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Course: Evidence Fall 2003
School: unknown
Year: 2003
Professor: unknown
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Reasons for Evidence Law
1)  mistrust of juries
2)  affect substantive policies to encourage certain results
3)  affect unrelated substantive policies
4)  ensure accurate factfinding
5)  judicial economy

Rule 102 (pg 41 in supp)
 -  Reasons and policy arguments for evidentiary rules:
1)  fairness in administration
2)  judicial economy
3)  place value on precedent
4)  ascertain the truth
5)  just and fair proceedings

3 main ways evidence is introduced:
1)  sworn testimony
2)  documentary evidence (demonstrative evidence)
3)  real evidence

? Laying a foundation is extremely important before a witness gives testimony.

3 steps to introduce “documentary evidence”
1)  mark the documentary evidence (usually by exhibit number)
2)  have document identified by the witness
3)  introduce the evidence (otherwise jurors cannot consider the evidence)

Rule 103
1)  decision affects D’s substantial rights
2)  the nature of the error was called to the attention of the judge so as to alert the court that the proper course of action and enable opposing counsel to take proper corrective measures.

Rules on Objections
 -  objections must be timely, preferably before the witness answers (however, if after the person speaks can make a motion to strike)
 -  objections must be specific as to their nature and the basis of the objection : lawyer cannot on appeal give another reason
 -  if an objection is overruled, it is wise to “make an offer of proof” outside the presence of a jury in order to place the objection fully into the record so that the appellate court will be able to tell what the objection was over.

Rule 103
 - substantial right of the party is affected and the party made a timely objection allows for an evidential error to be found.

 - if judge overrules the objection, it is wise to " make an offer of proof" of the claim in order to preserve the objection on the record.

 -  judges have broad discretion.  Harmless error rule:  unless the judge made a harmful error that affect substantial right of the person, the judge's ruling will stand.  (very stringent standard)

 -  Criminal trials:  watch for Constitutional Problems that the appellate courts will not see a "harmless error" because the rights of the person will supersede the right of the trial judge to make his ruling broad. IF the verdict likely affected the verdict, the appellate court will view a problem.  If it is a constitutional error, the state must prove that it had not effect on the D.

 -  Problem 2a:  "more probable than not": "leads you to think that he could be driving that fast" and "not conclusive."

 - Problem 2b:  evidence regarding falling brick

Rule 401
-  "relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
 -  look at the author of the evidence
 -  issue to be established (common law relevance) must bear some relevance to the issues of the case (materiality)
 -  how does the evidence relate to the issues of the case

 -  leads you to think he could be is the standard:  in other words, the rules states, that relevant evidence must be more probable than not than it would be without the evidence. This is a very liberal standards of relevancy.

Rule 403
-  Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.  "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

State v. Chapple
-  D claims on appeal after being convicted for murder that the trial court erred when it admitted gruesome pictures of the murdered victim.
-  Rule:  pictures are admissible as long as they are relevant even though they have the tendency to prejudice the jury against the person who committed the offense.  However, the trial court has discretion to decide and their ruling will not be overturned unless the discretion was "clearly abused."  The court at all times must go beyond the question of relevancy, however, and consider whether the evidence has probative value which outweighs the danger created by the admission of the exhibit.  The judge must consider the evidence's purpose.  If the evidence has no tendency to prove or disprove any question which is actually contested, they have little use or purpose except to inflame and would not usually be admissible.
-  Holding:  in this case, the pictures, although relevant in nature, they had no probative value and therefore it was an abuse of discretion to allow the pictures to come into evidence because their sole purpose was to inflame the jury.  Conviction overturned.
- Notes:  pictures could have been admitted to prove the death, to identify the victim, to help determine the degree of the atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed.

Rule 105
- Limited Admissibility:  "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."
Rule 411
- Liability Insurance:  "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

"A brick is not a wall"
-  Relevancy Test:  Go through each step to conclude whether info is relevant.  Then decided whether the info should not be admitted because it is substantially outweighed by prejudice, confusion, misleading, etc. under 403.  Another test you must apply is whether the information is "probative."  The info must be of some value to the issues of the case.  The 3 step process is:
1)  offer of evidence
2)  the issue to be established
3)  the issues in case

- relevancy focused upon the offer of evidence and the issue to be established (at common law)  Under 401:  the standard is very loose as long as the offer of evidence any tendency to make the existence of fact to be established more or less because of the evidence.
- second prong, the issues ot be established must be "material" to the issues of the case.
401::  the issue to be established must have consequence to the case.

-  Witness testifies that P did not wear safety glasses.  hypo:  provided to show lack of care by the P.  The issues might relate to conributory fault in a negligence case.  This evidence would be material to the case.  However, in a wk comp case, the info would be irrelevant because there is no issue o contributory negligence.
- D going over 80 mph 30 miles away.  The issue to be est. is the speed at impact. The issues in the cause relate to fault.  Therefore, the info is admissible.
- Boys are running.  The issue to be est. is to prove that the boys threw the stones over the bridge and the issues in the case was causation:  therefore the info should be allowed.  The court case recited in class proved that the info was allowed and the appeals court did not disturb the trial judge's discretion.

Flight Information:
- info regarding D's flight is relevant and is often admitted and is generally admissible as est. through precedent.
-  proof that someone ran away can be evidence to be used against the D to show guilt.  That type of thought process is readily ascessible to the court system.

Rule 402:  irrelevant evidence is not admissible.  Relevant evidence is.

Rule 403:  if the evidence is relevant it may be exclused if the probative value is substantially outweighed by:  prejudice, confusion of the issues, misleading, causes undue delay, or too cumulative.
 Notes:  in a close case, you admit the evidence because it must "substantially be outweighed" by the countervailing factors.

* Do not confuse the admissibility issue with the "sufficiency issue" because they are different.  The evidence does not have the sufficiently prove an issue.

Problem 2E Page 85
offer of evidence:  info regarding the fact that the woman had sought refuge in a women's shelter for battered and abused children.
issue to be established:  domestic problem and prior violence to her from the D
issues in the case:   whether the man commited murder or manslaughter
Therefore:  the info should be admitted because it is relevent. and affirmed on appeal.

Problem 2f Page 86
1) certified copy of guilty plea
2) how accident happened and why
3) goes to prove causation
:  because it is a close call, the evidence should be admitted. However, the court of appeals found that the evidence was too confusing and should not be admitted and reversed the trial judge who let the info come in.  The appeals court found that the info was not sufficiently probative value to justify the confusion under Rule 403.
The info satisfied 401 because it was sufficiently relevant.

Problem 2g on page 87
- Driver says that her insurance will cover the accident.
-  see answer below.

Rule 411: liability insurance:  evidence that a person was or was not injured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of the witness.
:  Purpose:  aimed at the principle that info must be of probative value and to protect those people who have insurance so that there is no inference that the driver was less careful.  It also tends to mislead the jurors so that they may be convinced of the deep pockets of the insurer.  (may tend to prejudice the jurors)
***--- under this hypo of problem 2g on page 86, the evidence is both admissible because it is relevant but because it contains info about the insurance, it is also inadmissible.  Under this situation, the judge can admit the evidence with an instruction that limits that jurors only to consider the evidence for one purpose and not the other.  In this case, the judge may state that the jurors can consider the info as tot he consciousness of the fault of the driver, but not for the purposes to inquire whether the person was insured or not.  As a trial atty, you may not want to ask for a limiting instruction because it tends to make the jurors focus more on the evidence and thus have an undesired effect.
- traditionally, however, the courts will allow the statement to come in.  (even if the witness is silent after the accident - that will likely also be admissible.)  ((( professor talked about gender bias on this issue because people act different when they are female and male and sometimes women will apologize for acts that are not even their fault.


Rule 106
Remainder of or related writing or recorded statements
-  When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. (applicable to written and recorded statements: and the rule itself does not apply to oral statements - courts will not allow the application of rule to oral statements)
- Purpose of rule:  to avoid situations where documents are being use out of context.
Problem 2h:  the documents should allow the entire document to be put into evidence so that all of the statements are put into context.

Examples under 403 where the judge may do certain things to make trials speedy and prevent delay.  Page 90
-  judges are not more active now than ever before (judges will not more carefully manage the trial and limit trial time and exclude evidence which is too cumulative or too time consuming.)

Rule 104
- judge should screen the evidence for only admissible evidence and jurors are suppose to give the weight to such evidence.
-  Under a, the judge determines what information should come in on the basis of the rules.  Look at rule for specific citations of examples.
-  Under a, the judge listens to the attys. to decide whether the info should be allowed into evidence.  Judge decides whether the admissibility rules apply and how and which evidence should be excluded.  "Preponderance of the evidence" is used by the judge to determine if the rules of permissibility have been met.
- Under b,  attempts to deal with those questions that relate to relevancy questions and questions that deal with probative value.  Jurors can deal with questions dealing with how much weight to give to any offer of evidence.  When the relevancy of the evidence depends  upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Ex. into of pistol.  Officer talks that it is the pistol that was found at the sight.  The lawyer then said that they will connect it up later with later evidence.  The pistol is relevant in the case.  What the judge does it this case, the judge admits the evidence on the basis of which that later evidence will be included later that will fulfill the condition later.  (prima facie evidence is all that is necessary: some evidence must be in the record)  Prima facie is the standard, not preponderance of the evidence as in rule 401a.  Some evidence must be in the record that will allow the jurors to conclude that the evidence is relevant.

***Throughout the course we will come back to determine whether the evidence falls under a or b because the standard of evidence to prove to the judge is different

Problem 2I
-  similarity of he condition of the bike is important and there is dispute to whether the evidence should come in.
-  104b applies and the evidence should be admitted because there is some evidence in the record to show that the evidence is relevant.  The jurors should evaluate this evidence and the judge should admit it.
-  104a applies because the evidence is being admitted through expert testimony which is named in the rule.  The judge is allows to decide whether the expert is able to testify, if the expert is qualified, and the judge also can decide the base foundation of the testimony.  The evidence should be excluded because the foundation is not there and the case should be affirmed on appeal.
-  Authors of the book believe that b should apply, the court however, in real life thought it was an A problem and the appeals court affirmed the decision out of deference to the trial court's broad discretion.
_ this is extremely important because it does matter whether it fall s under 104a or 104b

Problem 2-J:
Facts: Three men rob a bank with .38 caliber handguns. One man confesses
and fingers the defendant. The government shows that the defendant has a
friend who owns a car matching the description of the one used in the
getaway, and that defendant's fingerprints were found in the car.
Surveillance films show a man resembling defendant holding a handgun
during the robbery.
 Issue: Whether evidence that defendant was carrying a .38 caliber
handgun when arrested is admissible.
 Answer: It is relevant to showing that defendant committed the crime if
it is the same gun that was used in the crime. It also tends to show
character (persons who carry guns are more likely to be bank robbers
than those who don't). However, if jury may confuse the issue and accept
the confession of the one robber as proof that this was the same gun
that was used because it was the same caliber. The judge should admit
the evidence, although circumstantial, because the jury is probably able
to apply the proper weight to it.
-  there is a potential for prejudice from the juriors.  However, there is not so much here to make this a unadmissible evidence.

Problem 2-K:
Facts: Victim is murdered by a person who entered through the garbage
compartment. A woman's stocking that had been ripped (like a burglar’s
mask) was found under her body. Defendant's fingerprints were found on
the garbage compartment door. The victim's rings were stolen and there
was evidence that defendant had offered to sell a ring to a witness a
few weeks after the burglary.
 Issue: Whether evidence that three ripped stockings were found in the
defendant's room should be admissible.
 Answer: Let the evidence in.  The line of inferences must be that
the ripped stockings found in the apartment were made into masks,
and that the ripped stocking found at the scene was a mask, and that
the one found at the scene matched or belonged to the defendant.
The jury might jump to the conclusion that the one found at the scene
matched one found at the defendant's house. This evidence is only
circumstantial. However, given the fact that ripped stockings are not a
common item, the evidence should be let in because the jury is probably
able to give proper weight to it.

People v. Collins
Facts: A woman was robbed in an alley. She describes her assailant as a white female in dark clothes. A witness observes a white female with a ponytail get into a yellow car with a black male driver with a beard. The defendants loosely match the description of the people observed leaving the alley.
Procedural Posture: The prosecutor introduced an expert witness mathematician who was a mathematics instructor from a state college who testified about the mathematically probability that persons who possessed the various characteristics possessed by the D and his wife existed.  The witness inferred that there could be but one chance in 12 million that the D and his wife were innocent and that another equally distinctive couple actually committed the robbery.  At trial, the D objected to the witness’ testimony on the grounds that it was based on unfounded assumptions.  However, the objection was overruled and Collins was convicted.
Issue: Must applications of mathematical techniques in the proof of facts in a criminal case be critically examined in view of the substantial unfairness to the D?  YES
Holding:  The prosecution’s theory of probability rested on the assumption that the witness called by the government had conclusively established that the guilty couple possessed the precise characteristics relied upon by the prosecution.  No mathematical formula could ever establish beyond a reasonable doubt that the prosecution’s witness correctly observed and accurately described the distinctive features which were used to link the Defendants to the crime.  The most a mathematically formula could ever yield would be a measure of the probability that a random couple would possess the distinctive features in question.
- notes suggest that occasional cases approve of use of probabilities to show identity.  (to make evidence that they have the right body to the right person, etc)
- how can the prosecutor use the number?  Can state that the fact that they are an unusual couple (1 in 12 million) and that is it.  Cannot do as the prosecutor did here as to make an inference of guilt based on the stats.  In other words, you can only use info in a very limited way.  Stats only prove what happens in a random distribution, but it is not percise.
-  Reasonable doubt standard must not be harmed as it was in this case.
-  Court is concerned that even if we do have accurate figures, the jurors will be confused about what to do with the information and how it relates to the standard burdens of proof.
-  you have to let the jurors conclude themselves what the figures stand for, you cannot tell them what the evidence means in these situations or the court will likely find undue prejudice under 403.

Problem 2-L:
Facts: Defendant manufacturer makes 80% of the tires that an auto shop uses. One tire explodes, injuring a worker. The technician who tested the exploded tire determined that it was faulty. But no plaintiffs wrote down the markings on the tire, so they can not say conclusively that it was made by the defendant.
Issue: Whether the fact that defendant makes 80% of the tires used at the shop is admissible.
Answer: It is relevant because it tends to establish that the particular tire in question        belonged to the manufacturer. However, there is another issue besides who made the tire:  whether the manufacturer was negligent in making the tire (i.e whether it was actually defective). It is likely that the jury would confuse the issue and gloss over the negligence issue and latch onto the 80% number to assume that it was 80% likely that the defendant was liable.

Character Evidence
(questions to always ask)
 - how they act (likely to be most persuasive) (not admissible)
 - reputation (admissible)
 - character traits (like honesty)(proclivity toward violence)
 - opinion (admissible)
 -  Propensity Rule? 404(a) "evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion; except:"
  - can't give evidence that a person is violent and therefore the person is guilty (this evidence is inadmissibility)  When evidence is given to prove that someone acted in accordance with a character trait, that evidence is inadmissible.
 -  3 exceptions:
  a)  character of the accused may be brought in:  (only applies in criminal cases - not civil lawsuits. )  : must first come in by the defendant and then the prosecutor can rebut with a cross exam.  See Michleson case.  Can't predict behavior on the basis of past behavior is the policy reason for such a rule.  The accused can bring in character witnesses in order to defend themselves.  In theory, the character trait should be relevant to the charge: (perjury = honesty) however, courts are very loose to let the info in.  In the federal courts, the D may be entitled to a jury instruction that would allow the jurors to be instructed that such evidence may be probative to give "reasonable doubt" to be justify a not guilty verdict.
  b)  character of a victim may be brought in: (will talk about on Friday) Largely in self defenses this will work.  For example, in a self defense case, you may want to give evidence of the victim as a defense.
  c)  character of a witness for "truth and veracity":  the character of a witness may be used to impeach the witness as provided by rules 607-609.  In criminal trials, the D becomes a witness if he decides to testify on his own behalf.
  d)  also a fourth exception:  rule 415 (we will talk about this later)
- 2 fine distinctions
 1)  the rule is only applicable when you are offering propensity evidence to prove that the person acted in such a way that proves the claim.
 2)  where character elements are part of the actual proof of the case: not very likely in criminal trials:  ie (sexual conduct of an unchaste woman would make the woman's character part of the criminal trial)  Entrapment defense is another case where the D's own propensity is something necessary to prove any "previous predisposition to the crime"  D's character may become part of the issues of the case.  (Watch for entrapment cases for this rule)  In civil cases: defamation is a case where a character trait is part of the defense (truth as in this case).  Also, look for in defamation cases, a damage to reputation will have to be proven so this will make it part of the actual determination that must be prove.  In negligent entrustment cases, (lend car out to reckless driver and someone sues for negligent entrustment) the issue of the person's who was lent the car may become an issue in the case.  Also, child custody cases: fitness of the parents are at issue.  Also, in wrongful death claims, worth of the actual person may be an issue for damages purposes.  NOT VERY OFTEN THAT CHARACTER WILL BE AN ELEMENT OF THE CASE.
-  example: person steals something and is charged with theft.  The person's character is not admissible because the elements do not require that the state must prove that the person's character was dishonest.  Does not raise character as a particular charge.
-  second fine distinction:  Rule 404B:  where you are introducing specific acts of conduct done in the past (rape) and this someone reflects on the issue of the case.  Example (possession of stolen property).  Person says he didn't know it was stolen.  However, if you can introduce the evidence that he has stolen property 14 times in the past, this information tends to discredit the information and therefore can be admissible.  (PRIOR ACTS CAN BE OFFERED TO PROVE)


How do you prove the character testimony?  See Michelson v. US
 - direct (D can bring info in)
 - cross (exmainer is able to ask about specific instances of conduct that may reflect on the issue)
 - rebut
- policy reason:  cross examiner can put the information in perspective.  Look at footnote 16 in Michleson.

