it is intended as a
support a finding of fulfillment of the condition.” (Advisory form of communication
Committee Note to FRE 104(b)). Standard is lower than 104(a).  An implied assertion ≠ hearsay because we are taking a trip through the
judge is saying that I am persuaded that this fact exists by a declarants mind (Zenni) [majority view]
preponderance  Under the Iowa Code, implied assertions are hearsay (State v. Dullard)
o 104(b): I am not convinced, but can a jury believe that the fact
exists by a preponderance of the evidence.
Hearsay + the Confrontation Clause
 6A gives all criminal defendant’s an opportunity to confront and cross-
examine witnesses. This means that any out-of-court testimonial
HEARSAY [FRE 801-805] statement by a witness cannot be used against a D in a criminal trial,
 Hearsay is an out-of-court statement that is offered to prove the truth unless the witness is available to be cross-examined by the D.
of the matter asserted therein (Sir Walter Raleigh’s Case)  Two levels of analysis in criminal cases:
 Hearsay is generally not admissible, unless it falls within some o Is it hearsay?
exception. o Was C/C violated? [Requirements include…]
Non-hearsay Uses of Out-of-Court Statements  Applies only in criminal cases
 If nobody is contending that the out-of-court statement is true, then this  Right is only given to an accused defendant (not prosecutor)
is a good indicator that the statement will not be offered for the truth of  Evidence must be offered for the truth
the matter asserted.  Confrontation clause is satisfied if the declarant is available
 If the jury misunderstands what the evidence is coming in for, the parties in court to be cross-examined.
give juries limiting instructions (see FRE 105) o Is the statement being offered testimonial?
 Statements that are not offered to prove the truth of the matter asserted ≠  Tests:
hearsay. Most importantly…  Primary purpose test (current) (Michigan v. Bryant)–
o Verbal acts: a statement which gives rise to legal consequences ≠ o Existence of an ongoing emergency (Davis)
hearsay when offered to show those legal consequences o Relative formality of the encounter
 Verbal acts are admissible when the words themselves do o Statements & actions of both declarant +
something–the fact that the exact words were spoken proves
interrogators
something.
  Objective standard: in deciding whether a statement to charge that declarant lied about or acted from improper
police is testimonial, the relevant inquiry is the purpose influence/motive
that reasonable participants would have had in engaging o FRE 801(d)(1)(C): witness’ prior statement of identification is not
in the discussion. As ascertained from the individual’s hearsay, and is admissible under this rule.
statements and actions, and the circumstances in which  A rebuttal witness’ testimony is admissible for impeachment purposes,
the encounter occurred but cannot be used to prove the matter asserted (Albert v. McKay & Co.)
 Under Crawford, if hearsay is testimonial, it may only be  FRE 801(d)(2)(A): An Opposing Party’s Statement
admitted if: o Statement must be made by a party or otherwise must be
 Declarant must be available to be cross-examined; or attributable to a party under (A)-(E)
 Declarant must have previously been subject to cross- o Must be offered against the party who made it
examination by the Defendant. o Need not be an “admission” in the sense of being incriminating on
 To determine if evidence is testimonial, look to Clark’s primary purpose its face
test: o Personal knowledge is not required for a party’s statement to be
o Non-testimonial: if the purpose of police interrogation is to enable admissible against the maker/party-opponent (Salvitti)
police assistance to meet an ongoing emergency, then it is NOT o Statement does not need to be inculpatory and does not need to be
testimonial (Bryant) for an admission of a crime. Any statement made by a party
 Look whether the statement was made for the purpose of opponent is admissible (McGee)
litigation o The statement must be offered against the party, but cannot be
o Testimonial: if the purpose of the interrogation was to establish or offered in the party’s favor (Phelps)
prove past events potentially relevant to later criminal prosecution,  Although the statement does not have to be against D’s
then the statements are testimonial interest when made, it must be offered against him–cannot
 Also consider… offer this statement to help himself.
 Setting–where was the statement made?  FRE 106: Admissions + the Rule of Completeness
o Non-testimonial: school and work o Whatever statement was admitted later, if it was admitted unfairly
o Testimonial: police station so that it distorts the meaning of what is said, then the party that
 Who was statement made to? made the statement can claim protection of FRE 106 if the out-of-
o Non-testimonial: teacher, friend court statement was written or recorded.
o Testimonial: police, authority figure, bad fact o Does not apply to oral statements.
generally o FoF needs to hear the “full story,” so that surrounding “other
 When statement given in relation to when crime statements” may be introduced to provide context for the initial
happened… statement brought (Rainey)
o If you want to argue that the statement was non-  FRE 805: Hearsay w/in Hearsay
testimonial, say the crime happened as it is o Where there is hearsay w/in hearsay (D’s out of court statement,
happening (like a 911 call) recounted by what someone else told D), for it to eb admissible,
o If you want to argue the statement was ALL parts of the statement must fall w/in another hearsay
testimonial, say the crime happened after the fact. exception.
 Whether on going emergency:  When a statement has hearsay within a hearsay statement,
o More emergency-like = less testimonial such statement is admissible against the party who made the
 ASK: statement, IF the statement suggests the declarant adopted the
 What immediately preceded the hearsay (Reed v. McCord)
statement?  FRE 801(d)(2)(B): Adopted Statement of Another
o Elements to admit a statement under 801(d)(2)(B) that a party
 What is the nature of the emergency?
 Is there a motive? adopts through silence:
 Party against you heard the statement
 Was there a weapon?
 Party against you understood the statement
 The 6A Confrontation Clause applies to both in-court and out-of-court
 Circumstances warrant an inference that the party would
testimony. The 6A Confrontation Clause prohibits the introduction of
have protested if the statement were not true
testimonial statements by a non-testifying witness unless the witness is
 When a party does not deny a statement and was given an
unable to testify AND the defendant had a prior opportunity to cross-
opportunity to deny, statements can be considered adopted by
examine the witness (Crawford)
silence of acquiescence, and may be admitted as an adopted
 Statements made to non-law-enforcement-personnel are must less likely
admission under FRE 801(d)(2)(B) (U.S. v. Fortes)
to be testimonial. To admit such a statement, one must look to the
 A party’s failure to respond (to a letter) is not an automatic
primary purpose of the questioning. If the primary purpose is something
adoption under FRE 801(d)(2)(B), unless it is reasonable
other than for gathering evidence for prosecution, then not-testimonial,
under the circumstances for the sender to expect the recipient
and not prohibited under the Confrontation Clause (Ohio v. Clark)
to respond and to correct the assertions (Southern Stone v.
 Statements ≠ testimonial when they are made in the course of a police
Singer)
interrogation under circumstances that objectively indicate that the
 FRE 801(d)(2)(C): Authorized Admissions
primary purpose of the interrogation was to enable police assistance to
o Applies in situations where the party has expressly agreed that his
meet an ongoing emergency (Davis v. Washington) (Bryant)
o Statements are testimonial when the circumstances objectively agent may make a statement on a particular subject. Thus, if A
says, “on this subject, refer all questions to my associate B,”
indicate that there is no ongoing emergency, and the primary
anything B says on the subject will be admissible against A as it
purpose of the interrogation is to establish/prove past events that
were said by A.
are potentially relevant to later criminal prosecution (Hammon v.
o Evidence of statements made by attorneys in a representation
Indiana)
capacity is not hearsay. Although an attorney does not have the
Not Hearsay [FRE 801] authority to make out-of-court admissions to his client for all
 Once you decide a statement is hearsay, ask whether the statements fit instances, an attorney does have the authority to make statements
under any exceptions. that are directly related to the management of litigation (Hanson)
 FRE 801(d)(1): Declarant-Witness’ Prior Statement  FRE 801(d)(2)(D): Agent & Employee Admissions
o FRE 801(d)(1)(A): a statement ≠ hearsay if: o Admits statements offered against a party if it was made “by the
 Declarant’s prior statement is inconsistent w/ declarants party’s agent or employee on a matter w/in the scope of that
current testimony relationship and while it lasted.”
 Declarant’s prior statement was given under oath, under the o when an employee makes a statement (including a written
penalty of perjury at a trial, hearing, proceeding, or statement) about a matter pertaining to the scope of employment,
deposition; and the statement can be used against the employee’s company/the
 Declarant is subject to cross-examination at the current trial. defendant-corporation (Manlandt) (Sea-Land Services)
o FRE 801(d)(1)(B): former inconsistent statements come in as  FRE 801(d)(2)(E): Co-conspirator admissions
substantial evidence–can be used to rebut an express/implied
 o Recognizes a special conspiracy exception, where statements made o State of mind exception does not permit the witness to relate any
by one co-conspirator are admissible against another co- of the declarant’s statements as to why he held the particular state
conspirator, so long as the statement was made during the course of mind, or what he might have believed that would have induced
of the conspiracy, and in furtherance of it. the state of mind.
o Three requirements: o Post-Hillmon, statements of intent are admissible to prove the
 It must be made by a member of the same conspiracy of declarant’s future conduct, not the future conduct of another
which the party against whom it is admitted (typically the D person. Can be used to prove that the declarant later did what she
in a criminal action) is a member; wanted/intended to do (Hillmon)
 It must have been made while the conspiracy was still in  The existence of a particular intention in a certain person at a
force; and certain time being a material fact to be proved, evidence that
 Statements made AFTER the conspiracy has ended are he expressed that intention at that time is as direct evidence
admissibly only against the declarant, not against the of the fact as his own testimony that he then had that
other members of the conspiracy. intention would be.
 It must have been made in order to further the aims of the o Statements pointing backwards and to the past are inadmissible
conspiracy. under the state-of-mind exception (Shepard)
 Statement should be admitted against a co-conspirator o In some jurisdictions, the state of mind exception allows the
only if it was made for the purpose of advancing the introduction of testimony where a declarant stated a plan to meet
conspiracy’s objectives another person to show that the other person went to the location
o A court, in making a preliminary factual determination under FRE where the declarant said they would meet (Houlihan)
801(d)(2)(E), may consider the hearsay statements as one of the  Extends Hillmon to now allow statements of future intent
factors in determining whether conspiracy existed. The court may involving 3rd parties
examine the hearsay statements sought to be admitted, without  FRE 803(4): Statements Made for Medical Diagnosis or Treatment
independent evidence (Bourjaily v. U.S.) o Evidence that is made for medical diagnosis or treatment, and
 Standard of proof required is preponderance of the evidence describes medical history; past or present symptoms/sensations;
for FRE 104(a) determinations. Existence of the conspiracy, their inception; or their general cause ≠ hearsay.
and satisfaction of other factual requirements, are to be o Statements are not limited to physicians. Statements to hospital
decided by the judge. The judge must find that these attendees, ambulance drivers, or members of your family may be
requirements are satisfied by a preponderance of the evidence included, just as long as the statement is made for a medical
 Bootstrapping (idea that you are going to satisfy the elements treatment or diagnosis.
necessary to admit statements by using the statement itself) is  The declarant does not have to be the patient–could be
permitted. Thus, judge may take into account the very friends, parents, spouse, etc.
statement whose admissibility is in issue, although such o Statements about medical conditions are admissible if the
statement cannot be enough by itself to establish the statements are initially made for purposes of medical diagnosis or
conspiracy. treatment. Generally speaking, the statements cannot be statements
 A court shall consider the contents of a co-conspirator’s of fault because statements of fault are not reasonably pertinent
statement in determining whether a person is a co- (Rock)
conspirator, agent, or employee, but the court must exclude if  FRE 803(5)/612: Recorded Recollection
the statement is the only evidence. o When a witness once knew something but forgot, you…
 Court must consider in addition, the circumstances  Use something (usually a writing or doc) to refresh the
surrounding the statement, such as the identity of the speaker, witness’ recollection (subject to FRE 612); or
the context in which the statement was made, or evidence  Lay the foundation that will allow the witness to read from
corroborating the contents of the statement in making its the writing as a “recorded recollection” per FRE 803(5).
determination as to each preliminary question. o Refreshing Recollection (aka “Present Recollection Revived”)
Hearsay Exceptions [612]
 Hearsay is broken up into two categories:  A witness’s memory can be refreshed with anything–not only
o Exceptions that apply regardless of whether the defendant is writings, but pictures, songs, etc. The document used just
available at trial (FRE 803; FRE 807), and exceptions that apply must be shown to opposing counsel and subject to the judge’s
ONLY when defendant is unavailable at trial. general authority to regulate trial procedures.