Michelson v. US (westlaw handout case)
Facts:  D was on trial for bribing a federal revenue agent in which although he admitted to passing the money, he claimed that it was done in response to the agent's demands, threats, solicitations, etc.  On direct examination, D called 5 witnesses who testified to the D's good reputation and moral character.  When the prosecution cross-examined those witnesses, the defense counsel object to question that inquired whether the D's character witnesses ever heard that the D was arrested for receiving stolen goods 27 years before trial.  After the objection was overruled and affirmed by the court of appeals, the Supreme Court granted cert.  after the D was convicted on the fact that the D's creditbility was a likely determining factor.
Holding:  while the use of such evidence cannot be brought about without D's opening the door to such a line of questioning, when Defendant does bring witnesses to testifiy about his reputation and moral character, the prosecution is entitled to test the witnesses own credibility so as to prevent the defendant from profiting by a "mere parade of partisans."  In order to overturn the judge's discretion that allowed the testimony in despite the jury instructions limiting the cross-exams effect, there must be a prejudicial abuse of discretion which is lacking here.  Although the crimes are unlike each other, both proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit.  Reports of his arrest would tend to weaken the asserting that he was known as an honest law-abiding citizen.  In addition, although the arrest was 27 years before trial, the witnesses dated their acquaintance with the defendant as commencing 30 years before trial which makes such information relevant to their testimony.  Conviction Affirmed!
-  courts should be careful so as to not entertain questions that do not have any basis in reality so as to not influence the jury improperly.  The lawyer must have a good faith basis in putting forth the question.

Rule 404:  Character Evidence not admissible to prove conduct, but there are exceptions.  1)  when evidence of a pertinent trait of character is offered by an accused or by the prosecution to rebut the same, 2) evidnce of the character of the victim or evidence offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor, 3) evidence of a character provided in rule 607, 608, and 609.
- character evidence is never admissible in civil cases.  However, some courts allow the evidence to come in if the underlying conduct is criminal in nature.  It should be noted, that, rule 415 allows the evidence to come in where the plaintiff seeks damages for sexual assault or child molestation.  In this setting, claimants could prove that the D comitted other offenses of sexual assult, which may be considered for any relevant purpose.
- Rule 404 dest not bar evidence of character whenit is offered for other reasons thatn to prove conduct on a particular occasion.  Rule 405(b) provides that proof of specific instances of conduct is admissible whenever character is an essential element of a charge or defense.  In criminal case, character is almost never an element of the charge or defense. Policy reasons:  we do not convict a person who is a bad person or acquit a person because he is a good person unless he did not commit the charged offense.

Problem 5-A:
Same fight except the prosecution (first) offers
witness testimony that the defendant is "agressive...and prone to
violence," and the defense (second) offers witness testimony that the
defendant is "peaceable...and not likely to start a fight."
Issue: Whether the statement is admissible under FRE 404/405.
Answer: No to the prosecutor, yes to the defendant. 404(a)(1) only
allows the prosecutor to introduce evidence of the defendant's character
to rebut character evidence introduced by the defendant. However,
404(a)(1) allows the defendant to bring in evidence of his good
Hypo regarding classmate's punctuality
On direct..
- Can get information about their Opinion
- Can get information about their Reputation
(character evidence is limited to opinion and reputaton about a person's character)
- Can get information on what the person "personally observed."
- Cannot ask about specific instances on direct***
On cross..
- can ask about specific instances (tactically - be nervous about asking that)-
On rebutal....
- can offer opinion and/or reputation testimony
:::::  the advantage that allows a D to parade good witnesses for their testimony will only be available to those people who have led really an unblemished life and have a lot of good character witnesses (priest, banker, etc.)

Rule 404: part 2
-  Character of the victim (a lot of time is raised in self-defense cases)  can be introduced as an exception : allows defendant to put evidence into about the victim regarding a pertinent character trait.

Problem 5B:  under 404a2 the character of the victim may be brought in because this case involved self-defense.

Rule 405:  Methods of proving character:
a)  reputation or opinion: in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.  On cross-examination, inquiry is allowable into relevant specific instances of conduct.
b)  specific instances of conduct:  in cases in which character or a trait of character of a person is an essential element of charge, claim, or defense, proof may be also be made of specific instances of that person’s conduct.

- Be aware of rape shield rule :  Rule 412 (tends to be amended every three of four years to make sure to look up often before using rule blindly)
-  Also, see Rule 412 in the class handout.
 -  evidence pertaining to the sexual history of a sex crime victim is restricted.
412A:  Evidence generally inadmissible.  The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions b and c.
1)  evidence offered to prove that any alleged victim engaged in other sexual behavior is not allowed
2)  evidence offered to prove any alleged victim’s sexual predisposition is not allowed

B) Exceptions:
1)  In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
a)  evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.
b)  evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
c)  evidence the exclusion of which would violate the constitutional rights of the defendant. (right to confront the accuser as per the 6th amendment. D has the right to confront his accusers)
 2)  In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
- keep in mind that most rape shield statutes have pretrial requirements so as to confront any of these issues outside the ears of the jury.
-  also, there are more specific exceptions in rules 413-415.  (sexual assault cases, child molestation crimes, sexual assault or child molestation in civil cases) In general, other offensives are admissible so as to allow evidence of the D's propensity to make these crimes.  This is different than with other crimes because this is more harsh and the courts are more agreeable to let the information in.

Problem 5E
 The testimony of Fred is admissible under 412(b)(1)(B) because
it is evidence of "specific instances of sexual behavior" with the
accused "offered to prove consent."
However, Greg's testimony, although reputational, is barred under 412(a)(1) as being offered to prove that Leslie "engaged in other sexual behavior", and 412(a)(2) as being offered to prove "sexual predisposition."
Also, Thomas' remarks are inadmissible under 412(a)(1) as being offered to prove "other sexual behavior." However, Fred might argue that at least Thomas' remarks are admissible under 412(b)(1)(A) to prove that Thomas was "the source of semen, injury, or other physical evidence."

Rule 413
- in a criminal case where the D is accused of sexual assault, evidence of D’s commission of another offense or offenses of sexual assault is admissible, and may be considered on any matter to which it is relevant.

Rule 414
-  provides that in criminal trials for child molestation, evidence of D’s commission of another offense or offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

Rule 415
-  extends the new doctrine of 413 and 414 to civil cases raising issues of sexual assault or child molestation.

See handout of MN Rule 404:  Admissibility of Character Evidence
- you cannot introduce evidence of a person's character to prove that they did the crime
-  there are 3 exceptions:  character of the accused can be introduced by the accused, character of the victim, and the character of the witness.

Look at 404(b):  still cannot use for propensity purposes, however, it may be admissible for other purposes:  proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
-  Past acts have to have some relationship between the past acts and the current crime charged.  The federal courts are more protective than the state courts in this area and the fed court will likely see the B part more narrow and see more prejudicial concerns.  MN courts will allow the evidence through and will allow prior evidence of bad acts to come through.  (exception that swallows the rule)


*****- 4 basic concerns that courts must address when allowing the evidence of prior acts to come in:
 1)  is offer for a valid purpose?
 2)  does it tend to prove the purpose? (relevant for that purpose)
 3)  is the probative value substantially outweighed by the potential for prejudice (403 concerns)?
 4)  if requested, the judge should give a limiting instruction.

- Nothing is more common in federal courts than drug cases in which the govt offers evidence that on some other occasion D sold drugs, as proof that on this occasion he “intended” to sell similar drugs found in his possession.  And specific acts are admitted on many other points, like knowledge, motive, and plan.  Obviously the court must carefully analyze probative worth and risks of unfair prejudice and confusion of issues, and often the proof is excludable under 403 even though it is marginally relevant on some point.  See 4 part test above on how must courts decide which evidence comes in and what evidence does not.
-  As the book states, “Prior offense evidence may be admitted in criminal cases on any issue to which it is relevant unless probative value is substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a propensity on the part of the accused.”

- proving intent to sell cocaine
- does it fall under 404b?

- modus operandi of suspected criminal:  8 times before the man robbed the bank the same way ( can this evidence come in? )  YES
- a person's modus operandi is admissible.
- this is an easy case because the acts are "strikingly similar" to the modus operandi of the D in the past.
- however, if you change the facts and instead
- 104a :  judge decides
- 104b :  jurors get to decide based on a prima facie showing.

US v. Huddleston
-  The rules do not require a “preliminary finding” by the court that the govt. has proved a prior act by a preponderance, but requires only a “threshold decision whether the evidence is “probative of a material issue other than character.”  Second, admitting evidence of prior acts raises a question of relevance condition on a fact under FRE104b and therefore it is up to the jury to decide by a preponderance of the evidence whether D committed the prior act.  By this approach, proof of a prior crime is relevant if the jury “can reasonably conclude that the act occurred and that the D was the actor.” And the jury decides whether the govt. has shown these points by a preponderance of the evidence.
-  however, this holding is not binding on the states and some have adopted it and other states have not.
-  104b:  is there some evidence in the record that would allow the jurors to see that the D committed the robbery.
-  Prosecution must show that the prior acts took place and that the D was involved in committing those acts  (prima facie showing:  104b ruling.

Dowling v. US
- just because a D was acquitted on a previous charge, will not preclude the prosecutor from using the prior acts.  All the prosecutor needs to prove is that the prior crime was committed by a “preponderance of the evidence,” not beyond a reasonable doubt, as required in the prior proceeding.

State courts go through a different approach.  See handout.

Habit and Routine Practice
Under Rule 406: habit and routine practice are admissible and relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Habit v. Character
Habit = a regular response to a repeated situation (things that do not have moral overtones) - a situations that is semi-automatic : is likely to be seen as a habit.  Must establish a regular practice with a certain type of conduct and consistency with that habit.  Habits are reflex behavior and/or mechanistic.  ** Habit evidence is fully admissible under 406  (drinking habits will likely come in as long as a foundational requirement is met by establishing that the person will act a certain way everytime:  ie.  person drinks 6 beers every time they go to the bar vs. the person has a drinking problem (the latter is character evidence and thus not admissible, but the previous establishes a general habit that is admissible)
Character = generalized description of one's disposition in respect to a general trait such as honesty, carefulness, etc. While habit is more specific.

Problem 5-M
Two cars collide, killing all of the passengers with no
eyewitnesses. In the wrongful death trial, one of the parties seeks to
introduce testimony that one of the drivers was "a good careful driver"
as evidence that the other must have been at fault.
-  Issue: Whether this evidence is admissible under 406 as a habit.
-  Answer: No. "Good careful" driving is evidence of general character and
thus inadmissible under 404(a). There is no way to characterize being
careful as a habit, because habits involve mechanical, reflexive type
(You may be able to illicit testimony on whether the person usually goes over the speed limit on the type of highway the accident occured on - but not whether the person is a "good, careful driver")

Problem 5-N
A mechanic is injured by an exploding can of freon after he
heated it in a coffee can of water in order to raise its pressure. The
defendant manufacturer seeks to offer testimony by a fellow worker that
he had often seen the mechanic use an immersion heater to heat the
-  Issue: Whether the evidence by the fellow worker is admissible as a
habit under FRE 406.
 - Answer: Yes. The repeated use of a certain tool for a certain purpose
can be properly characterized as a habit, rather than a character trait.
The evidence should be admissible as long as the witness had observed
enough occurrences that it was a habit.

**** In MN, the courts allowed evidence that a man usually shoots at pheasants when driving.  (professor thinks this was a stupid call - how can this be a habit?)

Problem 5-O
An illegal immigrant was deported, and returned, subjecting
himself to higher penalties for re-entry. He claims that he was not
served with the papers telling him of the higher penalties. As proof
that he was served, the government seeks to introduce testimony by an
INS officer that it is the standard procedure of the agents to sign the
warrant, get a thumb print, and give the notice to the deported person.
-  Issue: Whether the evidence of the normal process of deportation is
allowable here to show that it was followed in a particular instance.
 -  Answer: Yes. The evidence does not need to be corroborated under FRE

- when a company redesigns and fixes a problem after the accident, the court will not allow this evidence in to prove negligence or culpable conduct (includes strict liability as the next case shows)
-  however, the info can come in if offered for another purpose like proving ownership, control, feasibility of precautionary measures, impeachment, etc.
- policy reasons for rule:  it is unwise to discourage efforts to make things better or safer and efforts to prevent future accidents may not show or even indicate that past practice or conditions amounted to negligence or fault.
** keep in mind that changes made before the accident are admissible, just not changes made after the accident occurred.  Under the rule, however, there is a situation where you can imput the evidence.  Look at example on page 6. In that type of case, you can use the subsequent change because the event or injury occurred after the design change.  ****  very important to understand. Only applies to remedial measures taken after the accident or injury!!!!!!
EXCEPTIONS TO RULE:  rule does not require exclusion of evidence if offered for another purpose (ownership, control, and feasibility of cautionary means is a big issue in product liability cases)
- this still remains and issue in state courts.

Flaminio v. Honda Motor Co.
Facts: Flaminio was injured when the Gold Wing motorcycle he was
riding began to wobble, and he lost control.
Procedural Posture: The trial court denied Flaminio's offer of
evidence that Honda had thickened the front struts of the motorcycle
after his accident, under 407's exclusion of subsequent remedial
measures. The jury returned a defense verdict, and the P appealed on the
basis that 1) the evidence was offered to impeach any testimony by Honda that they would never have thickened the struts, and 2) that Rule 407 should not apply in products liability cases, and 3) the federal court was bound to
follow state law interpretation of whether subsequent remedial measures
were admissible because it is a matter of substantive law (Erie doctrine).
Issue: Whether FRE 407 applies in products liability cases.
Holding: Yes.
Majority Reasoning: There was no offer by Honda that they would not
have thickened the struts, so the evidence can not be used to impeach
them. Furthermore, such an exception would swallow up the rule. Also,
the policy behind the rule is to encourage people to make things safer.
Since a strict liability defendant still has a motivation to make things
safer, he would be discouraged from doing so if evidence of subsequent
remedial measures was used to show that the product was inherently
unsafe. Thus, the rule applies in products liability cases. Lastly, the
rule is more procedural than substantive, and thus within the power of
Congress under the necessary and proper clause, avoiding a conflict with
the Erie doctrine.

Rule 408:  Evidence of compromise or offers to compromise are NOT admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations are likewise not admissible.  (based on public policy concerns that not every case should go to trial and lawyers should not find settlement negotiations risky if in trying to settle the other party could use this in trial) *****Limitation:  there must be an actual dispute regarding the validity of the claim or the amount of the claim.  Some state rules are different in that "facts" during negotiations are admissible as in MN.  It may allow the evidence to come in for another reasons, see the rule.  Documents created prior to the litigation, will be discoverable and will not thus be protected under the rule.
- watch for issues regarding bias and obstructing justice (llok at the rule)


Rule 409:  Payment of or promise to pay Medical and Similar expenses are not admissible to prove liability for the injury.

Rule 410:  Pleas, Plea Discussions, and Related Statements are not admissible. (public policy strongly favors plea bargaining as a way of disposing criminal case, and without protection, such bargaining could not occur)  However, watch for situations where statements can be use for perjury determination.  Criminal law admissibility of pleas, plea discussions and related statements.  (if they are talking to police - not available for protection - if they are talking to prosecutor - the statements are protected from admissibility)
- There are exception where the evidence can come in (like to prove perjury or to impeach witnesses)

Rule 411:  Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.
Liability insurance is not admissible whether the person acted negligently or otherwise wrongfully.

Rule 601:  presumption of competency and competence is determined by state law.
Rule 602:  witness must have personal knowledge (most important rule***)  NO ONE IS COMPETENT UNLESS THEY HAVE "PERSONAL KNOWLEDGE" OR THINGS THAT THE PERSON PERCEIVED AND RECALLED.  This rule does not pertain to expert witnesses however.  The experts can use other information and there is no requirement to testify on the basis of their own personal knowledge.
Rule 603:  every witness required to take an oath (to testify truthfully or by affirmation)  Promise to tell the truth.
Rule 604:  interpreters must be provided if needed and are treated as witnesses.  Must be a neutral witness.
Rule 605:  no judge can be a witness as well as the judge in the same case.
Rule 606:  juror may not testify as a witness (there are a few narrow exceptions)

 - Lawyers may not testify in certain situations - like when they are an advocate in the same case.  Many decision hold that the judge has discretion to exclude such testimony or to condition it on withdrawal by the attorney from the case.  Sometimes, if the issue is small and the harm is great, the judge can allow the testimony.

Common law affect on the Rules dealing with competency.
- mental capacity:  requirement has survived in states, but not in the federal rules.
- religious beliefs:  now mostly prohibited by state constitutions to base a requirement on any religious basis.
- criminal convictions:  a few state statutes remain rendering a witness incompetent who has been convicted of perjury.
- infancy:  only applicable if the court renders the person incapable for a variety of reasons.  Some states have presumptions set for very young children.
-  interested parties:  sometimes there will be bans - but this is abandoned by all courts

Ricketts v. Delaware
Facts:  The D was accused of raping a 5 year old daughter of a person who he knew.  At trial, the child was examined by the court and counsel  as to her understanding of the concepts of truth and falsehood.  While the child did not understand the concept of perjury, she clearly understood the difference between the truth and a lie.  The court permitted her to testify and the D was convicted.
Issues:  May a young child testify if he demonstrates an understanding of the concepts of truth and lies?  YES
Holding:  Under Delaware’s evidence rules, anyone is presumed to be competent to testify, provided that they take an oath and demonstrate a basic understanding as to its meaning.  Here, the child demonstrated an understanding of the concept of truth and therefore is competent to be a witness against the D.  Affirmed.

Rock v. Arkansas
Facts:  The D was involved in a fight with her husband in which he was killed by a bullet wound.  Because the D had only a vague memory of what had occurred, she was put through hypnosis and recalled that her finger was not on the trigger when the gun discharged.  In addition, expert examination  of the gun revealed that the gun was defective and prone to fire when hit or dropped, without the trigger being pulled.  The trial court excluded this testimony as unreliable and D was convicted.  On appeal, the state supreme court laid down a rule that no hypnosis-induced testimony would be admissible in any case, civil or criminal.
Issues:  May a criminal defendant be prevented from using evidence obtained by hypnosis as a defense?  NO
Rule:  A defendant has an absolute right to testify in his own behalf and a necessary component of this right is the ability of the D to tell his story in his own words.  Although a state has a right to prevent perjury, however, where it cannot show that a per se incompetency rule is absolutely necessary, such a rule cannot be enforced.  Here, hypnosis as a memory enhancing device is still largely an unexplored area and it simply cannot be said that testimony gained from it is unreliable.  While a state can devise rules to enhance its probative value, such as requiring proper credentials by those employing it, the state cannot, on a per se basis, exclude all hypnotically-induced testimony.  REVERSED.
- accuracy of information is debatable and the power of suggestion is high and thus mostly not admissible in most cases.

Competency - FRE 601
A. all witnesses are presumed competent if:
1. they have personal knowledge (except for expert witness)
a. personal knowledge “remembered” after hypnosis is admissible.
2. they take an oath or affirmation swearing to tell the truth (except a child may simply explain that they understand the obligation to tell the truth).
B. unless:
1. they are a judge in the case
2. they are a juror in the case - Rule 606
a. juror may only testify outside of the case as to whether any improper outside influence affected any juror.
b. however, judge may question jurors individually outside the presence of other jury members in order to root out improper influence
3. they are a lawyer in the case (not prohibited by rules, but prohibited by ethical standards unless the issue is uncontested).
C. In diversity cases, the state law of competency applies.
1. dead-man’s statute - state law that prevents evidence from being admitted against the deceased’s estate if the deceased could have rebutted it by live testimony were he alive.
a. ex: _ says, “Jim promised to pay me $100, just before he died.”

Tanner v. United States
Facts: Tanner was convicted of a crime. After his trial, the defense
sought to introduce evidence that many members of the jury were drinking
and taking drugs during recesses, and so they were not competent to
return a verdict.
Procedural Posture: The trial judge denied the defendant's motion for
a new trial and for interviewing of the jurors. The defendant claims
that failure to allow evidence of jury misconduct violated his right to
a trial by a competent jury.
Issue: Whether the interviewing of the jurors to determine whether
they were under the influence of alcohol or drugs was a violation of
Holding: Yes.
Reasoning: Substance abuse does not fall into the category of
"outside influence" as recited in 606(b). As such, the jury is not
subject to examination, and the verdict is not subject to collateral
Rule:  Jury testimony cannot be admitted to impeach a verdict.  The only exception is when there is juror testimony regarding improper external influences on a jury can be used to impeach.  However, juror intoxication is not an external influence.  In addition, courts have found “mental incompetence” to be an inside factor and thus not impeachable.

-  newspaper
-  outside information

-  drugs
-  too little sleep
-  too much spicey food

- policy reasons:  to preserve the integrity of the jury system.  It would seriously interupt the finality of the process if a different rule were to be adopted and harm the public's acceptance of the trial by jury system.

Rule 606:  Competency of juror as witness.
-  a juror cannot testify in any case in front of the same jury of which they are also a member of
- juror cannot testify to any matter or statement ocurring during the course of the jury's deliberations or ot the effect of anything upon that or any other juror's mind or emotions as influencing the juror to the juror's mental processes in connection with the case   ::::  except, a juror can testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

Problem 6-B: A juror sends a letter to the judge stating that they
disregarded his instruction, and considered the defendant's refusal to
take the stand as an admission of guilt.
Issue: Whether the juror who wrote the letter may be questioned
regarding its content.
Answer: No. FRE 606(b) precludes the testifying of the witness regarding
the mental processes he used in coming to the decision. *** Inquiry into the thought processes are not allowed.

-  IN MN and other places, it is unethical to contact jurors regarding their decision and to investigate their conduct.  (unwritten rule but which is recognized by judicial opinions.)  However, if the juror comes to you, the attorney can talk to the person.

Problem 6-C: The jury misinterprets a formula for the calculation of
damages, and returns a verdict for an outrageous amount.
 Issue: Whether the juror's affidavits in regards to the mistake are
 Answer: No. However, the judge has the ability to grant a new trial from
the obvious error that the jury made.
Problem 6-D: Two jurors do an independent "fact finding" visit to the
accident site.
Issue: Whether the defense attorney may make inquiry of the two jurors
regarding the truth of the report of their misconduct.
Answer: Yes. A visit to the accident site is an "outside influence" that
was "improperly brought to bear" upon the juror.  You can ask them what they found and saw at the accident site, but you cannot ask about what effect it had on their deliberative process and what they told the other jurors.


Problem 6-E: A juror has knows from his own experience about certain
facets of the case, and shares that information with the other jurors.
Issue: Whether the attorneys may question the jury with regard to
whether they were influenced by the one juror's personal knowledge.
Answer: No. Personal knowledge that causes a juror to have a particular
opinion is not an outside influence under 606(b).

 Problem 6-F: An IRS agent is called to testify that she audited 160
returns made by a certain tax preparer and that 90 to 95 percent of them
had overstated itemized deductions. However, she got this information
for the individuals for whom the returns were prepared.
Issue: Whether the testimony can be received in light of FRE 602's
personal knowledge requirement.
Answer: Yes. Whether an itemized deduction was overstated is the
business of the agent to discover. If the individual can not support the
deduction, then it is overstated. The IRS agent, after conducting the
audit, has personal knowledge of whether the deduction was overstated.

Eliciting witness testimony on direct exam.
a)  must establish a person's "personal knowledge" about the witness is going to testify to.
b) can refresh their recollection by using their notes, but can't read the notes because they are an out of court statement and thus subject to the hearsay rule (but we will learn about an exception later)

 Rule 612:  opposing counsel is able to look at documents that witness is using to refresh their recollection.

Leading questons:  questions that encourage a specific answer.  Yes or No usually.
- Non-leading questions are "general questions" that do not illicit a specific answer.

Direct Exam - no leading questions allowed, but there are some exceptions:
1)    When necessary to develop testimony:
a)    very young people
b)    timid, reluctant, or frightened
c)    ignorant, uncomprehending, unresponsive
d)    infirm or mental incapacity
e)    people with language barriers
2)    When witness is uncooperative (hostile witness)
3)    When the rule is more trouble than it is worth (not necessary to question appropriately on non-controversial issues)
4)    When memory seems exhausted (lawyer can “refresh” their recollection by remind the witness of something that the witness said before through an written statement or affidavit or in a deposition) According to Baker v. State, anything can be used to refresh the memory of the witness.

Baker v. State
 Facts: The defendant was arrested as a suspect in a beating. On the
way to the hospital, the police officer transporting the victim took the
victim to identify whether the defendant was involved. There was
evidence in a police report made out by another officer that the victim
stated that the defendant was not one of those who attacked him.
 Procedural Posture: At trial, the defense, on cross-examination of
the officer who took the victim (now dead) to the hospital, attempted to
have the officer testify as to whether the victim had cleared  the
defendant from any wrongdoing. However, since the officer could
not remember, the defense gave him copies of the arresting officer's report
to read in order to refresh his memory. The trial judge prevented the officer
from reading the report, apparently applying the strict standard for the hearsay exception of past recollection recorded (i.e. the testifying officer did
not have personal knowledge because he didn't write the report).
 Issue: Whether a report written by another police officer may be used
by the testifying officer to refresh his memory, even though the
testifying officer may have no personal knowledge of the contents of the
 Holding: Yes.
 Reasoning: The trial judge confused the standard of past recollection
recorded (which requires that the writing be determined to be competent)
with the concept of present recollection revived. In past recollection
recorded, the writing itself is read into evidence. However, with
present recollection revived, it is only a means to jog the memory of
the witness, who is testifying thereafter under oath based on his own
personal memory, not on the contents of the writing. Anything may be
used to jog a memory (songs, smells, writings, etc), subject only to the
discretion of the judge in the interest of proper decorum and avoiding
wasting of time. In this case, the error was clearly prejudicial.

- evidence used to discredit the credibility of the witnesses.

Substantive evidence vs evidence offered for impeachment purposes.
- who, what, where, when, how, and why = substantive evidence (proving elements of the cause of action. Judge decides the admissibility on 401a and b to apply the exclusionary rules to see if the evidence is relevant and is substantially outweighed by the prejudice over the probative value.
-  impeachment evidence is negative evidence - not offered to establish the elements of the case, but to detract from the adverse party's evidence/ case.  It is given to the juriors so they can evaluate how to weigh the testimony before them.  Impeachment evidence can only be used to access the credibility of the witness.

Impeachment evidence
a) to show bias
b) witness if defected (sensory or mental)
c) prior inconsistent statement to contradict current statement (see application of hearsay rule)
d)  character evidence  (for impeachment purposes) exception to the propensity rule and you can offer evidence like this for the purpose of "impeaching" the evidence.  Can do this through reputation and opinions, as well as bad acts of witness as well as convictions and non-convictions can be introduced.
e)  contradiction:  you can bring in other witness who will contradict the witness. (frequently not impeachment testimony however)

Rule 615:  Exclusion of Witnesses
-  court can order at the request of a party to exclude witnesses so that they cannot hear the testimony of other witnesses.  However, some people cannot be excluded:  1) a person who is party to the action, 2) officer or employee who is designed as its representative, 3) a person who is shown to be “essential to the presentation” of the cause of a party.  (ie. Investigative agents in criminal trials and sometimes expert witnesses)
- when a party violates the court’s order of sequestration, the other party must make a showing of “probable prejudice” or an “abuse of discretion” when the court permits the person to testify.

Problem 7-A:
During trial, the plaintiff obtains an order from the court
excluding all witnesses. However, right before a certain witness is to
be called by the defense, the plaintiff learns that the defense has
(legally) bought trial transcripts. The plaintiff suspects that the
defense read important portions of prior witness' testimony to the key
witness about to be called.
Issue: Whether the court may bar the key witness from testifying on the
ground that sharing of the transcripts violates the court order of
Answer: The court should allow the witness to testify unless the
plaintiff can show by a preponderance that the transcripts were used to
coach the witness. However, an alternate approach would be for the court
to presume prejudice, and let the defense rebut. If the first path is
taken, the court should let the plaintiff ask the witness on cross-
examination whether he was shown the transcripts before he testified.

Impeachment of Witnesses
5 ways to impeach a witness
1) showing that the witness has some bias, animus, motivation, or corruption which might lead him to fabricate or shade his testimony to help or hurt one of the parties (defense has the due process right to show bias, however, court may impose reasonable limits on efforts to show bias and cut off questioning when the point has been made)
2) showing a defect in the witness’s sensory or mental capacity (perception or memory) which undercuts their testimony
3) showing that he is by disposition untruthful (3 ways to do this: a) cross-exam regarding non-conviction misconduct that casts doubt upon their honesty, b)cross-exam regarding his prior convictions or past misconduct, c) provide other testimony from other witnesses that the target witness is untruthful. (character witnesses)
4) showing that the witness has made a prior inconsistent statement
5) contradicting the witness - showing that the target witness is just plain wrong on one or another point in his testimony.

US v. Abel (impeachment through bias)
Facts: Abel and two others were arrested for bank robbery. One of his
alleged cohorts, Ehle, pled guilty and promised to testify against Abel
in return for a light sentence.
Procedural Posture: At trial, Abel produced a witness, Mills, who was a cellmate of Ehle in prision, that testified that Ehle had told him that he was going to falsely accuse and frame Abel. The trial court allowed the prosecution to put Ehle back on the stand to testify that Mills, Ehle and Abel were all part of the same secret prison gang whose purpose it was to lie for each other. The court of appeals reversed, holding that the testimony unduly prejudiced the defendant because mere membership in an illegal organization does not have any probative value with regard to veracity.
Issue: Whether the admission of evidence tending to show bias on the
part of a witness is inadmissible if it also tends to show that the
defendant was lying?  NO
Reasoning: The membership of Mills in the prison gang was
sufficiently probative of Mills' possible bias towards Abel to warrant
its admission, and was within the discretion of the trial court. Even
though the rules do not expressly refer to the admissibility of extrinsic
evidence to show bias, this evidence is otherwise covered by 402's
allowance of "relevant" evidence. Proof of bias is relevant, and thus
admissible. Even though the evidence also tended to show that the
defendant and his witness were part of an illegal organization, and thus
probably lying on the stand, it is still admissible for the purpose of
showing bias. Also, even though membership is not sufficient to convict,
it is sufficiently probative to be relevant. The trial court took
sufficient steps to limit its prejudicial value.
Rule:  Evidence which is sufficiently probative of a witness’ possible bias for or against a party warrants its admission into evidence.  Any evidence which reasonably could show an inclination towards slanting the facts for or against a particular party is almost always relevant.  The objection to such evidence properly falls within the argument that such evidence is so inflammatory, or so likely to mislead or confuse the jury, that its probative value is outweighed by the prejudicial impact.  In this case, the court found that the probative value of the evidence clearly outweighed its prejudicial impact and therefore admitted the evidence.


MN: has a specific evidence rule that show that bias testimony is able to come in.........  See handout. Rule 616.
Problem 8-A:
General Motors hires an expert witness to testify in a
product liability suit. On direct, the defense brings out the fact that
they are paying him $400 per day. On cross, the plaintiff wishes to go
into further detail about the total of payments, and how much the expert
witness relies on these payments for his living.
Issue: Whether the further inquiry into the total of payments is
Answer: Yes. It is probative on the issue of bias. It gives the jury an
idea of the significance of the payments.

Sensory and mental capacity
- cross-examiner may raise issues of a witness' eyesight, drug influence, alcohol, memory, etc.  Can always question whether one had the "capacity" to give their eyewitness testimony and whether that info is accurate.

Character for Truth and Veracity
3 means of proving untruthfulness:
1)    cross-exam on non-conviction misconduct
2)    cross-exam on convictions
3)    use of character witnesses

404:  generally bars the use of character evidence to prove conduct outside of court.  Showing that a person is untruthful involves character evidence to show a particular kind of conduct in court - lying on the witness stand, and FRE 404(a)(3) makes an exception permitting this strategy.  FRE 608 and 609 authorize and regulate this means of attack.
-  Under FRE 404: a party may lose much of the protection if he decided to testify on their own behalf, because it opens him up to impeachment testimony.  However, the attack must focus upon traits relating to “veracity” and not the propensity to do the crime.  (Example: in murder trial, the prosecutor may try to suggest that D is “dishonest,” but not that he is “violent.”)
- specific instances may be brought into evidence that show a person’s misconduct that seem to bear on their veracity.  (like previous acts of fraud, lying, bribery, etc.)  Most modern cases disapprove of cross-exam concerning behavior that does not directly involve lies or deception.  Thus, questions regarding drug use, violence, or sexual relationships is generally disapproved, although occasionally such points come out in attacks that show bias or motivation on the part of the witness.
- under 608(b) specific bad acts can be introduced on direct to access a witness's credibility (only those acts which are probative of truthfulness or untruthfulness are admissible).
-  lawyer must have good faith basis for questioning the witness regarding any activity concerning a person's credibility.
-  there are limitations:  you must ask the question of the witness about what bad acts they have participated in.  You may not establish the veracity and truth by "extrinsic" evidence.  (Example,  you have copies of false tax forms - you can ask them questions about them, but if the person denies making the false tax forms, then you are not entitled to disprove their answer by bringing the documents in or by bringing the IRS in [this is collateral and extrinsic evidence].

Simmons v. Pinkerton’s Inc.
Facts:  Simmons hired a security guard, Hayne, through Pinkerton. A fire
started when the guard was on duty.
Procedural Posture: Simmons brought a negligence case against
Pinkerton. At trial and on cross-exam, Simmons asked the guard, Hayne, whether he had lied to his superiors about taking and passing a lie detector test, and the guard admitted that he had lied.
Issue: May counsel question, on cross-exam, whether a witness lied about having taken or passed a polygraph test?  YES
Reasoning: Most jurisdictions do not permit evidence of polygraph tests under the collateral evidence rule.  However, the collateral evidence rule does not limit the scope of all types of impeachment by cross-examination, it merely precludes extrinsic evidence being admitted to impeach by contradiction. Because the veracity of a witness is always an important consideration, the witness may be cross-examined with respect to whether he has lied. Rule 608(b) allows cross examination of a witness about specific instances of her past conduct, if probative on truthfulness, but prohibits proof by extrinsic evidence. Here, the guard admitted lying. Had he not done so, the plaintiff could not have brought in extrinsic evidence to prove that he had.
RULE:  you can ask about previous acts of "lying," as the court allowed here as long as attorney has a good faith basis.  If the D denies lying, the opposing party may not introduce the evidence to refute their denial.  608b: you are stuck with the witnesses' answer.

Impeachment based on Prior Convictions
FRE 609 controls here.

Prior Convictions on cross?  YES
-  Cross-examiner may ask about 1) convictions for crimes punishable by death or imprisonment for more than 1 year for criminal defendants and for witnesses other than criminal defendant, the admissibility of such convictions is subject to FRE 403, and such convictions can be used to impeach a criminal defendant only where their probative value outweighs their prejudicial effect to the defendant, 2) convictions for either felonies or misdemeanors involving dishonest or false statement.  There is a 10 year time limit.  Also, pardons, annulments, and juvenile adjudications are generally inadmissible.  It does not matter, however, if the matter is currently under appeal.

Rule condensed:  Evidence of an witness' prior convictions may be used to impeach if:
                1. conviction is of a crime involving dishonesty or false statement is  admissible.
                2. conviction of a crime punishable by death or imprisonment for greater than one year subject to Rule 403 (presumption of prejudice), unless the conviction or release (later) was within the past ten years or the probative value outweighs the prejudice.

Note:  generally the impeaching party is allowed to bring out only the fact of the prior conviction, the date, and the type of crime, but not the underlying details of its commission.

Class Notes:  crimes involving dishonesty, false statement = these are sufficiently probative enough to always be admissible.  However, regular felony grade crimes (like murder, manslaughter, assault, etc) will come in only if the probative value outweighs the prejudicial effect.   609 sets up a balancing test:
- if witness is the accused = you admit only if the probative value is greater than the prejudice.  In a close case, you always exclude the evidence.
- if the witness is someone other than the accused =  you apply rule 403 which states that you admit unless the probative value is substantially outweighed by the prejudice.  In a close case, you admit the evidence.

United States v. Lipscomb
Facts: Lipscomb was charged with possession of heroine.
Procedural Posture: At his first trial, Lipscomb testified and had
been impeached by cross-examination concerning his conviction for
robbery eight years earlier. The court held that a person who would commit an armed robbery would also lie under oath, and therefore found its impeachment value sufficiently probative to outweigh the prejudicial effect.  A second trial was held following the D’s conviction, and he was convicted again.  D appeals contending that the trial court erred in admitting the prior felony conviction without undertaking an extensive review of the underlying facts to determine whether or not is probative value outweighed its prejudicial effect.
Issue: Whether it was proper under FRE 609 to allow cross-examination
of the defendant and the witnesses with regard to their prior
convictions. Holding: Yes.
Reasoning: Rule 609(a)(1) requires a balancing of the probative value
against the prejudicial value of prior conviction evidence of the
defendant himself, but only requires that the witnesses prior crime be
punishable by more than 1yr in prison. Any prior crime of untruthfulness may be admitted. ***Also, in contrasting with 609(b), which requires specific inquiry by the judge into the underlying facts, 609(a)(1) does not
require such an inquiry. Thus, the judge has the discretion to
determine how far to investigate a prior conviction in performing the
balancing of probativeness vs. prejudice. As such, the judge may allow
this evidence.