 FRE 803(1): Present Sense Impression  Witness, although can use the writing to refresh recollection,
o Statement that describes or explains an event/condition, made must testify to the fact as he remembers it, and may not
while or immediately after the declarant perceived it ≠ hearsay read/show writing to jury (Fisher v. Swartz)
o Content must be describing or explaining an event/condition  Must prove that the witness cannot remember; there is a
o Must be made while or immediately after the declarant perceived document that would help her remember; the witness
the event/condition recognizes the document; the witness can articulate how
o To satisfy FRE 803(1) [and (2)], the declarant-witness must have she recognizes the document; after reviewing the
firsthand, personal knowledge of the matter being asserted (Bemis) document, the witness has an independent recollection
 FRE 803(2): Excited Utterances  Properly refreshing recollection–pg. 24
o Statements that relate to a startling event or condition, made while o Past Recollection Recorded [803(5)]
the declarant was under the stress or excitement that it caused ≠  Allows the record to be introduced into evidence, or read to
hearsay. the jury to prove the truth of what it asserts.
o Content must be related to the startling event  Allows the witness to read from the document. It does not
o Must be made while the declarant is under the stress of the come into evidence unless it is otherwise admissible.
 Judge, in her discretion, may permit a witness to incorporate
excitement it caused
in her testimony as writing expressive of her past knowledge,
o Sometimes both FRE 803(1) and FRE 803(2) may apply to a
and to read it (may even show to jury)
single statement (Obayagbona)
 Memorandum must relate to something of which the witness
 Under 803(1), look at the temporal aspect
once had first-hand knowledge
o To satisfy 803(2) [and (1)], the declarant-witness must have
 Record must have been made when the matter was fresh in
firsthand, personal knowledge of the matter being asserted (Bemis) the witness’s memory [under FRE, a record made several
o For statement to be admitted, there must be evidence that the days after the events in question would still have a reasonable
declarant was excited or agitated (U.S. v. Elem) chance of being found to meet this requirement]
 FRE 803(3). Then-Existing Mental, Emotional, or Physical  Witness must suffer some impairment of her memory of the
Condition events recorded. If the witness’ memory at the time of trial is
o If the evidence is offered for the truth, but the evidence also perfectly clear about the events, the earlier record may not be
establishes the speaker’s state of mind, the statement may come in introduced. [some impairment is ok, witness just cannot
(Harris) NOW recall the matter well enough to testify fully and
accurately]
  Witness must testify to the accuracy of the record–witness  Analyst certificates, like police reports, do not qualify as
must testify either that he remembers making an accurate business/public records because they are calculated for use
recording of the event in question although he no longer essentially in the court, not the business.
remembers the facts recorded, or if the witness has entirely o “Surrogate testimony” is insufficient to satisfy the confrontation
forgotten the situation, he is confident he would not have clause because they are missing personal knowledge (Bullcoming)
written or adopted some description of the facts unless that Hearsay Exceptions (Declarant Unavailable)
description truly described his observations at the time.  To use FRE 804, you must establish that declarant is UNAVAILABLE
 Under FRE 803(5), assuming the foundation has been to testify as a witness at trial.
properly laid (that the document is in fact the recorded  Unavailability:
recollection of the witness) then the witness can read from o FRE 804 is inapplicable, and D is not “unavailable,” where D
the document. But, the only way the evidence can be pleads the 5A in his own cases because D is making himself
admitted is if the adverse party offered it. unavailable and that is not enough (U.S. v. Bollin)
 Reading from the document is treated as though the o The proponent offering a statement must make reasonable efforts
witness is reading from his memory. to obtain the declarant. The proponent bears the burden of proving
 When a witness has an independent recollection of the the unavailability of the witness, and the proponent should not take
evidence/record, anything may be used to stimulate that absence to mean unavailability (Kirk v. Raymark Industries)
recollection (Riccardi)  FRE 804(b)(1): Former Testimony
 FRE 803(6): Records of Regularly Conducted Activity o Former testimony that was given as a witness at a trial, hearing, or
o Business entities keep records in the ordinary course of their
deposition, and is now offered against a party who had an
business. If such a routine business record is offered as evidence, opportunity/similar motive to develop it by direct, cross, or re-
and offered to show the truth of the matter asserted in the doc, a direct may be admissible.
hearsay problem is presented.  Not covered: affidavits, and statements made to police or
o Entries must be made in the routine of a business or organization. other law enforcement officials during investigations
Must show regularity. o The party against whom the prior testimony is now offered (or, in a
o The record must have been made by, or from information from, a civil case, that party’s “predecessor in interest”) must have had an
personal with personal knowledge of the matter recorded opportunity to examine (usually cross-examine) the declarant in
o The entries must have been made “at or near the time” of the the prior proceeding or deposition.
matter recorded.  No requirement that the party against whom the evidence is
o A custodian of payroll is reliable enough to admit business records. now offered have actually cross-examined the declarant at an
Must use 803(6) when trying to admit business records (Acquisto) earlier proceeding. All that is required is that the opponent
o A record is a “business record” even if such a record is personal, if have had a reasonable opportunity to do so.
it is kept in the normal course of business activity, occupation, and o In a civil case, when analyzing whether someone is a predecessor
calling. Further, the business record must be systematically in interest, look to whether the person is substantially similar
checked and regularly and continually maintained (Koegh) enough in terms of interests such that the previous party had an
o Documents that are prepared in anticipation of litigation are not opportunity to cross examine. However, the parties must be the
protected under 803(6)’s business record’s exception (Palmer) SAME in a criminal trial (Clay v. Johns-Manville)
 Unlike payrolls, accounts receivable, and accounts payable,  In civil cases, a “predecessor in interest” is a person with a
bills of lading and the like are calculated for use essentially in like motive to develop the same testimony about the same
the court, not the business. material facts. It is broadly construed.
o Accident reports may be considered a “regularly conducted  In criminal cases, the “same parties” requirement is strictly
activity” when the custodian preparing the reports was not construed. If D was not an actual party to the earlier
involved in the accident, and the reports serve a purpose other than proceeding, the presence of a person with an extremely
litigation (like helping the company determine if the equipment is similar notice to cross-examine is insufficient to allow the
defective, as is the case here) (Lewis v. Baker) testimony to be used against the defendant at trial.
o A report generated by a business does not automatically qualify it o The “similar motive” requirement must be strictly enforced in a
as a business record. The report must satisfy the requirements grand-jury-testimony scenario. Thus, unless D’s could establish
under 803(6) (Abascal v. Fleckenstein) that the prosecution had a motive when it cross-examined D’s in
o Sources of Information: Not only does the person preparing the front of the grand jury substantially similar to the motive it would
report have to actually work for the business, but the content of the have were it cross-examining them now at trial, the grand jury
report must be related to the person who is preparing the report’s testimony wouldn’t come in (U.S. v. Salerno)
job. The report must be made under a “business duty.”  Generally, the defense will have a hard time persuading the
 To qualify as a business record and fit within 803(6), an court that the government had a similar motive at the grand
individual may not be an “outsider” of the business (Wilson) jury as at the ultimate trial (which is good for D)
 FRE 803(7): Absence of a Record of Regularly Conducted Activity  FRE 804(b)(2): Dying Declarations
o Some evidence that a matter is not included in a record may ≠ o In a prosecution for homicide or in a civil case, a statement that the
hearsay. See FRE 803(7) declarant made, while believing his death to be imminent, about its
o One may use business records to show the non-occurrence of an cause or circumstances, may be admissible.
event (U.S. v. Gentry) o Requirements: declarant must have made the statement while
 FRE 803(8): Public Records; FRE 803(9): Public Records of Vital believing his death to be imminent; must be a civil or homicide
Statistics; FRE 803(1): Absence of a Public Record. trial; declarant must be one that declarant, while believing his
o Under FRE 803(8), opinions/conclusions are not automatically death to be imminent, made about its cause of circumstances
excluded. We should construe the exception broadly. So long as o Dying declarations will only be admissible if it appears to come
the investigative report is based on factual statements, the from declarant’s first-hand knowledge
conclusions or opinions stated in the report are admissible (Rainey) o Where a statement is not about the cause or circumstances of
 Hearsay exception authorized “factual findings.” Just focus death, court may exclude it for subject matter reasons (Sacasas)
on trustworthiness inquiry–the opinion must be based on the o For a statement to be considered a dying declaration, the
facts found. Court can exclude the opinion, but just because declaration must have been spoken w/o hope of recovery, and “in
something is an opinion does not automatically exclude the the shadow of impending death.” (Shepard)
evidence. we need a further inquiry.  Must be spoken w/ the consciousness of a swift and certain
 HOWEVER, courts will not generally allow that doom
portion of a report to be admitted if it includes a legal  “Fear or belief that illness will end in death will not avail of
conclusion itself to make a dying declaration. There must be a “settled
o Analyst statements (like police reports) are not protected under hopeless expectation” that death is near at hand, and what is
FRE 803(8). Further, when the government offers an affidavit, but said must have been spoken in the hush of the impending
the analyst/witness of the affidavit is unavailable to testify to the presence.”
effect of the record, this is a confrontation clause violation o Dying declarations are exceptions are not in violation of the
(Melendez-Diaz) Confrontation Clause (State v. Lewis)
 o How would one establish the foundation for the dying declaration CHARACTER EVIDENCE [FRE 404(a)]
exception? Look at declarants statements; statements made by  Evidence of a person’s character trait or predisposition is generally
medical personnel to declarant about her condition; actual nature inadmissible to show that she acted according to her character on a
of injuries/illness; actual time btwn statement and declarant’s death particular occasion.