Some Factors to apply the balancing tests between the probative worth and unfair prejudice as in the Gordon case.
1)    nature of the conviction
2)    its recency or remoteness
3)    whether it is similar to the charged offense
4)    whether D’s record is otherwise clean
5)    the importance of credibility issues
6)    the importance of getting the D’s own testimony.

Problem 8-B: Dennet is arrested for a bank robbery. He has a prior
robbery conviction. The prime witness for the defense, and the prime
witness for the prosecution both have prior robbery convictions.
Issue: Whether evidence of the prior convictions should be allowed as to
each witness and the defendant.
Answer: Rule 609 provides that prior conviction for impeachment of a
witness is admissible subject to Rule 403, as long as it was punishable
by >1 yr imprisonment. So the prior conviction of each of the witnesses
should be allowed unless its probative value is "substantially
outweighed" by its prejudicial effect (Rule 403).
-  Elmo and Farr = no great prejudicial effect, but the prior conviction of the defense witness Farr is probably subject to more careful balancing than that of the prosecution’s witness Elmo.
-  Dennett = Rule 609 states that the probative value must "outweigh" the prejudicial effect. As such, the balancing standard is higher. Since the prior conviction was so similar to the present charge, there is great danger of
prejudice. Thus, it should probably stay out.
Problem 8-C
Pratt sues Denko for personal injury damages from a car
accident. After Pratt testifies, Denko seeks to impeach him by bringing
out prior felony convictions for manslaughter and forgery.
Issue: Whether the evidence of the prior convictions is admissible in
either case.
Answer: Only for the forgery. Rule 609(a)(2) provides that crimes
involving dishonesty or false statement are admissible, regardless of
the punishment. However, since a prior manslaughter conviction is
probably excludable under Rule 403 as the prejudicial effect "substantially outweighs" the probative value.
Notes:  crimes like perjury, fraud, and forgery are likely to be admitted, however crimes involving violence, prostitution, drunkenness, and drugs are not.  Most courts also exclude the crime of “theft,” however, if the facts surrounding the theft crimes clearly do involve dishonesty or false statement, most courts have said that the facts do count.  Courts can look at the facts surrounding the conviction to determine if it should be admitted.  However, the court does not have any discretion in not letting in evidence per 609a2 which is evidence of a crime involving dishonesty or false statement, regardless of the punishment.  (the judge must always allow such evidence in)  Dishonest crimes are = perjury, false statement, embezzlements, fraud, false pretense, falsification, etc. according to conference reports on the rule.


Problem 8-D:
Durston is charged with assault, and testifies to an uncorroborated alibi at trial.
Issue: Whether any of his 5 prior convictions should be admissible.
1. recent falsifying of motel register - Yes. 609(a)(2) dishonesty.
2. recent drug sale - No. 609(a)(1) not probative on veracity.
3. recent conviction for larceny - Depends on underlying facts, but may be  probative on veracity 609(a)(1).
4. first degree armed assault - No. 609(a)(1) great danger of prejudice, very little  probative value on veracity.
5. forging a bank application, released from prison >10 years ago - No. 609(b) time  limit. But, depends on underlying facts, may be admissible if, "in the interest  of justice," probative value "substantially" outweighs prejudice.

****  According to the time limit, NOT 10 years from conviction, but 10 years from release.
Problem 8-E:
Allen is charged with a burglary, and testifies that he did
not do it. The prosecutor attempts to bring out specific instances of
lying on a tax return under 608(b). However, since these prior acts
resulted in a conviction, the defense wants to limit the inquiry on
cross-examination only to the fact that he had a prior conviction.
Issue: Whether the underlying acts which lead to a prior conviction may
be admissible in cross-examination of the defendant when the acts are
probative on truthfulness, and the prosecutor does not mention the
Answer: The underlying acts are probative on truthfulness, but only
minimally so because most people cheat on their taxes. If the prosecutor
is allowed to ask them on cross under 608(b), then he can not introduce
any extrinsic evidence of them, or of the subsequent conviction because
608(b) bars use of extrinsic evidence to impeach as to specific
- 608b vs 609**** be clear the difference!
- 608b should be limited to those acts that do not result in criminal convictions, and 609 should be reserved for just convictions (thus, only specific and limited details of the conviction can come in.  Otherwise, under 608b, the prosecutor can ask about previous misconduct and specific instances, but if the D denied the acts, the prosecutor is not allow to present extrinsic evidence.  However, if D denied a conviction, the prosecutor is able to introduce the criminal record to rebut.  However, in general, a prosecutor cannot ask questions about a conviction, only about previous bad acts and not convictions.
- as in general, juvenile convictions are treated differently.  You cannot use ask about specific acts of bad conduct or about the juvenile criminal record.

Luce v. United States
Facts: Luce was charged with the federal crime of possession of drugs
with intent to sell and conspiracy. He had a prior state conviction of possession of a controlled substance.
Procedural Posture: Before trial, Luce made a motion in limine to
preclude the government from using the evidence of the prior conviction (possession of a controlled substance) to impeach him, should he take the stand. However, he made no commitment to take the stand, nor did he reveal what his testimony might be should he take the stand. The motion was denied, and Luce did not take the stand. Luce was then convicted, and he appeals citing error in denying the motion in limine.
Issue: Whether a defendant who does not testify in a federal criminal
case is entitled to review of an adverse ruling on a motion in limine to
exclude evidence of prior convictions under FRE 609(a).
Holding: No.
Reasoning: If the defendant would have testified, he would be
entitled to review. However, since he did not testify, it is only
speculation whether he would have been prejudiced by the impeachment.
There is no way to tell whether he decided not to testify because of the
prior conviction, or for some other reason. Also, there is no way to
tell what his testimony would have been. Also, there is no way to tell
whether the government would have used the prior conviction to impeach
him. Lastly, there is no way to tell whether the judge would have
changed his ruling on the motion during the course of the trial. There
is simply not enough factual background in order to review such a case.
Thus, the criminal defendant must testify in order to let the trial
- however, in most states, you are able to get a pretrial motion asking for the information here that is not allowed in the federal courts.  This rule only applies to federal courts.

Rule 608: it would appear that an expert could testify regarding the truth of a person, but courts do not allow the "vouching" of a testimony by an expert.  Experts cannot show that someone is a "pathological liar," etc.
- sometimes the evidence does "sneak" in when experts give testimony on various syndromes liked "battered wife" syndrome.  You see this in particular child abuse cases.

Specific Impeachment

Hearsay Rule:  (When you have hearsay testimony)
1)  an out of court statement
2)  offered to prove the truth of the statement asserted.
 (Ok to offer evidence to impeach because the statement is offered to prove that the witness lacks credibility not to prove the truth of the statement asserted)  In other words, the out of court statement does not pass the 2nd prong.

Rule 613
- can impeach thru cross-exam by asking witness about the prior inconsistent statement.  (Do not have to show the witness the statement before the witness has to answer the question - in other words, allows for the witness to be suprised.) No foundation is required to alert the witness about a prior inconsistent statement.
- you are permitted to introduce through extrinsic evidence of prior inconsistent statements - but you have to give the witness an opportunity to respond or give the opposing party the right to interrogate the witness.

Rule 607
-  the credibility of a witness may be attacked by any party, including the party calling the witness. (rejectes common law approach that you can't go against you witness unless there was suprise because of the theory that the lawyer presenting the witness actually vouches for the witness.

Problem 8-F:
Welch testifies on direct that Plimpton's attack on Dirk was unprovoked. During cross-examination, adverse counsel makes no inquiry into any prior statements. Welch is then dismissed. Adverse counsel then calls a police officer to testify that Welch told him that the attack may have been provoked. [note, this is not hearsay because it is not dependent on the truth of the matter asserted. It does not matter whether the attacked was provoked. The evidence of the prior inconsistent statement is being used to discredit the witness, and it is only being offered to show that it is inconsistent, not that it is true.]
Issue: Whether counsel may bring up a prior inconsistent statement of a
witness for the first time on direct examination of another witness.
Answer: Yes. 613(b) allows extrinsic evidence [here, the police
officer's testimony] of a prior inconsistent statement at any time, as
long as the witness is afforded an opportunity to explain or deny it, or
if the interests of justice otherwise require. Unless Welch is
permanently gone, the police officer's testimony should be allowed.

United States v. Webster
Facts: Webster was charged with robbing a bank. King pled guilty to the crime, and made statements to an FBI agent that Webster was involved.
Procedural Posture: At trial, the prosecution called King to testify,
and he denied that Webster was involved. The prosecution then put the
FBI agent on to impeach King with the prior statement [which also tended
to show that Webster was guilty - a hearsay prohibited purpose]. Webster
was convicted and appeals the ruling allowing the prosecution to call
King because the sole purpose appeared to be putting him on in order to
bring in the otherwise inadmissible hearsay statements as impeachment.
Issue: Whether a prosecutor may impeach a witness in good faith if
the witness' prior inconsistent statement would otherwise be prohibited
Holding: Yes.
Reasoning: It would be an abuse of FRE 607 for a prosecutor to call a
witness that it knew would not give it useful evidence, just so it could
introduce otherwise hearsay evidence for the non-hearsay purpose of
impeachment. However, here the prosecution offered in good faith to voir
dire King outside the presence of the jury, and the defense refused. The
defendant still has the opportunity to argue that the impeaching
statement be excluded under 403 because of the jury's inability to
ignore its substantive use, and use it only for impeachment purposes.
- most courts use this analysis as a "good faith" analysis for the lawyer who brings the witness.

Harris v. New York
Facts: Harris was arrested for possession and sale of heroin. An
undercover officer made the arrest when Harris bought for him. At the
police station, before they read Harris his Miranda warning, Harris made
incriminating statements that he had sold heroin to the officer on 2 occasions.
Procedural Posture:  At trial, Harris took the stand on his own behlf and testified that all he had sold was baking powder in an attempt to defraud the purchaser.  He stated that previously submitted evidence showing that the substance had been heroin had been “cooked up” to frame him.  On cross, exam, the prosecution asked him if he had made certain statements during interrogation by the police showing that the bag contained heroin.  These statements were not introduced by the prosecution and was obtained without properly Mirandizing Harris.  At trial, the trial judge ruled the prior
inconsistent statements inadmissible for the prosecution's case in chief
as being clearly unconstitutional. When the prosecution stated that they were being used solely for impeachment purposes, the questions were allowed and Harris was subsequently convicted.
Issue: Whether prior inconsistent statements made before the giving
of a Miranda warning are admissible for the purpose of impeaching the
Holding: Yes.
Majority Reasoning: To prohibit the prosecution from impeaching the defendant with otherwise inadmissible statements is to take away a prime method of ensuring his truthfulness on the stand. The defendant does not have the right to use the failure of the Miranda warning to his advantage by perjuring himself. The court properly admitted the evidence and game adequate limiting instructions on the fact that it was only to be considered for impeachment purposes.  The conviction is affirmed.
Dissent Reasoning: The statements allowed in this case were too
prejudicial because they were directly implicating of guilt. It is
unfair for the prosecution to be able to use uncounseled statements
against the defendant in cross examination that they have illegally
obtained and therefore can not use in their case in chief. This
effectively denies the defendant the right to testify on his own behalf
because he can not be free from the prejudice of the uncounseled
statements. It also cuts away at the deterrence of police officers to
conduct legal interrogations.
- Professor thinks this case should have been put in another type of class - so is not too important to remember.


Impeachment  (overview)
- Bias
- Defect in capacity
- Character (truth and veracity)
 - Bad acts
  1)  609: convictions
  2)  608 B:  non-convictions
 - Reputation / Opinion
 - Prior inconsistent Statement
 - Contradiction

- evidence of contradiction is offered for both impeachment and for substantive issues of the case.
- in general, you can introduce contradictory evidence if it offers some "contributory value" other than mere contradiction.  You cannot try to impeach a witness on issues that are collateral to the litigation.  If it goes to substantive issues of the case, that is ok to introduce evidence.
- to make the issues "substantive," you have to link up the issues to the material issues of the case - must make a persuasive point.

Problem 8-G:
-  The police officer's testimony is collateral because there is no substantive issue of where Oswald was before the robbery.
-  The waiter's testimony is substantive (and not collateral) if he worked on the night in question.

Note 2(a) : wife who is being charged with a murder of her husband calls an expert who relays the "battered wife syndrome."  Is prosecution allow to bring in evidence of when she threatened injury to a trespasser and a neighbor?  Page 660.  Also, in B the Bobbie Beavers case.  Court allowed the evidence to come in because the D raised the issue of the reasons for his resignation.

United States v. Havens
Facts: Havens and McLeroth were stopped when McLeroth was searched in
customs and found to be carrying cocaine in pockets that were sewn into
a tee-shirt he was wearing. That prompted a warrantless illegal search
of Havens' luggage, where a cut-up tee-shirt was found which matched the
pockets in McLeroth's smuggling shirt.
Procedural Posture: At trial, the direct examination of Havens did
not mention tee-shirts specifically, but Havens denied that he taped or
bandaged any drugs to McLeroth. On cross-examination, the
prosecutor elicited testimony from Havens that he "had nothing to do
with the sewing of cotton swatches to make pockets" on Mcleroth's tee-
shirt. To impeach, the prosecutor brought in the illegally seized evidence.
Issue: May suppressed evidence be used to impeach testimony given by a criminal defendant on cross-exam?
Holding: Yes.
Majority Reasoning: The cross examination about the tee-shirt and the
luggage was closely connected with, and reasonably suggested by, the
direct examination. The defendant has the obligation to tell the truth
in response to proper questions, and may not use illegally seized
evidence as a shield to lie. Impeachment is a device which serves to
divine truth. Thus, the balance between the constitutional rights of the
defendant and the interests of justice must be struck in favor of
impeachment by illegally obtained evidence when the cross-examination is
properly related to the direct examination [but not if the evidence is
"smuggled in" by eliciting false statements on cross-examination that
were not sufficiently related to the direct testimony.]
Dissent Reasoning: The defendant must be free to deny all the
elements of the case against him without thereby giving leave to the
Government to introduce by way of rebuttal evidence illegally secured.
As such, some portion of the direct testimony of the defendant must rely
on the government's inability to challenge his credibility before the
evidence can come in. The majority reads the allowable cross-examination
broadly enough that any prosecutor would be able to get in otherwise
excludable evidence.
Problem 8-H:
Issue: Whether the cross-examination question was proper.
Answer: No. It goes beyond the scope of the direct examination (611(b)) and appears to be an effort to elicit a statement solely for the purposes of impeachment, because extrinsic evidence of prior bad acts is otherwise excluded under Rule 608. If Young denied selling any narcotics on direct examination, the prosecutor would be able to prove prior convictions by extrinsic evidence under 609.

   608a)opinion/reputation - 801(prior consistent statement)- OTHER
607 Bias:  usually no rehabilitation - depends on whether the          statement is useful and the          timing of the statement

OTHER - can also use context of statement on redirect and ask person to explain and put the bias into context.
607 Defect in capacity:  NO  -  NO

OTHER - however, if there is some explanation on redirect, that would likely be allowed.
405 Character:
  - opinion/reputation: YES  - NO (However, can cross          exam the witness about          certain instances of conduct)
  - other acts:  YES  - NO (If there is an           impeachment that if someone         asks about specific acts on          direct, you can ask about          specific acts that they are an          honest person or indicating          credibility and the person can         explain the situation on          redirect)
  - prior convictions:  YES  - NO (Usually the courts will          allow an impeachment          witness to give some sort of          explanation if it tends to          prove that the conviction          should be seen in a more          proper light)
613: Prior Inconsistent Statements:   Depends -   YES (Likely) Depends on          when the prior consistent          statement was made - courts          would likely allow and          explanation to the situation.    ------------------------------------------------------------------------------------------------

Repairing Credibility
- You may repair the credibility of a witness who has been impeached as long as you do not do 2 things:  1)  attempt to repair credibility before the attack, 2) to repair at any other time than at the point of the attack.  (However, it is ok when a party anticipates an attack seeks to deflect it by bringing  out on direct exam the points he expects the cross-examiner to raise. Ex. telling jurors that the witness on direct has been convicted in the past.)  An exception:  when witnesses have testified, usually experts, about some type of syndrome: battered wife and child syndrome, rape trauma syndrome.  The courts will usually let this evidence in and let experts testify to the syndrome and the typical behavior associated with it but will not allow the expert to say that they believe the person or vouch for another witness in some way.  Another exception:  Prompt Complaint Rule = by promptly making a police complaint can come in to show that the person was trustworthy.   Usually this exception comes about in sexual assault cases.

Evidence of Good Character
-  FRE 608A allows courts to admit “opinion or reputation” testimony supporting credibility after “character for truthfulness has been attacked.”

United States v. Medical Therapy Sciences
Facts: Berman was charged with fraud.
Procedural Posture: Russell testified against Berman, and testified on direct concerning her past convictions and allegations of embezzlement in an effort to diffuse an anticipated attack by the defense. On cross-examination, the defense put on other witnesses in order to go into more detail about her past conduct. Then the prosecution rehabilitated Russell by bringing on witnesses to her veracity and truthfulness. Berman was convicted, and appeals claiming that the prosecution was forbidden to bolster their witness since it was they who brought out the impeaching evidence on direct.
Issue: Is character evidence in support of a witness admissible only after the character of the witness for truthfulness has been attacked?
Holding: Yes.
Reasoning: Rule 608 itself contains no limitation that precludes the
party from offering character evidence under circumstances where it
anticipates impeachment. Although a party may not bring out impeaching
facts on direct solely for the purpose of getting in character
witnesses, it may bring in character witnesses to bolster the
credibility of its impeached witness if the defense attacks the witness'
credibility. Here, the impeachment on direct was brief, and the defense
attack was severe. Thus, the judge was within his discretion to find
that the defense attack was an attack on character for veracity.

Problem 8-I:
FBI undercover agent Turner arranges a heroin sale with two
women, Clair and Arla. At trial, the FBI agent testifies that it was
Arla who handed him the heroin. However, on cross-examination the
defense implies that the FBI agent forgot, or had a bias against Arla
which led him to fabricate the story. The prosecution offers a tape of
the FBI agent speaking directly after the arrest which is consistent
with his in-court testimony.
Issue: Whether a prior consistent statement may be admissible to
rehabilitate a witness who is charged with recent fabrication.
Answer: Yes. A prior consistent statement is not hearsay under 801 when
used to rebut an attack of recent fabrication. As such, it can come in
substantively for the truth of its contents. Furthermore, it is being
offered here for the non-hearsay use of rehabilitation. It is proper
rehabilitation because the charge of forgetfulness may be rebutted by
showing that his story was the same then as now.
Rule:  A prior consistent statement is not hearsay under 801 when used to rebut an attack for rehabilitation of a witness.

Forbidden Attacks
-  FRE 610:  does not allow impeaching attempts that attack credibility on the basis of “beliefs or opinions on matters of religion.”

Lay Opinion Testimony
-  Rules reject common law approach that allowed lay witnesses to testify about facts, but not their opinions on the basis that a witness should not be so closely confined by rules of legal diction that in the end he is effectively muzzled.
-  Rule 701 provides that a lay witness may give opinion testimony, speaking in generalities or conclusions, when these are “rationally based” on their “perception” and “helpful” to the trier of fact in understanding his testimony or determining a fact in issue.  (Preference to more specific and concrete terms, instead of basic terms)  Usually courts will allow information regarding whether person was noticed as "looking drunk," or "looking stoned" and approximate value of your own property - but not those of others.
-  Rule 602 requires lay witnesses to have “personal knowledge” regarding the matter testifying to.
- Rule 704b: restricts expert testimony upon the mental state or condition of the defendant in a criminal case.


Problem 9-A
Rule 701 requires that the lay witness' testimony be rationally based on her perception, and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
-  Here, the witness has already stated the facts that her opinion is based on, and it is not helpful for the jury to know that she drew the conclusion that he was involved. They can decide that for themselves without her help.

-  a witness can usually be able to say how fast they thought the car was traveling, but mostly likely, not more than that.  Also, can say how far apart people were from the scene, etc.  The question really is what their personal knowledge is.

Expert Witnesses
 -  Under FRE 702, an expert is essentially someone with specialized knowledge.  The standard is intended to be lenient and a person with suitable training or education may qualify even if they are not a “specialist” or not “renowned,” and even if they lack certification or experience.  FRE 702 reaches people with practical experience but not formal training as well.
 -  Under FRE 702, an expert may testify only if what he says will “assist the trier of fact to understand the evidence” or “to determine a fact in issue.”
 -  Under FRE 703, an expert witness must base his testimony on facts or date of 3 categories provided that they are of a type reasonably relied upon by experts in the particular field even if not admitted into evidence:
1)  Firsthand knowledge:  personal observation
2)  Facts learned at trial: either by listening to other testimony or through hypos directed towards him
3)  Outside Data: facts or data used must be “reasonably relied upon” by other experts in the field.  However, some of the data may be relied upon by the experts, but still not admissible to the trier of fact.
 -  Under FRE 704b, an expert in a criminal prosecution is prevented from stating an opinion that the D had or lacked a mental state or condition “constituting an element of the crime charged or of a defense.”
 - Under FRE 704, an expert witness is not allowed to be asked “legal questions,” but general questions that involve no “legal definitions.”
 -  Under FRE 705, an expert may testify in terms of opinion or inference and give reasons without first testifying to the underlying facts or data unless the court requires otherwise.  In other words, an expert does not have to disclose the basis of his opinions on direct examination, but may be required to do so on cross-X.
 -  ALWAYS: Look for 403 objections: prejudicial value outweighs the probative value.
 -  Under FRE 706, the court itself can appoint its own “independent experts” and the court need not always disclose that fact to the jury.

Expert Opinion Analysis
1)  Appropriate Subject Matter?
2)  Does expert have the sufficient qualifications?
3)  Sufficient Foundation:
 - Personal Knowledge?
 - Facts learned at trial?
 - Outside Data? (is the date of the type reasonably relied upon by other experts in the same field?)
 - Is the expert testifying to the credibility of a witness or party?  If so, then the courts will not allow testimony!
 - Is the expert testimony assisting the trier of fact?  (Is the testimony scientific, technical, or specialized?  Does the expert have training and experience?)
 - Notes:  no requirement for the "best expert."  General practitioner is almost always sufficient even though there are specialist in the field.  A expert can testify and answer hypos based on assumptions.

Problem 9-C:
Issue: Whether the expert witness may testify as to what was written on
the chart in explaining the basis for her opinion, even though it is
Answer: Yes. Under Rule 703, an expert witness may rely on information
reasonably relied upon by her profession, and resident's notes on a
medical chart fall into that category. The fact that it is hearsay does
not prevent an expert from relying on it. However, since the P brought
out the basis for the opinion on direct, and the jury may be prejudiced
by the expert testimony in taking the contents of the medical record as
substantively true, the judge may exclude it under 403. However, this is
not likely since the chart may be admissible under the business records
exception of 803, and therefore admissible substantively anyway.
Problem 9-D:
Issue: Whether the doctor's testimony may be admitted under Rule 703,
notwithstanding the inadmissible blood tests.
Answer: No. Although the expert is able to rest his opinion on
inadmissible evidence under Rule 703, a criminal case also requires that
the D's constitutional rights be preserved. Here, the opinion that she
was drunk is probably admissible, but he may not base it on the excluded
evidence, because that is tantamount to introducing the evidence itself.

Scientific evidence: that is relevant and reliable where both the principle and technique have gained general scientific acceptance (or generally relevant per Dauber).

Four Factors:
a)  testability of method
b)  established rate of error
c)  peer review
d)  general acceptance in scientific community

Daubert v. Merrell Dow Pharmaceuticals
Facts: Mother used bendictin when she was pregnant. Child has birth
Procedural Posture: Action for strict liability. At trial, D. successfully moved for dismissal on the basis that the P could not produce evidence "generally accepted" by the scientific community that there was a correlation between the use of Bendictin and birth defects. The court of appeals affirmed, applying the Frye standard.
Issue: Whether evidence that is not "generally accepted" by the scientific community is nonetheless admissible if it has other indicia
of reliability.
Holding: Yes.
-  The "general acceptance" standard of Frye is too rigid, and results in the exclusion of valid scientific evidence that is cutting edge.
-  Furthermore, Frye has been superseded by FRE 702, which is more liberal. "Scientific knowledge" in FRE 702 requires a grounding in the scientific method, and more than unsupported speculation. Also, the helpfulness requirement implies that the evidence must be a good "fit" i.e. that it must be scientifically valid [and therefore reliable] for
the purpose that it is introduced.
-  General guidelines to be considered are whether 1) the theory has been tested, 2) the theory has been subjected to peer review and publication, 3) the potential rate of error, and 4) the theory is "generally accepted." In any event, Rule 403 is still available to exclude confusing or misleading evidence. Vigorous cross-examination is another safeguard against bogus science in the courtroom.

Problem 9-E:
Father is accused of sexually molesting 14 year-old
daughter. At trial, she admits on cross that she had previously recanted
the accusation. The prosecution responds by putting on an expert witness
to testify to the observed behavior of molested children in general, and
that the daughter fits the profile.
Issue: Whether the expert's testimony as to the abused child syndrome
and the victim's consistent behavior is admissible.
Answer: Yes. FRE 702 allows such testimony. This testimony is
scientifically valid, reliable and helpful to the jury in understanding
whether the previous recantation was genuine.

Expert Guest Speaker
-  Rule 702:  scientific, technical, or specialized knowledge if it will assist the trier o fact to determine something and expert can be called to testify
- Knowledge test: there must be knowledge - cannot be their feelings or conjecture
 - Daubert Test:  the judge becomes the gatekeeper of the admissibility of scientific evidence and it supersedes the Frye rule - if the court is satisfied that the expert opinion is based on reliable information the court may admit the information even though there is no consensus about the testimony or evidence submitted to the jury.  Evidence not based on scientific information or data that cannot be considered as legitimate at a scientific conference would not also be admitted in the court of law.  We are looking for science that has been tested and the test has indicated a particular result that shows some reliability.  The theory must be scientifically validated in some way and has been subjected to some review by the scientific community at large.  In general, there must be some indication that the test or expert evidence is "reliable."  A rule 401 hearing will be held to determine whether the evidence can be admitted and gives an attorney the opportunity to challenge the expert testimony and requires the judge the hold a hearing to determine whether an expert can testify.  (motion in liminine in done to challenge the testimony)  Daubert test is not used in MN.  Under Daubert, an expert can testify on the basis of experience or science.
 - FRYE test:  is the knowledge or methodology generally accepted? (generally the rule in state court systems)
- Helpfulness test
- Person who testifies must have appropriate qualifications

- witness "hears" something, and "says" it on the witness stand.
- with all of the exclusion and exceptions, most hearsay ends up coming in for some reason or the other.  (many times statements will come in for impeachment purposes to show that another person made an inconsistent statement)

1) Witness hears an out of court statement
2)  Says in court what she heard
3)  Offered to prove the truth of the statement:  message is offered to prove the message of the statement.  (if it is offered for another reason - it does not matter that it is hearsay)  The test:  the hearsay is made to prove the truth of the message of the out of court statement.

Example:  man sitting in witness chair saying that:  I heard Bill say to Joe that the Brakes were bad.  (hearsay)

Example:  letter where Joe is being informed by Bill that his brakes are bad.

- in both statements, the message is "bad breaks."  If the person is on the witness stand to prove that there were bad breaks or that the letter is submitted to show that there were bad breaks, it is offered the prove the truth of the statement. (3rd requirement).  If in the 2nd example, we are offering the letter to prove that Joe was put on notice that the brakes were bad is admissible.  However, on the same hand, it cannot be used to prove that the brakes were bad.


Problems with hearsay:  use for policy reasons:
No Oath
No Cross-exam
No opportunity to show Demeanor

- make sure you know how to spell for exam -  not heresy, not heresay.
- simple definition:  “hearsay is an out-of-court statement offered to prove the truth of the matter asserted.”  This includes non verbal conduct of a person if it is intended by him as an assertion according to Rule 801a.
- even if witness says on the stand that he said something out of court - it is still hearsay.
- in general, hearsay evidence is not admissible unless it falls within one of many exceptions.  FRE 802
- 3 reasons to exclude hearsay testimony:
1)   the absence of cross-examination
2)   the absence of demeanor evidence
3)   the absence of the oath
- 4 hearsay risks associated with out-of-court statements
1)   risk of misperception
2)   risk of faulty memory
3)   risk of misstatement
4)   risk of distortion

FRE 801:
- a hearsay statement is: 1) an oral or wirtten assertion, 2) nonverbal conduct of a person if ti is intended by the person as an assertion.

Problem 3-B:
The evidence is hearsay because:
1)  The truck driver is not present to offer testimony as to whether he thought the light was green and whether that is why he was pulling forward.
2)  There is the risk that the truck driver was mistaken, or was anticipating the light, or moved forward for some unknown reason.

Wright v. Doe Tatham
Facts:  Testator died with a will which gives property to the D.  The plaintiff, who is the testator’s cousin, sues to invalidate the will contending that the testator lacked mental capacity to make the will.  At trial, the D tried to introduce three letters which were written by people who had died before trial in order to establish that the writers of the letters considered the Testator legally competent to write the will.
Issue:  Are the letters hearsay?  YES
Holding:  The statements contained in the letters were made outside of court and were offered to prove the truth of the statements.  The letters are hearsay and thus are inadmissible.
-  Under the federal rules, Conduct that is made as an assertion is treated as hearsay if the person who is doing the conduct INTENDS to make the assertion and convey the message.  Did the person's conduct intent to make the assertion to prove something?

Cain v. George
Facts: Son dies in a hotel room from carbon monoxide poisoning. When his body was discovered in the morning, there was a smoldering chair in the room. There was also a gas heater in the room.
Procedural Posture: The parents brought a wrongful death action, claiming that the heater was defective and unmaintained and that caused the death. The defendant motel offered evidence of the number of people
who had stayed there previously without complaint. The plaintiff objected that the silence was hearsay (made by persons not testifying).
Issue: Whether silence by someone who could reasonably be expected to report a problem is hearsay if used to prove that there was no problem.
Holding: No.
Reasoning: As a practical matter, silence is not hearsay in this case because it derived its value solely from the credit to be given the actual witnesses themselves (i.e. they could be lying that there were no complaints).

United States v. Check
Facts: Defendant is a new york city cop suspected of selling cocaine
through an assistant, Cali. An undercover cop arranged to buy some
cocaine from the defendant, through Cali. The two met, and the cop was
Procedural Posture: The cop was charged with selling drugs. Cali
refused to testify. The prosecutor attempted to circumvent the hearsay
rules by instructing the undercover cop to testify as to only his half
of the conversation. However, the testimony clearly implicated
statements by Cali.
Issue: Whether a person can testify to one half of a conversation in
order to circumvent the hearsay rules when it is clear that the
testimony is paraphrasing the alleged statements of the out-of-court
witness, and the testimony is being offered to proof the contents of the
Holding: No.
Reasoning: This is a blatant and transparent example to circumvent
the hearsay rules which are in place to provide procedural safeguards.
If this were allowed there would be no practical use for the rules. So
much was paraphrased that it was unclear who said what. Thus, the entire
testimony should have been thrown out.
When is a statement not hearsay?
-  A statement is not hearsay when it offered for any other purpose than offered to prove the truth of the matter asserted.
-  other uses are usually follow under one of the next 6 categories:
1)  impeachment
2)  verbal acts (or parts of acts)
3)  effect on listener or reader
4)  verbal objects
5)  circumstantial evidence of state of mind
6)  circumstantial evidence of memory or belief

Problem 3-C:
Facts: Witness testifies at trial "the blue car ran the red light."
However, the attorney (on cross) attempts to get the witness to testify
that in a previous statement made to an insurance adjuster, he said that
the blue car had a green light. The attorney states that he is offering
it to impeach the testimony of the witness and not to prove that the
blue car had a green light.
Issue: Whether the previous statement to the insurance adjuster is admissible or is hearsay.
Answer: The statement is admissible in order to impeach. Also, the policy behind the hearsay rule does not seem to be at risk here because the very person who made the out of court statement is available to testify (and be cross-examined) to it.
- if it offered to prove the truth of the matter asserted (statement would come in for impeachment purposes and the jury would get a limiting instruction that the jurors would be instructed not that the light was green, but only to issues of whether the person was credible.

Problem 3-D:
Facts: While at a massage parlor, an undercover cop is propositioned by
a masseuse who is likely prostitute.
Issue: Whether the prostitute and the undercover cop's out of court
statements are admissible to show that an act of soliciting prostitution
Answer: Yes. The statement is admissible.  The conversation itself is the issue. The act of stating the words is the crime of solicitation, and is part of the requirement of the substantive law. It is being offered to show that it was spoken. Thus, it is admissible.
NOTES:  This is a verbal act.
Problem 3-E:
Facts: A landowner leases part of his land to a farmer in return for a
40% share of the crop. The farmer gets a bank loan using the remaining
60% of his future crop as collateral. After default, the bank collects a
portion of the crop that they claim was designated as theirs by the
farmer. The landowner claims that the statement by the farmer
designating the corn was hearsay. Likewise, the bank claims that the
statement by the farmer designating the corn to the landowner is
Issue: Whether the verbal act of designating an object as belonging to
another person to satisfy a debt is hearsay.
Answer: No. The statement is not hearsay.  The verbal act is probative of the very issue of whether a debt was discharged (contract law). The words are offered to give evidence of their existence, because it is their existence that is at issue.
Problem 3-F:
Facts: Victim smells a gas leak. Agent appears and says that he is from
the gas company, and asks Victim to show him the leak. Victim takes
Agent around to the gas leak, and Agent lights a cigarette which ignites
the gas and injures Victim. At trial, the gas company asserts that
Victim is contributory negligent for going so close to a gas leak.
Issue: Whether Victim's testimony that Agent stated he was from the gas
company is admissible over the hearsay rule.
Answer: The testimony is admissible because it is offered to show the effect on Victim (that he was not contributory negligent because he believed that he was accompanied by someone who knew what they were doing) then it is admissible. It is not being offered to show that Agent was from the gas company, only that Victim thought that Agent was from the gas company.
- effect on the listener exception that makes this admissible.

Problem 3-G:
Facts: College student was arrested and charged with selling drugs at a
bar. The evidence was circumstantial and comprised: 1) a matchbook with
the name of the bar on it found in his possession, 2) a mug with his
name on it found at a drug house, and 3) testimony by a barmaid that she
saw another defendant at the bar with the college student, but was able
to point him out to an undercover officer, and 4) the undercover
officer's testimony that the person that the barmaid pointed out was the
college student.
Issue: Whether each of these is hearsay.
Answer: 1) Matchbook is not hearsay because it is self-authenticating.  2) Mug - was also self-authenticating. 3) Not hearsay because witnesses are present to testify and be cross-examined. 4) Not hearsay because the testimony is used to identifying the object.
Problem 3-H:
Facts: Husband tries to collect in a wrongful death suit for future
income of dead wife. Only a few weeks earlier, wife executed a will in
which she limited his inheritance to $1, and made several disparaging
comments about him.
Issue: Whether the will may be admissible to show that the future income
of the husband was not great.
Answer: Yes the will is admissible. It shows the state of mind of the wife. It is not being offered as proof that the husband was bad, but only that the wife and the husband were not getting along and so the husband was not likely to
get future income. Not offered to prove the truth of the statements in the will.
Problem 3-I:
Facts: A child is molested by a man in a room. The room is described by
the child to a police officer who testifies to what the girl told her
about the appearance of the room.
Issue: Whether the description by the police officer of the girl's
description of the room is hearsay.
Answer: The testimony is hearsay, however, it may be let in as a then existing mental impression of the room. Not used to prove that the room was as the girl described it, but rather that the girl had a mental impression of being in the room that could only have come from being in the room.
Prior Statements by Testifying Witnesses
-  Prior inconsistent statements which are “given under oath subject to the penalty of perjury at trial, hearing or other proceeding, or in a deposition” may be not be barred by the hearsay rule
-  However, different states approach this issue differently.