 FRE 804(b)(3): Statements Against Interest. o Such evidence is called propensity evidence, and is generally
o Statement that an unavailable declarant makes that she knows the prohibited from criminal and civil cases.
statement is contrary to her own proprietary, pecuniary, or legal o Character evidence is permissible when the evidence is NOT
interests (regarding her) [or invalidates a claim against someone offered to prove that a person acted in accordance with the
else]; character (or “in conformity therewithin” in language of prior
o Hearsay statements are admissible under FRE 804(b)(3) when versions of 404(a) and (b)).
declarant subjects himself to civil or criminal liability, and the  Most character evidence is inadmissible, but for 5 exceptions:
statement is against his interest. Declarant does not need to be dead o 1. Character of the accused in a criminal trial–D offering evidence
to be “unavailable.” (U.S. v. Duran Samaniego) of D’s pertinent trait in criminal trail, and if D “opens this door,”
o When determining whether a statement is a “statement against the government may offer evidence to rebut it. Government cannot
interest,” go clause-by-clause into the statement that is against self- just “open that door” first (FRE 404(a)(2)(A))
interest. Just because part of the statement qualifies under the o 2. Character of the victim in a criminal case–D may offer evidence
exception does not mean that everything that is within the of the victim’s pertinent trait, and if the evidence is admitted, the
statement is admitted into evidence under the exception (U.S. v. government may rebut the D’s evidence to D’s pertinent trait as
Jackson) well (FRE 404(a)(2)(B))
 Court has recognized that statements from a plea allocution o 3. Impeachment of the witness for truthfulness, which is available
can be admitted under FRE 804(b)(3) [declaration against in a criminal and civil trial (FRE 608–witness’s credibility may be
interest], such statement must be self-inculpatory attacked…)
 Williamson v. United States: “FRE 804(b)(3) does not allow o 4. Impeachment of witness by evidence of witness’ criminal
admission of non-self-inculpatory statements, even if they are conviction, which is available in criminal & civil cases (FRE 609)
made within a broader narrative that is self-inculpatory o 5. Character of the accused for sexual misconduct in a case
statements.”
charging a sex crime (FRE 413, 414)
 In Williamson, the Court endorsed a narrow view of  Good acts: you CANNOT ask about specific instances of good acts,
what constitutes a “statement against interest” under unless you are under FRE 405(b), where the character is “in issue” or the
Rule 804(b)(3). Instead of looking at the Declarant’s evidence is not being offered to prove actions in conformity therein
narrative as a whole, the Court dissected the  Under 404(a), D may only offer witness’ to talk about opinion or
Declarant’s remarks statement by statement, admitting reputation. The witness cannot speak to specific instance (unless the
only the inculpatory ones and not the neutral or specific acts are when the character is at issue).
exculpatory statements.  Character is NOT an issue in a criminal prosecution unless D chooses to
 In criminal cases, when declarations against interest are make it one (People v. Zackowitz)
testimonial statements made while in police custody, it  Character evidence is admissible when the evidence is not offered to
is questionable whether any such declarations survive prove that the person acted in accordance with the character, but the
the Court’s Confrontation Clause analysis. evidence is relevant for some other purpose (Cleghorn v. NY)
 FRE 804(b)(6): Statements Offered Against a Party That  Evidence may be admissible when such evidence is offered to shed light
Wrongfully Caused the Declarant’s Unavailability. on the fitness of the party in proceedings where character is “at issue”
o Aimed at preventing the use of a hearsay rule by a party who and the FoF must take into account the parties’ character (Berryhill)
purposely and wrongfully causes a declarant’s unavailability  Evidence of reputation or past misdeeds is admissible in establishing the
o Party A cannot object on hearsay grounds when the court admits truth when damage to the reputation is part of the claim (Larson)
declarant’s prior statements and Party A’s deliberate Methods of Proving Character [FRE 405]
wrongdoing/acquiescence procured the unavailability of the
 When we are w/in one of FRE 404 exceptions, we are limited in how we
declarant as a witness
can prove character
o You cannot use the FRE as a shield to prevent statements
o FRE 405(a): when character is put AT issue, how you can offer
being used against you when you are the one that is responsible
evidence is more limited. Someone will take the stand and say, “I
for the unavailability
have known D for 10+ years and in my opinion, this is an honest
o To offer evidence under FRE 804(b)(6), the profferor must show
person.”
that the opposing party engaged in conduct designed and o 405(b): broader way of proving character through specific
specifically was motivated by or intended to prevent the declarant
instances of conduct. This falls outside of FRE 404 b/c not using
from testifying (Giles)
character as circumstantial proof of conduct on a particular
 No C/C protections under this exception!
occasion
 FRE 807: Residual Exception
 Cannot use FRE 405 to prove instances of good conduct or acts (Setien)
o The residual/“catchall” exception to the FRE allows the
 When D elects to initiate a character inquiry, a witness is not allowed to
introduction of certain out-of-court statements that seem reliable base his testimony on anything besides hearsay (opinion/reputation
and highly probative but are NOT covered by other exceptions evidence). Witness is allowed to be examined by opp counsel
o This exception is a LAST resort (Michelson)
o Evidence is admissible under FRE 807 when the evidence is (a) o Witness may only testify as to what they heard in the community,
material; (b) more probative on the point for which it is offered although it may be said by persons less qualified to judge than
than any other evidence which the proponent can procure through himself. Law permits evidence to show D’s daily life in his
reasonable efforts; and (c) its admission best serves the interests of neighborhood, and general repute.
justice. (United States v. Laster) o Government can either:
 Hearsay + Due Process:  Call its own extrinsic, contradictory witnesses limited in the
o The constitution has two constraints on hearsay law–(a) the same way as D’s character witnesses, or
Confrontation Clause and (b) the Due Process Clause.  Cross-examine the D’s character witnesses w/ either (a)
o Due Process requires the admission of some evidence offered by a relevant specific inquiries of D’s conduct; or (b) inquiry
criminal defendant even if the hearsay rule would prohibit the about the persons reputation
statements. Due Process is an argument of last resort, and is a  Government can basically ask whatever about D’s character on cross-
narrow exception (Chambers v. Mississippi) examination once D “opens the door.” (Roland)
 In Mississippi, statements against interests are limited to  When inquiring abt specific instances of conduct, the pros must have a
pecuniary interests. good faith belief in the propriety of its foundation (Krapp)
o To fall under the Chambers exception, the outcome must be o Before trying to impeach a character witness with a “did you
egregious–a correction combined with an application of the know” question, TJ should have the opportunity to rule on the
evidence rules in the jurisdiction that strikes the court as ill- proprietary of the questions.
founded (Fortini v. Murphy)
 Evidence of good conduct is not admissible to negate criminal intent. o Habit: describes one’s regular response to a repeated specific
FRE 405(b) has a congruence to it–just as the Prosecution cannot offer situation. Person’s regular practice of meeting a particular kind of
specific instances of good conduct, neither can the defense offer specific situation w/ a specific type of conduct. The doing of habitual acts
instances to prove good character (Setien) may become semi-automatic.
o Evidence of specific instances of good conduct/acts are  Not habit:
inadmissible to negate criminal intent under FRE 404(b) or 405(b).  Intemperate “habits” when offered as proof of
 FRE 405 limits the form of character evidence. Character evidence may drunkenness in accident cases
be introduced in the form of opinion or reputation testimony. Specific  Other assaults inadmissible when offered to prove the
instances of the defendant’s character, may only be introduced if that instant one in a civil assault action
character is “an essential element of a charge, claim, or defense.” (Ford)  Religious observance habits
o Law-abidingness ≠ essential element of a wire fraud charge  Psychological theory: act is almost non-volitional or semi-automatic
Other Uses of Specific Conduct [FRE 404(b)]  Probability theory: act is volitional, but represents a regular response to
 So long as the probative value of the evidence outweighs its tendency to specific situations
cause undue prejudice, confusion, etc. (in view of the availability of  When admitting evidence under FRE 406, the cumulative effect of
other means of proof and like facts inappropriate for making decisions of actions may be sufficient to establish habit (Loughan)
this kind under 403), then the character evidence may be admitted as Sexual Assault & Child Molestation (FRE 412-415)
evidence of a crime, wrongdoing, or act for another purpose (but not to  Two categories of cases/rules:
show that D acted in accordance with the trait) o Character of the victim (FRE 412)
 In a criminal case, the government is required to give D advanced notice  Rape shield law
(before the start of trial) of its intention to use other-crimes evidence [to o Other conduct by D (FRE 412-415)
avoid surprising D] (FRE 404(b)(2)(A), (B))  FRE 413-415 trumps 404(b) with respect to prior acts by D in such
 D may use FRE 404(b)(2) to show that another person, and not D, cases. Other acts can now come in for any purpose, including to prove
committed the crime propensity.
 “Other-crimes evidence” may be used…  FRE 412 trumps FRE 404(a)(2) and FRE 404(b)(2) in sexual assault
o To place the crime in context by describing other events or conduct cases. It makes the victim’s prior sexual conduct and character for
that were a part of the same transaction promiscuity or chastity off limits in a sexual assault case, subject to very
o To prove intent (Beechum) few limitations
o To prove motive (Boyd)  Character of the Victim: (FRE 412)
 Under FRE 404(b), the proper question is whether the o D has constitutional rights enumerated in FRE 412(b)(1)(C) that
evidence has the potential to cause undue prejudice. If it allows him to cross-examine witnesses. Thus, D must have an
does, does the danger of undue prejudice substantially opportunity to confront his accusers (Olden v. Kentucky)
outweigh the probative value?  Relationship btwn victim and D’s brother was a critical
o To prove the existence of a larger plan, scheme, or conspiracy element of the defense, and should be allowed
o To show preparation for the crime charged (Lewis) o 403 applies to FRE 413 and 414. However, courts must apply FRE
 Evidence of D’s participation in another crime may be 403’s balancing test to evidence admitted pursuant to FRE 413 and
admissible under FRE 404(b) to establish D’s plan + intent 414, such that these rules may have their intended effect
(preparation). (LeCompte)
o To show the identity of the present perpetrator (Dossey)  Character of the Defendant: (FRE 413)
o To prove opportunity (DeJohn) o “No special rule analogous to 413/415 is necessary to make the
 Evidence of prior acts are admissible to prove opportunity evidence of earlier crime admissible, because 404(b) expressly
o Modus operandi (Dossey, Crocker) allows evidence of prior wrongful acts to establish motive.”
 If prior acts are similar to the one D is on trial for, evidence (Cunningham)
about the prior crime may be admissible to show modus
operandi. OTHER FORBIDDEN INFERENCES [FRE 407-411]
 Evidence of D’s participation in prior crimes is admissible  FRE 407-411 function similar to character evidence rules–they cannot
under FRE 404(b) because it is proof of modus operandi. be offered for their forbidden inference purpose, but can be offered for
 Evidence of modus operandi should be unique. The some other purpose
government must establish not only that the extrinsic Subsequent Remedial Measures (FRE 407)
act bears some peculiar or striking similarity to the  After an accident, for example, the owner of the property involved will
charged crimes, but also that it is D’s trademark, so often take remedial measures. Thus, courts will generally not allow
unusual and distinctive as to be like a signature. evidence of remedial measures (like subsequent repairs) when such
 Use of evidence of other crimes to establish a propensity to commit the evidence is offered to show the repairer’s capability.
type of crime D is charged with is impermissible under 404(b) (Wright)  Examples of remedial measures: repairs; installation of safety decides;
 So long as you can articulate a non-propensity purpose for offering lowering of speed limit; etc.
evidence, you may be able to offer significant evidence of other crimes,  Permissible purposes:
wrongs, or bad acts by the person (ex: can use to show motive, intent, or o Feasibility–only permissible if raised by D. If D claims that he
preparation). was not negligent/culpable b/c all feasible precautions were taken,
 Possession convictions are inadmissible to prove intent or knowledge in or claims that there was no safer way to handle the situation,
distribution cases in the 3rd, 5th, 6th, 7th, 8th, 9th, and 11th Circuits (Davis) evidence that D implemented a safer way following the accident is
 Always do a 403 balancing analysis–court must weigh the risk of uniformly allowed.
unfair prejudice vs. the probative value of the evidence o Ownership/Control–subsequent measures evidence is also
Requisite Proof admissible on the issue of ownership or control of the property that
 FRE interpreted that government should NOT be required to prove that caused the incident
uncharged misconduct actually occurred  Evidence may be admissible under FRE 407 to show another
 An offense offered for a permissible purpose must be believable by a purpose, such as control, when the other purpose is material
rational jury, and FRE 104(b) must be satisfied (Huddleston) and in dispute at trial, and the evidence is not offered to show
o The court must examine the other evidence and submit if a rational evidence (Clausen v. Storage Tank)
jury could find the conditional fact true by a preponderance of the  Here, the subsequent remedial measure was not offered
evidence. to show negligence, but rather was offered for another
o Court can (and MUST) consider all evidence considered to the jury purpose (control) which was material and in dispute at
Character + Habit [FRE 406] trial. This other purpose is permissible under FRE 407
 Evidence of habit is admissible to prove D’s conduct is in conformity w/ because it is probative of who had control of that area.
his habit on a particular occasion.  Limiting Instruction: “Evidence of the subsequent
o Character: generalized description of one’s disposition, or of one’s installation of stairs in 1992 is evidence relevant only
disposition in respect to a general trait, such as honesty, on the issue of control. I tis not to be considered
temperance, or peacefulness. evidence of liability or fault.”