United States v. Singer
Facts: Sazenski and Izquierdo were suspected of smuggling marijuana
from Florida to Minnesota. Sazenski had a residence in Minnesota. A
letter was sent from Sazenski's landlord to Sazenski and "Almaden"
(Izquierdo's alias) notifying them of their eviction.
Procedural Posture: The prosecution sought to enter the letter into
evidence in order to show that Sazenski and Izquierdo lived together.
The defense objected on the grounds that the content of the letter was
hearsay ("writing" made out of court by other than the witness).
Issue: Whether the letter is admissible or not under the hearsay
Holding: Yes.
Reasoning: FRE 801(c) defines hearsay as a "statement," meaning that
non-assertive conduct, verbal or non-verbal, is not hearsay if not
intended by the declarant as an assertion. The purpose of the hearsay
rule is to exclude evidence whose veracity can not be tested under cross
examination. However, there is an inference of veracity of non-assertive
behavior because people base their actions on the assumption of the
correctness of their belief. Thus, the letter is admissible to prove
that the landlord believed that Saznski and "Almaden" lived together,
because it is non hearsay for that use. The letter is not being
submitted to assert that its contents are true, only that the landlord
believed them to be true.
Problem 3-K:
Greg is suspected of robbing a bank. FBI agents question
his wife who lies about his whereabouts. FBI then question a friend, who
tips them off to Greg's alleged hiding place, where he is found. At
trial, the prosecution attempts to have the FBI testify as to what the
wife said. The defense objects, claiming that it is irrelevant and
Issue: Whether lies made by a declarant out of court are admissible as
non-hearsay if used to show the state of mind of the declarant.
Answer: Yes, the statements made by the wife are admissible.
Here, the out of court statements are not being offered to
prove their contents. In fact, just the opposite. They are being
introduced to show Greg's wife's state of mind. If she were trying to
lie to police, that would be evidence that she felt he was guilty, which
is probative on whether Greg was guilty. Her statement is also a
performative act because it is an attempt to interfere with the
investigation, which also goes to show Greg's guilt.
Problem 3-L:
Bruno is charged with importation of drugs. A King-Air
plane was tracked as being stolen from Florida, landing on Bruno's
property, being flown to Acapulco to pick up drugs, and then back to
Mississippi to drop off the drugs. At trial, Bruno denies any
involvement with the smugglers, claiming that he let the plane land
because it was an emergency. He also offers witness testimony say that
she heard him in public say that he was storing a King Air aircraft on
his airstrip. The testimony is offered to show that he is innocent
because a guilty person would not advertise that a stolen plane was on
his airstrip.
Issue: Whether a disclosure made out of court by a declarant which would
not ordinarily be made by a guilty person is hearsay.
Answer: No, the statement is not hearsay.  It is not being asserted to prove that the King Air was on the property. That matter is conceded. It is being offered as conduct by Bruno that tends to prove that he wasn't knowingly involved in the theft of the plane. It does rely on Bruno's truthfulness, because he could have made the statement in order to make it appear that everything was legitimate.
United States v. Pacelli
Facts: Pacelli was arrested and charged for the murder of a woman who
had been subpoenaed to testify against him in a drug dealing case. After
the murder, several of Pacelli's friends met at a friends apartment and
discussed the crime. The statements they made did not show surprise or
reprehension that Pacelli had been arrested. They only commented on the
fact that the murderer had botched the job by leaving the body where it
could be found.
Procedural Posture: The trial court admitted testimony by one of the
friends at the apartment as to what the other conversants said. The
defendant appealed, alleging error in allowing hearsay.
Issue: Whether testimony by a witness of the statements made by a
declarant out of court are hearsay (and inadmissible) if used to imply
that the defendant is guilty because the statements do not show surprise
at his being arrested (meaning that he told them he did it).
Holding: Yes.
Reasoning: The admission of the testimony here violated the policy
behind the hearsay rule of giving litigants the opportunity to cross-
examine the declarant. The statement made may not have been intended by
the declarants to assert that they believed that the defendant had
killed the victim, or that the defendant told them that he did. Cross-
examination would allow the meaning of their statements to be examined.
Although there is less danger of insincerity in implied assertions than
express assertions, there is the danger of misinterpretation. Thus, the
evidence should have been excluded.
Dissent: There was no statement here that the defendant confessed to
the declarants. Thus, there was no hearsay problem at all. The testimony
offers little to the actual eye-witness testimony of the state's witness
that they are not hearsay, because they are not being offered to prove
the ultimate issue, i.e. that defendant killed the victim. They are
being used to prove that the declarants assumed that the defendant
killed the victim.
Problem 3-M: Postal inspectors get a tip about 2 men falsifying ID cards
and follow suspect 1, Griggs, to a bank where he apparently
unsuccessfully tries to cash a check. As they are arresting him, suspect
2, Perry, appears and Griggs says to him "I didn't tell them anything
about you." At trial, the prosecution offers the statement made by
Griggs as evidence that Perry was guilty.
Issue: Whether the statement is hearsay (an assertion).
Answer: Yes. The statement is being used to show that Griggs was
asserting Perry's guilt. Although the statement is not a naked
assertion, it clearly implies that Perry is guilty, and is being used
with that meaning by the prosecution. The statement's probative value
(for the prosecution) depends on the truth of an assumed fact that it

Out of court statement to prove the truth of the matter asserted is hearsay - if it is offered for some other reason - you have to analyze it some other way.

Hearsay Exceptions

801D:  2 statements that are considered not hearsay
1) prior statement of a witness
 a)  declarant must testify at trial
 b)  declarant must be subject to cross exam of their statement
 - you can offer some inconsistent statements on the substantive issues of the case (liability, etc).   You can enter testimony if the statement is inconsistent and is under oath subject to the penalty of perjury and has to be given at a trial proceeding, hearing or deposition.  See State v. Smith.

-  cross exam - if person is on the witness stand and subject to questions, there is cross exam.  US v. Owens.

2) admission by a party-opponent

Problem 4-B
:  no personal knowledge objection
:  not against Carter's interests (provided to prove the truth of the matter asserted)
:  considered non hearsay because of admission by a party opponent which is offered against a party and is party's own statement.

- silence after miranda warning will not be an admission, but just silence, will serve as an admission under hearsay and admissible.  (if a reasonable person would deny it and not be silent under the circumstances.)

- With admission statements, always ask whether the question is a 104 a or b problem and decide from there.  Most of the courts have treated these issues of admissibility of admissions have treated it as 104b, but Thompson believes that the correct approach is 104a.

Notes:  pleadings in other lawsuits are generally admissible agains the party who filed them (includes the same case).

Admissions by Employees and Agents
801d2d:  employee admissions are admissible (does not apply to government employees.)  Statements are usually admissible.

Mahlandt v. Wild Canid Survival & Research Center
Facts:  A 4 year old boy was bitten by a wolf which belonged to the Defendant.  However, no one actually saw what actually happened at the time of the biting.  At trial, the defendants presented evidence that the boy had crawled under the fence and received his injuries that way.  However, the Plaintiffs tried to admit evidence of a note which was left by an employee of the Defendant which said that the wolf had bit the boy.  In addition, the Plaintiffs tried to admit evidence of meeting notes in which the Defendant company had discussed the legal aspects of the incident of the wolf biting.  However, the trial judge did not allow any of this evidence to come in reasoning that in each case, the person making the statements had no personal knowledge of the facts and the statements were hearsay.  The plaintiff appeals.
Holding:  Personal knowledge is not required to admit hearsay evidence by an employee of the Defendant.  The evidence of P must come in.  FRE 801d2d makes statements made by agents within the scope of their employment admissible and there is no implied requirement that the declarant have personal knowledge of the facts underlying his statement.
Notes:  this case concerned 3 items of hearsay:
 1)  note from Poos to President (no personal knowledge of person making the statement)
 2)  oral statement
 3)  meeting minutes (notes)
 - court found all three statements admissible under the federal rules of evidence.
 - 403:  the balancing test of relevancy:  probative value vs. potential for prejudice. This case says that this test is not relevant in order to determine whether statement can come in.*******

- employer cannot make statements against an employee.  It does not work the other way around.******


Co-conspirator Statements (Requirements of admissibility)
- under 801d2E:  coconspirator statements are admissible if:
1) declarant and defendant were both part of the conspiracy
2) the statement was made :
a) during the course of the conspiracy
b) and in furtherance of the conspiracy
- this rule is not only applicable to conspiracy cases, can be used also in civil cases.
(Most often comes in conspiracy cases, however.)
- if it is admissible, then you have to decide whether the situation is founded by the "preponderance of the evidence" and treat it as a 104a problem in which the preponderance of the evidence is the standard that the judge uses.  The judge can look at any information, not just admissible evidence and the judge can use the statement itself (bootstrapping is ok), but the new rule says that the statement cannot be the only evidence of the conspiracy because that is not enough, you need some more evidence other than just the statement.
- when dealing with hearsay, look for statements that are not hearsay but are verbal acts.  (Make sure you understand this)  Verbal acts are not hearsay.

Bourjaily v. United States
Facts: An undercover FBI agent arranged for an person to sell cocaine. The person notified the FBI agent that he had found a buyer, and set up a deal. When the person proceeded with the transaction, putting the cocaine in Bourjaily's car, the FBI arrested the person and Burjaily, and found $20,000 in Bourjaily's car.
Procedural Posture: At trial, the judge admitted statements made by the person, as evidence that Bourjaily was the drug buyer. Bourjaily objected that the  statements were hearsay, but they were let in under 801(d)(2)(E) as being made in the course of and in furtherance of a conspiracy. The court of appeals affirmed.
Issue: 1. What is the appropriate standard for allowing in statements by an alleged co-conspirator, when they are being used to prove the very existence of the conspiracy?
Issue2:  Whether the judge can consider the content of the hearsay statement in weighing whether it was made in the furtherance of the conspiracy.
Holding: 1. Preponderance of the evidence, as determined by preliminary fact finding by the judge. 104a problem.  2. Yes.
Reasoning: The preponderance of the evidence standard ensures that the court will have found it more likely than not that the technical issues and policy concerns addressed by the FRE 104 have been afforded due consideration. Although prior to the enactment of the FRE, the court had held that the hearsay statement by the alleged co-conspirator could not "bootstrap" itself into being competent evidence of proof of the conspiracy, absent some independent proof, the FRE 104(a) contains no limitations other than privilege. Since the existence of the statement,
although presumed unreliable, is probative on the existence of a conspiracy, when it is taken together with surrounding circumstances, it may be more probative.
Notes: A James hearing is often held in criminal cases, before trial, for the prosecutor to show how he will "connect up" the hearsay statements of the alleged co-conspirator with other evidence to establish the existence of the conspiracy. If the hearing is successful, the hearsay statement is admitted. However, if it is not practicable for the prosecution to provide a showing before trial, the statement will
come in if the judge believes that there was more likely than not a conspiracy, and the judge may have to give a limiting instruction if the prosecution does not later "connect up" the statement with other evidence.
- this court said that bootstrapping was ok: you can look at the statement in order to see whether there is enough foundation to see if it falls under the hearsay exception.

Problem 4-H:
Three people, Bud, Arlen, and Carol conspire to buy and sell cocaine. At the airport before they leave, Bud says to a friend Connie that 1. "Arlen fronted us the buy money." Arlen attempts to set up a sale with an undercover DEA agent, and tells him 2. "Bud's gone down south to make the buy." After she is arrested, Carol squeals and says that 3. "Bud made the buy" and that she just carried it.
Issue: Whether the statements are admissible exceptions under
Answer: The statement must be made "during the course of and in furtherance of the conspiracy." The first and second statement clearly qualify. The third statement was not made during the course of or in the furtherance of the conspiracy, but only after arrest.

Nuttall v. Reading Co
Facts: Nuttal died allegedly due to being forced to work while sick.
Procedural Posture: Nuttal's wife testified at trial as to what she
heard her husband say over the phone to his boss on the day that he was
allegedly forced to go to work. Also, she testified as to what he told
her after he got off the phone. The trial court excluded the testimony
as being hearsay.
Issue: Whether Nuttal's wife's testimony is admissible even though it
is technically hearsay.
Holding: Yes.
Reasoning: What the husband said was competent to prove that he was
being forced to go to work, because it showed his state of mind. The
husbands statements may be used as evidence of coercive statements by
the other person on the other end of the phone because the husband was
making them contemporaneously. Although the wife has no personal
knowledge of the statements made on the phone, the testimony is
independently reliable because the statements were free from the
possibility of lapse of memory of the husband.

Present sense impression and excited utterances

Prompt Complaint Rule
- when person makes a complaint after an accident or event:  even though it will likely fall under the excited utterances or present sense impression, under the federal rules, there is no application of this specific rule.  However, the info would still come in.

United States v. Iron Shell
Facts: Iron Shell got drunk and assaulted a nine-year old girl. There were several witnesses who reported that they saw her pulling up her pants. The girl made statements to the police about 1 hour after the incident to the effect that "he tried to what you call it me."
Procedural Posture: The trial judge let the statement to the police into evidence, and Iron Shell was convicted.
Issue: Whether the judge abused his discretion in letting the statement in under the 803(2) excited utterance exception.
Holding: No. Although an hour had passed, the length of time is not determinative. The court needs to consider the age, physical and mental condition of the declarant, and other surrounding facts to determine whether it was reasonable that the declarant was operating under the stress of excitement when she made the statement. Here, the finding was reasonable given the additional evidence, and the age of the child.

Hearsay Exception (state of mind exception)
- when a state of mind can be a fact or a consequence in the case. (only when this exception applies).
1.  issue in case
2.  present bodily condition  (can also fit under 803(1)
3.  present state of mind to prove future action of declarant.  NOT to prove that facts happened as declarant remembers or past conduct. Allows forward looking evidence to establish conduct.  See Hilliem.
4.  wills (state of mind can reflect backwards)

- very strong and widely used exception.
- when you claim this exception, you have moved the statement out of the area of the hearsay and into relevancy analysis.

Prob 4-I: A person who lifts heavy objects for a living came home early one day and said to his wife "I felt this sudden pain just a few minutes ago" while lifting objects at work. After going to the doctor, he died later that day from a heart attack. The wife sues for workmen's comp. survivor benefits. At the trial, she wants to admit the statement that the husband made.
Issue: Whether the statement qualifies as an excited utterance under 803(2).
Answer: Yes. It is perfectly reasonable to say that the man was under the stress of the pain when he made the statement that he had the pain. The judge can (using rule 104(a)) admit the evidence to prove that there was pain from the statement itself, given that there was other evidence of pain (i.e. going to the doctor and requiring a sedative to rest).

Prob 4-J:
Neff was a smalltime tough guy who was seeking protection money from Quade. Quade was found stabbed in the park. Before he died, he told a friend, "Neff is after me again. He'll kill me if I don't pay protection money."
Issue: Whether these statements are hearsay if offered at 1) and
extortion trial against Neff, or 2) a murder trial against Neff, or 3)
if Neff claims self-defense.
Answer: The statement tends to show that Quade feared Neff. Fear is a
then-existing mental state.
At an extortion trial, fear is probative because it is fear that motivates the person to pay.
If it were a murder trial, the fear may be probative, and may come in, especially as evidence to show whether Neff was reasonable in fearing for his own life. But it is less probative. Thus, it might be excluded under 403
even though it fits the 803(3) mental state exception.
Mutual Life Insurance Co. v. Hillmon
Facts: Hillmon was allegedly shot by accident by his partner at a campfire. He had taken out several life insurance policies before his death. There was evidence that the body that was found was not that of Hillmon, but of another named Walters. Walters had written to his fiancee before disappearing that "[he was] going with a man by the name of Hillmon."
Procedural Posture: The wife brought an action to recover the insurance money, and the insurance company sought to introduce the letter as evidence that Walters went with Hillmon, and thus it was Walters' body that was found, not Hillmon's. The trial court refused the letter, stating that it was hearsay.
Issue: Whether the letter was nontheless admissible as an exception to the hearsay doctrine as being independently reliable.
Holding: Yes.
Reasoning: A man's state of mind or intent can only be expressed by gesture, sound or words. When the intent is expressed, it is typically contemporaneous with the declaration of the party. Thus, it is not subject to faulty memory and is independently reliable. The letter is thus admissible to prove that Walters had the intent to go with Hillmon somewhere. From this intent, the jury may logically infer that not only did he go, but that Hillmon went with him.
United States v. Pheaster
Facts: Larry was allegedly kidnapped by Angelo. Larry had made statements to friends that he intended to go meet Angelo in the parking lot of the Sambo's restaurant, and pick up a free pound of marijuana from him.
Procedural Posture: The trial court admitted the testimony of the friends as to Larry's statement of intention to meet Angelo. The defense objected, asserting that although Larry's statement was competent to prove Larry's intent and future conduct, it could not be used to prove the conduct of Angelo himself.
Issue: Whether the statements of intent of one person that he is going to go meet another person can be used to prove that the two did actually meet. (Hillmon doctrine).
Holding: Yes.
Reasoning: The court reasoned that the Hillmon doctrine was still intact after the promulgation of the FRE. The inference to be drawn from a person's intent to perform an act is that he did that act. If the statement implies that a second person would engage in some future conduct with the declarant, that makes the likelihood smaller that the conduct actually took place, but it does not make the actual statement any less reliable (it is still free from memory lapse). Thus, it is a question of degree of inference. Thus, Larry's statement still fits under the state of mind exception of 803(3), even though it implies conduct by another party as well.
Notes: Some other cases will allow this type of statement to prove the other person's conduct only if there is additional evidence of such conduct to corroborate.
Prob. 4-K
Husband is tried for murder of his wife. There is independent circumstantial evidence of violence between the couple. The prosecutor wants to offer three statements/conduct by the wife as evidence:
1.  Weeks before death, Wife told her neighbor "I am afraid my husband
is going to kill me."
2. Days before death, Wife to her neighbor "I am going to Denver to stay
with Mother."
3. Few months before death, Wife left home to spend time in a battered
women's shelter.
Issue: Whether each of these statements is admissible under the state of
mind exception to the hearsay doctrine.
Answer: The issue is whether Husband killed wife. 1. Shows the wife's
state of mind clearly, but her state of mind is not an ultimate issue in
the case. However, her fear is probative on whether the Husband killed
her. Even more probative to show whether Husband was reasonable in
assertion of self-defense. 2. Shows present intention to leave home, so
it is admissible to show that she did go to Denver, which implies fear
of husband. 3. Also shows fear of husband.
Prob. 4-L
A father, Daniel, has a natural son, Frank, and an adopted son, Ike. Frank and his father have a falling out. Daniel makes a will, leaving half to his new wife (Ike's mother), and half to "his son." There are several statements that Daniel makes to his friend concerning the making of the will. After Daniel dies, there Frank claims that "my son" meant him, and alternatively that the will was made under the undue influence of Ike and his mother. The following statements were made:
1.  In October, Daniel said "Ike is my son now, and I want to take care
of him."
2. In November, Daniel said, "I'm going to do my will this weekend."
3. In January, Daniel said, "I'm taking care of my son Ike, Frank's
earning enough."
4. In February, Daniel said, "I just did my will, [after constant
nagging by new wife]. She won, she gets the house and the stock that she
doesn't deserve."
Issue: Whether each of these statements is admissible under the state of
mind hearsay exception for declarant's will.
Answer: 1-3 appear to be clear statements of Daniel's state of mind, i.e. that he intends to leave his money to "his son" Ike. 4 is being used to show undue influence. The declarant's state of mind is relevant, but here he is remembering past events. However, the state of mind exception for wills applies to statements regarding the "execution, revocation, identification, or terms of declarant's will." Here the statement certainly refers to the terms of the will.
- no copies of old exam (professor still looking)
- 3 hour experience
- closed book
- table of contents will be included for federal rules (index)
- recognize evidentiary issues, identify competing arguments, resolve it and move on to the next issue. (much more focused analysis than opened ended questions)