  Even where the evidence is offered to show another purpose, ONLY being offered to show bias, and not proof of insurance.
such evidence is inadmissible when the “other purpose” is Then, it is not excluded under FRE 411 (Charter v. Chileboard)
not disputed (In re Asbestos Litigation)  Evidence of insurance is inadmissible to prove negligence,
o Impeachment and can only be admitted if it is relevant to an issue in the
 FRE 407 does not apply to actions taken by third-party or non-party case or to prove bias/prejudice of the witness.
remedial actions (Diehl v. Blaw-Knox)  The advisory committee’s note to FRE 411 indicates that
Settlement Efforts “knowledge of the presence or absence of liability insurance
 Civil Settlements: (FRE 408) would induce juries to decide cases on improper grounds.”
o 408 is designed to encourage settlements by fostering free and full
discussion of the issues TRIAL MECHANICS
o Excludes settlement offers and acceptances of settlement offers; Order of Proof (FRE 611)
also excludes collateral statements and admissions made in  Most states, and the FRE, limit the cross-examination to matters
connection w/ settlement offers testified to on direct examination. However, TJ’s have broad discretion
o If it appears that negotiations are taking place, then the to depart from that rule (Stone v. Peacock)
negotiations fit under FRE 408’s exception. Negotiations and o Reordering of witnesses is w/in judge’s discretion under FRE
settlements can happen anywhere, not just a lawyer’s conference 611(a) to exercise control, such as to: (a) make procedures
room (Davis) effective for determining truth; (b) avoid wasting time; and (c)
 Because the evidence was used to prove consciousness of protect witnesses from embarrassment and harassment.
guilt, it was inadmissible; consciousness of guilt proves  Nature of cross-examination: after the party calling a witness has
“liability” under FRE 408(a). finished the direct examination, that party’s adversary has the
o If there is a document used in the course of a settlement discussion, opportunity to cross-examine the witness.
it may be admissible or inadmissible. It is inadmissible if the  In some situations, a criminal defendant’s lack of opportunity to cross-
document is created for the purpose of negotiations. However, a examine a witness against him may be found to be in violation of the
party cannot hide something from evidence by including it in a defendant’s constitutional Confrontation Clause rights.
negotiation (Ramada Development v. Raunch)  Leading questions are allowed per FRE 611(c) (see below)
 Doc wouldn’t have existed if the negotiations weren’t Rule of Completeness + Order of Proof (FRE 106)
happening. But because it was created for this purpose, it is  FRE 106 gives you the opportunity to interrupt an adversary’s
covered under FRE 407. presentation to make sure the contextualizing evidence is brought out at
o When evidence can be used to establish an independent violation that time.
unrelated to the underlying claim, such evidence is admissible  If you think the jury needs to hear more of the surrounding context, FRE
under the “another purpose” exception of FRE 408 (Carney) 106 allows you to bring it out at that time.
o Negotiations for non-compromise purposes during compromises  FRE 611(c) does not give a party the right to bring an adverse witness
are admissible under FRE 408. If something happens during the on direct-examination/during case-in-chief. A court has the discretion to
negotiation that gives rise to a new claim or defense—or gives rise make reasonable limits (Elgabri v. Lekas)
to a new affirmative defense—then you can use that evidence to o FRE 611(c), which allows for leading questions of adverse parties
prove that new claim or defense. But you cannot use it to prove the on direct examination, requires the court to allow direct
initial claim (PRL USA Holdings) examination of D’s in his case-in-chief.
 F.R.E. 408 exceptions intends to exempt from absolute o P does not have an “unfettered right” to call D during his case-in-
prohibition of the Rule evidence focused on issues different chief during FRE 611.
from the elements of the primary claim in dispute. Estoppel  FRE 611(a) places the mode and order of questioning in the
by acquiescence is an affirmative defense, which raises issues TC’s discretion. CoA cannot disturb decisions regarding
different from the elements of a claim of infringement. courtroom management unless decisions amount to an abuse
 “To construe Rule 408 as barring such evidence would of discretion that prejudice appellant’s case.
substantially limit the opportunity of defendants to rely  FRE 611(c) does not give P the unfettered right to call
on the defense of estoppel, even when well adverse parties for direct exam. It only allows a P who calls
substantiated…” an adverse party on direct to use leading questions in his
 403: if we think jury won’t be able to follow limiting examination b/c the witness is presumed hostile.
instruction—this is something we balance  It is within a judge’s discretion under FRE 611(a)(2) to deny surrebuttal
o Limited instruction: you should only consider this of a non-key witness on cumulative facts (U.S. v. Wilford)
evidence with respect to affirmative defense, not o The response to the rebuttal of the opposing party in a proceeding
as to whether or not PRL would have prevailed on testimony of defense surrebuttal witnesses
its infringement claim absent the collateral o No abuse of discretion by TJ in his refusal to allow the D’s
estoppel issue surrebuttal. It was not unfairly prejudicial for the TC to refuse to
 There does not have to be a suit pending for the rule to allow D’s to present evidence in surrebuttal. Even though party is
take effect, it can be effort to avoid suit normally entitled to impeach the credibility of an opponent’s key
 Criminal Settlements: (FRE 410) witness, here, the investigator was not a key witness, and his
o 410 applies to both criminal and civil cases testimony regarding similarities was cumulative.
o Generally, evidence of a plea discussion/statement made during a  TC’s have the discretion to grant broader scopes of cross-examination.
plea discussion is not admissible in a civil or criminal trial, BUT Part of a trial judge’s large discretion is to permit cross-examination, in
there is an exception–it can be waived by the defendant, which certain circumstances, to go beyond the scope of direct, as instructed by
permits the government to use the statement to impeach the D FRE 611(b) (U.S. v. Carter)
(Mezzanotto) o FRE 611(b) limits cross examination, but also grants authority for
 Court Waiver Rule: absent some affirmative indication that the cross to cover any new issues
the agreement was entered into unknowingly or involuntarily, o Although FRE 611(b) limits cross-examination to the subject
an agreement to waive exclusionary provisions of F.R.E. 410 matter of the direct, it grants the TC discretion to permit inquiry
rules is valid and enforceable into additional matters as if on direct.
 Waiver probably extends to liability insurance (FRE Mode of Questioning & Leading Questions
411), especially if a party has contracted it away.  Leading questions suggest the desired answer. Traditionally, leading
 Medical Payments & Liability Insurance: (FRE 409, 411) questions are allowed on cross, but generally they are forbidden on
o Unlike the compromise and guilty plea contexts, in the medical- direct
payment context, only the fact of the payment is excluded. Other  A party may use leading questions on direct or re-direct examination
admissions of fact (like, “I’m paying your medical expenses b/c if I of a child or adult w/ communications problems, pursuant to FRE
hadn’t been drunk that night I wouldn’t have been driving on the 611(c)’s exception (Nabors)
shoulder and hit you”) are NOT excluded. o As a general matter, leading questions are not ordinarily permitted
o The same insurance policy between parties may be offered into on direct examination except as may be necessary to develop . . .
evidence to show possible biases of the witness, if the evidence is testimony” pursuant to Rule 611(c)
 o There is a long-standing exception to Rule 611(c) called “the child o Conduct most probative of untruthfulness–
witness or the adult with communication problems”  Lies; perjury; fraud; forgery; using false ID; cheating; theft
o Trial court’s ruling deserves deference because they were in the my deception
best position to evaluate the emotional condition of a child witness.  Generally acts of violence are not probative of
 Under FRE 611, leading questions are generally undesirable on direct truthfulness or untruthfulness
examination but permissible on cross-examination. FRE 611 also o Once the witness’ character for truthfulness has been attacked…
provides for the exception to leading questions when a party calls an  The party that called W can rehabilitate W by calling a
adverse witness. However, the use of leading questions must be left to “good” character witness (W3) to testify about W’s truthful
the discretion of the trial judge. TC judge’s decision will not be reversed character;
absent a clear showing of prejudice to the complaining party (Ellis v.  But, then that witness (W3) may be asked questions on cross
City of Chicago) about prior bad acts bearing on W1’s untruthfulness AND
Sequestering Witnesses (FRE 615) bearing on W3’s truthfulness–to probe W3’s basis for having
 Sequestering a witness is the longstanding tradition of excluding an opinion and standards, and must explain to witness’ b/c
witnesses from the courtroom until they testify W3’s character for truthfulness must be fair game.
 Under FRE 615(a), you cannot exclude a natural people (non-natural is a o Per FRE 608, one can attack a witness’ character for truthfulness
corporation or government entity) by:
 Under FRE 615(b) you cannot exclude a person where the government is  Calling a character witness to give opinion/reputation
litigation (ex: a case agent can stay beyond the lawyer; CEO; etc.) testimony; and/or
o FRE 615(b) cannot be used to exclude a government investigatory  Inquiring on cross of the witness of specific instances
agent (U.S. v. Machor) probative of truthfulness;
 Under FRE 615(c) applies to expert witnesses, investigators, case  Extrinsic evidence of specific instances only if they led to a
agents, and paralegals. conviction
Questioning by the Judge (FRE 614) o Once D chooses to testify, he gives the right to testify his
 614 authorized TJ’s to call their own witnesses and to interrogate credibility, and since D places his credibility at issue, the
witnesses called by the parties, but the judges risk reversal when they Government may offer evidence bearing on D’s credibility as a
ask questions that seem to reveal their own assessment of the evidence. witness (Lollar)
 Appearance of judicial questioning may be so prejudicial to a witness as  If a criminal D takes the stand, they put their credibility in
to be an abuse of judicial discretion granted under Rule 614(b). Where plan–this is different from character
the Judge’s questioning may give the jury the impression that the judge  W can be directly asked to state their opinion of the
doubted the defendant’s credibility, the prejudice to the defendant may principal witness’ character for truthfulness aspect and
be so great as to be an abuse of discretion (U.S. v. Tilghman) they may answer for example, “I think X is a liar.”
o FRE 614(b) “expressly permits judges to question witnesses. o Conduct is probative of truthfulness. When questioning a witness
Judges may do so repeatedly and aggressively in order to clear up about his or her truthfulness, the conduct/questions must be
confusion and manage trials or where ‘testimony is inarticulately probative of whether the witness is truthful or not (U.S. v. Rosa)
or reluctantly given.’” (Tilgham quoting Norris)  Prior conduct is available to impeach the witness on if that
o Juries, not judges, decide whether witnesses are telling the truth, conduct is probative of the issue of credibility
and because judges have enormous influence over juries. Judge’s  Judge permitted D to ask about…
questions may have given jury the impression that the judge  Fraudulent Insurance Claims: probative of truthfulness
doubted the witnesses’ credibility. here because someone who is willing to engage in that
kind of fraudulent conduct might not be truthful.
Questioning by Jurors Inferring through propensity!