Prob. 4-L: A father, Daniel, has a natural son, Frank, and an adopted
son, Ike. Frank and his father have a falling out. Daniel makes a will,
leaving half to his new wife (Ike's mother), and half to "his son."
There are several statements that Daniel makes to his friend concerning
the making of the will. After Daniel dies, there Frank claims that "my
son" meant him, and alternatively that the will was made under the undue
influence of Ike and his mother. The following statements were made:
 ** In October, Daniel said "Ike is my son now, and I want to take care
of him."
2. In November, Daniel said, "I'm going to do my will this weekend."
3. In January, Daniel said, "I'm taking care of my son Ike, Frank's
earning enough."
4. In February, Daniel said, "I just did my will, [after constant
nagging by new wife]. She won, she gets the house and the stock that she
doesn't deserve."
Issue: Whether each of these statements is admissible under the state of
mind hearsay exception for declarant's will.
Answer: 1-3 appear to be clear statements of Daniel's state of mind,
i.e. that he intends to leave his money to "his son" Ike. 4 is being
used to show undue influence. The declarant's state of mind is relevant,
but here he is remembering past events. However, the state of mind
exception for wills applies to statements regarding the "execution,
revocation, identification, or terms of declarant's will." Here the
statement certainly refers to the terms of the will.
 United States v. Iron Shell Part II
Facts: 9-year old alleged victim of sexual assault met with doctor for examination 2 hours after incident. Doctor asked her several questions to which she eventually responded by telling him what happened in piecemeal.
Procedural Posture: The trial court let the statements in as an exception to the hearsay rule under 803(4)'s exception for statements to physicians. The defendant asserts that this was error because the statements made were not "reasonably pertinent" to the diagnosis, as the same diagnosis and treatment and examination would have occurred regardless of the statement.
Issue: Whether the statements made by the girl to the doctor were "reasonably pertinent" to the diagnosis or treatment, thus qualifying for the hearsay exception of 803(4).
Holding: Yes.
Reasoning: The statements by the girl were "reasonably pertinent" to
diagnosis or treatment because they disclosed information that a doctor
would normally have sought in order to treat the patient. It may be true
that the doctor would have eventually found the problem without her
statements, however, given the child's age and condition, there is no
reason to believe that she was giving the information for any other
purpose than to truthfully provide information for her own treatment.
Thus, her answers fit the policy behind the exception. The answers also
served to narrow the examination.

Medical statements:  rule is that the statement need not be made by the patient.  In addition, the statement need not be made directly to a doctor.  (Ex.  If you told the cab driver that you needed to go to the doctor because you were hurt, that statement to the cab driver will also come in becaise it was for the medical treatment.)  ************

Ohio v. Scott
Facts: Defendant was charged with shooting a man. He allegedly had a
conversation with his girlfriend at a movie house right after the incident. The girlfriend wrote down a statement and gave it to police the following day which described the conversation.
Procedural Posture: The trial court allowed the past statement to be admitted into evidence after the girlfriend testified at trial that it was an honest statement of the events at the time.
Issue: Whether the past written statement by the witness is admissible under the Rule 803(5) exception to the hearsay rule for recorded recollections.
Holding: Yes.
Reasoning: The statement was 1. recorded concerning a matter that the witness had first hand knowledge about, 2. now the witness has insufficient recollection, 3. the statement was made while the matter was fresh in her mind, and 4. it reflected that knowledge correctly. There is no danger of lack of cross-examination because the witness is available to be cross-examined with regard to her perception and
honesty. Her present memory is not in dispute.


Petrocelli v. Gallison
Facts: A Dr. Gallison performed a hernia operation on Petrocelli, during which he allegedly cut a nerve. During corrective procedure at another hospital, the attending doctors wrote in the medical record that there was pain due to a severed nerve, but there was no indication of where this information came from.
Procedural Posture: The trial court refused to allow the entry of the
medical records as hearsay. The defendant won the verdict, and plaintiff
appeals charging that it was error not to admit the medical records under the business record exception to the hearsay rule under FRE 803(6).
Issue: Whether the medical records fell under the business record exception of FRE 803(6).
Holding: No.
Reasoning: The business record exception applies only when persons with knowledge make the entries contemporaneously as part of the ordinary course of business. Here, it is unclear who had knowledge of the alleged severed nerve. The plaintiff himself may have told the doctor about the severed nerve, and he had no personal knowledge. The patient is not part of the business.

Lewis v. Baker
Facts: Lewis was a brakeman who sued the railroad for personal injuries, alleging that the brake he was using failed. The railroad had a written accident report, prepared by the supervisor, alleging that the brake had functioned properly both before and after the accident, although he did not have personal knowledge of the accident.
Procedural Posture: The trial court admitted the written accident report as a business record. The defendant won, and plaintiff appeals.
Issue: Whether the accident report qualifies as a business record under the 803(6) exception.
Holding: Yes.
Reasoning: The record was made to satisfy the ICC requirement that
every accident be reported. There was no reason here to believe that the
persons making the record had any interest in avoiding blame during
litigation, so it is deemed to be independently trustworthy (as opposed
to Palmer, where the accident report was generated solely with an eye
toward litigation). Lack of personal knowledge by the recorder does not
affect the admissibility of the record, only its weight.
Baker v. Elcona Homes Corp
Facts: Ps were the victims in a car accident at an intersection of a highway. The defendant's driver was in a semi, and the Ps were in a car. The investigating police officer made a traffic accident report in which he found that the car had ran the red light.
Procedural Posture: The trial court admitted the police officer's report (under the recorded recollection rule), and the defendants won. Plaintiffs appealed, claiming that it was error to allow the report as hearsay.
Issue: Whether the police report was admissible under the public records exception of 803(8).
Holding: Yes.
Reasoning: A police report is a public record because it was made upon matters he had the duty to report. The police officer's written statement that the car ran the red light was independently trustworthy as a "factual finding" because it was timely made, the officer had special qualifications and experience, and the officer was impartial. The burden was on the plaintiffs to show that the report was untrustworthy, and they made no effort to do so. Also, to the extent that the report contained statements made by the opponent, they were admissible under 801(d)(1)(B) (prior consistent statement) to corroborate the driver's testimony because the cross-examination of the driver implied that his testimony was inconsistent with prior statements.

Barber v. Page (1968)
Facts: Barber and Woods were arrested for a robbery. At a preliminary hearing, Woods made incriminating statements against Barber. At the time
of trial, Woods was in a federal penitentiary in Texas. The trial was held in Oklahoma.
Procedural Posture: The government stated that since they did not have the power to compel Woods presence at the trial by service of process, that he was therefore "unavailable." The trial court agreed and allowed his testimony from the preliminary hearing to be read in lieu of his presence. Barber was then convicted. Barber sought a habeus corpus action claiming that allowing the recorded transcript was a violation of his 6th amendment right to confront the witnesses against him. The District Court rejected the claim, and the court of appeals affirmed.
Issue: Whether the government had taken reasonable steps to procure the adverse witness' attendance at trial in order to declare him legally unavailable.
Holding: No.
Reasoning: The state made absolutely no effort to acquire the prisoner from out of state. They simply assumed that they had no duty to do so because they could not serve him. However, there are agreements in place between states to cooperate in this regard, in addition to a federal policy of making witnesses available for testimony. The possibility of refusal is not the same as an actual refusal. Even if the defendant had waived his right to cross-examination at the preliminary hearing, the 6th amendment right of confrontation is a trial right that can not be so easily dispensed with.
- this case has been eroded away, now there is no requirement that the govt has to bring forth the person to testify.

Former Testimony exception
1) must have unavailability
2) have to have testimony at a prior hearing or deposition (can be same or prior proceeding.

*******  VERY IMPORTANT ADDITION TO RULE 804b1: former testimony.
also: if criminal: party against who it is offered, must have been a party.
also:  if civil, party against who it is being offered - must have been either a party or in privity or their predecessor in interest had an opportunity and a similar motive to develop the testimony.


Lloyd v. American Export Lines, Inc. (1978)
Facts: Lloyd and Alvarez were both merchant sailors on a commercial cargo vessel who got into a violent fight with each other. After the fight, the Coast Guard held a hearing to determine whether Lloyd had sufficient wrongdoing to revoke his merchant marine license. At that hearing, Lloyd was sworn and cross-examined, and represented by counsel.
Procedural Posture: Both parties brought an action against the ship owner for negligence. Lloyd was unavailable for trial because of his work schedule. The ship owner sought to introduce Lloyd's previous testimony from the hearing as evidence that Alvarez started the fight. The lower court excluded it as not coming within the exception of 804(b)(1) for prior testimony. The jury returned a verdict for Alvarez, and the ship owner appealed.
Issue: Whether the evidence should have been admitted under the 804(b)(1) exception to the hearsay rule for prior testimony given that the declarant was sworn and cross-examined by the Coast Guard in the prior hearing.
Holding: Yes.
Majority Reasoning: The Coast Guard prosecutor and Alvarez shared a
"community of interest." 804(b)(1) requires that the prior cross-examination have been conducted by a person with similar motive and who is a "predecessor in interest." The legislative history shows that "predecessor in interest" wording is not to be woodenly or mechanically construed. Thus, the prior testimony should have been allowed.
Concurrence Reasoning: The testimony should have been allowed, but under the catch-all exception of 804(5), not the prior testimony exception of 804(b)(1). The term "predecessor in interest" is a term of art and is to be construed narrowly as one who is in privity. It does not matter that the Coast Guard had merely the same motive, he did not have the duty to represent Alvarez. His search was for the truth, not to win, and so he was not bound to explore all possible avenues. There was overlap between their interests, but the Coast Guard was not a "predecessor in interest." To hold Alvarez liable for the lack of zeal of the Coast Guard is not fair.
- professor likes this concurrence reasoning.

Statement under belief of impending death
1)  must concern the circumstances or cause of death
2)  made when person thought death was imminent.
3)  case must be a civil case or a criminal homicide
4)  declarant must be unavailable (does not mean that person has to be dead - just unavailable).

EXAM NOTE:  always apply Bourjaily case to show that judge should treat problem as a 104a problem.  (as with all hearsay problems)  Also, for all hearsay problems, you must always address whether the person has "personal knowledge." because it is required for the evidence to be admitted.

- what this exception is not:  if it is a statement by a party, it is a party admission.
- this rule only applies to statements by non-parties.
1) person needs to be unavailable
2)  has to be so contrary to a person's money, property, or other interest so that a reasonable person in their position would not have made statement unless it was true at the moment the statement was made.  This is the test. (VERY IMPORTANT)
3)  highly contextual analysis:

- Usually when people says things that exculpate other parties, those statements are not allowed in (not sufficiently contrary to interest in most cases) unless there is some corroboration about the evidence.  However, statements where people rat on others, will be allowed in.

United States v. Williamson (1994)
Facts: Harris was arrested carrying two suitcases of cocaine in the trunk of his rental car. Upon being questioned, he first told authorities that he was going to make a delivery to Williamson by trash dumpster, and then changed his story to say that Williamson was traveling with him in another car. Both stories implicated Williamson.
Procedural Posture: The trial court admitted the statements of Harris against Williamson under the 804(b)(3) exception to the hearsay rule for
statements against interest. Williamson appealed claiming that the statements implicating him were not against Harris' interest but were collateral statements that were either neutral or self-serving. The court of appeals affirmed, and the Supreme Court granted cert.
Issue: Whether collateral statements made along with a "statement" that is
against a declarant's penal interest are admissible.
Holding: No.
Majority Reasoning: The policy behind the rule is that statements against a person's interest would not be made by a reasonable person unless he believed them to be true. Collateral statements that are either neutral or self-serving do not have the same guarantee of trustworthiness. Thus, they should be excluded. The ACN notes notwithstanding, all collateral statements are inadmissible because Congress intended the rule to be narrowly applied consistently with the underlying policy for excluding hearsay. "Statement" as used in the rule does not encompass an entire narrative, but should be narrowly construed to include only those portions that are themselves against interest. Note that this could include statements that inculpate others or exculpate others if they are used to show the existence of a conspiracy.
Dissent Reasoning: [Kennedy] Excluding collateral statements altogether eviscerates the rule, because most statements against interest are not directly against interest. The court should admit those statements that are facially neutral, but tend to be against the interest of the declarant when viewed as a whole.

United States v. Dorian
Facts: Dorian's wife took their daughter to the police station and she was put in emergency foster care. While in foster care, the daughter was examined and interviewed several times concerning alleged molestation by her father. The daughter made several statements implicating her father.
Procedural Posture: At trial, the daughter was deemed too young and scared to testify, and thus unavailable. The prosecution successfully sought to enter the examination statements under the 803(24) catchall exception to the hearsay rule. The defendant appeals claiming that the statements were not independently trustworthy because they were inconsistent.
Issue: Whether the statements should be admissible under the catchall exception as having guarantees of trustworthiness.
Holding: Yes.
Majority Reasoning: The trial court's admission of evidence under 803(24) is a matter of discretion. To be admissible, it must satisfy 5 criteria: 1. it must have circumstantial guarantees of trustworthiness, 2. it must be offered to prove a material fact, 3. it must be the best evidence available, 4. justice must be served by its admission, and 5. the proponent must give notice to the adverse party. Here, the statements met each of the requirements and the trial court therefore did not abuse its discretion. Her description was complete enough that it could only have been made by one who observed the events. It also was in the interest of justice, and the best evidence, because she was not able to testify. There was also corroborative evidence of her fear around men, her fear of going home, and fear of examination.
Dissent Reasoning: The inconsistencies in the statements were too great. The foster-mother who interviewed her was leading her, and was also not impartial. The medical evidence does not corroborate the testimony because it is inconclusive. Thus, the case should be retried without the girl's exam testimony.

Presumption:  assumption of fact required by law upon proof of basic fact

Inference:  process of reasoning by which a fact is deduced by logical reasoning

Burden of Proof:
 - production: relates to the judge's function of directed verdicts or judgment as a matter of law.
 - persuasion: goes to the jury function and (factual questions).  The standard is usually the preponderance of the evidence.  (civil trials only)  Criminal cases require a clear and convincing evidence standard.
 - pleading:  happens before trial - left up to civil procedure course.
- Prima Facie:
 - if P proves its prima facie case, it is enough to reach a jury usually.  But the analysis is contextual and will depend on the circumstances and the rules surrounding the situation.  Can be an unrebuttal prima facie showing like when children are born within a marriage that the courts will treat this as a situation that allows the child to always be considered under law as legitimate.
- There can be conflicting presumptions

Basic          Assumed (Presumed)
stamped, addressed, mailed       =   delivered
violent death       =   not suicide
damaged goods, ok when delivered to bailee/carrier  =  negligence
unexplained absences, 7 years    =  death

Presumptions:  are made to control the jury, issue of fairness, and to help people prove their claim under public policy reasons.  (who has better access to the proof?)

3 basic approaches
1)  bursting bubble presumption:  Under federal rules of evidence 301:  it shifts the burden to the adverse party and if they rebut it, the presumption is destroyed.
2)  shifting of burden persuasion goes to the D to persuade the jurors
3)  presumptions are something like evidence from which jurors can deduce inferences.
- when dealing with presumptions, you must look and research at each individual presumption so that you know which one will apply and how courts will use the presumption.

-  If D rebuts the presumption, then the presumption will disappear as if it never existed.

Problem 10-A
Facts:  P testifies that harpsichord was undamaged when he gave it to D. moving company. D. does not dispute that it was damaged when returned, but brings on a witness to testify that it was damaged before they picked it up.
Issue: Whether the judge should instruct the jury that if they find that it was undamaged before the moving company picked it up, then they must find the moving company liable for its damage.
Answer: Yes. A presumption arises in a bailor/bailee liablity action if the bailor proves that the goods were undamaged when turned over to the bailee. The only question here is whether that basic fact has been established, because the moving company has not provided evidence that
the damage was caused by an act of God or that there was no damage.
Problem 10-B
Facts: Wife sues insurance company on life insurance contract for her deceased husband, who was found in the basement, clutching the 30.06 rifle that shot him in the head. The wife produces evidence that the husband did not commit suicide, the insurance company presents evidence that the husband did commit suicide. The wife asks for a presumption of accident.
Issue: Whether, under FRE 301, the wife is entitled to an instruction on the presumption of death by accident if the jury finds her facts to be true.
Answer: No. The burden of persuasion still lies with the wife. The presumption did not shift the burden of persuasion to the insurance company, only the burden of production of evidence to counter it. The
insurance company has defeated the presumption by introducing counter-


Judicial Notice
- process by which a court determines certain matters without need of formal proof.  Under FRE 201: regulates only adjudicative facts which are “facts that normally go to the jury in a jury case.”
-  under the Judicial Notice doctrine, it relieves a party of the burden of producing evidence on indisputable issues, thereby furthering trial efficiency.
-  the judge may only take judicial notice of the facts that are 1. beyond reasonable dispute, and 2. either common knowledge or capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.


1)  attorney/client:  protects confidential (secret) communications related to legal advice (not other type of communication or observations by the attorney), and the attorney must be facilitating some legal services.  Privilege can be waived if there is disclosure or a failure to object, or possibly death (will be decided by SC when appeals court ruled that via a balancing test of interests, the death of the client did not extend after death).  The exception to the rule is : when the client is doing fraud, a future crime, or there a joint client/defenses.
 - an assistant that helps the attorney is covered also (but must be kept    confidential and secret and the helper must have been     necessary).
 - communication to experts (is not applicable to attorney/client     privilege.
 - eavesdroppers/someone obtains info another way:  usually the    information is still protected (even though case below will state   otherwise and professor says was decided incorrectly.)
 - privilege has fallen out of favor in the country (is very much under    attack.)
 - joint client (goes to whether information has been kept confidential    as required if the privilege was to be asserted.).  Joint defense    privilege is applicable if the two parties end up suing each other, however.
 -  RULE:  anything you write down is probably discoverable - so    don't write anything down to make sure that is not      Discoverable.  Do not rely too heavily upon the attorney/client privilege.  Make  sure that if you do put something in writing, to make sure that the whole story is   put on paper and always write with the rule of thinking that in all likelihood this  will be seen by many other people.  (Tobacco litigation is a good example - below  18 market).
 -  storing documents is not a confidential act and thus not protectable (just like   storing the murder weapon).  If they attorney just knows where the weapon is, is  protectable but not if the attorney in some way obtains the evidence itself.
 - crime/fraud exception:  upon a prima facie showing that the     relationship was used to make a future crime or fraud, then the    judge can determine that the privilege cannot be invoked.

Problem 12-A:
A Dr. Mc Nary is convicted of killing his family. Shortly after sentencing, his attorney gets a call from another criminal defense attorney stating that his client has confessed the killing to him. At Dr. McNary's new trial hearing, both the confessor and his attorney refuse to testify, the first on the 5th amendment, and the second on the basis of attorney-client privilege.
Issue: What are the constitutional arguments for denying, or alternatively upholding, the privilege.
Answer: Con: If the confessor's attorney testifies, it will be a violation of the confessor's 5th amendment right, because he would not have made the statements if he thought they would be used against him. Pro: If the confessor's attorney does not testify, Dr. McNary will be punished despite his innocence. Solution: let Dr. McNary testify as to what he was told by the other attorney, and conduct an investigation, stay the execution pending discovery of other evidence supporting a new trial.
Problem 12-B: Client hires attorney to oversee the consignment sale of a printing press, which has been connected with the printing of counterfeit money by a secret service agent. The attorney claims that he has only communicated with the client by correspondence, and refuses to produce that correspondence when subpoenaed, citing attorney-client privilege on behalf of the client.
Issue: Whether the attorney may invoke the privilege.
Answer: No. The attorney here has not been hired in his capacity as an
attorney per se, but rather as a selling agent. These are professional services he is rendering, rather than attorney services.
Problem 12-C: Woodburn is out on bail and fails to appear for the trial. The gov't seeks to add a charge of bail jumping. His attorney is called to testify whether or not he told his client of the date of the trial. The attorney invokes the privilege.
Issue: Whether the attorney may invoke the privilege with respect to whether he informed his client of the date and place of the trial.
Answer: No. The privilege should only cover implied statements made by
the defendant, not information supplied to him if it is otherwise neutral. There is no reason to believe that the defendant would behave differently if he knew that this information was being used against him. Anyone could have told him of the time and place of trial.
Problem 12-D:  One attorney meets with a drunk man he is representing in
a probate matter. After the man leaves his office, he gets into an auto accident. At his trial for drunk driving, the man is being represented
by other counsel, and the probate attorney is called to testify against
Issue: What may the attorney testify to without the shield of privilege.
Answer: The attorney may testify as to any matter which did not concern
his relationship with the defendant, such as his drunken appearance when
they met. These matters are observable by anyone, and not the kind of
behavior that the client intended to be confidential as evidenced by his
driving drunk in public.
Problem 12-E: Defendant in tax evasion case transfers all records to her
Issue: Whether the court may compel the attorney to disclose the records.
Answer: Not if they contain matter that would have been privileged under
the 5th amendment right against self-incrimination had they been kept in
her possession.
People v. Meredith, (1981)
Facts: Scott was involved in a murder/robbery. While he was in prison awaiting trial, he disclosed to his first defense attorney that he had
taken the wallet belonging to the victim, and placed it in the trash
behind his house. The first defense attorney then hired an investigator
to retrieve the wallet, and subsequently turned it over to the
Procedural Posture: At trial, the first defense attorney was called to the stand and compelled, over an assertion of privilege, to testify that he only learned of the location of the wallet through the statements of the defendant. The defendant was convicted.
Issue: Whether, if a defense counsel learns of the location of evidence solely through privileged confidential communications from his client, and subsequently removes that evidence from where it was found, the defense counsel may be compelled to testify as to his observations concerning the original location and condition of the evidence.
Holding: Yes.
Reasoning: There is a balance to be struck. The observations of counsel should be privileged if they are based solely on confidential communications from the defendant. However, if the privilege were to
extend to the location and condition of evidence which the counsel has
taken possession of, or altered, that would give the attorney license to
tamper with evidence. It would be a race to discover evidence because
the counsel could effectively sever any ties that the defendant had with
it simply by taking it from its original location, and turning it over
to the prosecutor. The compromise position of protecting the information
unless the police would have found it anyway requires too much
speculation as to future conduct of the police.
United States v. Kovel, (1961)
Facts: Kovel was an accountant at a law firm.
Procedural Posture: Kovel was subpoenaed to testify as to the work that he had done for one of the law firm's clients, who was now under indictment for tax evasion. Kovel's supervising attorneys asserted the attorney-client privilege, even though he was an accountant.
Issue: Whether the attorney client privilege extends to communications made to persons who are acting as agents of the attorney for the purpose of assisting with technical or menial tasks.
Holding: Yes.
Reasoning: The presence and work of various specialized assistants is necessary for a lawyer to give the best legal advice possible. Without these assistants acting as his agents, the client would be poorly served. However, the privilege would not cover communications made if the advice sought were really the professional services of the specialized assistant, rather than the legal advice of the attorney.
Problem 12-F: A failed disk-importing business.  1.  At deposition by a
dissatisfied customer, the customer asks the partnership lawyer what the
partners told him about the quality of foreign disks. 2. One of the
partners sues the other for an accounting, and proposes to testify as to
what the other partner said at the meeting where the partnership was
originally discussed. 3. At the criminal trial of both defendants, one
partner proposes to testify as to what the other partner said at a legal
defense strategy meeting.
Issue: Whether the privilege may be invoked in situations 1, 2 and 3.
Answer: 1. Yes. The partners were seeking legal advice concerning their
joint partnership, and those communications should be privileged from
outsiders. 2. No. The partners' legal interests are now conficting. It
is as if the partnership as an entity is willing to waive its privilege,
and so the lawyer can not invoke one's privilege to prevent the other
from testifying. 3. Yes. The communications were made in a meeting
where, again, their interests were sufficiently overlapping. Also, since
his own lawyer was present, the one partner may be said to expect some
confidentiality in his statements.
Suburban Sew ÔN Sweep v. Swiss-Bernina, (1981)
Facts: Suburban is a retailer of sewing machines distributed by Swiss. Suburban suspected violation of price discrimination laws by Swiss, and so began to search their trash dumpster for evidence. They found several handwritten drafts of letters that were intended to be confidential communications, and on the basis of these brought suit.
Procedural Posture: Swiss asserted attorney-client privilege with respect to certain ones of the papers found in the trash. The lower court refused the recovered drafts from being admissible, and further disallowed all evidence gained from the trash.
Issue: Whether the deliberate placement of the original drafts of these letters in the trash constituted a loss of the attorney-client privilege.
Holding: Yes.
Reasoning: The materials not subject to privilege could have been obtained by discovery anyway. The intent of the defendants to maintain the confidentiality of the documents was outweighed by the state interest in strictly construing privilege. Here, the defendants could easily take steps to protect their confidentiality. Thus, the rule does not inhibit legal consultation. For example, the defendants now use a paper shredder.
Upjohn v. United States, (1981)
Facts: It came to the attention of Upjohn's corporate counsel that some illegal payments to foreign governments had been made in order to secure foreign business. In response, and in preparation for litigation, the corporate counsel sent out a questionnaire to the employees involved, and also interviewed them.
Procedural Posture: At trial, the court demanded that the questionnaire responses, and the notes from the interview, be disclosed. Upjohn  claimed corporate attorney-client privilege. However, the court denied the privilege, claiming that the employees who responded were not entitled to a privilege because they were not part of the magical "control group" of persons who "controlled" the corporation.
Issue: Whether the responses to the questionnaires and the notes from the interviews are privileged.
Holding: Yes.
Reasoning: The corporate counsel was acting in a legal capacity to
advise the corporation. As such, employees that discussed the subject
for the purpose of securing legal advice were entitled to the privilege.
The "control group" approach is too vague and chills communication.
However, only communications are privileged, it does not protect
disclosure of the underlying facts by the employees themselves. The
work-product created during the interviews is protected by Hickman.
These privileges are required to encourage corporate clients to seek
legal advice as to how to conform to the law.
- you must know the law of privilege as it relates to corporation:  you need to have a communication concerning matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.
- however, many states still use the control group test.  (work product is often and issue that comes under these types of cases.  Hickman v. Taylor.: material prepared in anticipation of litigation.)
- Notes:  be sure to look up rule in casenotes about this case because he spent so much time rambling on about this stuff!!!!


In Re Durant, (1983)
Facts: Durant is the attorney of someone whom the FBI traced as having stolen checks payable to IBM. Durant refused to tell the FBI the name of the client who paid him with money traced from an account which held the stolen checks, asserting attorney-client privilege.
Procedural Posture: Durante was held in contempt.
Issue: Whether the identity of the client here falls within one of the exceptions to the general rule that client identity is not privileged.
Holding: No.
Reasoning: There are several recognized exceptions that make the identity of a client privileged: 1. the name of the client is only material for the purpose of showing an acknowledgment of guilt, 2. the identity would implicate the client in the very matter for which he sought legal advice in the first place [the "legal advice" exception], 3. disclosure of the identity would amount to disclosure of the confidential information. However, these exceptions focus on the connection between the client and the communication, rather than the client and the possibility of criminal liability. Here, the facts do not fit any of the exceptions.
State v. Phelps, (1976)
Facts: Phelps' first attorney withdrew from his DUI case after learning that Phelps lied to him about the facts. He then hired another attorney, and perjured himself to win the case.
Procedural Posture: Phelps is tried for perjury. The first attorney is called to testify that Phelps intended to commit perjury. Phelps moves to disallow the testimony based on the attorney-client privilege.
Issue: Whether the intent to commit a crime in the future is privileged information under the attorney-client privilege.
Holding: No.
Reasoning: Although communications concerning a prior wrongdoing are
privileged, future wrongdoing is not. The rationale is that only communications made in professional confidence and professional
employment are privileged. If the client lies to the attorney about his
intent to commit a future crime, then there was no confidence in the
attorney. If the client reveals his future plans, then there is no professional employment because the lawyer may not further the conspiracy. As such, the client either conspires with or deceives the attorney as to future crimes.

When relationship is formed:  when a person would have a  reasonable expectation that such a relationship was formed.  It is not really at the same point in which the lawyer may think it was formed.  Can be done through a phone or even email/chat line.

Doctor/ Patient privilege
- relationship: between doctor and patient, can be dentist and just a medical provider
- protection:  confidential communications (information obtained during the relationship)  MN:  case regarding orderly who found drugs on drugged out patient and the court found that the privilege was not applicable under the facts of the case.
- who owns:  patient owns the privilege and is very easily waived (not thought of as a very important privilege).  For example, if the P puts his health in issue in the case, the court will waive this to find out what occurred.
- exceptions:  vary depending on the jurisdiction.  For example, one exception is the mandatory reporting exception (abused kids, etc). There is another exception where the court find that a tort duty exists when the medical care provider learns that the person is about to commit a crime.

State v. Miller, (1985) (atty/client relationship can be established on a phone and also a chat line or email).
Facts: Miller called a hospital and told the receptionist on duty that he had just murdered someone. The receptionist called the authorities, and then gave the call to the on-duty psychotherapist. The doctor assured Miller that his information would be confidential. However, this was just a ruse to keep him on the line to trace the call. Miller was found and arrested.
Procedural Posture: At trial, the prosecution sought to have both the
psychotherapist and receptionist testify as to what Miller said to them.
Issue: Whether a criminal defendant may invoke the doctor-patient privilege if the statements were made under circumstances that reasonably led him to believe that they were confidential and necessary for treatment.
Holding: Yes.
Reasoning: It does not matter that the psychotherapist did not actually intend to develop a doctor patient relationship with Miller. It is sufficient that she led him to reasonably believe that she was going to treat him. The receptionist falls under the necessary agent umbrella of the privilege because a reasonable person would have believed that they needed to disclose the crime to her before being able to talk to the doctor.

Marital Privileges
-  there are 2 privileges:  communication privilege and a privilege for adverse testimony.  (they both protect the same sort of stuff on the basis to protect the marital relationship and to protect sharing of confidential matters between spouses and privacy between the people should be upheld)
-  relationship:
 a)  communication: must be married at the time of communication (does not matter if they divorce later)
 b)  adverse testimony:  all adverse testimony and is must broader of a privilege (when applicable it precludes the spouse from any adverse testimony.)
-  what:
 a)  communication:  actual confidential communications - can be verbal or non verbal.  (only communications, not observations are protected under the Estes case.)
 b)  adverse testimony:  must be married at the time of the testimony.
- who owns:
 a)  communication:  who knows?????????? (depends on the situation and the court - but most courts says that either party can assert the privilege)
 b)  adverse testimony:  up until Trammel, the party owned it. However, now, at least in the federal system, the witness spouse owns it.
- waiver:
 a)  communication:  against by disclosure (if you tell someone other than the spouse, that will be enough).  Must be done by the party that is asserting the privilege.
 b)  adverse testimony:  the same as communication
-  exceptions:
 a)  communication:  crimes against children allow for some narrow exceptions and there is a growing exception for joint criminal activity and joint fraud situations. ( people are not able to assert the privilege when they are committing crimes).  There are also some exceptions that relate to the quality of the marriage and sometimes you will see that if the couple is not together still, it may be enough for the court to determine that no privilege exists like in the Trammel case.
 b)  adverse testimony:  premarital activities are not protected.  In addition to the other exceptions under communication.
- keep in mind, that some states have both or either types of the marital privilege

Trammel v. United States, (1980)
Facts: Trammel and his wife were jointly involved in smuggling heroin. The wife was caught red-handed, and she agreed to testify against her husband in return for leniency.
Procedural Posture: Trammel moved to sever the case, asserting that he held a spousal privilege with respect to his wife's testimony.
Issue: Whether the testimonial privilege against adverse testimony by a spouse may be invoked by the defendant spouse.
Holding: No.
Reasoning: There are no modern reasons to keep this archaic law. Women are no longer property. Furthermore, when one spouse is willing to testify against another, then the marriage is in danger already. Thus, the witness-spouse alone has the privilege to refuse to testify adversely. The defendant-spouse is not the holder of the adverse testimony privilege. However, the defendant spouse still holds the privilege with respect to confidential communications made within the confidence of the marital relationship.
Problem 12-G: Husband flees from a hit-and-run accident that was
witnessed by wife. When wife comes home, she tells the babysitter that
the husband ran over someone. At trial, the wife invokes the spousal
privilege, but the prosecution calls the babysitter.
Issue: Whether the babysitter may relate the wife's statements in court
even though the wife asserts her testimonial privilege.
Answer: Yes. The privilege is available only to the extent that it
prevents her own in-court testimony. The babysitter is free to testify
as to what she observed. Also, the wife waived any confidentiality when
she revealed the matter to a third person, breaching confidentiality.
United States v. Estes, (1986)
Facts: Husband came home with a bag of stolen money and told wife
that he stole it. They both then proceeded to hide the money and use it.
Later they separated, and she went to the FBI with the story.
Procedural Posture: At the husband's trial, he unsuccessfully asserted the marital confidence privilege to attempt to prevent his wife from testifying against him concerning the origin of the money, and his participation in the hiding and use of it.
Issue: Whether confidential communications concerning ongoing criminal activity between two conspiring spouses are privileged.
Holding: No.
Reasoning: The communication as to the origin of the money was not
part of an ongoing criminal activity, and should not have been admitted.
However, the ongoing hiding and use of the money was properly allowed
because it was not intended to convey a confidential message. Also,
there is a "partnership in crime" exception which is based on the fact
that greater good will come from permitting a willing spouse to testify
against her husband where they were both engaged in the criminal

Side Notes about privileges
- will depend on the state which will often consider a privilege for respectable people in society, like in MN, there is a privilege amount the parent and the child, in Delaware: insurance and insurer, and in Wisconsin: teacher - student privilege.
- often there are privileges among those through ADR and other alternative dispute mechanisms.  (including illegal activity that occurs during mediation).


-  evidence must be sufficient to support a findings that the matter in question is what its proponent claims.

4 steps to admit
1)  mark it:  (you mark it)
2)  identify it: (witness is asked to identify is not self-authenticating document)
3)  introduce it: (exchange documents or show to adverse counsel and offer into  evidence as an exhibit and the judge must state that they admit the evidence.)
4)  publish it (give copies to the jury or allow exhibit into evidence)

reply doctrine:  when a person submits a request to someone and then they get a letter in response (the letter is authenticated.)

- there is no requirement that you produce the most persuasive evidence to prove a particular point.  It does not matter if there are better ways to prove certain things.

However, there is a very limited original writings rule.
- only applies when the contents of a writing are to be established, then the rule is applicable.  Only when you are trying to prove the contents of a writing.  (simply because you have a writing or film to prove a fact, you do not have to use the most persuasive way to prove it. )

- If you ask someone what a document says or what the testimony was: you have a original writing rule.  Whenever you are asking what a document or recordings says, you have a problem.  Not anything else.









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