 No FRE rule about jury questioning. This topic has merely been
 Oath of loyalty to a crime family: bears on untruthful
developed by case law.
character b/c witness is probably not faithful to one
 The questions are FIRST presented to an attorney
oath. When you take criminal oath, you are taking an
 Minority view: questioning by jurors is permitted so long as it is done
oath to commit crimes and might be inclined to conceal
in a manner that insures the fairness of the proceedings, the primacy of
some facts.
the court’s stewardship, and the rights of the accused (Hernandez)
 Judge prohibited government to ask about bribes: judge said
this was not probative of truthfulness. Judge thought defense
IMPEACHMENT & REHABILITATION already had enough to work w/ when cross the cooperating
Impeachment (FRE 608) witness.
 Impeachment is the technique to show flaws in the witness, rather than o Evidence of the witness’ past conduct of willing to lie on the stand
flaws in the witness’ testimony in a previous trial is a specific instance of conduct admissible
 Designed to destroy the witness’ credibility. To impeach a witness under FRE 608(b), so long as it is admitted during cross-
means to suggest that the witness is not credible to the FoF examination of said witness, rather than through extrinsic evidence
o Impeachment goes to the weight that the FoF gives the witness’ (U.S. v. White)
testimony. When we impeach, we are trying to diminish the weight o Under FRE 608(b), specific instances of the conduct of a witness,
that the FoF gives to that testimony. for the purpose of attacking or supporting the witness’ credibility
 Under FRE 607, any party, including the party that called the witness may not be proved by extrinsic evidence (U.S. v. Aponte)
may attack the witness’ credibility  Prior Criminal Convictions:
 CANNOT impeach or rehabilitate based on other witness’s evidence of o A witness may be impeached w/ evidence that it is in her nature to
one’s religious beliefs or opinions (FRE 610) be deceitful, but not by extrinsic evidence of specific acts of
 Five Modes of Impeachment: (not an exhaustive list) dishonesty (U.S. v. White)
o Dishonesty: see FRE 404(a)(3); FRE 608 o Under FRE 608, under FRE 609, you can offer evidence of a
o Inconsistent Statements conviction using extrinsic evidence:
o Bias  If you know of a criminal conviction and asked the witness
o Incapacity about it because you believe the conviction is probative of
o Specific Contradictions the witness’s untruthfulness, but the witness denies it, you
 Character for Untruthfulness/Dishonesty: are not stuck with the witness’ answer.
o By taking the stand and swearing to tell the truth, you have as a  609(a)(2): regardless of whether the conviction was a felony,
witness essentially put your character for truthfulness before the misdemeanor, or a violation, whether it was a guilty plea or a
FoF trial, the court looks to the elements of the crime, not the
o If you have a witness (W1), and want to impeach him for underlying facts. If the elements of the conviction require a
dishonesty, can call a character witness (W2) to give dishonest act, is a crimen falsi, and happened within 10 years.
opinion/reputation about that W1’s untruthful character. Can also  609(a)(1): if in the convicting jurisdiction the crime is
question W1 on cross-exam about specific acts W1 committed that punishable by death or imprisonment by more than one year
suggest untruth character (felonies), (a)(1) evidence should be admitted in a civil case
 or a criminal case in which the witness which we are talking o Under FRE 801(d)(1)(A) and FRE 613, inconsistent statements are
about is not the D. See FRE 403. not limited to opposed answers, but may be found in evasive
o Rehabilitation: once W1’s character for truthfulness has been answers, inability to recall, silence, or changes of position.
attacked, W1 can be rehabilitated by calling W2 to give a favorable Statements here are non-hearsay under FRE 801(d)(1)(A), and
opinion or reputation evidence about W1. permissible for impeachment purposes under FRE 613 (Dennis)
 But then W2 may be asked on cross-examination about  TJ has discretion in determining whether testimony is
specific instances of dishonesty committed by W1 to probe inconsistent w/ prior statements
W2’s familiarity w/ W1. W2 is also asked about acts of o When a witness who testifies (a) under oath; (b) is subject to cross
dishonesty W2 has committed. If they led to a conviction, examination in a prior state court proceeding; and (c) explicitly
extrinsic evidence may be offered. refuses to answer the same questions at a subsequent trial, and the
o Crimes that fall under FRE 609(a)(2) [crimen falsi’s], or crimes refusal to answer is inconsistent with his prior testimony, the prior
with elements of dishonesty/untruthful conduct, are admissible testimony is admissible under FRE 801(d)(a)(A) and FRE 613
without judicial balancing of the FRE 403 balancing test (U.S. v. (Truman)
Wong)  If a witness has testified before a grand jury and
 As a matter of textual interpretation under FRE 609(a)(2), forgets/denies them at trial, that testimony is w/in FRE
crimen falsi crimes are admissible w.o application of a FRE 801(d)(1)(A)’s exception to hearsay
403 balancing test  Impeachment for Bias & Incapacity:
 A judge has no authority to prohibit the government’s effort o FRE does not explicitly require a foundation before extrinsic
to impeach the credibility of a witness by questions evidence of bias may be introduced, but it is likely that by FRE
concerning a prior crimen falsi conviction. FRE 403 was not 611 giving a judge control over the mode and order of
designed to override more specific rules, but rather to just interrogating witnesses and presenting evidence so as to avoid
provide guidance when a specific rule does not exist. needless consumption of time, the federal judge also has discretion
o Petty shoplifting does not by itself qualify as a crime of dishonesty to require that a foundation be laid before the extrinsic evidence is
under 609. FRE 609 is limited to crimes involving an element of introduced.
misrepresentation and of an indication of a propensity to lie o Impeachment for bias consists of proving that a witness (or
(Amaechi) hearsay declarant) had a reason to lie or to slant his/her testimony.
 FRE 609(a)(2) is limited to crimes involving some element  When you are impeaching by showing bias, there are no
of misrepresentation or other indication of a propensity to lie limits on extrinsic evidence, except for FRE 403’s analysis.
and excluding those crimes, which do not carry w/ then the Membership in a prison gang is probative of truthfulness
idea of falsification (Abel)
 Petty shoplifting ≠ crimen falsi o Impeachment for incapacity consists of demonstrating that the
o Identical prior crimes are inadmissible under FRE 609(a) because witness’ memory or perception is unreliable.
there is a likelihood of prejudice if admitted (Sanders)  When an impeacher wants to impeach on grounds of
 Under FRE 609(a), evidence of a prior assault has minimal incapacity, impeacher must connect the witness’s impairment
impeachment value, and a high likelihood of prejudice to faulty perception and memory of the events (Sasso)
 Under FRE 404(b), all the evidence of the prior conviction of  For a witness to be impeached on the grounds of incapacity,
assault could show that D’s propensity to commit assault and the witness must be incapacitated at the specific moment–and
general propensity to commit violent crimes. For such the impeacher must be able to connect the alleged thing
evidence to be admissible against D in a criminal proceeding, (impairment/anti-depressant, drug use, etc.) with the
several benchmarks must be met. Does not pass FRE 403 witness’s cognitive abilities (Henderson v. Detella)
 Where the prior conviction is the same or a similar offense as  Specific Contradiction:
the defendant is now being tried for, the Court has recognized o Like bias and incapacity, no specific FRE governs specific
that prejudice exists. Here, there is a high likelihood of contradiction (just 401 and 403)
prejudice, making evidence inadmissible under FRE o Four main ways in which a witness may be impeached by
609(a)91), because it would be an admission of very similar contradiction: (a) through cross-examination; (b) use of
prior admission previously-introduced testimony; (c) witness’s own prior
o Minority Approach: where convictions are similar and relevant to inconsistent statements; and (d) new evidence contradicting the
the defense (ex: as an alibi), then such evidence is admissible and witness’s story.
is not prejudicial under FRE 403 (U.S. v. Hernandez) o But there is a judge-made rule regarding the use of extrinsic
 Convictions were for crimes that reflected adversely on D’s evidence to prove specific contradiction–this is the collateral
honesty and integrity. The convictions were relevant to the evidence rule
question of D’s credibility, which in light of his alibi defense, o You can only offer extrinsic evidence to prove a fact if you could
was a key issue. have offered evidence to prove that fact for any purpose OTHER
 Impeachment for Prior Inconsistent Statements: FRE 613 than contradiction.
o Under FRE 613, extrinsic evidence of a witness’ prior inconsistent o The collateral evidence rule does not preclude testimony probative
statement is admissible only if the witness is given a chance to of truthfulness. A party may only offer extrinsic evidence to prove
explain or deny it, and the opposing party is given a chance to ask that the witness said something demonstratively false, if you could
the witness about it use that evidence to prove that fact for any purpose other than
o Under FRE 613(a), must disclose contents to an adversary on contradiction (Simmons v. Pinkerton)
request–use this when examining past statements, w/o bringing in  Test: whether the fact in question could be proven for any
outside evidence under (b) purpose other than contradiction a witness. A fact is
o Unless prior statements were made under oath and meet the collateral only if it fails this test
requirements of FRE 801(d)(1)(A), the statements cannot be o Collateral evidence applies only to extrinsic evidence. Someone’s
admitted for the truth of what they assert under 613(a) and (b) own testimony is not a collateral issue. Specific contradictions
 Get a limiting instruction must be proven on cross even if collateral issues (U.S. v. Copelin)
o Identification (or non-identification) of a person in a courtroom is a Rehabilitation
statement under FRE 613 (U.S. v. Lebel)  Rehabilitation is the introduction of evidence that suggests a witness’
 Identification of a person in a courtroom is a statement. testimony is worthy of belief.
However, it is correct that the TJ misinterpreted the rule  No bolstering before impeachment – you can only rehabilitate after the
requiring that L be confronted w/ the “statement” witness has been impeached.
immediately. o Bolstering is a practice of offering evidence solely for the purpose
 It was impeachment testimony as to a collateral matter. A
of enhancing a witness’s credibility before the credibility is
collateral matter is evidence solely affecting the credibility of
attacked. Such evidence is inadmissible b/c it has the potential of
a witness. It precludes the cross examiner from calling other
extending the length of trials.
witnesses or producing documentary evidence to contradict
 5 Modes of Rehabilitation: honesty; consistency; disinterest; capacity;
the witness.
“specific corroboration”
 See chart on page 81
 Evidence of truthful character is ONLY admissible after the character of o Does the judge have to find that the witness was there or does the
a witness has been attacked for truthfulness (FRE 608). This is not jury?
“bolstering” when D attacks the bias of the government’s witness, if he  If jury, has to be found by a reasonable jury under FRE
was the one to first attack that character (U.S. v. Lindemann) 104(b). If you are fighting witness’ testimony, voir dire about
 Character for Truthfulness: basis for personal knowledge and see if they can lay the
o Character evidence in support of credibility is admissible under the foundation for them actually being there and having personal
rule ONLY after the witness’ character has been first attacked knowledge and then see if a reasonable jury would believe
o The use of prior inconsistent statements MAY = an attack on this.
untruthfulness. Rehabilitation through good character witnesses  A witness may not testify to a matter unless evidence is introduced
under FRE 608(a) is permissible upon (a) opinion of sufficient to support a finding that the witness has PK of the matter.
untruthfulness; (b) reputation of untruthfulness; or (c) when the Testimony should not be excluded for lack of personal knowledge unless
impeachment infers that the W is a liar, including inconsistent no reasonable juror could believe that the witness had the ability and
statements showing untruthfulness (Beard v. Mitchell) opportunity to perceive the event that he testifies about (U.S. v. Hickey)
o References to discrepancies in witness’s testimony on cross- o On cross, bring out witness capacity or long-term memory loss.
examination does not infer untrustworthiness, and therefore does And when witness first takes the stand, you can first argue he is
not fit within FRE 608(a) or otherwise, prescribing good character incompetent because he couldn't perceive events in question so
witness (U.S. v. Danehy) lacked personal knowledge but also argue he doesn't understand
 The pointing out of discrepancy in a witness’s testimony on the oath (this is a losing battle but you have to try it)
cross-examination does not fall under “or otherwise” under Oath and Affirmation (FRE 603)
FRE 608(b) because it does not call into question the  We want to make sure that the witness is taking this seriously, cares
reputation of the defendant for truthfulness about what he is testifying about, and is careful about what they testify.
o An attack that consists only of the Government’s counsel pointing  Witnesses can create their own oaths, as long as it “impresses a duty on
out inconsistencies in testimony and arguing that the accused’s the witness’ conscience” and is meaningful to the witness (U.S. v. Ward)
testimony is not credible DOES NOT constitute an attack on the  There is no hard and fast rule about when a child is old enough to testify
accused’s reputation for truthfulness w/in the meaning of 608 —federal statute provides for a hearing as to the child’s capacity to tell
(Drury) the truth. If witness has appreciation for what oath means, she should be
o Good character witnesses may not delve into specific instances; permitted to testify (U.S. v. Allen J.)
rather they are limited to (a) opinion of good character or (b)
reputation for good character (U.S. v. Murray) Competence & the Constitution
 Prior Consistent Statements:  A restriction of D’s right to testify cannot be arbitrary. A state bar on
o Sometimes we want to attack the credibility of a witness by post-hypnosis testimony may be okay if it is an applied rule, but it
showing that the witness has made prior statements that are cannot be a per se rule (Rock v. Arkansas)
consistent w/ the witness’ trial testimony. o States have the broad right to restrict hypnotically-refreshed
o If the attack is based upon the witness’ general character, evidence testimony by a non-criminal defendant witness. Even where the
of prior consistent statements is usually not permitted, because it testimony is by a criminal defendant, the states have some right to
does not meet the attack. Thus, if W is attacked by showing his guard against unreliable hypnotic evidence.
prior criminal convictions, prior bad acts, or his bad reputation for o Echoes of Chambers v. Mississippi–just as a State may not apply
veracity, the fact that he has made prior consistent statements will an arbitrary rule of competence to exclude a material defense
be treated as irrelevant. witnesses from taking the stand, it may not apply a rule of
o Under 801(d)(1)(B), parties may introduce declarant’s consistent evidence that permits a witness to take the stand, but arbitrarily
out-of-court statements to rebut a charge of recent fabrication or excludes material portions of his testimony
improper influence/motive, and such statements may come in for o Per se rule that hypnotically refreshed memory could not be
the truth, only when those statements were made before the admitted as testimony b/c it is unreliable.
charged recent fabrication or improper influence or motive (Tome o This category of evidence must be reviewed on a case-by-case
v. U.S.) basis, not based on a categorical rule. In many cases, courts apply a
 Statements are inadmissible because the prior consistent out- categorical rules––what is different here? You can have a case-by-
of-court statement has to predate the motive. case approach, can have some limitations; does not mean it has to
o FRE 801(d)(1)(B): come in. Just means that a per se rule may not be constitutional as
 If such statements came in to rehab a witness, it’s unlikely a applied to the facts.
jury would cabin the statements, so we let them in for truth,
too
Judges, Jurors, and Lawyers
 Notwithstanding the modern inclusive approach to competency, some
 If you are a party that called the witness, if you know they
people cannot testify:
previous said a consistent version—you need to try and make
o (a) a judge presiding over a case;
sure the prior consistent statement was pre-motive
 FRE 605
o (b) the lawyer in a case;
COMPETENCE  Advocate Witness Rule
Competence (FRE 601) o (c) the jurors in the case
 A witness is competent if he or she is allowed to testify  FRE 606 applies to inquiries in the verdict; FRE 606(b)
 Modern View: technically, everyone should be allowed to testify, and prohibits the use of any evidence of jury deliberations,
the jury should be the one judging the witness’ credibility for itself. subject only to express exceptions for extraneous information
Everyone is permitted to testify so long as they take a sufficient oath and outside influences (Warger v. Shauers)
and have requisite foundation (personal knowledge)  Juror testimony is precluded under 606(b) when a party
 Limitations on testifying still exist––you need personal knowledge (see is seeking a new trial on the basis of juror dishonesty
FRE 602) and must take an oath (see FRE 603). Additionally, where during voir dire. The rule did not raise issues of
there is a state evidence rule about competence, and we are in federal constitutionality b/c juror impartiality continued to be
court on diversity grounds, the state rule applies (see FRE 601) assured by either party’s ability to bring forward
 Court overrules the CL approach–anyone can give testimony (Rosen v. evidence of juror bias.
U.S.)  Unless it is absolutely necessary, such that the testimony is
 Every witness, even the “insane witness,” is presumed competent to important and no other witness would be able to supply it, a
testify under FRE 601, unless it can be shown that the witness does not lawyer should not testify as a witness on behalf of their
have personal knowledge about the matters of which he is to testify, clients (U.S. v. Ewing)
does not have the capacity to recall, or does not understand the duty of
testifying truthfully (U.S. v. Lightly)
OPINIONS, EXPERTS, AND SCIENTIFIC EVIDENCE
Personal Knowledge (FRE 602)
 Witness must testify from personal knowledge. w/o personal knowledge,
Lay Opinions (FRE 701)
the hearsay rule could easily be evaded.  Lay witnesses are witnesses who do not testify based on special
expertise
 Lay opinion testimony is admissible if it is (a) rationally based on the not offered for their truth, and fall outside the scope of the C/C
perception of the witness, and (b) helpful to the trier of fact in acquiring (Williams v. Illinois)
a clear understanding of the witness’ testimony or the determination of a Judicial Screening of Party-Approved Experts (FRE 706)
fact in the issue (U.S. v. Meling)  TJ’s can appoint their own experts, but this authorization is rarely used.
 To find a harmless error, the court must be able to say that it is highly  A party must demonstrate the necessity of having a court-appointed
probative and that the error did not contribute to the jury’s judgment expert (Leblanc v. PNS Stores)
(Government of the Virgin Islands v. Knight) o FRE 706 should be reserved for extraordinary circumstances.
 Ultimate Issues (FRE 704):  For scientific evidence to be admissible, the evidence must be shown to
o Some issues are more important than others, like “ultimate issues,” be (a) scientifically valid; and (b) must “fit” at least one issue in the case
in the sense that the trier’s decision on these issues necessarily [ex: be relevant to the task at hand]. TJ must scrutinize the expert
decides the outcome of the case. For example, in a prosecution for testimony offered by the parties to make sure that any and all scientific
speeding, the rate of speed of the vehicle is an “ultimate issue.” testimony is both relevant and reliable (Daubert)
o Under FRE 704(a), both lay witnesses and experts may give their o TJ must not determine if expert testimony is reliable and relevant–
opinions or inferences on ultimate issues (provided that they to constitute “scientific knowledge,” evidence must be
satisfy the other requirements of the other Rules) “scientifically valid,” must be “derived by the scientific method,”
o A lay witness’ opinion is not objectionable just b/c it embraces an must be “good science,” and must “rest on a reliable foundation”
ultimate issue to be decided by the trier of fact (Robinson v. Bump) (reliability prong)
 Even if this were considered an opinion on an ultimate issue  Also must be relevant (sufficiently tied to the facts of the
(not saying one party was negligent vs one party was not), case that it will aid the jury in resolving a factual dispute)
FRE 704 says this is not a basis for rejecting/striking an o Post-Dauber, TJ’s is much harder–judge must attempt to make her
opinion (FRE 704(a)). own assessment to the reliability of the test or technique; “general
 The only objection FRE 704 reflects is that in a criminal acceptance” is not merely one factor to be considered
case, an expert witness cannot state an opinion about whether o Look for Daubert factors on pg. 94
D had/did not have a mental state to constitute the charges of  A court may conclude there is too great an analytical gap between the
the crime/defense b/c this is for the juror/judge. data and the expert opinion proffered (General Electric v. Joiner)
o If testimony is based on personal experience, even if that personal o This judgment (by the DC) is reviewed by an abuse of discretion
experience is specialized, this is still considered lay witness standard. TC must not only assess the reliability of the
testimony (U.S. v. Ayala-Pizarro) methodology, but also the reliability of the expert’s conclusion
 During the agent’s testimony and inferences, he never based on the methodology and underlying data
specified personal experiences that led him to obtain his info,  Daubert applies to more than just scientific expertise, and rather applies
but instead repeatedly relied on the general knowledge of the to all expert testimony. Experts who base their testimony on
FBI and the investigation as a whole specialized experience, rather than formal scientific training, must also
Expert Opinions (FRE 702; 703) use a demonstrably valid methodology (Kumho Tire v. Carmichael)
 Expert witnesses are allowed to offer opinions based on information o The judge must still assess the expert’s reliability, including how
they have received secondhand, so long as the information is of a kind much process is necessary.
typically relied upon by experts in the field, and as long as the witness is
is truly drawing on some special skill or knowledge, as opposed to PRIVILEGES (FRE 501)
making judgments that the jury could just as easily make themselves  Privileges are the right of an individual not to disclose information about
 Most of the time, the way an expert witness helps the trier of fact is by a particular event
furnishing an opinion about inferences that should be drawn from a set  They govern not just whether certain evidence can be introduced at trial,
of complex facts that the trier would not otherwise be capable of but whether the disclosure of certain evidence can be compelled
interpreting easily and correctly.  Privileges are not codified in the FRE. Under FRE 501, we are trusting
 FRE requires a trial judge to exclude expert testimony unless the the courts to use reason and experience
judge concludes that the testimony is reliable
 In their testimony, expert witnesses are allowed to go beyond personal Attorney-Client Privilege
knowledge and common sense.  For A-C privilege, four elements must be established to bring a
 FRE 702 Analyzed: communication within the privilege:
o Requirement of Specialized Knowledge [FRE 702(a)]: it must be o There must be a communication (as opposed to conduct)
the case that scientific, technical, or other specialized knowledge o In confidence (if client discloses the content of the communication
will help the trier of fact to understand the evidence or to to a friend, for example, privilege is lost)
determine a fact in issue. Thus: o Between lawyer and client
 The expert’s testimony must involve “specialized o For the purpose of facilitating legal services (if lawyer is giving
knowledge” (often but not always “scientific” or “technical” business advice, or advice as a friend, the privilege does not apply)
knowledge); and  The privilege belongs to the client, not the lawyer or any 3rd party
 That specialized knowledge must be helpful to the jury on  Joint clients: the privilege may be inapplicable to a dispute between
some aspect of the case multiple clients who were originally on the same side of a transaction.
 If no specialized knowledge is needed about a topic, o If two clients retain a single lawyer, and a dispute later breaks out
such testimony serves no assistance to the jury, and between the two, the privilege does not apply.
should be excluded (Hatch v. State Farm)  CL protects the A-C privilege, even after the client had died. The
o Witness must be qualified: witness must have knowledge and/or privilege survives the client’s death (Swidler & Berlin v. U.S.)
skill in a particular area that distinguishes her from an ordinary o Knowing that communications will remain confidential even after
person. death encourages the client to communicate fully and frankly with
 Expertise may come from either education/training or counsel, and thereby promotes broader public interests in the
experience. observance of law and administration of justice.
 TJ has a great deal of discretion about whether to treat a  The actual substance of a communication is protected, not the fact that
witness as being an expert. there has been a communication. Physical appearance ≠ communication.
o The testimony must be based upon sufficient facts or data because Excluded from the A-C privilege are the physical characteristics of the
we want to keep out unreliable testimony client’s complexion, demeanor, bearing, etc. (U.S. v. Kendrick)
o Testimony must be product of reliable principles & methods:  The A-C privilege only applies to seeking legal advice. Fee information
requirement that testimony be based on good science is generally NOT privileged because it is not a communication (Tornay
o Expert must reliably apply the principles and methods to the actual v. U.S.)
facts of the case [FRE 702(c)] o Some prospective clients may decide not to retain counsel for legal
 Per FRE 703, an expert may base an opinion upon clearly inadmissible services if they could be implicated by expenditures for those
hearsay, if the type of hearsay is one that would reasonably relied upon services, but this is not a sufficient justification to invoke the
by experts in that situation. privilege.
 Out-of-court statements that are related by an expert solely for the o Privilege MAY apply where merely identifying the client could
purpose of explaining the assumptions on which that opinions rests are affectedly disclose communication between client and attorney.
 However, in the run of the mill case, who your client is ≠ the in camera examination may be made: that party must show “a
protected under the A-C privilege generally. factual basis adequate to support a good faith belief by a
 The party asserting the privilege must prove that the conversation w/ reasonable person” that in camera review of the materials may
their lawyer was made in confidence, because w/o confidence, the reveal evidence establishing the crime-fraud exception (U.S. v.
privilege does not exist (U.S. v. Gann) Zolin)
 A-C privilege shields only those communications by a client to an  Under the crime-fraud exception, to a summons-enforcement
attorney that were intended to be confidential. Thus, as a general matter, proceeding, attorney-client communications can be
the A-C privilege will not shield statements made by a client to his or considered by the district court under F.R.E. 104(a), but the
her attorney in the presence of a 3rd party who is not an agent of either disclosure of allegedly privileged materials to the district
the client or the attorney. An exception to that rule is when the third court for purposes of determining the merits of a claim of
party “is necessary to the provision of legal services and representation.” privilege does not have the legal effect of terminating the
(U.S. v. Evan) privilege. The party seeking in camera review must make
 When information is transmitted to an attorney w/ the intent that the info some showing that such review is appropriate.
will be transmitted to a third party (like a tax return), such information is Spousal Privilege
not confidential and is not shielded by A-C privilege (U.S. v. Lawless)  Two widely recognized spousal privileges –
 In determining whether a 3rd person is “necessary for the provision of o Confidential Spousal Communications Privilege: protects only
legal services,” the court will look to the identity of the 3rd party, the against the disclosure of confidential communications made by one
context of the litigation, and the purpose served by the 3rd party’s spouse to the other during marriage
presence, and there must be a lawyer present for privilege to apply (U.S.  Elements: communications made btwn spouses; while they
v. Kovel) were married; in confidence
o Privilege does not apply if what is sought is not legal advice, or if  Survives after the termination of marriage + death, but only
the advice sought is that accountant’s and not the lawyers applies so long as the parties were married at the time of
 Privilege protects the pooling of information for any defense purpose the communication.
common to co-defendants (U.S. v. McPartlin)  What is not covered?
o Attorney who undertakes to serve his client’s co-D for a limited  Any conduct like A-C privilege; anything you saw your
purpose becomes the co-D’s attorney for that purpose spouse do is not covered
 A-C privilege covers all communication between counsel and  If the communication took place BEFORE the parties
employees relating to the employees’ “scope of employment” or the were married
“scope of corporate duties” that requires a case-by-case factual inquiry  Holder of the privilege is held by the spouse that
(Upjohn) transmitted the confidence
o Employees covered: communications w/in the scope of corporate o Adverse Spousal Testimonial Privilege: gives a spouse complete
duties protection from adverse testimony by the other spouse
o Employees not covered: communications outside the scope of  Protects spouse from being compelled to take the witness
corporate duty stand against her/his spouse about ANYTHING, but only
 Generally, the identity of a client is not privileged. Except, identity is applies if the couple is still married at the time of the
privileged when the acts performed were closely interrelated w/ the trial.
rendering of professional services. No privilege exists when the attorney  Holder of the privilege is the witness-spouse, not the accused
is acting outside of her professional capacity as a mere agent (Hughes) spouse (Trammel)
 If the primary evidence rendered was non-legal, then it falls outside the  Not all states follow Trammel
scope of the privilege (U.S. v. Davis)  If the communication took place before the parties were
 Lawyers hired w/in a law firm are afforded the A-C privilege (Rowe) married, but the parties to the convo subsequently married by
 Waiver of A-C Privilege: the time of the trial, the adverse testimony privilege applies.
o A-C privilege can be waived. If the client voluntarily discloses the  Exceptions Where Cannot Claim Spousal Privilege?
communication, or consents to it being disclosed by someone else, o Actions between spouses
such as her attorney–the disclosure will act as a waiver. o Prosecutions for crimes occurring w/in the family
o Must establish that the privilege exists, and then must determine
o Crime-fraud exception
whether the privilege was waived.
o “Sham marriages”
o Technically, only a client can waive the A-C privilege, but
sometimes the actions of the lawyer will constitute a waiver Other Privileges
when the lawyer is acting as the client’s waiver.  How Should the Court Go About Whether to Recognize a “New”
o An inadvertent disclosure does not operate as a waiver as long as Privilege?
the privilege holder “took reasonable steps to prevent the o The default is that there should be no new privilege because the
disclosure” before it happened, and then promptly took reasonable public has a right to every man’s evidence.
steps to rectify the error after it occurred. o The privilege must be “strictly construed and accepted only to the
o An attack by the client upon his attorney’s conduct, which calls very limited extent that permitting a refusal to testifying or
into question the substance of their communications, constitutes a excluding relevant evidence has a public good transcending the
waiver of A-C privilege. Privilege is waived when the client normally predominant principle of utilizing all rationale means for
attacks his attorney’s competence (Tasby v. U.S.) ascertaining truth.”
o Waiver will be implied when a client testifies about certain o We must be persuaded that recognizing a new privilege has a
portions of the A-C privilege (Hollins v. Powell) public good transcending the normal predominant principle of
o A client may implicitly waive the A-C privilege by allowing his utilizing all rationale means for ascertaining truth
attorney to publish a book containing conversations between the  Privileges Recognized Under Federal Common Law…
attorney and his client (In re Von Bulow) o Attorney-client; Marital privileges (Trammel); Clergymen and
 Court looks at the Fairness Doctrine–if the client selectively penitents; Psychotherapists/licenses social workers + patient
discloses for a tactical advantage, they must accept the (Jaffee); Parent-child; Accountants; Governmental informer’s
consequence that everything will be disclosed. privilege (note on pg. 678)
 Crime-Fraud Exception:  Some Qualified Privileges…
o A-C privilege should NOT extent to communications where an o Government’s secrets and informants; Journalists and sources;
attorney’s services are obtained for the purpose of furthering a Trade secrets
future crime or fraud.  Usually Rejected Privileges…
 If you come in and seek legal advice and admit to having o Doctor and patient; Accountant and client (allowed in 1/3 states)–
committed (past tense) a crime, that communication is Just because there is no federal protection does not mean the states
privileged do not recognize a privilege; Parent/child (and other
 Just cannot use the lawyer’s services to commit future crimes relationships)–Even if no parent-child privilege, if you are a
o Courts may conduct an in camera examination of the prosecutor, do you think you want to put a parent on the stand?
communication to determine its admissibility. The party asserting No! It’s not worth it to test such relationships
the crime-fraud exception must make a threshold showing before
 Conversations between a client and a psychotherapist (or a social worker process that accurately reproduces the original
in psychotherapy) are protected from compelled disclosure based on (Stockton)
privilege (Jaffee v. Redmond)  Proponent may use copies to provide content if: record/doc is
o All 50 states have enacted into law some form of psychotherapist otherwise inadmissible; copy is certified as correct in
privilege. accordance w/ FRE 902(4) or is testified to be correct by a
o Consensus amongst states; all states find some version of privilege witness who has compared with the original.
because if we don’t, privilege rules are frustrated because people  If no such copy can be obtained by reasonable
don’t know if the therapist will be subpoenaed in federal court vs. diligence, may use other evidence to prove the content
state court. If you don’t recognize the privilege, there will be  Under FRE 1002, the best evidence rule only applies where the contents
repercussions. of a writing are sought to be proven. Where there was no attempt to
 Existence or non-existence of parent-child privilege is the least prove the contents of a writing, the best evidence rule is inapplicable
important consideration in any child’s decision as to whether to reveal (Meyers)
some indiscretion, legal or illegal, to a parent (In re Grand Jury) o Original writing, recording, or photo is required to prove its
o Presumption against recognizing a new privilege. content, unless FRE/federal statute provides otherwise
o But duplicates OK–see FRE 1003
PHYSICAL EVIDENCE  The Best Evidence Rule does not set up an order of preferred
admissibility, which must be followed to prove any fact. It is, rather, a
Authentication (FRE 901) rule applicable only when one seeks to prove the contents of documents
 Applies to physical evidence, not witness’ testimony
or recordings (F.R.E. 1002) (U.S. v. Gonzalez-Benitez)
 All real & demonstrative evidence must be authenticated before it is
 FRE 1004–Admissibility of Other Evidence of Content
admitted. it must be shown to be genuine.
o Original not required, and other content evidence is admissible if:
 To authenticate means to establish by a preponderance of the evidence
 All originals are lost/destroyed not by the proponent acting in
that the item is what the proponent claims it is.
bad faith
o Once you establish that something is what the proponent claims it
 Original cannot be obtained by available judicial process
is, it does not mean it automatically comes into evidence because
 Party against whom original would be offered had control of
there may be issues of hearsay
original, was put on notice that original would be subject to
 Examples of evidence that must be authenticated: physical evidence;
proof, and fails to produce; or
documents; and recordings
 Evidence not closely related to controlling issue
 Authentication Generally
 Exception to the Best Evidence Rule:
o Where the object is real evidence, authentication normally
o As a general rule, the Best Evidence Rule does not apply to
consists of showing that the object is the object that was involved
photographs because photographs are not admitted for proving the
in the underlying event.
contents within the photograph, but where the photographs are of
o Where the object is demonstrative evidence, authentication
documents, which the government seeks to prove the contents of,
basically involves a showing that the object fairly represents or the Best Evidence Rule applies (U.S. v. Stockton)
illustrates what it is claimed to represent or illustrate. o When the contents of a document are material and must be proved,
 Methods of Authentication:
the proffer must either product the original or show that it is
o Ready Identifiability
unavailable through no fault of the proffer. “Reconstructions” of a
o Chain of Custody “writing” that might have no resemblance to the purported original
 To authenticate a document, the proponent needs to only prove a rational is not sufficient as proof for infringement of the original (Seiler)
basis for claim that the document is what the proponent asserts it to be,
and may be done with circumstantial evidence (U.S. v. Long)
Demonstrative Evidence
o The question of authenticity here is not whether the contract was  Demonstrative evidence ≠ real evidence in the case
o Information/devices that helps put the real evidence (i.e., phone
an authentic contract btwn the D, but whether it reasonably could
be the document which the witness claims she saw and read at the records) in context; pedagogical devices that help the FoF better
airport understand and appreciate real evidence
 Gaps in the chain of custody go to the weight of the evidence, not to the o Provides context, explains shit, etc.
admissibility of the evidence (Burhter v. General Electric Co.) (U.S. v.  As a matter of CL, the demonstrative evidence usually does not go to the
Zhyltsou) jury room during deliberations [at least not without the consent of the
 A break in the chain of custody affects only the weight and not the parties] (Baugh v. Cuprum)
admissibility of the evidence. a TJ is correct in allowing physical  Limiting Instruction: the jury is instructed as to the limited purpose for
evidence to be presented to the jury as long as a reasonable jury could which the evidence is offered
decide that the evidence is what the offering party claims it to be–any  Examples of demonstrative evidence: firearm, coin bag, ladder, maps,
question as to the authenticity of the evidence is then decided by the jury charts, day-in-life video, computer-generated animations, photographs
(U.S. v. Catso)  A party may display demonstrative evidence to be used as a model (U.S.
o Most chain of custody cases to go to weight, not to admissibility v. Weeks)
 There is no need to authenticate the testimony of live witnesses (U.S. v.  TC should weigh the probative value of the demonstrative evidence
Grant) against the prejudicial effect (U.S. v. Humphrey)
 Demonstrative evidence does not have to be done completely (Roland v.
Best Evidence Rule (FRE 1001-1004) Langlois)
 Applies to physical or electronic items that contain “writings”  There is a distinction btwn whether something can be conveniently
 Requirements: examined in court. If it cannot be (like a GPS device), then a chart will
o Original document: the original document must be produced, suffice under FRE 1006. However, 1006 does not govern charts used
rather than using a copy or oral testimony about the document simply as pedagogical device (U.S. v. Wood)
o Proving terms of writing: rule applies only where what is to be o FRE 1006 allows for summaries to be admitted, but judge has
proved is the equivalent recorded communication, such as an discretion. Disparity to treatment must be explained, and it is,
audiotape of a conversation because D witness was unable to support his findings, fact seemed
 Covers any writing, recording, or photograph whose contents to contradict them, so judge was warranted to withhold them from
are sought to be proved evidence
 What is a writing?
 Short inscription: object may have inscription on it BURDEN, PRESUMPTIONS, AND JUDICIAL NOTICE
 Photograph: photos, x-rays, videotapes, movies, and
computerized motion files are covered by FRE 1003 Burdens & Presumptions
 Duplicates are OK unless a genuine question is raised about  Two rules in the FRE
the original’s authenticity or the circumstances make it unfair o FRE 301: no substantive presumptions; instead shows how
to admit the duplicate (FRE 1003) presumptions operate in connection with persuasion. Applies in a
 Duplicate: counterpart produced by mechanical, federal civil case on federal question jurisdiction.
photographic, chemical, electronic, or other equivalent
 o FRE 302: state law governs in diversity cases. Advisory was received, but it may rely on evidence of
committee acknowledges that there are some state law rules that mailing to argue inference. You don’t just get the
should apply statutory presumption.
 Only applies to civil cases  No evidence to rebut–directed verdict
 The party who brings an action has the burden of proving every element  Rebut–no more presumption; bubble burst
of that action through admissible evidence. this is called the burden of  Morgan (minority) view:
proof.  Proponent offers evidence that a properly addressed
 Two distinct burdens – letter was mailed. If the opponent introduces no
o Burden of Production: P has the obligation to come forward with evidence that the letter was NOT received , proponent
some evidence that issue A exists. Must be met before the is entitled to a directed verdict on the presumed fact
case/claim/defense gets to the jury (to have the judge render a (i.e. that the letter was received)
verdict in the case, you have to meet this burden to survive the  But, if the opponent introduced evidence that the letter
motion for SJ) was not received (e.g. by testifying), the presumption
 If a party fails to meet the burden of production, the result is stays in the case, and the burden of persuasion shifts
a dismissal of the case before it goes to the finder of fact to regarding the non-receipt to the opponent. Now the
consider whether the burden of proof has been met. opponent must persuade the jury that the letter was not
 Thus, must be met to get case/claim/defense to the jury or received
judge as the finder of fact  Usually, P brings a claim and you have the burden of
 State may impose on the D the burden of production on any producing sufficient evidence to get it to the point
affirmative defense. where you are seeking a verdict. If you get a Moran
 This is a defense in which the defendant introduces presumption, you get to flip the burden of persuasion at
evidence, which, if found to be credible, will negate least on the issue of the presumption–and your
criminal liability or civil liability, even if it is proven adversary has to persuade the jury.
that the defendant committed the alleged acts o Rationale: If presumption is valid, if properly
 Self-defense, entrapment, insanity, necessity, and addressed letters are usually received—that
respondeat superior are some examples of affirmative relationship of the KF and PF, we think that
defenses. presumption and relationship ought to have
 A party who asserts an affirmative defense may have the ongoing fact. Just because there is some evidence
burden of proving every element of that defense (i.e., the rebutting PF, it’s warranted to flip the burden of
burden of proof on that defense), but in any event has the persuasion
burden of putting some evidence establishing that defense o Higher bar for what ought to be classified as
before the FoF before the defense will be considered. This is presumption
burden of production.  Burdens & Presumptions: Civil Case (FRE 301)
o Burden of Persuasion: must be met to obtain a verdict. Burden to o FRE 301 codifies Thayer. If you meet your burden of proof then
satisfy the trier or fact that a particular proposition has been the presumption is in place. But if D rebuts it by saying he never
demonstrated to a particular level of certainty received it, then the presumption disappears and it has no legal
 If at the close of the evidence the jury cannot decide whether effect. When someone has the persuasion, and the other party
issue A has been established with the relevant level of offers contrary evidence, the bubble bursts and the party who
certainty (usually “preponderance of the evidence” in civil originally held it still had the burden of persuasion. The proponent
cases), the jury must find against P on issue A. benefits from the presumption when the opponent does not object.
 What type of burden of proof depends on the type of case: o A presumption is a preliminary assumption of fact (i.e., the letter
 In criminal cases, it is proof beyond a reasonable doubt was delivered) that disappears from the case upon the introduction
 In most civil cases, it is proof by a preponderance of the of evidence sufficient to sustain a finding of the nonexistence of
evidence. the presumed fact (i.e., I did not receive the letter) (In re Yoder)
 Presumptions: the relationship between a “basic” fact and a  Burdens & Presumptions: Criminal Case
“presumed” fact. When we say that the presumed fact can be presumed o Mandatory presumptions: jury must accept the presumed fact as
from the basic fact, we mean that once B is established, P is established true, unless D offers evidence rebutting it
or at least rendered more likely.  This effectively excuses prosecutions from the burden of
o Background: proving every element of her case against D
 Presumptions are like shortcuts  It undermines D’s right to stand mute and leave the pros to
 They eliminate or lessen a party’s evidentiary burden in her proofs
proving a fact that is often hard to prove o Due Process Clause requires the government to prove every
 Presumptions may be codified by a statute or created by element of an offense beyond a reasonable doubt (Winship)
common law (Patterson)
 They reflect recurring factual situations that arise frequently o States can allocate burden of persuasion to affirmative defenses,
in litigation even so far as to proof beyond a reasonable doubt (Leland v.
o Every presumption involves a known fact, and a presumed fact: Oregon)
 Known fact  presumed fact o You cannot shift the burden to the defendant to disprove an
 Letter was mailed  [we presume that if P shows that the element. If it is an affirmative defense, you can put the burden on
letter was mailed…] letter was received the defendant, but if it is an element, you cannot shift to the
 Person has not been heard from in 7 years  [if you can defendant.
show that a person has not been heard from for 7+ years, may o Two types of mandatory presumptions:
be entitled to the presumption that…] person is  Burden of Production: government bears the burden of
o Two categories of presumptions: production as to each element
 Thayer (“bursting bubble”) presumption:  Burden of Persuasion: government bears burden of
 Proponent of the fact introduces evidence that a persuasion beyond a reasonable doubt to each element of the
properly addressed letter was mailed. If the opponent of crime (In re Winship–SC said that proof beyond reasonable
the presumptive fact (that the letter was received) doubt standard is constitutionally required under the Due
introduces no contrary evidence on the subject, the Process clause)
proponent is entitled to a directed verdict on the  D who wants to offer an affirmative defense bears the
presumed fact (i.e., that the letter was received) burden of production as to elements of affirmative
 BUT, suppose my adversary does not contest receipt defense (e.g., insanity)
with evidence, but takes the stand and says, “I did not o D providing an affirmative defense is not a traditional burden
receive the letter.” It becomes an ordinary question of shifting unless D has to prove elements of the crime (which is the
fact, which is why it is called bursting bubble. pro’s burden). When it is an additional thing the defense is
o It “bursts” and disappears form the case. The presuming and nothing is presumed to benefit of the government, it
proponent must persuade the jury that the letter
 is constitutional. No presumption in favor of the government established where it happened, the judge can give instruction about
(Patterson v. NY) status of that land.
o Permissive inferences are constitutional if it is rational in light of  The nature of the fact does not determine what type of fact it is–instead
the facts of the case (County Court of Ulster v. Allen) the USE of the facts is what matters (U.S. v. Bello)
o Burdens and Presumptions in Criminal Cases
 Presumptions in criminal cases evaluated in light of their
effect on the government’s burden of proof (Mullaney)
 Permissive inferences are constitutional if rational in light of
the facts of the case (Allen)
 Mandatory presumptions unsensational because they relieve
government of its burden (Allen/Sandstorm/Patterson)
 Due Process requires the government to prove every element
of the offense beyond a reasonable doubt (In re Winship)

Judicial Notice (FRE 201)

 Judicial notice is the recognition by the court of the truth of certain facts
w/o the introduction of evidence on those facts. Judge accepts evidence
as true even though no evidence to prove it has been offered.
 Two types of facts:
o Adjudicative Facts: facts of the particular case–facts that relate to a
particular event. They help explain who did what, when, where,
how, and with what motive and intent.
 Court taking notice of an adjudicative fact is governed by
FRE 201.
 F.R.E. 201 court must take notice of an adjudicative fact
under two circumstances:
 (1) Fact is generally known within trial court’s
jurisdiction
 (2) Fact can be accurately and reasonably determined
from sources whose accuracy cannot reasonably be
questioned
 In most cases, the judge may take notice of an adjudicative
fact only if the fact is indisputable, whereas he may take
notice of legislative fact much more liberally
o Legislative Facts: more general facts that do not concern the
immediate parties. They are facts which the judge considers as part
of his law-making function.
 Any non-evidentiary fact which the judge considers in
determining whether a statute is constitutional, how a statute
should be interpreted, or how the common law should treat a
particular issue will be a legislative fact.
 Two Ways of Thinking About Legislative Facts:
 (1) Policy making process (Hawkins)
 (2) Things in the world that the court has determined
are universal or are legal questions (legal questions vs.
factual questions)
 A fact that does not pertain directly to the particular parties
and their controversy; rather, it is a more general fact that
relates to whether a statute is constitution, whether a CL
principle should
 Court takes a broad view on the definition of legislative fact–& x apply
to the legislative facts. With a legislative fact, it is permissible for the
judge to instruct the jury that they must accept the fact (U.S. v. Gould)
o CL federal interpretation
o Legislative facts are not governed by the restrictions in FRE 201,
including the requirements that judicially noticed facts be beyond a
reasonable dispute. It is true that this restriction is often applied as
a matter of federal CL to facts deemed legislative.
o Under the more common approach suggested by the Advisory
Committee and exemplified by Gould, whether the fact qualified as
adjudicative or legislative is harder to say
o Any universal truth is a legislative fact
 TJ is prohibited from relying on his personal experience to support the
taking of judicial notice (U.S. v. Lewis)
 Judicial notice is x only appropriate when the fact is something of
general common knowledge or the accuracy of which cannot reasonably
be questioned. If questionable, x take judicial notice (Carley v. Wheeled
Coach)
o While government may perform various tests on vehicles, the
quantity and nature of those tests are not matters of common
knowledge, nor are they readily provable through a source whose
accuracy cannot reasonably be questioned.
 A legislative fact is one that does not change from case to case (Bowers)
o If there is a factual dispute about where the crime occurred, it is an
adjudicate fact, and won’t fall under judicial notice. BUT, once